BILL NUMBER: SB 1818 INTRODUCED
BILL TEXT
INTRODUCED BY Senators Ducheny and Hollingsworth
FEBRUARY 20, 2004
An act to amend Section 65915 of the Government Code, relating to
housing.
LEGISLATIVE COUNSEL'S DIGEST
SB 1818, as introduced, Ducheny. Density bonuses.
The Planning and Zoning Law requires, when a developer of housing
proposes a housing development within the jurisdiction of the local
government, that the city, county, or city and county provide the
developer with a density bonus or other incentives or concessions for
the production of lower income housing units within the development
if the developer meets certain requirements, including a requirement
that the applicant agree or propose to construct a specified
percentage of the total units for specified income households or
qualifying residents. Existing law also requires an additional
density bonus or additional concession or incentive to be granted to
a developer of housing that meets those requirements and includes a
child care facility, as defined, subject to specified conditions.
This bill would revise the above-described develop requirements
to, among other things, reduce the percentage of the total units for
specified income households or qualifying residents, as specified.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 65915 of the Government Code is amended to
read:
65915. (a) When an applicant proposes a housing development
within the jurisdiction of a city, county, or city and county, that
local government shall provide the applicant incentives or
concessions for the production of housing units and child care
facilities as prescribed in this chapter. All cities, counties, or
cities and counties shall adopt an ordinance that specifies how
compliance with this section will be implemented.
(b) A city, county, or city and county shall either grant a
density bonus and at least one of the concessions or incentives
identified in subdivision (k), or provide other incentives or
concessions of equivalent financial value based upon the land cost
per dwelling unit, when the applicant for the housing development
agrees or proposes to construct at least any one of the following:
(1) Twenty Ten percent of the total
units of a housing development for lower income households, as
defined in Section 50079.5 of the Health and Safety Code.
(2) Ten 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.
(3) Fifty Twenty-five percent of the
total dwelling units of a housing development for qualifying
residents, as defined in Section 51.3 of the Civil Code.
(4) Twenty Ten percent of the total
dwelling units in a condominium project as defined in subdivision (f)
of Section 1351 of the Civil Code, for persons and families of
moderate income, as defined in Section 50093 of the Health and Safety
Code.
The city, county, or city and county shall grant the additional
concession or incentive required by this subdivision unless the city,
county, or city and county makes a written finding, based upon
substantial evidence, that the additional concession or incentive is
not required in order 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).
(c) (1) An applicant shall agree to, and the city, county, or city
and county shall ensure, continued affordability of all lower income
density bonus units for 30 20 years or
a longer period of time if required by the construction or mortgage
financing assistance program, mortgage insurance program, or rental
subsidy program. Those units targeted for lower income households,
as defined in Section 50079.5 of the Health and Safety Code, shall be
affordable at a rent that does not exceed 30
20 percent of 60 percent of area median income. Those units
targeted for very low income households, as defined in Section 50105
of the Health and Safety Code, shall be affordable at a rent that
does not exceed 30 20 percent of 50
percent of area median income.
(2) An applicant shall agree to, and the city, county, or city and
county shall ensure, continued affordability of the moderate-income
units that are directly related to the receipt of the density bonus
for 10 five years if the housing is in
a condominium project as defined in subdivision (f) of Section 1351
of the Civil Code.
(d) An applicant 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 either of the
following:
(1) The concession or incentive is not required in order 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) 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- and moderate-income
households.
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 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. The city,
county, or city and county shall also establish procedures for
waiving or modifying development and zoning standards that would
otherwise inhibit the utilization of the density bonus on specific
sites. These procedures shall include, but not be limited to, such
items as minimum lot size, side yard setbacks, and placement of
public works improvements.
(e) In no case may a city, county, or city and county apply any
development standard that will have the effect of 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 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.
(f) The applicant shall show that the waiver or modification is
necessary to make the housing units economically feasible.
(g) (1) For the purposes of this chapter, except as provided in
paragraph (2), "density bonus" means a density increase of at least
25 percent, unless a lesser percentage is elected by the applicant,
over the otherwise maximum allowable residential density under the
applicable zoning ordinance and land use element of the general plan
as of the date of application by the applicant to the city, county,
or city and county. All density calculations resulting in fractional
units shall be rounded up to the next whole number. The granting of
a density bonus shall not be interpreted, in and of itself, to
require a general plan amendment, local coastal plan amendment,
zoning change, or other discretionary approval. The density bonus
shall not be included when determining the number of housing units
which that is equal to 10, 20, or 50
percent of the total. The density bonus shall apply to housing
developments consisting of five or more dwelling units.
(2) For the purposes of this chapter, if a development does not
meet the requirements of paragraph (1), (2), or (3) of subdivision
(b), but the applicant agrees or proposes to construct a condominium
project as defined in subdivision (f) of Section 1351 of the Civil
Code, in which at least 20 percent of the total dwelling units are
reserved for persons and families of moderate income, as defined in
Section 50093 of the Health and Safety Code, a "density bonus" of at
least 10 percent shall be granted, unless a lesser percentage is
elected by the applicant, over the otherwise maximum allowable
residential density under the applicable zoning ordinance and land
use element of the general plan as of the date of application by the
applicant to the city, county, or city and county. All density
calculations resulting in fractional units shall be rounded up to the
next whole number. The granting of a density bonus shall not be
interpreted, in and of itself, to require a general plan amendment,
local coastal plan amendment, zoning change, or other discretionary
approval. The density bonus shall not be included when determining
the number of housing units which that
is equal to 20 percent of the total. The density bonus shall apply
to housing developments consisting of five or more dwelling units.
(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 a 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 one or
more groups of projects for residential units constructed in the
planned development of a city, county, or city and county. For the
purposes of this section, "housing development" also includes either
(1) a project to substantially rehabilitate and convert an existing
commercial building to residential use, or (2) 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 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) The granting of a concession or incentive shall not be
interpreted, in and of itself, to require a general plan amendment,
local coastal plan amendment, zoning change, or other discretionary
approval. This provision is declaratory of existing law.
(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.
(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.
This subdivision 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.
(l) If an applicant agrees to construct both 20 percent of the
total units for lower income households and 10 percent of the total
units for very low income households, the developer is entitled to
only one density bonus and at least one additional concession or
incentive identified in Section 65913.4 under this section although
the city, county, or city and county may, at its discretion, grant
more than one density bonus.
(m) Nothing in this section shall be construed to supersede or in
any way alter or lessen the effect or application of the California
Coastal Act (Division 20 (commencing with Section 30000) of the
Public Resources Code).
(n) A local agency may charge a fee to reimburse it for costs it
incurs as a result of amendments to this section enacted during the
2001-02 Regular Session of the Legislature.
(o) For purposes of this section, the following definitions shall
apply:
(1) "Development standard" means any ordinance, general plan
element, specific plan, charter amendment, or other local condition,
law, policy, resolution, or regulation.
(2) "Maximum allowable residential density" means the density
allowed under the zoning ordinance, or if a range of density is
permitted, means the maximum allowable density for the specific
zoning range applicable to the project.