Attachment 43REVISED JANUARY 2017
Guide to the California Density Bonus Law
BY JON GOETZ AND TOM SAKAI
ATTACHMENT 43
Table of Contents
INTRODUCTION AND OVERVIEW.........................................................................................................2
HOW THE DENSITY BONUS WORKS....................................................................................................3
DENSITY BONUS CHART...........................................................................................................4
HOW THE DENSITY BONUS CAN HELP IN A FRIENDLY JURISDICTION.........................................9
HOW THE DENSITY BONUS CAN HELP IN A HOSTILE JURISDICTION...........................................9
CEQA ISSUES IN DENSITY BONUS PROJECTS.................................................................................10
USING THE DENSITY BONUS TO SATISFY INCLUSIONARY HOUSING REUIREMENTS..............10
DENSITY BONUS AND REPLACEMENT HOUSING............................................................................11
DENSITY BONUS IN THE COASTAL ZONE.........................................................................................11
DENSITY BONUS - A FLEXIBLE TOOL................................................................................................11
DENSITY BONUS STATUTES...............................................................................................................12
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JON GOETZ
E-mail: jgoetz@meyersnave.com
Direct: 800.464.3559
Jon Goetz is a Principal at Meyers Nave. He has 30 years of experience in real estate, land use,
environmental, redevelopment, housing and municipal law. Jon represents private and public
entities in complex real estate development transactions, land use planning, public-private
development, infrastructure financing and affordable housing. He has advised on acquiring,
financing, leasing and disposing of all forms of improved and unimproved property.
ABOUT THE AUTHORS
TOM SAKAI
E-mail: tsakai@springbrookadvisors.com
Direct: 949.833.2599
Tom Sakai is the Principal of Springbrook Realty Advisors, Inc., a real estate consulting practice
located in Newport Beach. His practice specializes in consulting to land developers and
homebuilders, focusing on pro formas and feasibilities for master-planned communities, school
negotiations, assessment district and Mello-Roos financing, affordable housing issues, and other
services to the real estate industry.
Introduction and Overview
Savvy housing developers are taking advantage of California’s Density Bonus Law, a mechanism which
allows them to obtain more favorable local development requirements in exchange for offering to build or
donate land for affordable or senior units. The Density Bonus Law (found in California Government Code
Sections 65915 – 65918) provides developers with powerful tools to encourage the development of
affordable and senior housing, including up to a 35% increase in project densities, depending on the amount
of affordable housing provided. The Density Bonus Law is about more than the density bonus itself, however.
It is actually a larger package of incentives intended to help make the development of affordable and senior
housing economically feasible. Other tools include reduced parking requirements, and incentives and
concessions such as reduced setback and minimum square footage requirements. Often these other tools
are even more helpful to project economics than the density bonus itself, particularly the special parking
benefits. Sometimes these incentives are sufficient to make the project pencil out, but for other projects
financial assistance is necessary to make the project feasible.
In determining whether a development project would benefit from becoming a density bonus project,
developers also need to be aware that:
• The Density Bonus is a state mandate. A developer who meets the requirements of the state law is
entitled to receive the density bonus and other benefits as a matter of right. As with any state mandate,
some local governments will resist complying with the state requirement. But many local governments
favor the density bonus as a helpful tool to cut through their own land use requirements and local
political issues.
• Use of a density bonus may be particularly helpful in those jurisdictions that impose inclusionary
housing requirements for new developments.
• Special development bonuses are available for developers of commercial projects who partner with
affordable housing developers to provide onsite or offsite affordable housing. Special bonuses are also
available for condominium conversion projects and projects that include child care facilities.
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How the Density Bonus Works
PROJECTS ENTITLED TO A DENSITY BONUS
Cities and counties are required to grant a density bonus and other incentives or concessions to housing
projects which contain one of the following:
• At least 5% of the housing units are restricted to very low income residents.
