01 Staff Report. Builder's Remedy Study Session with attachments
Reviewed by: Town Manager, Assistant Town Manager, and Community Development Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 09/03/2024 ITEM NO: 1
DATE: August 29, 2024
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Conduct a Study Session to Receive Information on and Discuss Senate Bill
330, Builder’s Remedy, Density Bonus Law, Existing Litigation Outcomes,
Proposed State Laws, and the Town Planning Application Review Process
RECOMMENDATION:
Conduct a Study Session to Receive Information on and Discuss Senate Bill 330, Builder’s
Remedy, Density Bonus Law, Existing Litigation Outcomes, Proposed State Laws, and the Town
Planning Application Review Process.
BACKGROUND AND DISCUSSION:
The purpose of this study session is for the Town Council and members of the public to receive
and discuss information regarding the Town’s processes for reviewing planning applications and
applicable state laws such as Senate Bill 330, the Builder’s Remedy, and Density Bonus Law.
Staff and special counsel will provide:
1) A Summary of Senate Bill 330, the Builder’s Remedy, and Density Bonus Law;
2) An Overview of the Town’s Planning Application Review Process; and
3) A Summary of Litigation Outcomes to Date and Proposed State Laws.
Summary of the Builder’s Remedy, Senate Bill 330, and Density Bonus Law
1) The Builder’s Remedy
The Builder’s Remedy is codified in Government Code Section 65589.5, a copy of which is
attached as Attachment 1. This law has been codified for a long time, but was not commonly
referenced by applicants until 2015. Government Code Section 65589.5(d) sets forth five
grounds on which a city or town can disapprove a housing development project that includes
20 percent lower income housing. Per Government Code Section 65589.5(d)(5), one of those
PAGE 2 OF 5 SUBJECT: Study Session Regarding Builder’s Remedy, Senate Bill 330, and Density Bonus Law DATE: August 29, 2024
BACKGROUND AND DISCUSSION (continued):
grounds is that the city or town has an adopted housing element that substantially complies
with state law and the project is inconsistent with the zoning ordinance and general plan
designation.1 Subsection (d)(1) is known as the “Builder’s Remedy,” because if a city or town
does not have a housing element complying with state law, this finding cannot be made to deny
a project that is inconsistent with the general plan and zoning.
Government Code Section 65589.5(d) also sets forth four additional grounds upon which cities
or towns can deny or modify projects. In addition, Government Code Section 65589.5(f)(1)
provides that “. . . nothing in this section shall be construed to prohibit a local agency from
requiring the housing development project to comply with objective, quantifiable, written
development standards, conditions, and policies appropriate to, and consistent with, meeting
the jurisdiction’s share of the regional housing need pursuant to Section 65584. However, the
development standards, conditions, and policies shall be applied to facilitate and accommodate
development at the density permitted on site and proposed by the development.”
2) Senate Bill 330
Senate Bill 330 (2019) enacted Government Code Section 65941.1 (Attachment 2) to authorize
a “vesting” process for housing development applicants. If applicants submit a preliminary
application with the information required by the statute, the applicants vest to the Town
standards in place at the time the preliminary application was submitted. In cities and towns
without HCD-approved housing elements, applicants have submitted SB 330 preliminary
applications and are taking the position that the housing element does not conform with state
law, and they are “vested” to the Town’s status of not having a certified Housing Element.
3) Density Bonus Law
The state Density Bonus Law, codified at Government Code Sections 65915-65918 (Attachment
3), gives housing developers a “density bonus” in exchange for including specified percentages
of affordable housing. The amount of the density bonus increases with the percentage of
affordable units included in the proposed project, up to a 100 percent bonus for mixed-income
projects, or no density limit for some affordable projects. In addition to the density bonus,
project applicants are entitled to seek incentives or concessions and waivers or reductions of
development standards. The statute also provides that, so long as the requisite percentages of
affordable housing are provided, applicants can seek incentives or concessions and waivers
even if the applicant is not utilizing the density bonus.
1 The Town’s “Regional Housing Needs Allocation” is determined by the Association of Bay Area Governments and
establishes the number of housing units that the Town needs to accommodate.
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BACKGROUND AND DISCUSSION (continued):
“Incentives and concessions” are defined as:
a) A reduction in site development standards or a modification of zoning code or
architectural design requirements, such as a reduction in setback or minimum square
footage requirements; or
b) Approval of mixed use zoning; or
c) Other regulatory incentives or concessions which actually result in identifiable and
actual cost reductions.
The number of “incentives and concessions” available is based on the percentage of affordable
units in the project. Cities and towns are required to grant “concessions or incentives” unless
they find that the proposed concession or incentive does not result in identifiable and actual
cost reductions, would have a “specific, adverse impact” that cannot be mitigated on public
health or safety or certain historical properties, or would be contrary to state or federal law.
“Waivers” can be sought if a city or town development standard would physically prevent the
density bonus project (as proposed) from being built at the permitted density and with the
granted concessions or incentives. A city or town is not required to waive or reduce
development standards that would cause a “specific, adverse impact” that cannot be mitigated
on public health or safety, harm certain historical properties, or be contrary to state or federal
law. The wavier or reduction of a development standard does not count as an incentive or
concession, and there is no limit on the number of waivers that may be requested or granted.
Examples of development standards for which waivers can be sought are: setback and lot
coverage requirements; and height limits. The most recent published case on waivers states
that they must be provided for buildings “as designed.”
In addition, there are reduced parking standards for density bonus projects.
The Town’s Processes for Reviewing Planning Applications
A Workflow Diagram of the Town’s review process is attached as Attachment 4 to this staff
report. A more detailed description follows.
1) Senate Bill 330 Preliminary Application
If an applicant submits a Senate Bill 330 preliminary application, Town staff confirms that all of
the elements required by Government Code Section 65941.1 have been submitted. Once staff
has confirmed that all of the required information has been submitted, the preliminary
PAGE 4 OF 5 SUBJECT: Study Session Regarding Builder’s Remedy, Senate Bill 330, and Density Bonus Law DATE: August 29, 2024
BACKGROUND AND DISCUSSION (continued):
application materials are posted on-line and, if the proposed project is three stories or more,
notice cards are mailed to all properties within 1000 feet of the project site.
2) Formal Application
If an applicant wishes to retain the vesting rights afforded by an SB 330 preliminary application,
an applicant has 180 days from the date a complete SB 330 preliminary application was
submitted to submit a formal application. Town staff reviews the formal planning application
for completeness. If the formal application is incomplete, the applicant has 90 days to submit a
complete application. If a complete application is not submitted within that timeframe, the
vesting afforded by Senate Bill 330 ends.
An applicant can submit a non-vested formal planning application at any time. When Town
staff receives a formal planning application, the first step is technical review. The Planning
Division, the Building Division, the Santa Clara County Fire Department, and the Public Works
Engineering group list incomplete items and identify inconsistencies with Town standards. The
applicant resubmits an application to address those comments. Staff reviews the resubmittal
to determine whether the previous comments have been resolved. This process can be
repeated as many times as needed until all comments have been addressed. (For Builder’s
Remedy projects, the applicant may ask the Town to consider the application at a public
hearing regardless of any remaining inconsistencies.) Concurrently with the review process,
Town staff oversees environmental review of the impacts of a proposed project. Once the
environmental review has been completed and Town staff’s review process has come to an
end, the project is scheduled for public hearings. There is a limit of five public hearings for all
housing development projects, including single-family homes.
Summary of Litigation Outcomes To Date
The court decisions issued to date have primarily involved determinations by cities that
Builder’s Remedy planning applications are incomplete and therefore cannot be processed. To
date, courts have held that cities are required to take in Builder’s Remedy planning applications
for processing. Barbara Kautz, a partner with the law firm of Goldfarb & Lipman, is closely
monitoring this litigation and will verbally summarize the cases decided to date.
Proposed State Laws
The Legislature appears ready to approve two bills, AB 1886 and AB 1893, that are intended to
make it much easier for developers to use the Builder’s Remedy and that allow developers with
PAGE 5 OF 5 SUBJECT: Study Session Regarding Builder’s Remedy, Senate Bill 330, and Density Bonus Law DATE: August 29, 2024
BACKGROUND AND DISCUSSION (continued):
existing Builder’s Remedy projects to modify their projects to take advantage of the new
provisions. Outside counsel will provide a brief summary of these bills.
CONCLUSION:
Staff looks forward to a discussion of these topics.
COORDINATION:
This report was coordinated with the Community Development Department and the Town
Manager’s Office.
FISCAL IMPACT:
There is no fiscal impact associated with this study session.
ENVIRONMENTAL ASSESSMENT:
This study session is not a project subject to CEQA, because no action will be taken.
Attachments:
1. Builder’s Remedy Statute
2. SB 330 Preliminary Application Statute
3. Density Bonus Statute
4. Workflow Diagram of Town’s Planning Application Review Process
Cal. Gov. Code § 65589.5
Section 65589.5 - Housing Accountability Act
(a)
(1)The Legislature finds and declares all of the following:
(A)The lack of housing, including emergency shelters, is a critical problem that
threatens the economic, environmental, and social quality of life in California.
(B)California housing has become the most expensive in the nation. The excessive cost
of the state's housing supply is partially caused by activities and policies of many local
governments that limit the approval of housing, increase the cost of land for housing,
and require that high fees and exactions be paid by producers of housing.
(C)Among the consequences of those actions are discrimination against low-income
and minority households, lack of housing to support employment growth, imbalance in
jobs and housing, reduced mobility, urban sprawl, excessive commuting, and air quality
deterioration.
(D)Many local governments do not give adequate attention to the economic,
environmental, and social costs of decisions that result in disapproval of housing
development projects, reduction in density of housing projects, and excessive standards
for housing development projects.
(2)In enacting the amendments made to this section by the act adding this paragraph, the
Legislature further finds and declares the following:
(A)California has a housing supply and affordability crisis of historic proportions. The
consequences of failing to effectively and aggressively confront this crisis are hurting
millions of Californians, robbing future generations of the chance to call California
home, stifling economic opportunities for workers and businesses, worsening poverty
and homelessness, and undermining the state's environmental and climate objectives.
(B)While the causes of this crisis are multiple and complex, the absence of meaningful
and effective policy reforms to significantly enhance the approval and supply of housing
affordable to Californians of all income levels is a key factor.
(C)The crisis has grown so acute in California that supply, demand, and affordability
fundamentals are characterized in the negative: underserved demands, constrained
supply, and protracted unaffordability.
(D)According to reports and data, California has accumulated an unmet housing
backlog of nearly 2,000,000 units and must provide for at least 180,000 new units
annually to keep pace with growth through 2025.
(E)California's overall home ownership rate is at its lowest level since the 1940s. The
state ranks 49th out of the 50 states in home ownership rates as well as in the supply of
1
ATTACHMENT 1
housing per capita. Only one-half of California's households are able to afford the cost
of housing in their local regions.
(F) Lack of supply and rising costs are compounding inequality and limiting
advancement opportunities for many Californians.
(G) The majority of California renters, more than 3,000,000 households, pay more than
30 percent of their income toward rent and nearly one-third, more than 1,500,000
households, pay more than 50 percent of their income toward rent.
(H) When Californians have access to safe and affordable housing, they have more
money for food and health care; they are less likely to become homeless and in need of
government-subsidized services; their children do better in school; and businesses have
an easier time recruiting and retaining employees.
(I) An additional consequence of the state's cumulative housing shortage is a significant
increase in greenhouse gas emissions caused by the displacement and redirection of
populations to states with greater housing opportunities, particularly working- and
middle-class households. California's cumulative housing shortfall therefore has not
only national but international environmental consequences.
(J) California's housing picture has reached a crisis of historic proportions despite the
fact that, for decades, the Legislature has enacted numerous statutes intended to
significantly increase the approval, development, and affordability of housing for all
income levels, including this section.
(K) The Legislature's intent in enacting this section in 1982 and in expanding its
provisions since then was to significantly increase the approval and construction of new
housing for all economic segments of California's communities by meaningfully and
effectively curbing the capability of local governments to deny, reduce the density for,
or render infeasible housing development projects and emergency shelters. That intent
has not been fulfilled.
(L) It is the policy of the state that this section be interpreted and implemented in a
manner to afford the fullest possible weight to the interest of, and the approval and
provision of, housing.
(3) It is the intent of the Legislature that the conditions that would have a specific, adverse
impact upon the public health and safety, as described in paragraph (2) of subdivision (d)
and paragraph (1) of subdivision (j), arise infrequently.
(b) It is the policy of the state that a local government not reject or make infeasible housing
development projects, including emergency shelters, that contribute to meeting the need
determined pursuant to this article without a thorough analysis of the economic, social, and
environmental effects of the action and without complying with subdivision (d).
(c) The Legislature also recognizes that premature and unnecessary development of
agricultural lands for urban uses continues to have adverse effects on the availability of
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
those lands for food and fiber production and on the economy of the state. Furthermore, it is
the policy of the state that development should be guided away from prime agricultural
lands; therefore, in implementing this section, local jurisdictions should encourage, to the
maximum extent practicable, in filling existing urban areas.
(d) A local agency shall not disapprove a housing development project, including
farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and
Safety Code, for very low, low-, or moderate-income households, or an emergency shelter,
or condition approval in a manner that renders the housing development project infeasible
for development for the use of very low, low-, or moderate-income households, or an
emergency shelter, including through the use of design review standards, unless it makes
written findings, based upon a preponderance of the evidence in the record, as to one of the
following:
(1) The jurisdiction has adopted a housing element pursuant to this article that has been
revised in accordance with Section 65588, is in substantial compliance with this article,
and the jurisdiction has met or exceeded its share of the regional housing need allocation
pursuant to Section 65584 for the planning period for the income category proposed for
the housing development project, provided that any disapproval or conditional approval
shall not be based on any of the reasons prohibited by Section 65008. If the housing
development project includes a mix of income categories, and the jurisdiction has not met
or exceeded its share of the regional housing need for one or more of those categories,
then this paragraph shall not be used to disapprove or conditionally approve the housing
development project. The share of the regional housing need met by the jurisdiction shall
be calculated consistently with the forms and definitions that may be adopted by the
Department of Housing and Community Development pursuant to Section 65400. In the
case of an emergency shelter, the jurisdiction shall have met or exceeded the need for
emergency shelter, as identified pursuant to paragraph (7) of subdivision (a) of Section
65583. Any disapproval or conditional approval pursuant to this paragraph shall be in
accordance with applicable law, rule, or standards.
(2) The housing development project or emergency shelter as proposed would have a
specific, adverse impact upon the public health or safety, and there is no feasible method
to satisfactorily mitigate or avoid the specific, adverse impact without rendering the
development unaffordable to low- and moderate-income households or rendering the
development of the emergency shelter financially infeasible. As used in this paragraph, a
"specific, adverse impact" means a significant, quantifiable, direct, and unavoidable
impact, based on objective, identified written public health or safety standards, policies, or
conditions as they existed on the date the application was deemed complete. The
following shall not constitute a specific, adverse impact upon the public health or safety:
(A) Inconsistency with the zoning ordinance or general plan land use designation.
(B) The eligibility to claim a welfare exemption under subdivision (g) of Section 214 of
the Revenue and Taxation Code.
(3) The denial of the housing development project or imposition of conditions is required
in order to comply with specific state or federal law, and there is no feasible method to
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
comply without rendering the development unaffordable to low- and moderate-income
households or rendering the development of the emergency shelter financially infeasible.