• At least 10% of the housing units are restricted to lower income residents.
• At least 10% of the housing units in a for-sale common interest development are restricted to moderate
income residents.
• At least 10% of the housing units are for transitional foster youth, disabled veterans or homeless
persons, with rents restricted at the very low income level.
• The project donates at least one acre of land to the city or county for very low income units, and the
land has the appropriate general plan designation, zoning, permits and approvals, and access to public
facilities needed for such housing.
• The project is a senior citizen housing development (no affordable units required).
• The project is a mobilehome park age-restricted to senior citizens (no affordable units required).
DENSITY BONUS AMOUNT
The amount of the density bonus is set on a sliding scale, based upon the percentage of affordable units at
each income level, as shown in the chart on the following page.
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DENSITY BONUS CHART *
*All density bonus calculations resulting in fractions are rounded up to the next whole number.
**Affordable unit percentage is calculated excluding units added by a density bonus.
5%20%---20%
6%22.5%---20%
7%25%---20%
8%27.5%---20%
9%30%---20%
10%32.5%20%5%15%20%
11%35%21.5%6%16%20%
12%35%23%7%17%20%
13%35%24.5%8%18%20%
14%35%26%9%19%20%
15%35%27.5%10%20%20%
16%35%29%11%21%20%
17%35%30.5%12%22%20%
18%35%32%13%23%20%
19%35%33.5%14%24%20%
20%35%35%15%25%20%
21%35%35%16%26%20%
22%35%35%17%27%20%
23%35%35%18%28%20%
24%35%35%19%29%20%
25%35%35%20%30%20%
26%35%35%21%31%20%
27%35%35%22%32%20%
28%35%35%23%33%20%
29%35%35%24%34%20%
30%35%35%25%35%20%
31%35%35%26%35%20%
32%35%35%27%35%20%
33%35%35%28%35%20%
34%35%35%29%35%20%
35%35%35%30%35%20%
36%35%35%31%35%20%
37%35%35%32%35%20%
38%35%35%33%35%20%
39%35%35%34%35%20%
40%35%35%35%35%20%
AFFORDABLE UNIT
PERCENTAGE**
VERY LOW INCOME
DENSITY BONUS
LOW INCOME
DENSITY BONUS
MODERATE INCOME
DENSITY BONUS
LAND DONATION
DENSITY BONUS
SENIOR/FOSTER YOUTH/
DISABLED VETS/
HOMELESS
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REQUIRED INCENTIVES AND CONCESSIONS
In addition to the density bonus, the city or county is also required to provide one or more “incentives” or
“concessions” to each project which qualifies for a density bonus (except that market rate senior citizen
projects with no affordable units, and land donated for very low income housing, do not appear to be entitled
to incentives or concessions). A concession or incentive is defined as:
• 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
• Approval of mixed use zoning; or
• Other regulatory incentives or concessions which actually result in identifiable and actual cost
reductions.
The number of required incentives or concessions is based on the percentage of affordable units in the
project:
• For projects with at least 5% very low income, 10% lower income or 10% moderate income units,
one incentive or concession is required.
• For projects with at least 10% very low income, 20% lower income or 20% moderate income units,
two incentives or concessions are required.
• For projects with at least 15% very low income, 30% lower income or 30% moderate income units,
three incentives or concessions are required.
The city or county is required to grant the concession or incentive proposed by the developer unless it
finds that the proposed concession or incentive does not result in identifiable and actual cost reductions,
would cause a public health or safety problem, would cause an environmental problem, would harm
historical property, or would be contrary to law. New legislation effective in 2017 restricts the types of
information and reports that a developer may be required to provide to the local jurisdiction in order to
obtain the requested incentive or concession. The local jurisdiction has the burden of proof in the event it
declines to grant a requested incentive or concession. Financial incentives, fee waivers and reductions in
dedication requirements may be, but are not required to be, provided by the city or county. The developer
may be entitled to the incentives and concessions even without a request for a density bonus.