(4) The housing development project or emergency shelter is proposed on land zoned for
agriculture or resource preservation that is surrounded on at least two sides by land being
used for agricultural or resource preservation purposes, or which does not have adequate
water or wastewater facilities to serve the project.
(5) The housing development project or emergency shelter is inconsistent with both the
jurisdiction's zoning ordinance and general plan land use designation as specified in any
element of the general plan as it existed on the date the application was deemed complete,
and the jurisdiction has adopted a revised housing element in accordance with Section
65588 that is in substantial compliance with this article. For purposes of this section, a
change to the zoning ordinance or general plan land use designation subsequent to the
date the application was deemed complete shall not constitute a valid basis to disapprove
or condition approval of the housing development project or emergency shelter.
(A) This paragraph cannot be utilized to disapprove or conditionally approve a housing
development project if the housing development project is proposed on a site that is
identified as suitable or available for very low, low-, or moderate-income households in
the jurisdiction's housing element, and consistent with the density specified in the
housing element, even though it is inconsistent with both the jurisdiction's zoning
ordinance and general plan land use designation.
(B) If the local agency has failed to identify in the inventory of land in its housing
element sites that can be developed for housing within the planning period and are
sufficient to provide for the jurisdiction's share of the regional housing need for all
income levels pursuant to Section 65584, then this paragraph shall not be utilized to
disapprove or conditionally approve a housing development project proposed for a site
designated in any element of the general plan for residential uses or designated in any
element of the general plan for commercial uses if residential uses are permitted or
conditionally permitted within commercial designations. In any action in court, the
burden of proof shall be on the local agency to show that its housing element does
identify adequate sites with appropriate zoning and development standards and with
services and facilities to accommodate the local agency's share of the regional housing
need for the very low, low-, and moderate-income categories.
(C) If the local agency has failed to identify a zone or zones where emergency shelters
are allowed as a permitted use without a conditional use or other discretionary permit,
has failed to demonstrate that the identified zone or zones include sufficient capacity to
accommodate the need for emergency shelter identified in paragraph (7) of subdivision
(a) of Section 65583, or has failed to demonstrate that the identified zone or zones can
accommodate at least one emergency shelter, as required by paragraph (4) of
subdivision (a) of Section 65583, then this paragraph shall not be utilized to disapprove
or conditionally approve an emergency shelter proposed for a site designated in any
element of the general plan for industrial, commercial, or multifamily residential uses.
In any action in court, the burden of proof shall be on the local agency to show that its
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
housing element does satisfy the requirements of paragraph (4) of subdivision (a) of
Section 65583.
(e) Nothing in this section shall be construed to relieve the local agency from complying
with the congestion management program required by Chapter 2.6 (commencing with
Section 65088) of Division 1 of Title 7 or the California Coastal Act of 1976 (Division 20
(commencing with Section 30000) of the Public Resources Code). Neither shall anything in
this section be construed to relieve the local agency from making one or more of the
findings required pursuant to Section 21081 of the Public Resources Code or otherwise
complying with the California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code).
(f)
(1) Except as provided in subdivision (o), nothing in this section shall be construed to
prohibit a local agency from requiring the housing development project to comply with
objective, quantifiable, written development standards, conditions, and policies
appropriate to, and consistent with, meeting the jurisdiction's share of the regional
housing need pursuant to Section 65584. However, the development standards,
conditions, and policies shall be applied to facilitate and accommodate development at the
density permitted on the site and proposed by the development.
(2) Except as provided in subdivision (o), nothing in this section shall be construed to
prohibit a local agency from requiring an emergency shelter project to comply with
objective, quantifiable, written development standards, conditions, and policies that are
consistent with paragraph (4) of subdivision (a) of Section 65583 and appropriate to, and
consistent with, meeting the jurisdiction's need for emergency shelter, as identified
pursuant to paragraph (7) of subdivision (a) of Section 65583. However, the development
standards, conditions, and policies shall be applied by the local agency to facilitate and
accommodate the development of the emergency shelter project.
(3) Except as provided in subdivision (o), nothing in this section shall be construed to
prohibit a local agency from imposing fees and other exactions otherwise authorized by
law that are essential to provide necessary public services and facilities to the housing
development project or emergency shelter.
(4) For purposes of this section, a housing development project or emergency shelter shall
be deemed consistent, compliant, and in conformity with an applicable plan, program,
policy, ordinance, standard, requirement, or other similar provision if there is substantial
evidence that would allow a reasonable person to conclude that the housing development
project or emergency shelter is consistent, compliant, or in conformity.
(g) This section shall be applicable to charter cities because the Legislature finds that the
lack of housing, including emergency shelter, is a critical statewide problem.
(h) The following definitions apply for the purposes of this section:
(1) "Feasible" means capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic, environmental, social, and
technological factors.
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
(2) "Housing development project" means a use consisting of any of the following:
(A) Residential units only.
(B) Mixed-use developments consisting of residential and nonresidential uses with at
least two-thirds of the square footage designated for residential use.
(C) Transitional housing or supportive housing.
(3) "Housing for very low, low-, or moderate-income households" means that either (A) at
least 20 percent of the total units shall be sold or rented to lower income households, as
defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the units
shall be sold or rented to persons and families of moderate income as defined in Section
50093 of the Health and Safety Code, or persons and families of middle income, as
defined in Section 65008 of this code. Housing units targeted for lower income
households shall be made available at a monthly housing cost that does not exceed 30
percent of 60 percent of area median income with adjustments for household size made in
accordance with the adjustment factors on which the lower income eligibility limits are
based. Housing units targeted for persons and families of moderate income shall be made
available at a monthly housing cost that does not exceed 30 percent of 100 percent of area
median income with adjustments for household size made in accordance with the
adjustment factors on which the moderate-income eligibility limits are based.
(4) "Area median income" means area median income as periodically established by the
Department of Housing and Community Development pursuant to Section 50093 of the
Health and Safety Code. The developer shall provide sufficient legal commitments to
ensure continued availability of units for very low or low-income households in
accordance with the provisions of this subdivision for 30 years.
(5) Notwithstanding any other law, until January 1, 2030, "deemed complete" means that
the applicant has submitted a preliminary application pursuant to Section 65941.1 or, if
the applicant has not submitted a preliminary application, has submitted a complete
application pursuant to Section 65943.
(6) "Disapprove the housing development project" includes any instance in which a local
agency does any of the following:
(A) Votes on a proposed housing development project application and the application is
disapproved, including any required land use approvals or entitlements necessary for the
issuance of a building permit.
(B) Fails to comply with the time periods specified in subdivision (a) of Section 65950.
An extension of time pursuant to Article 5 (commencing with Section 65950) shall be
deemed to be an extension of time pursuant to this paragraph.
(C) Fails to meet the time limits specified in Section 65913.3.
(D)
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
(i) Fails to make a determination of whether the project is exempt from the California
Environmental Quality Act (Division 13 (commencing with Section 21000) of the
Public Resources Code), or commits an abuse of discretion, as defined in this
subparagraph, if all of the following conditions are satisfied:
(I) There is substantial evidence in the record before the local agency that the
housing development project is not located in either of the following:
(ia) On a site specified in subparagraphs (A) to (C), inclusive, or subparagraphs
(E) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4.
(ib) 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.
(II) The housing development project is located on a legal parcel or parcels within
an urbanized area and meets one or more of the following criteria:
(ia) The housing development project is located within one-half mile walking
distance to either a high-quality transit corridor or a major transit stop.
(ib) The housing development project is located in a very low vehicle travel area.
(ic) The housing development project is proximal to six or more amenities
pursuant to subclause (IV) of clause (ii) as of the date of submission of the
application for the project.
(id) Parcels that are developed with urban uses adjoin at least 75 percent of the
perimeter of the project site or at least three sides of a foursided project site. For
purposes of this clause, parcels that are only separated by a street or highway shall
be considered to be adjoined.
(III) The density of the housing development project meets or exceeds 15 dwelling
units per acre.
(IV) Both of the following criteria are met:
(ia) There is substantial evidence in the record before the local agency that the
housing development project is eligible for an exemption sought by the applicant.
(ib) If the exemption sought by the applicant is subject to an exception under the
Guidelines for Implementation of the California Environmental Quality Act
(Chapter 3 (commencing with Section 15000) of Division 6 of Title 14 of the
California Code of Regulations), there is substantial evidence in the record before
the local agency that the application of that categorical exemption is not barred by
one of the exceptions set forth in Section 15300.2 of those guidelines.
(V)
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
(ia) The applicant has given timely written notice to the local agency of the action
or inaction that the applicant believes constitutes a failure to make a determination
or an abuse of discretion, as defined in this subparagraph, and the local agency did
not make a lawful determination within 90 days of the applicant's written notice.
The applicant's written notice shall contain all of the following:
(Ia) The information specified in paragraphs (1), (2), (5), and (6) of subdivision
(a) of Section 15062 of Title 14 of the California Code of Regulations.
(Ib) A citation to the section of Title 14 of the California Code of Regulations or
the statute under which the applicant asserts that the project is exempt.
(Ic) A brief statement of reasons supporting the assertion that the project is
exempt.
(Id) A copy of the excerpts from the record constituting substantial evidence that
the criteria of subclauses (I) to (IV), inclusive, are satisfied.
(ib) Within five working days of receiving the applicant's written notice required
by sub-subclause (ia), the local agency shall file the notice with the county clerk of
each county in which the project will be located. The county clerk shall post the
notice and make it available for public inspection in the manner set forth in
subdivision (c) of Section 21152 of the Public Resources Code. Compliance with
this sub-subclause is not a condition that must be satisfied in order to find that the
local agency has disapproved the housing development project under this
subparagraph.
(ic) The local agency may, by providing a written response to the applicant within
90 additional days of the applicant's written notice, extend the time period to make
a lawful determination by no more than 90 days if the extension is necessary to
determine if there is substantial evidence in the record that the housing
development project is eligible for the exemption sought by the applicant.
(id) If the local agency has given the applicant written notice of the local agency's
determination that the project is not exempt, the applicant's notice shall be deemed
timely if and only if it is delivered to the local agency within 35 days of the date
that the local agency gave the applicant notice of the local agency's determination.
(ie) If the local agency has not given the applicant the written notice described in
sub-subclause (id), the applicant's notice shall be deemed timely if given after 60
days from the date on which the project application has been received and
accepted as complete by the lead agency, or 60 days from the date on which the
project application has been determined or deemed to be complete within the
meaning of Section 65943, whichever is earlier.
(ii) For purposes of this subparagraph, the following definitions apply:
(I) "Abuse of discretion" means that the conditions set forth in subclauses (I) to
(IV), inclusive, of clause (i) are satisfied, but the local agency does not determine
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
that the project is exempt from the California Environmental Quality Act (Division
13 (commencing with Section 21000) of the Public Resources Code). This subclause
sets forth the exclusive definition of "abuse of discretion" for purposes of this
subparagraph.
(II) "High-quality transit corridor" has the same meaning defined in subdivision (b)
of Section 21155 of the Public Resources Code.
(III) "Major transit stop" has the same meaning as defined in Section 21064.3 of the
Public Resources Code.
(IV) "Proximal" to an amenity means either of the following:
(ia) Within one-half mile of either of the following amenities:
(Ia) A bus station.
(Ib) A ferry terminal.
(ib) Within one mile, or for a parcel in a rural area, as defined in Section 50199.21
of the Health and Safety Code, within two miles, of any of the following
amenities:
(Ia) A supermarket or grocery store.
(Ib) A public park.
(Ic) A community center.
(Id) A pharmacy or drugstore.
(Ie) A medical clinic or hospital.
(If) A public library.
(Ig) A school that maintains a kindergarten or any of grades 1 to 12, inclusive.
(V) "Urbanized area" has the same meaning as defined in Section 21071 of the
Public Resources Code.
(VI)
(ia) "Very low vehicle travel area" means an urbanized area, as designated by the
United States Census Bureau, where the existing residential development
generates vehicle miles traveled per capita that is below 85 percent of either
regional vehicle miles traveled per capita or city vehicle miles traveled per capita.
(ib) For purposes of sub-subclause (ia), "area" may include a travel analysis zone,
hexagon, or grid.
(ic) For the purposes of determining "regional vehicle miles traveled per capita"
pursuant to sub-subclause (ia), a "region" is the entirety of incorporated and
unincorporated areas governed by a multicounty or single-county metropolitan
9
Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
planning organization, or the entirety of the incorporated and unincorporated areas
of an individual county that is not part of a metropolitan planning organization.
(iii) This subparagraph shall not be construed to require a local agency to determine
that a project is exempt if, on the record before the local agency, the project is not
eligible for exemption.
(iv) This subparagraph shall become inoperative on January 1, 2031.
(E) Fails to adopt a negative declaration or addendum for the project, to certify an
environmental impact report for the project, or to approve another comparable
environmental document, such as a sustainable communities environmental assessment
pursuant to Section 21155.2 of the Public Resources Code, as required pursuant to the
California Environmental Quality Act (Division 13 (commencing with Section 21000)
of the Public Resources Code), if all of the following conditions are satisfied:
(i) There is substantial evidence in the record before the local agency that the site of
the housing development project is not located on either of the following:
(I) On a site specified in subparagraphs (A) to (C), inclusive, or subparagraphs (E)
to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4.
(II) 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.
(ii) The housing development project is located on a legal parcel or parcels within an
urbanized area and meets one or more of the following criteria:
(I) The housing development project is located within one-half mile walking
distance to either a high-quality transit corridor or a major transit stop.
(II) The housing development project is located in a very low vehicle travel area.
(III) The housing development project is proximal to six or more amenities pursuant
to subclause (IV) of clause (vii) as of the date of submission of the application for
the project.
(IV) Parcels that are developed with urban uses adjoin at least 75 percent of the
perimeter of the project site or at least three sides of a foursided project site. For
purposes of this clause, parcels that are only separated by a street or highway shall
be considered to be adjoined.
(iii) The density of the housing development project meets or exceeds 15 dwelling
units per acre.
(iv) There has been prepared a negative declaration, addendum, environmental impact
report, or comparable environmental review document that, if duly adopted, approved,
or certified by the local agency, would satisfy the requirements of the California
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
Environmental Quality Act (Division 13 (commencing with Section 21000) of the
Public Resources Code) with respect to the project.
(v) The local agency or a body or official to which the agency has delegated authority
to adopt, approve, or certify the negative declaration addendum, environmental impact
report, or comparable environmental review document has held a meeting at which
adoption, approval, or certification of the environmental review document was on the
agenda and the environmental review document could have been adopted, approved,
or certified, as applicable, but the agency did either of the following:
(I) Committed an abuse of discretion, as defined in this subparagraph.
(II) Failed to decide whether to require further study or to adopt, approve, or certify
the environmental document.
(vi)
(I) The applicant has given timely written notice to the local agency of the action or
inaction that the applicant believes constitutes a failure to decide or an abuse of
discretion, and the local agency did not make a lawful determination about whether
to adopt, approve, or certify the environmental review document within 90 days of
the applicant's written notice. The applicant's written notice shall include a copy of
those excerpts from the record that constitute substantial evidence that the criteria of
clauses (i) to (iv), inclusive, are satisfied.
(II) If the local agency has voted to require further study, rather than adopting,
approving, or certifying the negative declaration, addendum, environmental impact
report, or comparable environmental review document in the form it was presented
for the agency's consideration, the applicant's notice shall be deemed timely if and
only if it is delivered to the local agency within 35 days of the date that the local
agency gave written notice of its decision to the applicant.