OTHER FORMS OF ASSISTANCE
A development qualifying for a density bonus also receives two additional forms of assistance which have
important benefits for a housing project:
• Waiver or Reduction of Development Standards. If any other city or county development standard
would physically prevent the project from being built at the permitted density and with the granted
concessions/incentives, the developer may propose to have those standards waived or reduced. The
city or county is not permitted to apply any development standard which physically precludes the
construction of the project at its permitted density and with the granted concessions/incentives. The
city or county is not required to waive or reduce development standards that would cause a public health
or safety problem, cause an environmental problem, harm historical property, or would be contrary to
law. The waiver or reduction of a development standard does not count as an incentive or concession,
and there is no limit on the number of development standard waivers that may be requested or granted.
Development standards which have been waived or reduced utilizing this section include setback
requirements and lot coverage requirements. This ability to force the locality to modify its normal
development standards is sometimes the most compelling reason for the developer to structure a
project to qualify for the density bonus.
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• Maximum Parking Requirements. Upon the
developer’s request, the city or county may not
require more than the following parking ratios for
a density bonus project:
• 1 onsite parking space for studio and one
bedroom units
• 2 onsite parking spaces for two and three
bedroom units
• 2.5 onsite parking spaces for units with
four or more bedrooms
Lower parking ratios apply to specified projects:
• 0.5 spaces per bedroom for rental or for sale
projects with at least 11% very low income or
20% lower income units, and within one-half
mile of an accessible major transit stop
• 0.5 spaces per unit for rental projects which
are 100% affordable to lower income
households, and within one-half mile of an
accessible major transit stop
• 0.5 spaces per unit for rental senior projects
which are 100% affordable to lower income
households, and have paratransit service or are
within one-half mile of accessible fixed bus route
service operating at least eight times per day
• 0.3 spaces per unit for rental special needs projects which are 100% affordable to lower income
households and have paratransit service or are within one-half mile of accessible fixed bus route
service operating at least eight times per day
• Local jurisdictions can require higher parking ratios if supported by a specified study.
Onsite spaces may be provided through tandem or uncovered parking, but not onstreet parking. Requesting
these parking standards does not count as an incentive or concession, but the developer may request
further parking standard reductions as an incentive or concession. This is one of the most important
benefits of the density bonus statute. In many cases, achieving a reduction in parking requirements may be
more valuable than the additional permitted units. In higher density developments requiring the use of
structured parking, the construction cost of structured parking is very expensive, costing upwards of
$20,000 per parking space. While this provision of the density bonus statute can be used to reduce
excessive parking requirements, care must be taken not to impact the project’s marketability by reducing
parking to minimum requirements which lead to parking shortages.
AFFORDABLE HOUSING RESTRICTIONS
• Rental Units. Affordable rental units must be restricted by an agreement which sets maximum incomes
and rents for those units. As of January 1, 2015, the income and rent restrictions must remain in place
for a 55 year term for very low or lower income units (formerly only a 30 year term was required). Rents
must be restricted as follows:
• For very low income units, rents may not exceed 30% x 50% of the area median income for a
household size suitable for the unit.
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• For lower income units, rents may not exceed 30% x 60% of the area median income for a household
size suitable for the unit.
• For moderate income units, rents may not exceed 30% x 110% of the area median income for a
household size suitable for the unit.
• Area median income is determined annually by regulation of the California Department of Housing
and Community Development, based upon median income regulations adopted by the U.S.
Department of Housing and Urban Development.
• Rents must include a reasonable utility allowance.
• Household size appropriate to the unit means 1 for a studio unit, 2 for a one bedroom unit, 3 for
a two bedroom unit, 4 for a three bedroom unit, etc.
In many cases, achieving a reduction in parking requirements may be more valuable than the
additional permitted units.
• For Sale Units. Affordable for sale units must be sold to the initial buyer at an affordable housing cost.