(III) If the local agency has not voted to require further study, rather than adopting,
approving, or certifying the negative declaration, addendum, environmental impact
report, or comparable environmental review document in the form it was presented
for the agency's consideration, the applicant's notice shall be deemed timely if given
after the time period specified in Section 21151.5 of the Public Resources Code or
another applicable provision of that code for completing the addendum, negative
declaration, environmental impact report, or other comparable environmental review
document, as applicable, has passed. If the Public Resources Code does not
specifically describe the deadline to complete the applicable environmental
document, a 180-day deadline is the applicable time period.
(vii) For purposes of this subparagraph, the following definitions apply:
(I)
(ia) "Abuse of discretion" means either of the following:
(Ia) If the local agency fails to adopt a negative declaration, "abuse of
discretion" means that the agency, in bad faith or without substantial evidence in
the record to support a fair argument that further environmental study is
11
Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
necessary to identify or analyze potentially significant impacts on the physical
environment, decided to require further environmental study rather than
adopting the negative declaration.
(Ib) If the local agency fails to adopt an addendum for the project, certify an
environmental impact report for the project, or approve another comparable
environmental document, "abuse of discretion" means that the agency, in bad
faith or without substantial evidence in the record that further environmental
study is legally required to identify or analyze potentially significant impacts on
the physical environment, decided to require further environmental study rather
than adopting, approving, or certifying the environmental review document.
(ib) This subclause sets forth the exclusive definition of "abuse of discretion" for
purposes of this subparagraph.
(II) "High-quality transit corridor" has the same meaning defined in subdivision (b)
of Section 21155 of the Public Resources Code.
(III) "Major transit stop" has the same meaning as defined in Section 21064.3 of the
Public Resources Code.
(IV) "Proximal" to an amenity means either of the following:
(ia) Within one-half mile of either of the following amenities:
(Ia) A bus station.
(Ib) A ferry terminal.
(ib) Within one mile, or for a parcel in a rural area, as defined in Section 50199.21
of the Health and Safety Code, within two miles, of any of the following
amenities:
(Ia) A supermarket or grocery store.
(Ib) A public park.
(Ic) A community center.
(Id) A pharmacy or drugstore.
(Ie) A medical clinic or hospital.
(If) A public library.
(Ig) A school that maintains a kindergarten or any of grades 1 to 12, inclusive.
(V) "Urbanized area" has the same meaning as defined in Section 21071 of the
Public Resources Code.
(VI)
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
(ia) "Very low vehicle travel area" means an urbanized area, as designated by the
United States Census Bureau, where the existing residential development
generates vehicle miles traveled per capita that is below 85 percent of either
regional vehicle miles traveled per capita or city vehicle miles traveled per capita.
(ib) For purposes of sub-subclause (ia), "area" may include a travel analysis zone,
hexagon, or grid.
(ic) For the purposes of determining "regional vehicle miles traveled per capita"
pursuant to sub-subclause (ia), a "region" is the entirety of incorporated and
unincorporated areas governed by a multicounty or single-county metropolitan
planning organization, or the entirety of the incorporated and unincorporated areas
of an individual county that is not part of a metropolitan planning organization.
(viii) This subparagraph shall become inoperative on January 1, 2031.
(7)
(A) For purposes of this section, "lawful determination" means any final decision about
whether to approve or disapprove a statutory or categorical exemption or a negative
declaration, addendum, environmental impact report, or comparable environmental
review document under the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code) that is not an abuse of
discretion, as defined in clause (ii) of subparagraph (D) of paragraph (6) or clause (vii)
of subparagraph (E) of paragraph (6).
(B) This paragraph shall become inoperative on January 1, 2031.
(8) "Lower density" includes any conditions that have the same effect or impact on the
ability of the project to provide housing.
(9) Until January 1, 2030, "objective" means involving no personal or subjective
judgment by a public official and being 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.
(10) Notwithstanding any other law, until January 1, 2030, "determined to be complete"
means that the applicant has submitted a complete application pursuant to Section 65943.
(i) If any city, county, or city and county denies approval or imposes conditions, including
design changes, lower density, or a reduction of the percentage of a lot that may be occupied
by a building or structure under the applicable planning and zoning in force at the time the
housing development project's application is complete, that have a substantial adverse effect
on the viability or affordability of a housing development for very low, low-, or moderate-
income households, and the denial of the development or the imposition of conditions on
the development is the subject of a court action which challenges the denial or the
imposition of conditions, then the burden of proof shall be on the local legislative body to
show that its decision is consistent with the findings as described in subdivision (d), and
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
that the findings are supported by a preponderance of the evidence in the record, and with
the requirements of subdivision (o).
(j)
(1) When a proposed housing development project complies with applicable, objective
general plan, zoning, and subdivision standards and criteria, including design review
standards, in effect at the time that the application was deemed complete, but the local
agency proposes to disapprove the project or to impose a condition that the project be
developed at a lower density, the local agency shall base its decision regarding the
proposed housing development project upon written findings supported by a
preponderance of the evidence on the record that both of the following conditions exist:
(A) The housing development project would have a specific, adverse impact upon the
public health or safety unless the project is disapproved or approved upon the condition
that the project be developed at a lower density. As used in this paragraph, a "specific,
adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based
on objective, identified written public health or safety standards, policies, or conditions
as they existed on the date the application was deemed complete.
(B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact
identified pursuant to paragraph (1), other than the disapproval of the housing
development project or the approval of the project upon the condition that it be
developed at a lower density.
(2)
(A) If the local agency considers a proposed housing development project to be
inconsistent, not in compliance, or not in conformity with an applicable plan, program,
policy, ordinance, standard, requirement, or other similar provision as specified in this
subdivision, it shall provide the applicant with written documentation identifying the
provision or provisions, and an explanation of the reason or reasons it considers the
housing development to be inconsistent, not in compliance, or not in conformity as
follows:
(i) Within 30 days of the date that the application for the housing development project
is determined to be complete, if the housing development project contains 150 or
fewer housing units.
(ii) Within 60 days of the date that the application for the housing development project
is determined to be complete, if the housing development project contains more than
150 units.
(B) If the local agency fails to provide the required documentation pursuant to
subparagraph (A), the housing development project shall be deemed consistent,
compliant, and in conformity with the applicable plan, program, policy, ordinance,
standard, requirement, or other similar provision.
(3) For purposes of this section, the receipt of a density bonus, incentive, concession,
waiver, or reduction of development standards pursuant to Section 65915 shall not
constitute a valid basis on which to find a proposed housing development project is
14
Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
inconsistent, not in compliance, or not in conformity, with an applicable plan, program,
policy, ordinance, standard, requirement, or other similar provision specified in this
subdivision.
(4) For purposes of this section, a proposed housing development project is not
inconsistent with the applicable zoning standards and criteria, and shall not require a
rezoning, if the housing development project is consistent with the objective general plan
standards and criteria but the zoning for the project site is inconsistent with the general
plan. If the local agency has complied with paragraph (2), the local agency may require
the proposed housing development project to comply with the objective standards and
criteria of the zoning which is consistent with the general plan, however, the standards
and criteria shall be applied to facilitate and accommodate development at the density
allowed on the site by the general plan and proposed by the proposed housing
development project.
(k)
(1)
(A)
(i) The applicant, a person who would be eligible to apply for residency in the housing
development project or emergency shelter, or a housing organization may bring an
action to enforce this section. If, in any action brought to enforce this section, a court
finds that any of the following are met, the court shall issue an order pursuant to
clause (ii):
(I) The local agency, in violation of subdivision (d), disapproved a housing
development 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, including farmworker housing, without making the
findings required by this section or without making findings supported by a
preponderance of the evidence.
(II) The local agency, in violation of subdivision (j), disapproved a housing
development project complying with applicable, objective general plan and zoning
standards and criteria, or imposed a condition that the project be developed at a
lower density, without making the findings required by this section or without
making findings supported by a preponderance of the evidence.
(III)
(ia) Subject to sub-subclause (ib), the local agency, in violation of subdivision (o),
required or attempted to require a housing development project to comply with an
ordinance, policy, or standard not adopted and in effect when a preliminary
application was submitted.
(ib) This subclause shall become inoperative on January 1, 2030.
(ii) If the court finds that one of the conditions in clause (i) is met, 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 housing
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Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
development project or emergency shelter. The court may issue an order or judgment
directing the local agency to approve the housing development project or emergency
shelter if the court finds that the local agency acted in bad faith when it disapproved or
conditionally approved the housing development or emergency shelter in violation of
this section. The 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, provided however, that the court shall not award attorney's fees in either
of the following instances:
(I) The court finds, under extraordinary circumstances, that awarding fees would not
further the purposes of this section.
(II)
(ia) In a case concerning a disapproval within the meaning of subparagraph (D) or
(E) of paragraph (6) of subdivision (h), the court finds that the local agency acted
in good faith and had reasonable cause to disapprove the housing development
project due to the existence of a controlling question of law about the application
of the California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code) or implementing guidelines as to
which there was a substantial ground for difference of opinion at the time of the
disapproval.
(ib) This subclause shall become inoperative on January 1, 2031.
(B) Upon a determination that the local agency has failed to comply with the order or
judgment compelling compliance with this section within 60 days issued pursuant to
subparagraph (A), the court shall impose fines on a local agency that has violated this
section and require the local agency to deposit any fine levied pursuant to this
subdivision into a local housing trust fund. The local agency may elect to instead
deposit the fine into the Building Homes and Jobs Trust Fund. The fine shall be in a
minimum amount of ten thousand dollars ($10,000) per housing unit in the housing
development project on the date the application was deemed complete pursuant to
Section 65943. In determining the amount of fine to impose, the court shall consider the
local agency's progress in attaining its target allocation of the regional housing need
pursuant to Section 65584 and any prior violations of this section. Fines shall not be
paid out of funds already dedicated to affordable housing, including, but not limited to,
Low and Moderate Income Housing Asset Funds, funds dedicated to housing for very
low, low-, and moderate-income households, and federal HOME Investment
Partnerships Program and Community Development Block Grant Program funds. The
local agency shall commit and expend the money in the local housing trust fund within
five years for the sole purpose of financing newly constructed housing units affordable
to extremely low, very low, or low-income households. After five years, if the funds
have not been expended, the money shall revert to the state and be deposited in the
Building Homes and Jobs Trust Fund for the sole purpose of financing newly
constructed housing units affordable to extremely low, very low, or low-income
households.
16
Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
(C) If the court determines that its order or judgment has not been 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, including, but not limited to, an order to vacate
the decision of the local agency and to approve the housing development project, in
which case the application for the housing development project, as proposed by the
applicant at the time the local agency took the initial action determined to be in violation
of this section, along with any standard conditions determined by the court to be
generally imposed by the local agency on similar projects, shall be deemed to be
approved unless the applicant consents to a different decision or action by the local
agency.
(2) For purposes of this subdivision, "housing organization" means a trade or industry
group whose local members are primarily engaged in the construction or management of
housing units or a nonprofit organization whose mission includes providing or advocating
for increased access to housing for low-income households and have filed written or oral
comments with the local agency prior to action on the housing development project. A
housing organization may only file an action pursuant to this section to challenge the
disapproval of a housing development by a local agency. A housing organization shall be
entitled to reasonable attorney's fees and costs if it is the prevailing party in an action to
enforce this section.
(l) If the court finds that the local agency (1) acted in bad faith when it disapproved or
conditionally approved the housing development or emergency shelter in violation of this
section and (2) failed to carry out the court's order or judgment within 60 days as described
in subdivision (k), the court, in addition to any other remedies provided by this section,
shall multiply the fine determined pursuant to subparagraph (B) of paragraph (1) of
subdivision (k) by a factor of five. For purposes of this section, "bad faith" includes, but is
not limited to, an action that is frivolous or otherwise entirely without merit.
(m)
(1) Any action brought to enforce the provisions of this section shall be brought pursuant
to Section 1094.5 of the Code of Civil Procedure, and the local agency shall prepare and
certify the record of proceedings in accordance with subdivision (c) of Section 1094.6 of
the Code of Civil Procedure no later than 30 days after the petition is served, provided
that the cost of preparation of the record shall be borne by the local agency, unless the
petitioner elects to prepare the record as provided in subdivision (n) of this section. A
petition to enforce the provisions of this section shall be filed and served no later than 90
days from the later of (1) the effective date of a decision of the local agency imposing
conditions on, disapproving, or any other final action on a housing development project or
(2) the expiration of the time periods specified in subparagraph (B) of paragraph (5) of
subdivision (h). Upon entry of the trial court's order, a party may, in order to obtain
appellate review of the order, file a petition within 20 days after service upon it of a
written notice of the entry of the order, or within such further time not exceeding an
additional 20 days as the trial court may for good cause allow, or may appeal the
judgment or order of the trial court under Section 904.1 of the Code of Civil Procedure. If
the local agency appeals the judgment of the trial court, the local agency shall post a bond,
17
Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
in an amount to be determined by the court, to the benefit of the plaintiff if the plaintiff is
the project applicant.
(2)
(A) A disapproval within the meaning of subparagraph (D) of paragraph (6) of
subdivision (h) shall be final for purposes of this subdivision, if the local agency did not
make a lawful determination within the time period set forth in subclause (V) of clause
(i) of that subparagraph after the applicant's timely written notice.
(B) This paragraph shall become inoperative on January 1, 2031.
(3)
(A) A disapproval within the meaning of subparagraph (E) of paragraph (6) of
subdivision (h) shall be final for purposes of this subdivision, if the local agency did not
make a lawful determination within 90 days of the applicant's timely written notice.
(B) This paragraph shall become inoperative on January 1, 2031.
(n) In any action, the record of the proceedings before the local agency shall be filed as
expeditiously as possible and, notwithstanding Section 1094.6 of the Code of Civil
Procedure or subdivision (m) of this section, all or part of the record may be prepared (1) by
the petitioner with the petition or petitioner's points and authorities, (2) by the respondent
with respondent's points and authorities, (3) after payment of costs by the petitioner, or (4)
as otherwise directed by the court. If the expense of preparing the record has been borne by
the petitioner and the petitioner is the prevailing party, the expense shall be taxable as costs.
(o)
(1) Subject to paragraphs (2), (6), and (7), and subdivision (d) of Section 65941.1, a
housing development project shall be subject only to the ordinances, policies, and
standards adopted and in effect when a preliminary application including all of the
information required by subdivision (a) of Section 65941.1 was submitted.
(2) Paragraph (1) shall not prohibit a housing development project from being subject to
ordinances, policies, and standards adopted after the preliminary application was
submitted pursuant to Section 65941.1 in the following circumstances:
(A) In the case of a fee, charge, or other monetary exaction, to an increase resulting
from an automatic annual adjustment based on an independently published cost index
that is referenced in the ordinance or resolution establishing the fee or other monetary
exaction.
(B) A preponderance of the evidence in the record establishes that subjecting the
housing development project to an ordinance, policy, or standard beyond those in effect
when a preliminary application was submitted is necessary to mitigate or avoid a
specific, adverse impact upon the public health or safety, as defined in subparagraph (A)
of paragraph (1) of subdivision (j), and there is no feasible alternative method to
satisfactorily mitigate or avoid the adverse impact.
18
Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
(C) Subjecting the housing development project to an ordinance, policy, standard, or
any other measure, beyond those in effect when a preliminary application was submitted
is necessary to avoid or substantially lessen an impact of the project under the California
Environmental Quality Act (Division 13 (commencing with Section 21000) of the
Public Resources Code).
(D) The housing development project has not commenced construction within two and
one-half years, or three and one-half years for an affordable housing project, following
the date that the project received final approval. For purposes of this subparagraph:
(i) "Affordable housing project" means a housing development that satisfies both of
the following requirements:
(I) Units within the development are subject to a recorded affordability restriction
for at least 55 years for rental housing and 45 years for owner-occupied housing, or
the first purchaser of each unit participates in an equity sharing agreement as
described in subparagraph (C) of paragraph (2) of subdivision (c) of Section 65915.
(II) All of the units within the development, excluding managers' units, are
dedicated to lower income households, as defined by Section 50079.5 of the Health
and Safety Code.
(ii) "Final approval" means that the housing development project has received all
necessary approvals to be eligible to apply for, and obtain, a building permit or
permits and either of the following is met:
(I) The expiration of all applicable appeal periods, petition periods, reconsideration
periods, or statute of limitations for challenging that final approval without an
appeal, petition, request for reconsideration, or legal challenge having been filed.
(II) If a challenge is filed, that challenge is fully resolved or settled in favor of the
housing development project.
(E) The housing development project is revised following submittal of a preliminary
application pursuant to Section 65941.1 such that the number of residential units or
square footage of construction changes by 20 percent or more, exclusive of any increase
resulting from the receipt of a density bonus, incentive, concession, waiver, or similar
provision, including any other locally authorized program that offers additional density
or other development bonuses when affordable housing is provided. For purposes of this
subdivision, "square footage of construction" means the building area, as defined by the
California Building Standards Code (Title 24 of the California Code of Regulations).
(3) This subdivision does not prevent a local agency from subjecting the additional units
or square footage of construction that result from project revisions occurring after a
preliminary application is submitted pursuant to Section 65941.1 to the ordinances,
policies, and standards adopted and in effect when the preliminary application was
submitted.
(4) For purposes of this subdivision, "ordinances, policies, and standards" includes
general plan, community plan, specific plan, zoning, design review standards and criteria,
19
Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
subdivision standards and criteria, and any other rules, regulations, requirements, and
policies of a local agency, as defined in Section 66000, including those relating to
development impact fees, capacity or connection fees or charges, permit or processing
fees, and other exactions.
(5) This subdivision shall not be construed in a manner that would lessen the restrictions
imposed on a local agency, or lessen the protections afforded to a housing development
project, that are established by any other law, including any other part of this section.
(6) This subdivision shall not restrict the authority of a public agency or local agency to
require mitigation measures to lessen the impacts of a housing development project under
the California Environmental Quality Act (Division 13 (commencing with Section 21000)
of the Public Resources Code).
(7) With respect to completed residential units for which the project approval process is
complete and a certificate of occupancy has been issued, nothing in this subdivision shall
limit the application of later enacted ordinances, policies, and standards that regulate the
use and occupancy of those residential units, such as ordinances relating to rental housing
inspection, rent stabilization, restrictions on short-term renting, and business licensing
requirements for owners of rental housing.
(8)
(A) This subdivision shall apply to a housing development project that submits a
preliminary application pursuant to Section 65941.1 before January 1, 2030.
(B) This subdivision shall become inoperative on January 1, 2034.
(p)
(1) Upon any motion for an award of attorney's fees pursuant to Section 1021.5 of the
Code of Civil Procedure, in a case challenging a local agency's approval of a housing
development project, a court, in weighing whether a significant benefit has been conferred
on the general public or a large class of persons and whether the necessity of private
enforcement makes the award appropriate, shall give due weight to the degree to which
the local agency's approval furthers policies of this section, including, but not limited to,
subdivisions (a), (b), and (c), the suitability of the site for a housing development, and the
reasonableness of the decision of the local agency. It is the intent of the Legislature that
attorney's fees and costs shall rarely, if ever, be awarded if a local agency, acting in good
faith, approved a housing development project that satisfies conditions established in
subclauses (I), (II), and (III) of clause (i) of subparagraph (D) of paragraph (6) of
subdivision (h) or clauses (i), (ii), and (iii) of subparagraph (E) of paragraph (6) of
subdivision (h).
(2) This subdivision shall become inoperative on January 1, 2031.
(q) This section shall be known, and may be cited, as the Housing Accountability Act.
(r) The provisions of this section are severable. If any provision of this section or its
application is held invalid, that invalidity shall not affect other provisions or applications
20
Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
that can be given effect without the invalid provision or application.
Ca. Gov. Code § 65589.5
Amended by Stats 2023 ch 768 (AB 1633),s 2, eff. 1/1/2024.
Amended by Stats 2022 ch 651 (AB 2234),s 1, eff. 1/1/2023.
Amended by Stats 2022 ch 632 (SB 1252),s 2, eff. 1/1/2023.
Amended by Stats 2021 ch 360 (AB 1584),s 8, eff. 1/1/2022.
Amended by Stats 2021 ch 161 (SB 8),s 1, eff. 1/1/2022.
Amended by Stats 2020 ch 165 (SB 1030),s 5, eff. 9/25/2020.
Amended by Stats 2019 ch 665 (AB 1743),s 3.1, eff. 1/1/2020.
Amended by Stats 2019 ch 654 (SB 330),s 3, eff. 1/1/2020.
Amended by Stats 2018 ch 243 (AB 3194),s 1, eff. 1/1/2019.
Amended by Stats 2018 ch 92 (SB 1289),s 114, eff. 1/1/2019.
Amended by Stats 2017 ch 378 (AB 1515),s 1.5, eff. 1/1/2018.
Amended by Stats 2017 ch 373 (AB 678),s 1, eff. 1/1/2018.
Amended by Stats 2017 ch 368 (SB 167),s 1, eff. 1/1/2018.
Amended by Stats 2016 ch 420 (AB 2584),s 1, eff. 1/1/2017.
Amended by Stats 2015 ch 349 (AB 1516),s 2, eff. 1/1/2016.
Amended by Stats 2010 ch 610 (AB 2762),s 2, eff. 1/1/2011.
Amended by Stats 2007 ch 633 (SB 2),s 4, eff. 1/1/2008.
Amended by Stats 2006 ch 888 (AB 2511),s 5, eff. 1/1/2007.
Amended by Stats 2005 ch 601 (SB 575),s 1, eff. 1/1/2006
Amended by Stats 2004 ch 724 (AB 2348),s 4, eff. 1/1/2005
Amended by Stats 2003 ch 793 (SB 619), s 3, eff. 1/1/2004.
Amended by Stats 2002 ch 147 (SB 1721), s 1, eff. 1/1/2003.
Amended by Stats 2001 ch 237 (AB 369), s 1, eff. 1/1/2002.
Previously Amended October 10, 1999 (Bill Number: SB 948) (Chapter 968).
21
Section 65589.5 - Housing Accountability Act Cal. Gov. Code § 65589.5
Cal. Gov. Code § 65941.1
Section 65941.1 - [Effective Until 1/1/2030] Preliminary application
(a)An applicant for a housing development project, as defined in paragraph (3) of
subdivision (b) of Section 65905.5, shall be deemed to have submitted a preliminary
application upon providing all of the following information about the proposed project to
the city, county, or city and county from which approval for the project is being sought and
upon payment of the permit processing fee:
(1)The specific location, including parcel numbers, a legal description, and site address,
if applicable.
(2)The existing uses on the project site and identification of major physical alterations to
the property on which the project is to be located.
(3)A site plan showing the location on the property, elevations showing design, color, and
material, and the massing, height, and approximate square footage, of each building that is
to be occupied.
(4)The proposed land uses by number of units and square feet of residential and
nonresidential development using the categories in the applicable zoning ordinance.
(5)The proposed number of parking spaces.
(6)Any proposed point sources of air or water pollutants.
(7)Any species of special concern known to occur on the property.
(8)Whether a portion of the property is located within any of the following:
(A)A very high fire hazard severity zone, as determined by the Department of Forestry
and Fire Protection pursuant to Section 51178.
(B)Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part
660 FW 2 (June 21, 1993).
(C)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
Article 5 (commencing with Section 78760) of Chapter 4 of Part 2 of Division 45 of the
Health and Safety Code.
(D)A special flood hazard area subject to inundation by the 1 percent annual chance
flood (100-year flood) as determined by the Federal Emergency Management Agency in
any official maps published by the Federal Emergency Management Agency.
(E)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
1ATTACHMENT 2
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.
(F) A stream or other resource that may be subject to a streambed alteration agreement
pursuant to Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and
Game Code.
(9) Any historic or cultural resources known to exist on the property.
(10) The number of proposed below market rate units and their affordability levels.
(11) The number of bonus units and any incentives, concessions, waivers, or parking
reductions requested pursuant to Section 65915.
(12) Whether any approvals under the Subdivision Map Act, including, but not limited to,
a parcel map, a tentative map, or a condominium map, are being requested.
(13) The applicant's contact information and, if the applicant does not own the property,
consent from the property owner to submit the application.
(14) For a housing development project proposed to be located within the coastal zone,
whether any portion of the property contains any of the following:
(A) Wetlands, as defined in subdivision (b) of Section 13577 of Title 14 of the
California Code of Regulations.
(B) Environmentally sensitive habitat areas, as defined in Section 30240 of the Public
Resources Code.
(C) A tsunami run-up zone.
(D) Use of the site for public access to or along the coast.
(15) The number of existing residential units on the project site that will be demolished
and whether each existing unit is occupied or unoccupied.
(16) A site map showing a stream or other resource that may be subject to a streambed
alteration agreement pursuant to Chapter 6 (commencing with Section 1600) of Division 2
of the Fish and Game Code and an aerial site photograph showing existing site conditions
of environmental site features that would be subject to regulations by a public agency,
including creeks and wetlands.
(17) The location of any recorded public easement, such as easements for storm drains,
water lines, and other public rights of way.
(b)
(1) Each local agency shall compile a checklist and application form that applicants for
housing development projects may use for the purpose of satisfying the requirements for
2
Section 65941.1 ... Cal. Gov. Code § 65941.1
submittal of a preliminary application.
(2) The Department of Housing and Community Development shall adopt a standardized
form that applicants for housing development projects may use for the purpose of
satisfying the requirements for submittal of a preliminary application if a local agency has
not developed its own application form pursuant to paragraph (1). Adoption of the
standardized form shall not be subject to Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code.
(3) A checklist or form shall not require or request any information beyond that expressly
identified in subdivision (a).
(c) After submittal of all of the information required by subdivision (a), if the development
proponent revises the project such that the number of residential units or square footage of
construction changes by 20 percent or more, exclusive of any increase resulting from the
receipt of a density bonus, incentive, concession, waiver, or similar provision, the housing
development project shall not be deemed to have submitted a preliminary application that
satisfies this section until the development proponent resubmits the information required by
subdivision (a) so that it reflects the revisions. For purposes of this subdivision, "square
footage of construction" means the building area, as defined by the California Building
Standards Code (Title 24 of the California Code of Regulations).
(d)
(1) Within 180 calendar days after submitting a preliminary application with all of the
information required by subdivision (a) to a city, county, or city and county, the
development proponent shall submit an application for a development project that
includes all of the information required to process the development application consistent
with Sections 65940, 65941, and 65941.5.
(2) If the public agency determines that the application for the development project is not
complete pursuant to Section 65943, the development proponent shall submit the specific
information needed to complete the application within 90 days of receiving the agency's
written identification of the necessary information. If the development proponent does not
submit this information within the 90-day period, then the preliminary application shall
expire and have no further force or effect.
(3) This section shall not require an affirmative determination by a city, county, or city
and county regarding the completeness of a preliminary application or a development
application for purposes of compliance with this section.
(e) Notwithstanding any other law, submission of a preliminary application in accordance
with this section shall not preclude the listing of a tribal cultural resource on a national,
state, tribal, or local historic register list on or after the date that the preliminary application
is submitted. For purposes of Section 65589.5 or any other law, the listing of a tribal
cultural site on a national, state, tribal, or local historic register on or after the date the
preliminary application was submitted shall not be deemed to be a change to the ordinances,
policies, and standards adopted and in effect at the time that the preliminary application was
submitted.
3
Section 65941.1 ... Cal. Gov. Code § 65941.1
(f) This section shall remain in effect only until January 1, 2030, and as of that date is
repealed.
Ca. Gov. Code § 65941.1
Amended by Stats 2022 ch 258 (AB 2327),s 27, eff. 1/1/2023, op. 1/1/2024.
Amended by Stats 2021 ch 161 (SB 8),s 6, eff. 1/1/2022.
Amended by Stats 2020 ch 166 (AB 168),s 4, eff. 9/25/2020.
Amended by Stats 2020 ch 165 (SB 1030),s 9, eff. 9/25/2020.
Added by Stats 2019 ch 654 (SB 330),s 8, eff. 1/1/2020.
4
Section 65941.1 ... Cal. Gov. Code § 65941.1
Cal. Gov. Code § 65915
Section 65915 - Granting density bonus
(a)
(1)When an applicant seeks a density bonus for a housing development within, or for the
donation of land for housing within, the jurisdiction of a city, county, or city and county,
that local government shall comply with this section. A city, county, or city and county
shall adopt an ordinance that specifies how compliance with this section will be
implemented. Except as otherwise provided in subdivision (s), failure to adopt an
ordinance shall not relieve a city, county, or city and county from complying with this
section.
(2)A local government shall not condition the submission, review, or approval of an
application pursuant to this chapter on the preparation of an additional report or study that
is not otherwise required by state law, including this section. This subdivision does not
prohibit a local government from requiring an applicant to provide reasonable
documentation to establish eligibility for a requested density bonus, as described in
subdivision (b), and parking ratios, as described in subdivision (p).
(3)In order to provide for the expeditious processing of a density bonus application, the
local government shall do all of the following:
(A)Adopt procedures and timelines for processing a density bonus application.
(B)Provide a list of all documents and information required to be submitted with the
density bonus application in order for the density bonus application to be deemed
complete. This list shall be consistent with this chapter.
(C)Notify the applicant for a density bonus whether the application is complete in a
manner consistent with the timelines specified in Section 65943.
(D)
(i)If the local government notifies the applicant that the application is deemed
complete pursuant to subparagraph (C), provide the applicant with a determination as
to the following matters:
(I)The amount of density bonus, calculated pursuant to subdivision (f), for which
the applicant is eligible.
(II)If the applicant requests a parking ratio pursuant to subdivision (p), the parking
ratio for which the applicant is eligible.
(III)If the applicant requests incentives or concessions pursuant to subdivision (d)
or waivers or reductions of development standards pursuant to subdivision (e),
whether the applicant has provided adequate information for the local government to
make a determination as to those incentives, concessions, waivers, or reductions of
development standards.
1ATTACHMENT 3
(ii) Any determination required by this subparagraph shall be based on the
development project at the time the application is deemed complete. The local
government shall adjust the amount of density bonus and parking ratios awarded
pursuant to this section based on any changes to the project during the course of
development.
(b)
(1) A city, county, or city and county shall grant one density bonus, the amount of which
shall be as specified in subdivision (f), and, if requested by the applicant and consistent
with the applicable requirements of this section, incentives or concessions, as described in
subdivision (d), waivers or reductions of development standards, as described in
subdivision (e), and parking ratios, as described in subdivision (p), if an applicant for a
housing development seeks and agrees to construct a housing development, excluding any
units permitted by the density bonus awarded pursuant to this section, that will contain at
least any one of the following:
(A) Ten percent of the total units of a housing development, including a shared housing
building development, for rental or sale to lower income households, as defined in
Section 50079.5 of the Health and Safety Code.
(B) Five percent of the total units of a housing development, including a shared housing
building development, for rental or sale to very low income households, as defined in
Section 50105 of the Health and Safety Code.