Housing related costs include mortgage loan payments, mortgage insurance payments, property taxes
and assessments, homeowner association fees, reasonable utilities allowance, insurance premiums,
maintenance costs, and space rent.
• For very low income units, housing costs may not exceed 30% x 50% of the area median income for
a household size suitable for the unit.
• For lower income units, housing costs may not exceed 30% x 70% of the area median income for a
household size suitable for the unit.
• For moderate income units, housing costs may not exceed 35% x 110% of the area median income
for a household size suitable for the unit.
• Buyers must enter into an equity sharing agreement with the city or county, unless the equity
sharing requirements conflict with the requirements of another public funding source or law. The
equity sharing agreement does not restrict the resale price, but requires the original owner to pay
the city or county a portion of any appreciation received on resale.
• The city/county percentage of appreciation is the purchase price discount received by the original
buyer, plus any down payment assistance provided by the city/county. (For example, if the original
sales price is $200,000, and the original fair market value is $250,000, and there is no city/ county
down payment assistance, the city/ county subsidy is $50,000, and the city/ county’s share of
appreciation is 20%).
• The seller is permitted to retain its original down payment, the value of any improvements made to
the home, and the remaining share of the appreciation.
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• The income and affordability requirements are not binding on resale purchasers (but if other public
funding sources or programs are used, the requirements may apply to resales for a fixed number of
years).
HOW THE DENSITY BONUS WORKS FOR SENIOR PROJECTS
As shown in the Density Bonus Chart above, a senior citizen housing development of at least 35 units
meeting the requirements of Section 51.3 or 51.12 of the Civil Code qualifies for a 20% density bonus. This
is a very desirable option for senior housing developments. In jurisdictions where the local ordinances do not
reduce the parking requirements for senior housing developments, the reduced parking requirements alone
may justify applying for a density bonus.
HOW THE DENSITY BONUS WORKS FOR COMMERCIAL PROJECTS
Legislation effective in 2017 requires that cities and counties provide a “development bonus” to commercial
developers who partner with affordable housing developers for the construction of affordable housing on
the commercial project site, or offsite within the jurisdiction located near schools, employment and a major
transit stop. The commercial developer may participate through the donation of land or funds for the
affordable housing, or direct construction of the housing units. The partnership between the commercial
developer and the affordable developer can occur through a newly formed legal entity such as a corporation,
LLC or partnership, or can take the shape of a contractual agreement between the parties. To be eligible for
the development bonus, at least 30% of the housing units must be restricted to lower income residents or
15 % of the housing units must be restricted to very low income residents. Unlike the primary Density Bonus
Law, there is no fixed amount of increased density awarded to the developer. Instead, the development
bonus can be any mutually agreeable incentive, including up to a 20% increase in development intensity,
floor area ratio, or height limits, up to a 20% reduction in parking requirements, use of a limited use
elevator, or an exception to a zoning ordinance or land use requirement. Commercial developers who need
extra leverage to obtain more favorable development standards for their project may want to consider
providing affordable housing in order to take advantage of the benefits of the development bonus.
HOW THE DENSITY BONUS WORKS FOR CONDOMINIUM CONVERSION PROJECTS
The density bonus statute provides for a density bonus of up to 25% for condominium conversion projects
providing at least 33% for the total units to low or moderate income households or 15% of the units to lower
income households. Many condominium conversion projects are not designed in a manner that allows them
to take advantage of the opportunity to construct additional units, but some projects may find this helpful.
While condominium conversions are not presently a viable development alternative, this provision may be of
some value in limited situations in the future.
HOW THE DENSITY BONUS WORKS FOR CHILD CARE
Housing projects that provide child care are eligible for a separate density bonus equal to the size of the
child care facility. The child care facility must remain in operation for at least the length of the affordability
covenants. A percentage of the child care spaces must also be made available to low and moderate income
families. A separate statute permits cities and counties to grant density bonuses to commercial and
industrial projects of at least 50,000 square feet, when the developer sets aside at least 2,000 square feet
in the building and 3,000 square feet of outside space for a child care facility.