(C) A senior citizen housing development, as defined in Sections 51.3 and 51.12 of the
Civil Code, or a mobilehome park that limits residency based on age requirements for
housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code. For
purposes of this subparagraph, "development" includes a shared housing building
development.
(D) Ten percent of the total dwelling units of a housing development are sold to persons
and families of moderate income, as defined in Section 50093 of the Health and Safety
Code, provided that all units in the development are offered to the public for purchase.
(E) Ten percent of the total units of a housing development for transitional foster youth,
as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in
Section 18541, or homeless persons, as defined in the federal McKinney-Vento
Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.). The units described in this
subparagraph are subject to a recorded affordability restriction of 55 years and shall be
provided at the same affordability level as very low income units.
(F)
(i) Twenty percent of the total units for lower income students in a student housing
development that meets the following requirements:
(I) All units in the student housing development shall be used exclusively for
undergraduate, graduate, or professional students enrolled full time at an institution
of higher education accredited by the Western Association of Schools and Colleges
or the Accrediting Commission for Community and Junior Colleges. In order to be
2
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
eligible under this subclause, the developer shall, as a condition of receiving a
certificate of occupancy, provide evidence to the city, county, or city and county that
the developer has entered into an operating agreement or master lease with one or
more institutions of higher education for the institution or institutions to occupy all
units of the student housing development with students from that institution or
institutions. An operating agreement or master lease entered into pursuant to this
subclause is not violated or breached if, in any subsequent year, there are
insufficient students enrolled in an institution of higher education to fill all units in
the student housing development.
(II) The applicable 20-percent units shall be used for lower income students.
(III) The rent provided in the applicable units of the development for lower income
students shall be calculated at 30 percent of 65 percent of the area median income
for a single-room occupancy unit type.
(IV) The development shall provide priority for the applicable affordable units for
lower income students experiencing homelessness. A homeless service provider, as
defined in paragraph (3) of subdivision (e) of Section 103577 of the Health and
Safety Code, or institution of higher education that has knowledge of a person's
homeless status may verify a person's status as homeless for purposes of this
subclause.
(ii) For purposes of calculating a density bonus granted pursuant to this subparagraph,
the term "unit" as used in this section means one rental bed and its pro rata share of
associated common area facilities. The units described in this subparagraph are
subject to a recorded affordability restriction of 55 years.
(G) One hundred percent of all units in the development, including total units and
density bonus units, but exclusive of a manager's unit or units, are for lower income
households, as defined by Section 50079.5 of the Health and Safety Code, except that
up to 20 percent of the units in the development, including total units and density bonus
units, may be for moderate-income households, as defined in Section 50053 of the
Health and Safety Code. For purposes of this subparagraph, "development" includes a
shared housing building development.
(2) For purposes of calculating the amount of the density bonus pursuant to subdivision
(f), an applicant who requests a density bonus pursuant to this subdivision shall elect
whether the bonus shall be awarded on the basis of subparagraph (A), (B), (C), (D), (E),
(F), or (G) of paragraph (1).
(c)
(1)
(A) An applicant shall agree to, and the city, county, or city and county shall ensure, the
continued affordability of all very low and low-income rental units that qualified the
applicant for the award of the density bonus for 55 years or a longer period of time if
3
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
required by the construction or mortgage financing assistance program, mortgage
insurance program, or rental subsidy program.
(B)
(i) Except as otherwise provided in clause (ii), rents for the lower income density
bonus units shall be set at an affordable rent, as defined in Section 50053 of the Health
and Safety Code.
(ii) For housing developments meeting the criteria of subparagraph (G) of paragraph
(1) of subdivision (b), rents for all units in the development, including both base
density and density bonus units, shall be as follows:
(I) The rent for at least 20 percent of the units in the development shall be set at an
affordable rent, as defined in Section 50053 of the Health and Safety Code.
(II) The rent for the remaining units in the development shall be set at an amount
consistent with the maximum rent levels for lower income households, as those
rents and incomes are determined by the California Tax Credit Allocation
Committee.
(2)
(A) An applicant shall agree to ensure, and the city, county, or city and county shall
ensure, that a for-sale unit that qualified the applicant for the award of the density bonus
meets one of the following conditions:
(i) The unit is initially sold to and occupied by a person or family of very low, low, or
moderate income, as required, and it is offered at an affordable housing cost, as that
cost is defined in Section 50052.5 of the Health and Safety Code and is subject to an
equity sharing agreement.
(ii) If the unit is not purchased by an income-qualified person or family within 180
days after the issuance of the certificate of occupancy, the unit is purchased by a
qualified nonprofit housing corporation that meets all of the following requirements
pursuant to a recorded contract that satisfies all of the requirements specified in
paragraph (10) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code:
(I) The nonprofit corporation has a determination letter from the Internal Revenue
Service affirming its tax-exempt status pursuant to Section 501(c)(3) of the Internal
Revenue Code and is not a private foundation as that term is defined in Section 509
of the Internal Revenue Code.
(II) The nonprofit corporation is based in California.
(III) All of the board members of the nonprofit corporation have their primary
residence in California.
(IV) The primary activity of the nonprofit corporation is the development and
preservation of affordable home ownership housing in California that incorporates
within their contracts for initial purchase a repurchase option that requires a
subsequent purchaser of the property that desires to resell or convey the property to
4
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
offer the qualified nonprofit corporation the right to repurchase the property prior to
selling or conveying that property to any other purchaser pursuant to an equity
sharing agreement or affordability restrictions on the sale and conveyance of the
property that ensure that the property will be preserved for lower income housing
for at least 45 years for owner-occupied housing units and will be sold or resold only
to persons or families of very low, low, or moderate income, as defined in Section
50052.5 of the Health and Safety Code.
(B) For purposes of this paragraph, a "qualified nonprofit housing corporation" is a
nonprofit housing corporation organized pursuant to Section 501(c)(3) of the Internal
Revenue Code that has received a welfare exemption under Section 214.15 of the
Revenue and Taxation Code for properties intended to be sold to low-income families
who participate in a special no-interest loan program.
(C) The local government shall enforce an equity sharing agreement required pursuant
to clause (i) or (ii) of subparagraph (A), unless it is in conflict with the requirements of
another public funding source or law or may defer to the recapture provisions of the
public funding source. The following apply to the equity sharing agreement:
(i) Upon resale, the seller of the unit shall retain the value of any improvements, the
downpayment, and the seller's proportionate share of appreciation.
(ii) Except as provided in clause (v), the local government shall recapture any initial
subsidy, as defined in clause (iii), and its proportionate share of appreciation, as
defined in clause (iv), which amount shall be used within five years for any of the
purposes described in subdivision (e) of Section 33334.2 of the Health and Safety
Code that promote homeownership.
(iii) For purposes of this subdivision, the local government's initial subsidy shall be
equal to the fair market value of the home at the time of initial sale minus the initial
sale price to the moderate-income household, plus the amount of any downpayment
assistance or mortgage assistance. If upon resale the market value is lower than the
initial market value, then the value at the time of the resale shall be used as the initial
market value.
(iv) For purposes of this subdivision, the local government's proportionate share of
appreciation shall be equal to the ratio of the local government's initial subsidy to the
fair market value of the home at the time of initial sale.
(v) If the unit is purchased or developed by a qualified nonprofit housing corporation
pursuant to clause (ii) of subparagraph (A) the local government may enter into a
contract with the qualified nonprofit housing corporation under which the qualified
nonprofit housing corporation would recapture any initial subsidy and its
proportionate share of appreciation if the qualified nonprofit housing corporation is
required to use 100 percent of the proceeds to promote homeownership for lower
income households as defined by Section 50079.5 of the Health and Safety Code
within the jurisdiction of the local government.
5
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
(3)
(A) An applicant shall be ineligible for a density bonus or any other incentives or
concessions under this section if the housing development is proposed on any property
that includes a parcel or parcels on which rental dwelling units are located or, if the
dwelling units have been vacated or demolished in the five-year period preceding the
application, have been subject to a recorded covenant, ordinance, or law that restricts
rents to levels affordable to persons and families of lower or very low income; subject to
any other form of rent or price control through a public entity's valid exercise of its
police power; or occupied by lower or very low income households, unless the proposed
housing development replaces those units, and either of the following applies:
(i) The proposed housing development, inclusive of the units replaced pursuant to this
paragraph, contains affordable units at the percentages set forth in subdivision (b).
(ii) Each unit in the development, exclusive of a manager's unit or units, is affordable
to, and occupied by, either a lower or very low income household.
(B) For the purposes of this paragraph, "replace" shall mean either of the following:
(i) If any dwelling units described in subparagraph (A) are occupied on the date of
application, the proposed housing development shall provide at least the same number
of units of equivalent size to be made available at affordable rent or affordable
housing cost to, and occupied by, persons and families in the same or lower income
category as those households in occupancy. If the income category of the household in
occupancy is not known, it shall be rebuttably presumed that lower income renter
households occupied these units in the same proportion of lower income renter
households to all renter households within the jurisdiction, as determined by the most
recently available data from the United States Department of Housing and Urban
Development's Comprehensive Housing Affordability Strategy database. For
unoccupied dwelling units described in subparagraph (A) in a development with
occupied units, the proposed housing development shall provide units of equivalent
size to be made available at affordable rent or affordable housing cost to, and occupied
by, persons and families in the same or lower income category as the last household in
occupancy. If the income category of the last household in occupancy is not known, it
shall be rebuttably presumed that lower income renter households occupied these units
in the same proportion of lower income renter households to all renter households
within the jurisdiction, as determined by the most recently available data from the
United States Department of Housing and Urban Development's Comprehensive
Housing Affordability Strategy database. All replacement calculations resulting in
fractional units shall be rounded up to the next whole number. If the replacement units
will be rental dwelling units, these units shall be subject to a recorded affordability
restriction for at least 55 years. If the proposed development is for-sale units, the units
replaced shall be subject to paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been vacated or
demolished within the five-year period preceding the application, the proposed
housing development shall provide at least the same number of units of equivalent
size as existed at the highpoint of those units in the five-year period preceding the
6
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
application to be made available at affordable rent or affordable housing cost to, and
occupied by, persons and families in the same or lower income category as those
persons and families in occupancy at that time, if known. If the incomes of the persons
and families in occupancy at the highpoint is not known, it shall be rebuttably
presumed that low-income and very low income renter households occupied these
units in the same proportion of low-income and very low income renter households to
all renter households within the jurisdiction, as determined by the most recently
available data from the United States Department of Housing and Urban
Development's Comprehensive Housing Affordability Strategy database. All
replacement calculations resulting in fractional units shall be rounded up to the next
whole number. If the replacement units will be rental dwelling units, these units shall
be subject to a recorded affordability restriction for at least 55 years. If the proposed
development is for-sale units, the units replaced shall be subject to paragraph (2).
(C) Notwithstanding subparagraph (B), for any dwelling unit described in subparagraph
(A) that is or was, within the five-year period preceding the application, subject to a
form of rent or price control through a local government's valid exercise of its police
power and that is or was occupied by persons or families above lower income, the city,
county, or city and county may do either of the following:
(i) Require that the replacement units be made available at affordable rent or
affordable housing cost to, and occupied by, low-income persons or families. If the
replacement units will be rental dwelling units, these units shall be subject to a
recorded affordability restriction for at least 55 years. If the proposed development is
for-sale units, the units replaced shall be subject to paragraph (2).
(ii) Require that the units be replaced in compliance with the jurisdiction's rent or
price control ordinance, provided that each unit described in subparagraph (A) is
replaced. Unless otherwise required by the jurisdiction's rent or price control
ordinance, these units shall not be subject to a recorded affordability restriction.
(D) For purposes of this paragraph, "equivalent size" means that the replacement units
contain at least the same total number of bedrooms as the units being replaced.
(E) Subparagraph (A) does not apply to an applicant seeking a density bonus for a
proposed housing development if the applicant's application was submitted to, or
processed by, a city, county, or city and county before January 1, 2015.
(d)
(1) An applicant for a density bonus pursuant to subdivision (b) may submit to a city,
county, or city and county a proposal for the specific incentives or concessions that the
applicant requests pursuant to this section, and may request a meeting with the city,
county, or city and county. The city, county, or city and county shall grant the concession
or incentive requested by the applicant unless the city, county, or city and county makes a
written finding, based upon substantial evidence, of any of the following:
(A) The concession or incentive does not result in identifiable and actual cost
reductions, consistent with subdivision (k), to provide for affordable housing costs, as
7
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted
units to be set as specified in subdivision (c).
(B) The concession or incentive would have a specific, adverse impact, as defined in
paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or on
any real property that is listed in the California Register of Historical Resources and for
which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse
impact without rendering the development unaffordable to low-income and moderate-
income households.
(C) The concession or incentive would be contrary to state or federal law.
(2) The applicant shall receive the following number of incentives or concessions:
(A) One incentive or concession for projects that include at least 10 percent of the total
units for lower income households, at least 5 percent for very low income households,
or at least 10 percent for persons and families of moderate income in a development in
which the units are for sale.
(B) Two incentives or concessions for projects that include at least 17 percent of the
total units for lower income households, at least 10 percent for very low income
households, or at least 20 percent for persons and families of moderate income in a
development in which the units are for sale.
(C) Three incentives or concessions for projects that include at least 24 percent of the
total units for lower income households, at least 15 percent for very low income
households, or at least 30 percent for persons and families of moderate income in a
development in which the units are for sale.
(D) Five incentives or concessions for a project meeting the criteria of subparagraph (G)
of paragraph (1) of subdivision (b). If the project is located within one-half mile of a
major transit stop or is located in a very low vehicle travel area in a designated county,
the applicant shall also receive a height increase of up to three additional stories, or 33
feet.
(E) One incentive or concession for projects that include at least 20 percent of the total
units for lower income students in a student housing development.
(F) Four incentives or concessions for projects that include at least 16 percent of the
units for very low income households or at least 45 percent for persons and families of
moderate income in a development in which the units are for sale.
(3) The applicant may initiate judicial proceedings if the city, county, or city and county
refuses to grant a requested density bonus, incentive, or concession. If a court finds that
the refusal to grant a requested density bonus, incentive, or concession is in violation of
this section, the court shall award the plaintiff reasonable attorney's fees and costs of suit.
This subdivision shall not be interpreted to require a local government to grant an
incentive or concession that has a specific, adverse impact, as defined in paragraph (2) of
8
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
subdivision (d) of Section 65589.5, upon health or safety, and for which there is no
feasible method to satisfactorily mitigate or avoid the specific, adverse impact. This
subdivision shall not be interpreted to require a local government to grant an incentive or
concession that would have an adverse impact on any real property that is listed in the
California Register of Historical Resources. The city, county, or city and county shall
establish procedures for carrying out this section that shall include legislative body
approval of the means of compliance with this section.
(4) The city, county, or city and county shall bear the burden of proof for the denial of a
requested concession or incentive.
(e)
(1) In no case may a city, county, or city and county apply any development standard that
will have the effect of physically precluding the construction of a development meeting
the criteria of subdivision (b) at the densities or with the concessions or incentives
permitted by this section. Subject to paragraph (3), an applicant may submit to a city,
county, or city and county a proposal for the waiver or reduction of development
standards that will have the effect of physically precluding the construction of a
development meeting the criteria of subdivision (b) at the densities or with the
concessions or incentives permitted under this section, and may request a meeting with
the city, county, or city and county. If a court finds that the refusal to grant a waiver or
reduction of development standards is in violation of this section, the court shall award
the plaintiff reasonable attorney's fees and costs of suit. This subdivision shall not be
interpreted to require a local government to waive or reduce development standards if the
waiver or reduction would have a specific, adverse impact, as defined in paragraph (2) of
subdivision (d) of Section 65589.5, upon health or safety, and for which there is no
feasible method to satisfactorily mitigate or avoid the specific, adverse impact. This
subdivision shall not be interpreted to require a local government to waive or reduce
development standards that would have an adverse impact on any real property that is
listed in the California Register of Historical Resources, or to grant any waiver or
reduction that would be contrary to state or federal law.
(2) A proposal for the waiver or reduction of development standards pursuant to this
subdivision shall neither reduce nor increase the number of incentives or concessions to
which the applicant is entitled pursuant to subdivision (d).
(3) A housing development that receives a waiver from any maximum controls on density
pursuant to clause (ii) of subparagraph (D) of paragraph (3) of subdivision (f) shall only
be eligible for a waiver or reduction of development standards as provided in
subparagraph (D) of paragraph (2) of subdivision (d) and clause (ii) of subparagraph (D)
of paragraph (3) of subdivision (f), unless the city, county, or city and county agrees to
additional waivers or reductions of development standards.
(f) For the purposes of this chapter, "density bonus" means a density increase over the
otherwise maximum allowable gross residential density as of the date of application by the
applicant to the city, county, or city and county, or, if elected by the applicant, a lesser
9
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
percentage of density increase, including, but not limited to, no increase in density. The
amount of density increase to which the applicant is entitled shall vary according to the
amount by which the percentage of affordable housing units exceeds the percentage
established in subdivision (b).
(1) For housing developments meeting the criteria of subparagraph (A) of paragraph (1)
of subdivision (b), the density bonus shall be calculated as follows:
(2) For housing developments meeting the criteria of subparagraph (B) of paragraph (1) of
subdivision (b), the density bonus shall be calculated as follows:
Percentage Low-Income UnitsPercentage Density Bonus
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
16 29
17 30.5
18 32
19 33.5
20 35
21 38.75
22 42.5
23 46.25
24 50
Percentage Very Low Income UnitsPercentage Density Bonus
5 20
6 22.5
7 25
8 27.5
9 30
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Section 65915 - Granting density bonus Cal. Gov. Code § 65915
(3)
(A) For housing developments meeting the criteria of subparagraph (C) of paragraph (1)
of subdivision (b), the density bonus shall be 20 percent of the number of senior housing
units.
(B) For housing developments meeting the criteria of subparagraph (E) of paragraph (1)
of subdivision (b), the density bonus shall be 20 percent of the number of the type of
units giving rise to a density bonus under that subparagraph.
(C) For housing developments meeting the criteria of subparagraph (F) of paragraph (1)
of subdivision (b), the density bonus shall be 35 percent of the student housing units.
(D) For housing developments meeting the criteria of subparagraph (G) of paragraph (1)
of subdivision (b), the following shall apply:
(i) Except as otherwise provided in clauses (ii) and (iii), the density bonus shall be 80
percent of the number of units for lower income households.
(ii) If the housing development is located within one-half mile of a major transit stop,
the city, county, or city and county shall not impose any maximum controls on density.
(iii) If the housing development is located in a very low vehicle travel area within a
designated county, the city, county, or city and county shall not impose any maximum
controls on density.
(4) For housing developments meeting the criteria of subparagraph (D) of paragraph (1)
of subdivision (b), the density bonus shall be calculated as follows:
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50
Percentage Moderate-Income UnitsPercentage Density Bonus
10 5
11 6
12 7
13 8
14 9
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Section 65915 - Granting density bonus Cal. Gov. Code § 65915
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
41 38.75
42 42.5
12
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
(5) All density calculations resulting in fractional units shall be rounded up to the next
whole number. The granting of a density bonus shall not require, or be interpreted, in and
of itself, to require a general plan amendment, local coastal plan amendment, zoning
change, or other discretionary approval.
(g)
(1) When an applicant for a tentative subdivision map, parcel map, or other residential
development approval donates land to a city, county, or city and county in accordance
with this subdivision, the applicant shall be entitled to a 15-percent increase above the
otherwise maximum allowable residential density for the entire development, as follows:
43 46.25
44 50
Percentage Very Low IncomePercentage Density Bonus
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
18 23
19 24
20 25
21 26
22 27
23 28
24 29
25 30
26 31
27 32
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Section 65915 - Granting density bonus Cal. Gov. Code § 65915
(2) This increase shall be in addition to any increase in density mandated by subdivision
(b), up to a maximum combined mandated density increase of 35 percent if an applicant
seeks an increase pursuant to both this subdivision and subdivision (b). All density
calculations resulting in fractional units shall be rounded up to the next whole number.
Nothing in this subdivision shall be construed to enlarge or diminish the authority of a
city, county, or city and county to require a developer to donate land as a condition of
development. An applicant shall be eligible for the increased density bonus described in
this subdivision if all of the following conditions are met:
(A) The applicant donates and transfers the land no later than the date of approval of the
final subdivision map, parcel map, or residential development application.
(B) The developable acreage and zoning classification of the land being transferred are
sufficient to permit construction of units affordable to very low income households in an
amount not less than 10 percent of the number of residential units of the proposed
development.
(C) The transferred land is at least one acre in size or of sufficient size to permit
development of at least 40 units, has the appropriate general plan designation, is
appropriately zoned with appropriate development standards for development at the
density described in paragraph (3) of subdivision (c) of Section 65583.2, and is or will
be served by adequate public facilities and infrastructure.
(D) The transferred land shall have all of the permits and approvals, other than building
permits, necessary for the development of the very low income housing units on the
transferred land, not later than the date of approval of the final subdivision map, parcel
map, or residential development application, except that the local government may
subject the proposed development to subsequent design review to the extent authorized
by subdivision (i) of Section 65583.2 if the design is not reviewed by the local
government before the time of transfer.
(E) The transferred land and the affordable units shall be subject to a deed restriction
ensuring continued affordability of the units consistent with paragraphs (1) and (2) of
subdivision (c), which shall be recorded on the property at the time of the transfer.
(F) The land is transferred to the local agency or to a housing developer approved by the
local agency. The local agency may require the applicant to identify and transfer the
land to the developer.
(G) The transferred land shall be within the boundary of the proposed development or,
if the local agency agrees, within one-quarter mile of the boundary of the proposed
development.
28 33
29 34
30 35
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Section 65915 - Granting density bonus Cal. Gov. Code § 65915
(H) A proposed source of funding for the very low income units shall be identified not
later than the date of approval of the final subdivision map, parcel map, or residential
development application.
(h)
(1) When an applicant proposes to construct a housing development that conforms to the
requirements of subdivision (b) and includes a childcare facility that will be located on the
premises of, as part of, or adjacent to, the project, the city, county, or city and county shall
grant either of the following:
(A) An additional density bonus that is an amount of square feet of residential space that
is equal to or greater than the amount of square feet in the childcare facility.
(B) An additional concession or incentive that contributes significantly to the economic
feasibility of the construction of the childcare facility.
(2) The city, county, or city and county shall require, as a condition of approving the
housing development, that the following occur:
(A) The childcare facility shall remain in operation for a period of time that is as long as
or longer than the period of time during which the density bonus units are required to
remain affordable pursuant to subdivision (c).
(B) Of the children who attend the childcare facility, the children of very low income
households, lower income households, or families of moderate income shall equal a
percentage that is equal to or greater than the percentage of dwelling units that are
required for very low income households, lower income households, or families of
moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subdivision, a city, county, or city and county
shall not be required to provide a density bonus or concession for a childcare facility if it
finds, based upon substantial evidence, that the community has adequate childcare
facilities.
(4) "Childcare facility," as used in this section, means a child daycare facility other than a
family daycare home, including, but not limited to, infant centers, preschools, extended
daycare facilities, and schoolage childcare centers.
(i) "Housing development," as used in this section, means a development project for five or
more residential units, including mixed-use developments. For the purposes of this section,
"housing development" also includes a subdivision or common interest development, as
defined in Section 4100 of the Civil Code, approved by a city, county, or city and county
and consists of residential units or unimproved residential lots and either a project to
substantially rehabilitate and convert an existing commercial building to residential use or
the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision
(d) of Section 65863.4, where the result of the rehabilitation would be a net increase in
available residential units. For the purpose of calculating a density bonus, the residential
units shall be on contiguous sites that are the subject of one development application, but do
not have to be based upon individual subdivision maps or parcels. The density bonus shall
15
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
be permitted in geographic areas of the housing development other than the areas where the
units for the lower income households are located.
(j)
(1) The granting of a concession or incentive shall not require or be interpreted, in and of
itself, to require a general plan amendment, local coastal plan amendment, zoning change,
study, or other discretionary approval. For purposes of this subdivision, "study" does not
include reasonable documentation to establish eligibility for the concession or incentive or
to demonstrate that the incentive or concession meets the definition set forth in
subdivision (k). This provision is declaratory of existing law.
(2) Except as provided in subdivisions (d) and (e), the granting of a density bonus shall
not require or be interpreted to require the waiver of a local ordinance or provisions of a
local ordinance unrelated to development standards.
(k) For the purposes of this chapter, concession or incentive means any of the following:
(1) A reduction in site development standards or a modification of zoning code
requirements or architectural design requirements that exceed the minimum building
standards approved by the California Building Standards Commission as provided in Part
2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code,
including, but not limited to, a reduction in setback and square footage requirements and
in the ratio of vehicular parking spaces that would otherwise be required that results in
identifiable and actual cost reductions, to provide for affordable housing costs, as defined
in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be
set as specified in subdivision (c).
(2) Approval of mixed-use zoning in conjunction with the housing project if commercial,
office, industrial, or other land uses will reduce the cost of the housing development and if
the commercial, office, industrial, or other land uses are compatible with the housing
project and the existing or planned development in the area where the proposed housing
project will be located.
(3) Other regulatory incentives or concessions proposed by the developer or the city,
county, or city and county that result in identifiable and actual cost reductions to provide
for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code,
or for rents for the targeted units to be set as specified in subdivision (c).
(l) Subdivision (k) does not limit or require the provision of direct financial incentives for
the housing development, including the provision of publicly owned land, by the city,
county, or city and county, or the waiver of fees or dedication requirements.
(m) This section does not supersede or in any way alter or lessen the effect or application of
the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the
Public Resources Code). Any density bonus, concessions, incentives, waivers or reductions
of development standards, and parking ratios to which the applicant is entitled under this
section shall be permitted in a manner that is consistent with this section and Division 20
(commencing with Section 30000) of the Public Resources Code.
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Section 65915 - Granting density bonus Cal. Gov. Code § 65915
(n) If permitted by local ordinance, nothing in this section shall be construed to prohibit a
city, county, or city and county from granting a density bonus greater than what is described
in this section for a development that meets the requirements of this section or from
granting a proportionately lower density bonus than what is required by this section for
developments that do not meet the requirements of this section.
(o) For purposes of this section, the following definitions shall apply:
(1) "Designated county" includes the Counties of Alameda, Contra Costa, Los Angeles,
Marin, Napa, Orange, Riverside, Sacramento, San Bernardino, San Diego, San Mateo,
Santa Barbara, Santa Clara, Solano, Sonoma, and Ventura, and the City and County of
San Francisco.
(2) "Development standard" includes a site or construction condition, including, but not
limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-
space requirement, a minimum lot area per unit requirement, or a parking ratio that
applies to a residential development pursuant to any ordinance, general plan element,
specific plan, charter, or other local condition, law, policy, resolution, or regulation that is
adopted by the local government or that is enacted by the local government's electorate
exercising its local initiative or referendum power, whether that power is derived from the
California Constitution, statute, or the charter or ordinances of the local government.
(3) "Located within one-half mile of a major transit stop" means that any point on a
proposed development, for which an applicant seeks a density bonus, other incentives or
concessions, waivers or reductions of development standards, or a vehicular parking ratio
pursuant to this section, is within one-half mile of any point on the property on which a
major transit stop is located, including any parking lot owned by the transit authority or
other local agency operating the major transit stop.
(4) "Lower income student" means a student who has a household income and asset level
that does not exceed the level for Cal Grant A or Cal Grant B award recipients as set forth
in paragraph (1) of subdivision (k) of Section 69432.7 of the Education Code. The
eligibility of a student to occupy a unit for lower income students under this section shall
be verified by an affidavit, award letter, or letter of eligibility provided by the institution
of higher education in which the student is enrolled or by the California Student Aid
Commission that the student receives or is eligible for financial aid, including an
institutional grant or fee waiver from the college or university, the California Student Aid
Commission, or the federal government.
(5) "Major transit stop" has the same meaning as defined in subdivision (b) of Section
21155 of the Public Resources Code.
(6) "Maximum allowable residential density" or "base density" means the greatest number
of units allowed under the zoning ordinance, specific plan, or land use element of the
general plan, or, if a range of density is permitted, means the greatest number of units
allowed by the specific zoning range, specific plan, or land use element of the general
plan applicable to the project. Density shall be determined using dwelling units per acre.
However, if the applicable zoning ordinance, specific plan, or land use element of the
17
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
general plan does not provide a dwelling-units-per-acre standard for density, then the local
agency shall calculate the number of units by:
(A) Estimating the realistic development capacity of the site based on the objective
development standards applicable to the project, including, but not limited to, floor area
ratio, site coverage, maximum building height and number of stories, building setbacks
and stepbacks, public and private open-space requirements, minimum percentage or
square footage of any nonresidential component, and parking requirements, unless not
required for the base project. Parking requirements shall include considerations
regarding number of spaces, location, design, type, and circulation. A developer may
provide a base density study and the local agency shall accept it, provided that it
includes all applicable objective development standards.
(B) Maintaining the same average unit size and other project details relevant to the base
density study, excepting those that may be modified by waiver or concession to
accommodate the bonus units, in the proposed project as in the study.
(7)
(A)
(i) "Shared housing building" means a residential or mixed-use structure, with five or
more shared housing units and one or more common kitchens and dining areas
designed for permanent residence of more than 30 days by its tenants. The kitchens
and dining areas within the shared housing building shall be able to adequately
accommodate all residents. If a local ordinance further restricts the attributes of a
shared housing building beyond the requirements established in this section, the local
definition shall apply to the extent that it does not conflict with the requirements of
this section.
(ii) A "shared housing building" may include other dwelling units that are not shared
housing units, provided that those dwelling units do not occupy more than 25 percent
of the floor area of the shared housing building. A shared housing building may
include 100 percent shared housing units.
(B) "Shared housing unit" means one or more habitable rooms, not within another
dwelling unit, that includes a bathroom, sink, refrigerator, and microwave, is used for
permanent residence, that meets the "minimum room area" specified in Section R304 of
the California Residential Code (Part 2.5 of Title 24 of the California Code of
Regulations), and complies with the definition of "guestroom" in Section R202 of the
California Residential Code. If a local ordinance further restricts the attributes of a
shared housing building beyond the requirements established in this section, the local
definition shall apply to the extent that it does not conflict with the requirements of this
section.
(8)
(A) "Total units" or "total dwelling units" means a calculation of the number of units
that:
18
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
(i) Excludes a unit added by a density bonus awarded pursuant to this section or any
local law granting a greater density bonus.
(ii) Includes a unit designated to satisfy an inclusionary zoning requirement of a city,
county, or city and county.
(B) For purposes of calculating a density bonus granted pursuant to this section for a
shared housing building, "unit" means one shared housing unit and its pro rata share of
associated common area facilities.