HOW TO OBTAIN A DENSITY BONUS THROUGH LAND DONATION
Many market rate housing developers are uncomfortable with building and marketing affordable units
themselves, whether due to their lack of experience with the affordable housing process or because of their
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desire to concentrate on their core market rate homes. Other developers may have sites that are
underutilized in terms of project density. The density bonus law contains a special sliding scale bonus for
land donation which allows those developers to turn over the actual development of the affordable units to
local agencies or experienced low income developers. The density bonus is available for the donation of at
least an acre of fully entitled land, with all needed public facilities and infrastructure, and large enough for
the construction of a high density very low income project containing 10% of the total homes in the
development. The parcel must be located within the boundary of the proposed development or, subject to
the approval of the jurisdiction, within one-fourth mile of the boundary of the proposed development. The
more units that can be built on the donated land, the larger the density bonus. Because of the parcel size
requirements, this option is only practical for larger developments. The land donation density bonus can be
combined with the regular density bonus provided for the development of affordable units, up to a maximum
35% density bonus. A master planned community developer needs to carefully evaluate the land donation
option as opposed to engaging an affordable housing developer to fulfill the project’s affordable housing ob -
ligations. In many cases the master developer will prefer to control the affordable component of the project
through a direct agreement with the affordable housing developer, rather than allowing the local government
to control the project.
How the Density Bonus Can Help in a Friendly Jurisdiction
While the density bonus law is often used by developers to obtain more housing than the local jurisdiction
would ordinarily permit, it can also be a helpful land use tool in jurisdictions which favor the proposed project
and want to provide support. Planners in many cities and counties may be disposed by personal ideology
or local policy to encourage the construction of higher density housing and mixed use developments near
transit stops and downtown areas, but are hampered by existing general plan standards and zoning from
approving these sorts of projects. Elected officials often support these projects too, but may find it politically
difficult to oppose neighborhood and environmental groups over the necessary general plan amendments,
zoning changes and CEQA approvals.
The density bonus can provide a useful mechanism for increasing allowable density without requiring local
officials to approve general plan amendments and zoning changes. A project that satisfies the requirements
of the density bonus law often can obtain the necessary land use approvals through the award of the density
bonus units and requested concessions and incentives, without having to amend the underlying land use
requirements. Friendly local officials may encourage the use of the density bonus to “force” the jurisdiction
to approve a desired project.
How the Density Bonus Law Can Help in a Hostile Jurisdiction
It is important to know that the density bonus is a state law requirement which is mandatory on cities and
counties, even charter cities which are free from many other state requirements. A developer who meets
the law’s requirements for affordable or senior units is entitled to the density bonus and other assistance
as of right, regardless of the locality’s desires (subject to limited health and safety exceptions). The density
bonus statute can be used to achieve reductions in development standards or the granting of concessions
or incentives from jurisdictions that otherwise would not be inclined to grant those items. Examples might
include a reduction in parking standards if those standards are deemed excessive by the developer, or other
reductions in development standards if needed to achieve the total density permitted by the density bonus.
Developers who nonetheless encounter hostility from local jurisdictions are provided several tools to ensure
that a required density bonus is actually granted. Developers are entitled to an informal meeting with a local
jurisdiction which fails to modify a requested development standard. If a developer successfully sues the
locality to enforce the density bonus requirements, it is entitled to an award of its attorneys’ fees. The
obligation to pay a developer’s attorneys’ fees is a powerful incentive for local jurisdictions to voluntarily
comply with the state law density bonus requirements, even when the jurisdiction is not in favor of its effects
on the project.
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CEQA Issues in Density Bonus Projects
Although there is no specific density bonus exemption from the California Environmental Quality Act, many
density bonus projects are likely candidates for urban infill and affordable housing exemptions from CEQA.
One commonly invoked exemption is the Class 32 urban infill exemption found in CEQA Guidelines Section
15332. That exemption is available if the project is consistent with applicable general plan designation and
zoning, the site is five acres or less and surrounded by urban uses, is not habitat for endangered, rare or
threatened species, does not have any significant effects relating to traffic, noise, air quality or water
quality, and is adequately served by utilities and public services. Other exemptions are available for high
density housing projects near major transit stops (CEQA Guidelines Section 15195) and affordable housing
projects of up to 100 units (CEQA Guidelines Section 15194).
A 2011 case, Wollmer v. City of Berkeley , clarified the use of the CEQA infill exemption for density bonus
projects. In that case, an opponent of a Berkeley density bonus project challenged the City’s use of the
urban infill exemption on the grounds that the City’s modifications and waivers of development standards,
as required under the density bonus law, meant that the project was not consistent with existing zoning.
The court rejected that argument, finding that the modifications required by the density bonus law did not
disqualify the project from claiming the exemption.
Not all density bonus projects will qualify for one of these CEQA exemptions, however. Sometimes the
additional density provided to non-exempt projects may bring the project out of the coverage of an existing
CEQA approval for a general plan, specific plan or other larger project. For instance, if a previously approved
environmental impact report analyzed a 100 unit project as the largest allowed under existing zoning, but
the developer is able to qualify for 120 units with a density bonus, the existing EIR may not cover the larger
project. The larger density bonus project may require additional CEQA analysis for approval.
Using the Density Bonus to Satisfy Inclusionary Housing Requirements
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Many of California’s cities and counties have adopted inclusionary housing ordinances, which typically
require that a specified percentage of units in a new housing development be restricted as affordable units.
The inclusionary requirements significantly reduce income from rental units and sales prices of for-sale
homes. In today’s tight housing market, compliance with local inclusionary requirements may make many
projects economically infeasible. The density bonus provides one method for developers to improve the
economics of their project while still complying with the inclusionary A 2013 case, Latinos Unidos del Valle
de Napa y Solano v. County of Napa , held that inclusionary units qualify housing requirements as affordable
units for purposes of the density bonus law. The case confirmed that the density bonus is a financial tool
available to help developers achieve city and county inclusionary housing requirements.
Local inclusionary housing ordinances are currently in a state of uncertainty due to recent case law. A 2009
case, Palmer/Sixth Street Properties, L.P. v. City of Los Angeles , held that inclusionary housing requirements
violate the Costa-Hawkins Act, which allows owners of residential rental housing to establish the initial rental
rates for housing units without being subject to government rent limits. However, there are exceptions to
the Costa-Hawkins rent control prohibition for developers who receive assistance under the density bonus
law or who receive direct financial assistance from a public agency. Localities with inclusionary housing
ordinances may welcome a developer’s use of the density bonus law because this will effectively prevent the
developer from challenging the applicability of the inclusionary housing ordinance.
Density Bonus and Replacement Housing
Developers obtaining a density bonus are required to replace existing units which were previously occupied
by very low or lower income households or subject to rent control, when those units have been demolished
or vacated prior to the density bonus application. As a result of uncertainty about how to apply these
standards when the income levels of prior residents is unknown, legislation effective in 2017 establishes a
rebuttable presumption for the income level of the replacement unit when the income level of the actual
prior resident is unknown.
Density Bonus in the Coastal Zone
When affordable housing is proposed in the coastal zone, the Density Bonus Law’s focus on encouraging
the development of affordable housing could clash with the California Coastal Act’s focus on environmental
protection. In these circumstances, the Legislature and the courts have indicated that the Coastal Act takes
precedence over the Density Bonus Law. In the 2016 case of Kalnel Gardens, LLC v. City of Los Angeles , the
court wrote that “the Legislature appears to have struck a balance between the Coastal Act and the Density
Bonus Act by requiring local agencies to grant density bonuses unless doing so would violate the Coastal
Act. We therefore hold that section 65915 is subordinate to the Coastal Act and that a project that violates
the Coastal Act as the result of a density bonus may be denied on that basis.”