(9) "Very low vehicle travel area" means an urbanized area, as designated by the United
States Census Bureau, where the existing residential development generates vehicle miles
traveled per capita that is below 85 percent of either regional vehicle miles traveled per
capita or city vehicle miles traveled per capita. For purposes of this paragraph, "area" may
include a travel analysis zone, hexagon, or grid. For the purposes of determining "regional
vehicle miles traveled per capita" pursuant to this paragraph, a "region" is the entirety of
incorporated and unincorporated areas governed by a multicounty or single-county
metropolitan planning organization, or the entirety of the incorporated and unincorporated
areas of an individual county that is not part of a metropolitan planning organization.
(p)
(1) Except as provided in paragraphs (2), (3), and (4), upon the request of the developer, a
city, county, or city and county shall not require a vehicular parking ratio, inclusive of
parking for persons with a disability and guests, of a development meeting the criteria of
subdivisions (b) and (c), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: one and one-half onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking spaces.
(2)
(A) Notwithstanding paragraph (1), if a development includes at least 20 percent low-
income units for housing developments meeting the criteria of subparagraph (A) of
paragraph (1) of subdivision (b) or at least 11 percent very low income units for housing
developments meeting the criteria of subparagraph (B) of paragraph (1) of subdivision
(b), is located within one-half mile of a major transit stop, and there is unobstructed
access to the major transit stop from the development, then, upon the request of the
developer, a city, county, or city and county shall not impose a vehicular parking ratio,
inclusive of parking for persons with a disability and guests, that exceeds 0.5 spaces per
unit. Notwithstanding paragraph (1), if a development includes at least 40 percent
moderate-income units for housing developments meeting the criteria of subparagraph
(D) of paragraph (1) of subdivision (b), is located within one-half mile of a major transit
stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code, and
the residents of the development have unobstructed access to the major transit stop from
the development then, upon the request of the developer, a city, county, or city and
19
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
county shall not impose a vehicular parking ratio, inclusive of parking for persons with
a disability and guests, that exceeds 0.5 spaces per bedroom.
(B) For purposes of this subdivision, "unobstructed access to the major transit stop"
means a resident is able to access the major transit stop without encountering natural or
constructed impediments. For purposes of this subparagraph, "natural or constructed
impediments" includes, but is not limited to, freeways, rivers, mountains, and bodies of
water, but does not include residential structures, shopping centers, parking lots, or rails
used for transit.
(3) Notwithstanding paragraph (1), if a development meets the criteria of subparagraph
(G) of paragraph (1) of subdivision (b), then, upon the request of the developer, a city,
county, or city and county shall not impose vehicular parking standards if the
development meets any of the following criteria:
(A) The development is located within one-half mile of a major transit stop and there is
unobstructed access to the major transit stop from the development.
(B) The development is a for-rent housing development for individuals who are 55 years
of age or older that complies with Sections 51.2 and 51.3 of the Civil Code and the
development has either paratransit service or unobstructed access, within one-half mile,
to fixed bus route service that operates at least eight times per day.
(C) The development is either a special needs housing development, as defined in
Section 51312 of the Health and Safety Code, or a supportive housing development, as
defined in Section 50675.14 of the Health and Safety Code. A development that is a
special needs housing development shall have either paratransit service or unobstructed
access, within one-half mile, to fixed bus route service that operates at least eight times
per day.
(4) If the total number of parking spaces required for a development is other than a whole
number, the number shall be rounded up to the next whole number. For purposes of this
subdivision, a development may provide onsite parking through tandem parking or
uncovered parking, but not through onstreet parking.
(5) This subdivision shall apply to a development that meets the requirements of
subdivisions (b) and (c), but only at the request of the applicant. An applicant may request
parking incentives or concessions beyond those provided in this subdivision pursuant to
subdivision (d).
(6) This subdivision does not preclude a city, county, or city and county from reducing or
eliminating a parking requirement for development projects of any type in any location.
(7) Notwithstanding paragraphs (2) and (3), if a city, county, city and county, or an
independent consultant has conducted an areawide or jurisdictionwide parking study in
the last seven years, then the city, county, or city and county may impose a higher
vehicular parking ratio not to exceed the ratio described in paragraph (1), based upon
substantial evidence found in the parking study, that includes, but is not limited to, an
20
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
analysis of parking availability, differing levels of transit access, walkability access to
transit services, the potential for shared parking, the effect of parking requirements on the
cost of market-rate and subsidized developments, and the lower rates of car ownership for
low-income and very low income individuals, including seniors and special needs
individuals. The city, county, or city and county shall pay the costs of any new study. The
city, county, or city and county shall make findings, based on a parking study completed
in conformity with this paragraph, supporting the need for the higher parking ratio.
(8) A request pursuant to this subdivision shall neither reduce nor increase the number of
incentives or concessions to which the applicant is entitled pursuant to subdivision (d).
(q) Each component of any density calculation, including base density and bonus density,
resulting in fractional units shall be separately rounded up to the next whole number. The
Legislature finds and declares that this provision is declaratory of existing law.
(r) This chapter shall be interpreted liberally in favor of producing the maximum number of
total housing units.
(s) Notwithstanding any other law, if a city, including a charter city, county, or city and
county has adopted an ordinance or a housing program, or both an ordinance and a housing
program, that incentivizes the development of affordable housing that allows for density
bonuses that exceed the density bonuses required by the version of this section effective
through December 31, 2020, that city, county, or city and county is not required to amend or
otherwise update its ordinance or corresponding affordable housing incentive program to
comply with the amendments made to this section by the act adding this subdivision, and is
exempt from complying with the incentive and concession calculation amendments made to
this section by the act adding this subdivision as set forth in subdivision (d), particularly
subparagraphs (B) and (C) of paragraph (2) of that subdivision, and the amendments made
to the density tables under subdivision (f).
(t) When an applicant proposes to construct a housing development that conforms to the
requirements of subparagraph (A) or (B) of paragraph (1) of subdivision (b) that is a shared
housing building, the city, county, or city and county shall not require any minimum unit
size requirements or minimum bedroom requirements that are in conflict with paragraph (7)
of subdivision (o).
(u)
(1) The Legislature finds and declares that the intent behind the Density Bonus Law is to
allow public entities to reduce or even eliminate subsidies for a particular project by
allowing a developer to include more total units in a project than would otherwise be
allowed by the local zoning ordinance in exchange for affordable units. It further
reaffirms that the intent is to cover at least some of the financing gap of affordable
housing with regulatory incentives, rather than additional public subsidy.
(2) It is therefore the intent of the Legislature to make modifications to the Density Bonus
Law by the act adding this subdivision to further incentivize the construction of very low,
low-, and moderate-income housing units. It is further the intent of the Legislature in
making these modifications to the Density Bonus Law to ensure that any additional
benefits conferred upon a developer are balanced with the receipt of a public benefit in the
form of adequate levels of affordable housing. The Legislature further intends that these
21
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
modifications will ensure that the Density Bonus Law creates incentives for the
construction of more housing across all areas of the state.
(v)
(1) Provided that the resulting housing development would not restrict more than 50
percent of the total units to moderate-income, lower income, or very low income
households, a city, county, or city and county shall grant an additional density bonus
calculated pursuant to paragraph (2) when an applicant proposes to construct a housing
development that conforms to the requirements of paragraph (1) of subdivision (b), agrees
to include additional rental or for-sale units affordable to very low income households or
moderate income households, and meets any of the following requirements:
(A) The housing development conforms to the requirements of subparagraph (A) of
paragraph (1) of subdivision (b) and provides 24 percent of the total units to lower
income households.
(B) The housing development conforms to the requirements of subparagraph (B) of
paragraph (1) of subdivision (b) and provides 15 percent of the total units to very low
income households.
(C) The housing development conforms to the requirements of subparagraph (D) of
paragraph (1) of subdivision (b) and provides 44 percent of the total units to moderate-
income households.
(2) A city, county, or city and county shall grant an additional density bonus for a housing
development that meets the requirements of paragraph (1), calculated as follows:
Percentage Very Low Income UnitsPercentage Density Bonus
5 20
6 23.75
7 27.5
8 31.25
9 35
10 38.75
Percentage Moderate-Income UnitsPercentage Density Bonus
5 20
6 22.5
7 25
8 27.5
22
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
(3) The increase required by paragraphs (1) and (2) shall be in addition to any increase in
density granted by subdivision (b).
(4) The additional density bonus required under this subdivision shall be calculated using
the number of units excluding any density bonus awarded by this section.
Ca. Gov. Code § 65915
Amended by Stats 2023 ch 784 (SB 713),s 1.3, eff. 1/1/2024.
Amended by Stats 2023 ch 755 (AB 1287),s 1, eff. 1/1/2024.
Amended by Stats 2023 ch 738 (AB 323),s 2, eff. 1/1/2024.
Amended by Stats 2022 ch 653 (AB 2334),s 1.5, eff. 1/1/2023.
Amended by Stats 2022 ch 634 (AB 682),s 1, eff. 1/1/2023.
Amended by Stats 2021 ch 365 (SB 728),s 1.5, eff. 1/1/2022.
Amended by Stats 2021 ch 340 (SB 290),s 2, eff. 1/1/2022.
Amended by Stats 2020 ch 197 (AB 2345),s 2, eff. 1/1/2021.
Amended by Stats 2019 ch 666 (AB 1763),s 1, eff. 1/1/2020.
Amended by Stats 2019 ch 497 (AB 991),s 148, eff. 1/1/2020.
Amended by Stats 2018 ch 937 (SB 1227),s 1.3, eff. 1/1/2019.
Amended by Stats 2018 ch 921 (AB 2753),s 1, eff. 1/1/2019.
Amended by Stats 2018 ch 904 (AB 2797),s 2, eff. 1/1/2019.
Amended by Stats 2016 ch 761 (AB 2556),s 1.7, eff. 1/1/2017.
Amended by Stats 2016 ch 758 (AB 2501),s 1, eff. 1/1/2017.
Amended by Stats 2016 ch 756 (AB 2442),s 1, eff. 1/1/2017.
Amended by Stats 2015 ch 699 (AB 744),s 2, eff. 1/1/2016.
Amended by Stats 2014 ch 682 (AB 2222),s 1, eff. 1/1/2015.
Amended by Stats 2013 ch 76 (AB 383),s 102, eff. 1/1/2014.
Amended by Stats 2012 ch 181 (AB 806),s 53, eff. 1/1/2013, op. 1/1/2014.
Amended by Stats 2008 ch 454 (AB 2280),s 1, eff. 1/1/2009.
Amended by Stats 2005 ch 496 (SB 435),s 2, eff. 1/1/2006
Amended by Stats 2004 ch 724 (AB 2348),s 5, eff. 1/1/2005
Amended by Stats 2003 ch 430 (AB 305), s 1, eff. 1/1/2004.
Amended by Stats 2002 ch 1062 (AB 1866), s 3, eff. 1/1/2003.
Amended by Stats 2000 ch 556 (AB 2755), s 1, eff. 1/1/2001.
9 30
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50
23
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
Previously Amended October 10, 1999 (Bill Number: SB 948) (Chapter 968).
See Stats 2023 ch 784 (SB 713), s 2.
See Stats 2023 ch 738 (AB 323), s 3.
24
Section 65915 - Granting density bonus Cal. Gov. Code § 65915
Cal. Gov. Code § 65915.1
Section 65915.1 - Affordable housing impact fees not to be imposed on affordable units
Ca. Gov. Code § 65915.1
Added by Stats 2021 ch 346 (AB 571),s 1, eff. 1/1/2022.
For purposes of Section 65915, affordable housing impact fees, including inclusionary zoning
fees and in-lieu fees, shall not be imposed on a housing development's affordable units.
1
Cal. Gov. Code § 65915.2
Section 65915.2 - Affordability restrictions
Ca. Gov. Code § 65915.2
Added by Stats 2021 ch 348 (AB 634),s 1, eff. 1/1/2022.
If permitted by local ordinance, nothing in Section 65915 shall be construed to prohibit a city,
county, or city and county from requiring an affordability period longer than 55 years for any
units that qualified the applicant for the award of the density bonus developed in compliance
with a local ordinance that requires, as a condition of the development of residential units,
that the development include a certain percentage of units that are affordable to, and occupied
by, low-income, lower income, very low income, or extremely low income households and
that will be financed without low-income housing tax credits.
1
Cal. Gov. Code § 65915.5
Section 65915.5 - Density bonus or other incentives of equivalent value upon conversion of apartments to
condominium project
(a) When an applicant for approval to convert apartments to a condominium project agrees
to provide at least 33 percent of the total units of the proposed condominium project to
persons and families of low or moderate income as defined in Section 50093 of the Health
and Safety Code, or 15 percent of the total units of the proposed condominium project to
lower income households as defined in Section 50079.5 of the Health and Safety Code, and
agrees to pay for the reasonably necessary administrative costs incurred by a city, county, or
city and county pursuant to this section, the city, county, or city and county shall either (1)
grant a density bonus or (2) provide other incentives of equivalent financial value. A city,
county, or city and county may place such reasonable conditions on the granting of a density
bonus or other incentives of equivalent financial value as it finds appropriate, including, but
not limited to, conditions which assure continued affordability of units to subsequent
purchasers who are persons and families of low and moderate income or lower income
households.
(b) For purposes of this section, "density bonus" means an increase in units of 25 percent
over the number of apartments, to be provided within the existing structure or structures
proposed for conversion.
(c) For purposes of this section, "other incentives of equivalent financial value" shall not be
construed to require a city, county, or city and county to provide cash transfer payments or
other monetary compensation but may include the reduction or waiver of requirements
which the city, county, or city and county might otherwise apply as conditions of conversion
approval.
(d) An applicant for approval to convert apartments to a condominium project may submit
to a city, county, or city and county a preliminary proposal pursuant to this section prior to
the submittal of any formal requests for subdivision map approvals. The city, county, or city
and county shall, within 90 days of receipt of a written proposal, notify the applicant in
writing of the manner in which it will comply with this section. The city, county, or city and
county shall establish procedures for carrying out this section, which shall include
legislative body approval of the means of compliance with this section.
(e) Nothing in this section shall be construed to require a city, county, or city and county to
approve a proposal to convert apartments to condominiums.
(f) An applicant shall be ineligible for a density bonus or other incentives under this section
if the apartments proposed for conversion constitute a housing development for which a
density bonus or other incentives were provided under Section 65915.
(g) An applicant shall be ineligible for a density bonus or any other incentives or
concessions under this section if the condominium project is proposed on any property that
includes a parcel or parcels on which rental dwelling units are or, if the dwelling units have
been vacated or demolished in the five-year period preceding the application, have been
subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to
persons and families of lower or very low income; subject to any other form of rent or price
1
control through a public entity's valid exercise of its police power; or occupied by lower or
very low income households, unless the proposed condominium project replaces those
units, as defined in subparagraph (B) of paragraph (3) of subdivision (c) of Section 65915,
and either of the following applies:
(1) The proposed condominium project, inclusive of the units replaced pursuant to
subparagraph (B) of paragraph (3) of subdivision (c) of Section 65915, contains
affordable units at the percentages set forth in subdivision (a).
(2) Each unit in the development, exclusive of a manager's unit or units, is affordable to,
and occupied by, either a lower or very low income household.
(h) Subdivision (g) does not apply to an applicant seeking a density bonus for a proposed
housing development if their application was submitted to, or processed by, a city, county,
or city and county before January 1, 2015.
Ca. Gov. Code § 65915.5
Amended by Stats 2014 ch 682 (AB 2222),s 2, eff. 1/1/2015.
2
Section 65915.5 ... Cal. Gov. Code § 65915.5
Cal. Gov. Code § 65915.7
Section 65915.7 - [Effective until 1/1/2028] Development bonuses; mixed-use projects
(a) When an applicant for approval of a commercial development has entered into an
agreement for partnered housing described in subdivision (c) to contribute affordable
housing through a joint project or two separate projects encompassing affordable housing,
the city, county, or city and county shall grant to the commercial developer a development
bonus as prescribed in subdivision (b). Housing shall be constructed on the site of the
commercial development or on a site that is all of the following:
(1) Within the boundaries of the local government.
(2) In close proximity to public amenities including schools and employment centers.
(3) Located within one-half mile of a major transit stop, as defined in subdivision (b) of
Section 21155 of the Public Resources Code.
(b) The development bonus granted to the commercial developer shall mean incentives,
mutually agreed upon by the developer and the jurisdiction, that may include, but are not
limited to, any of the following:
(1) Up to a 20-percent increase in maximum allowable intensity in the General Plan.
(2) Up to a 20-percent increase in maximum allowable floor area ratio.
(3) Up to a 20-percent increase in maximum height requirements.
(4) Up to a 20-percent reduction in minimum parking requirements.
(5) Use of a limited-use/limited-application elevator for upper floor accessibility.
(6) An exception to a zoning ordinance or other land use regulation.
(c) For purposes of this section, the agreement for partnered housing shall be between the
commercial developer and the housing developer, shall identify how the commercial
developer will contribute affordable housing, and shall be approved by the city, county, or
city and county.
(d) For purposes of this section, affordable housing may be contributed by the commercial
developer in one of the following manners:
(1) The commercial developer may directly build the units.
(2) The commercial developer may donate a portion of the site or property elsewhere to
the affordable housing developer for use as a site for affordable housing.
(3) The commercial developer may make a cash payment to the affordable housing
developer that shall be used towards the costs of constructing the affordable housing
project.
1
(e) For purposes of this section, subparagraph (A) of paragraph (3) of subdivision (c) of
Section 65915 shall apply.
(f) Nothing in this section shall preclude any additional allowances or incentives offered to
developers by local governments pursuant to law or regulation.
(g) If the developer of the affordable units does not commence with construction of those
units in accordance with timelines ascribed by the agreement described in subdivision (c),
the local government may withhold certificates of occupancy for the commercial
development under construction until the developer has completed construction of the
affordable units.
(h) In order to qualify for a development bonus under this section, a commercial developer
shall partner with a housing developer that provides at least 30 percent of the total units for
low-income households or at least 15 percent of the total units for very low-income
households.
(i) Nothing in this section shall preclude an affordable housing developer from seeking a
density bonus, concessions or incentives, waivers or reductions of development standards,
or parking ratios under Section 65915.
(j) A development bonus pursuant to this section shall not include a reduction or waiver of
the requirements within an ordinance that requires the payment of a fee by a commercial
developer for the promotion or provision of affordable housing.
(k) A city or county shall submit to the Department of Housing and Community
Development, as part of the annual report required by Section 65400, information
describing a commercial development bonus approved pursuant to this section, including
the terms of the agreements between the commercial developer and the affordable housing
developer, and the developers and the local jurisdiction, and the number of affordable units
constructed as part of the agreements.
(l) For purposes of this section, "partner" means formation of a partnership, limited liability
company, corporation, or other entity recognized by the state in which the commercial
development applicant and the affordable housing developer are each partners, members,
shareholders or other participants, or a contract or agreement between a commercial
development applicant and affordable housing developer for the development of both the
commercial and the affordable housing properties.
(m) This section shall remain in effect only until January 1, 2028, and as of that date is
repealed.
Ca. Gov. Code § 65915.7
Added by Stats 2022 ch 637 (AB 1551),s 1, eff. 1/1/2023.
Added by Stats 2016 ch 747 (AB 1934),s 2, eff. 1/1/2017.
2
Section 65915.7 ... Cal. Gov. Code § 65915.7
Cal. Gov. Code § 65916
Section 65916 - Direct financial contribution to development
Ca. Gov. Code § 65916
Added by Stats. 1979, Ch. 1207.
Where there is a direct financial contribution to a housing development pursuant to Section
65915 through participation in cost of infrastructure, write-down of land costs, or subsidizing
the cost of construction, the city, county, or city and county shall assure continued availability
for low- and moderate-income units for 30 years. When appropriate, the agreement provided
for in Section 65915 shall specify the mechanisms and procedures necessary to carry out this
section.
1
Cal. Gov. Code § 65917
Section 65917 - Legislative intent
Ca. Gov. Code § 65917
Amended by Stats 2001 ch 115 (SB 153), s 14, eff. 1/1/2002.
In enacting this chapter it is the intent of the Legislature that the density bonus or other
incentives offered by the city, county, or city and county pursuant to this chapter shall
contribute significantly to the economic feasibility of lower income housing in proposed
housing developments. In the absence of an agreement by a developer in accordance with
Section 65915, a locality shall not offer a density bonus or any other incentive that would
undermine the intent of this chapter.
1
Cal. Gov. Code § 65917.2
Section 65917.2 - Floor area ratio bonus
(a) As used in this section, the following terms shall have the following meanings:
(1) "Eligible housing development" means a development that satisfies all of the
following criteria:
(A) The development is a multifamily housing development that contains five or more
residential units, exclusive of any other floor area ratio bonus or incentive or concession
awarded pursuant to this chapter.
(B) The development is located within one of the following:
(i) An urban infill site that is within a transit priority area.
(ii) One-half mile of a major transit stop.
(C) The site of the development is zoned to allow residential use or mixed-use with a
minimum planned density of at least 20 dwelling units per acre and does not include any
land zoned for low density residential use or for exclusive nonresidential use.
(D) The applicant and the development satisfy the replacement requirements specified
in subdivision (c) of Section 65915.
(E) The development includes at least 20 percent of the units, excluding any additional
units allowed under a floor area ratio bonus or other incentives or concessions provided
pursuant to this chapter, with an affordable housing cost or affordable rent to, and
occupied by, persons with a household income equal to or less than 50 percent of the
area median income, as determined pursuant to Section 50093 of the Health and Safety
Code, and subject to an affordability restriction for a minimum of 55 years.
(F) The development complies with the height requirements applicable to the
underlying zone. A development shall not be eligible to use a floor area ratio bonus or
other incentives or concessions provided pursuant to this chapter to relieve the
development from a maximum height limitation.
(2) "Floor area ratio" means the ratio of gross building area of the eligible housing
development, excluding structured parking areas, proposed for the project divided by the
net lot area. For purposes of this paragraph, "gross building area" means the sum of all
finished areas of all floors of a building included within the outside faces of its exterior
walls.
(3) "Floor area ratio bonus" means an allowance for an eligible housing development to
utilize a floor area ratio over the otherwise maximum allowable density permitted under
the applicable zoning ordinance and land use elements of the general plan of a city or
county, calculated pursuant to paragraph (2) of subdivision (b).
1
(4) "Major transit stop" has the same meaning as defined in Section 21155 of the Public
Resources Code.
(5) "Transit priority area" has the same meaning as defined in Section 21099 of the Public
Resources Code.
(b)
(1) A city council, including a charter city council or the board of supervisors of a city and
county, or county board of supervisors may establish a procedure by ordinance to grant a
developer of an eligible housing development, upon the request of the developer, a floor
area ratio bonus, calculated as provided in paragraph (2), in lieu of a density bonus
awarded on the basis of dwelling units per acre.
(2) In calculating the floor area ratio bonus pursuant to this section, the allowable gross
residential floor area in square feet shall be the product of all of the following amounts:
(A) The allowable residential base density in dwelling units per acre.
(B) The site area in square feet, divided by 43,560.
(C) 2,250.
(c) The city council or county board of supervisors shall not impose any parking
requirement on an eligible housing development in excess of 0.1 parking spaces per unit
that is affordable to persons and families with a household income equal to or less than 120
percent of the area median income and 0.5 parking spaces per unit that is offered at market
rate.
(d) A city or county that adopts a floor area ratio bonus ordinance pursuant to this section
shall allow an applicant seeking to develop an eligible residential development to calculate
impact fees based on square feet, instead of on a per unit basis.
(e) In the case of an eligible housing development that is zoned for mixed-use purposes, any
floor area ratio requirement under a zoning ordinance or land use element of the general
plan of the city or county applicable to the nonresidential portion of the eligible housing
development shall continue to apply notwithstanding the award of a floor area ratio bonus
in accordance with this section.
(f) An applicant for a floor area ratio bonus pursuant to this section may also submit to the
city, county, or city and county a proposal for specific incentives or concessions pursuant to
subdivision (d) of Section 65915.
(g)
(1) This section shall not be interpreted to do either of the following:
(A) Supersede or preempt any other section within this chapter.
(B) Prohibit a city, county, or city and county from providing a floor area ratio bonus
under terms that are different from those set forth in this section.
(2) The adoption of an ordinance pursuant to this section shall not be interpreted to relieve
a city, county, or city and county from complying with Section 65915.
2
Section 65917.2 - Floor area ratio bonus Cal. Gov. Code § 65917.2
Ca. Gov. Code § 65917.2
Added by Stats 2018 ch 915 (AB 2372),s 1, eff. 1/1/2019.
3
Section 65917.2 - Floor area ratio bonus Cal. Gov. Code § 65917.2
Cal. Gov. Code § 65917.5
Section 65917.5 - Density bonus to developer of commercial or industrial project
(a) As used in this section, the following terms shall have the following meanings:
(1) "Child care facility" means a facility installed, operated, and maintained under this
section for the nonresidential care of children as defined under applicable state licensing
requirements for the facility.
(2) "Density bonus" means a floor area ratio bonus over the otherwise maximum
allowable density permitted under the applicable zoning ordinance and land use elements
of the general plan of a city, including a charter city, city and county, or county of:
(A) A maximum of five square feet of floor area for each one square foot of floor area
contained in the child care facility for existing structures.
(B) A maximum of 10 square feet of floor area for each one square foot of floor area
contained in the child care facility for new structures.
(3) "Developer" means the owner or other person, including a lessee, having the right
under the applicable zoning ordinance of a city council, including a charter city council,
city and county board of supervisors, or county board of supervisors to make an
application for development approvals for the development or redevelopment of a
commercial or industrial project.
(4) "Floor area" means as to a commercial or industrial project, the floor area as
calculated under the applicable zoning ordinance of a city council, including a charter city
council, city and county board of supervisors, or county board of supervisors and as to a
child care facility, the total area contained within the exterior walls of the facility and all
outdoor areas devoted to the use of the facility in accordance with applicable state child
care licensing requirements.
(b) A city council, including a charter city council, city and county board of supervisors, or
county board of supervisors may establish a procedure by ordinance to grant a developer of
a commercial or industrial project, containing at least 50,000 square feet of floor area, a
density bonus when that developer has set aside at least 2,000 square feet of floor area and
3,000 outdoor square feet to be used for a child care facility. The granting of a bonus shall
not preclude a city council, including a charter city council, city and county board of
supervisors, or county board of supervisors from imposing necessary conditions on the
project or on the additional square footage. Projects constructed under this section shall
conform to height, setback, lot coverage, architectural review, site plan review, fees,
charges, and other health, safety, and zoning requirements generally applicable to
For purposes of calculating the density bonus under this section, both indoor and
outdoor square footage requirements for the child care facility as set forth in applicable
state child care licensing requirements shall be included in the floor area of the child
care facility.
1
construction in the zone in which the property is located. A consortium with more than one
developer may be permitted to achieve the threshold amount for the available density bonus
with each developer's density bonus equal to the percentage participation of the developer.
This facility may be located on the project site or may be located offsite as agreed upon by
the developer and local agency. If the child care facility is not located on the site of the
project, the local agency shall determine whether the location of the child care facility is
appropriate and whether it conforms with the intent of this section. The child care facility
shall be of a size to comply with all state licensing requirements in order to accommodate at
least 40 children.
(c) The developer may operate the child care facility itself or may contract with a licensed
child care provider to operate the facility. In all cases, the developer shall show ongoing
coordination with a local child care resource and referral network or local governmental
child care coordinator in order to qualify for the density bonus.
(d) If the developer uses space allocated for child care facility purposes, in accordance with
subdivision (b), for purposes other than for a child care facility, an assessment based on the
square footage of the project may be levied and collected by the city council, including a
charter city council, city and county board of supervisors, or county board of supervisors.
The assessment shall be consistent with the market value of the space. If the developer fails
to have the space allocated for the child care facility within three years, from the date upon
which the first temporary certificate of occupancy is granted, an assessment based on the
square footage of the project may be levied and collected by the city council, including a
charter city council, city and county board of supervisors, or county board of supervisors in
accordance with procedures to be developed by the legislative body of the city council,
including a charter city council, city and county board of supervisors, or county board of
supervisors. The assessment shall be consistent with the market value of the space. A
penalty levied against a consortium of developers shall be charged to each developer in an
amount equal to the developer's percentage square feet participation. Funds collected
pursuant to this subdivision shall be deposited by the city council, including a charter city
council, city and county board of supervisors, or county board of supervisors into a special
account to be used for child care services or child care facilities.
(e) Once the child care facility has been established, prior to the closure, change in use, or
reduction in the physical size of, the facility, the city, city council, including a charter city
council, city and county board of supervisors, or county board of supervisors shall be
required to make a finding that the need for child care is no longer present, or is not present
to the same degree as it was at the time the facility was established.
(f) The requirements of Chapter 5 (commencing with Section 66000) and of the
amendments made to Sections 53077, 54997, and 54998 by Chapter 1002 of the Statutes of
1987 shall not apply to actions taken in accordance with this section.
(g) This section shall not apply to a voter-approved ordinance adopted by referendum or
initiative.
Ca. Gov. Code § 65917.5
Amended by Stats 2008 ch 179 (SB 1498),s 112, eff. 1/1/2009.
2
Section 65917.5 ... Cal. Gov. Code § 65917.5
3
Section 65917.5 ... Cal. Gov. Code § 65917.5
Cal. Gov. Code § 65918
Section 65918 - Applicability to charter cities
Ca. Gov. Code § 65918
Added by Stats. 1979, Ch. 1207.
The provisions of this chapter shall apply to charter cities.
1
Building
Permit &
Final Map
Applications
Construction
&
Inspections
Town of Los Gatos Senate Bill (SB) 330 Development Process
Preliminary
SB 330
Application
Submit formal
application &
supporting
materials, including
required checklist
Missing items &corrections
Resubmittal(s)
Staff confirms all
required items are
included in the
submittal
Vesting date
established
Materials
posted online
If project is three or
more stories tall,
noticing cards mailed
to properties &
tenants within 1,000 feet
Expires after
180 days if no
formal
application
received
Missing items &corrections
Resubmittal(s)
Formal
Planning
Application
Submit formal
application &
supporting
materials
Staff technical review of application,
comment letters with any
incompleteness or inconsistency,
prepared by Planning, Building, County
Fire & Public Works Engineering
Determine required
environmental review
& proceed with
environmental
consultant
Public Hearings
(Planning Commission &
appeal to Council) -
Five hearing limit for
SB 330 projects
Permit approval
or denial
Submittal & review could include
Building, Grading, Encroachment,
and/or Final Map applications
Permit(s)
issuance
Review by Building, Planning, Santa
Clara County Fire Department, and
Public Works Engineering
Resubmittal(s)
Missing items &corrections
Final
inspections &
occupancy
Demolition/construction may begin
once permits are issued
Construction includes ongoing
inspections
ATTACHMENT 4