Density Bonus – A Flexible Tool
The Density Bonus Law can be a powerful tool for different types of development projects, whether they are
traditional affordable housing projects, predominantly market rate housing developments, or senior
projects. Obtaining greater density can help the developer of any project bring costs and financing sources
into line by putting more homes on the land, reducing the per unit land costs. Use of the favorable parking
requirements can reduce the amount of costly land needed for parking. The incentives and concessions to
be provided by the local government can provide a helpful way to modify development requirements which
may stand in the way of a successful project. Of course there is a price to pay for these benefits - the
affordable units need to earn the density bonus. Developers need to make a cost-benefit determination
whether the cost of compliance is worth the benefits. But the Density Bonus Law is unquestionably a useful
option for housing developers trying to make financial sense of projects in today’s economy.
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Density Bonus Statutes
Government Code Sections 65915 – 65918.
Effective as of January 1, 2017
65915. (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. 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,
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).
(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
Section 65943.
(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), when 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
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development for 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 for 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.
(D) Ten percent of the total dwelling units in a common
interest development, as defined in Section 4100 of
the Civil Code, for 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 shall be
subject to a recorded affordability restriction of 55
years and shall be provided at the same affordability
level as very low income units.
(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),
or (E) of paragraph (1).
(3) For the purposes of this section, “total units” or
“total dwelling units” does not include units added by a
density bonus awarded pursuant to this section or any
local law granting a greater density bonus.
(c) (1) 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 required
by the construction or mortgage financing assistance
program, mortgage insurance program, or rental
subsidy program. 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.
(2) An applicant shall agree to, and the city, county, or
city and county shall ensure that, the initial occupant
of all for-sale units that qualified the applicant for the
award of the density bonus are persons and families
of very low, low, or moderate income, as required, and
that the units are offered at an affordable housing cost,
as that cost is defined in Section 50052.5 of the Health
and Safety Code. The local government shall enforce
an equity sharing agreement, unless it is in conflict with
the requirements of another public funding source or
law. The following apply to the equity sharing
agreement:
(A) Upon resale, the seller of the unit shall retain the
value of any improvements, the downpayment, and
the seller’s proportionate share of appreciation. The
local government shall recapture any initial subsidy,
as defined in subparagraph (B), and its proportionate
share of appreciation, as defined in subparagraph (C),
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
home ownership.
(B) 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.
(C) 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.
(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 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
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
MEYERS NAVE A professional law corporation | CALIFORNIA DENSITY BONUS LAW 2017 13
14 MEYERS NAVE A professional law corporation | CALIFORNIA DENSITY BONUS LAW 2017
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 his or her 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 conces -
sions 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 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 the physical environment 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 common interest
development.
(B) Two incentives or concessions for projects that
include at least 20 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 common interest
development.
(C) Three incentives or concessions for projects that
include at least 30 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 common interest
development.
(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. Nothing in this
subdivision shall 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 subdivision (d) of Section 65589.5, upon health,
safety, or the physical environment, and for which
there is no feasible method to satisfactorily mitigate or
avoid the specific adverse impact. Nothing in this
subdivision shall 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
MEYERS NAVE A professional law corporation | CALIFORNIA DENSITY BONUS LAW 2017 15
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. 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. Nothing in
this subdivision shall 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, safety, or the physical
environment, and for which there is no feasible method
to satisfactorily mitigate or avoid the specific adverse
impact. Nothing in this subdivision shall 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).
(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
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).
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
(2) For housing developments meeting the criteria of
subparagraph (B) of paragraph (1) of subdivision (b),
the density bonus shall be calculated as follows:
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
(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.
(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 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
PERCENTAGE
VERY LOW-INCOME
UNITS
PERCENTAGE
DENSITY
BONUS
PERCENTAGE
VERY LOW-INCOME
UNITS
PERCENTAGE
DENSITY
BONUS
PERCENTAGE
MODERATE-INCOME
UNITS
PERCENTAGE
DENSITY
BONUS
16 MEYERS NAVE A professional law corporation | CALIFORNIA DENSITY BONUS LAW 2017
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
(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:
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
28 33
29 34
30 35
(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
PERCENTAGE
VERY LOW
INCOME
PERCENTAGE
DENSITY
BONUS
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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 prior to
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.
(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 child
care 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 child care
facility.
(B) An additional concession or incentive that
contributes significantly to the economic feasibility of
the construction of the child care 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 child care 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 child care 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 child care facility if it finds, based upon substantial
evidence, that the community has adequate child care
facilities.
(4) “Child care facility,” as used in this section, means
a child day care facility other than a family day care
home, including, but not limited to, infant centers,
preschools, extended day care facilities, and schoolage
child care 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 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.
18 MEYERS NAVE A professional law corporation | CALIFORNIA DENSITY BONUS LAW 2017
(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).
(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) “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, 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.
(2) “Maximum allowable residential density” means the
density allowed under the zoning ordinance and land
use element of the general plan, or, if a range of density
is permitted, means the maximum allowable density for
the specific zoning range and land use element of the
general plan applicable to the project. Where the
density allowed under the zoning ordinance is
inconsistent with the density allowed under the land
use element of the general plan, the general plan
density shall prevail.
(p) (1) Except as provided in paragraphs (2) and (3),
upon the request of the developer, a city, county, or city
and county shall not require a vehicular parking ratio,
inclusive of handicapped and guest parking, 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: two onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking
spaces.
(2) Notwithstanding paragraph (1), if a development
includes the maximum percentage of low-income or
very low income units provided for in paragraphs (1)
and (2) of subdivision (f) and 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
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
handicapped and guest parking, that exceeds 0.5
spaces per bedroom. For purposes of this
subdivision, a development shall have unobstructed
access to a major transit stop if a resident is able to
access the major transit stop without encountering
natural or constructed impediments.
(3) Notwithstanding paragraph (1), if a development
consists solely of rental units, exclusive of a manager’s
unit or units, with an affordable housing cost to lower
income families, as provided in Section 50052.5 of the
Health and Safety Code, then, upon the request of the
developer, a city, county, or city and county shall not
impose a vehicular parking ratio, inclusive of
handicapped and guest parking, that exceeds the
following ratios:
(A) If the development is located within one-half mile
MEYERS NAVE A professional law corporation | CALIFORNIA DENSITY BONUS LAW 2017 19
of a major transit stop, as defined in subdivision (b) of
Section 21155 of the Public Resources Code, and there
is unobstructed access to the major transit stop from
the development, the ratio shall not exceed 0.5 spaces
per unit.
(B) If the development is a for-rent housing
development for individuals who are 62 years of age
or older that complies with Sections 51.2 and 51.3 of
the Civil Code, the ratio shall not exceed 0.5 spaces
per unit. The 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.
(C) If the development is a special needs housing
development, as defined in Section 51312 of the Health
and Safety Code, the ratio shall not exceed 0.3 spaces
per unit. The 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 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.
65915.5.
(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
20 MEYERS NAVE A professional law corporation | CALIFORNIA DENSITY BONUS LAW 2017
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 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.
65915.7.
(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 the 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 the 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.
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(e) For the 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” shall mean
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, 2022, and as of that date is repealed.
65916.
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.
65917.
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.
65917.5.
(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. 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.
(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
22 MEYERS NAVE A professional law corporation | CALIFORNIA DENSITY BONUS LAW 2017
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 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.
65918.
The provisions of this chapter shall apply to charter
cities.