BILL NUMBER: SB 1818 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 29, 2004
AMENDED IN ASSEMBLY JUNE 15, 2004
AMENDED IN SENATE MAY 12, 2004
AMENDED IN SENATE APRIL 26, 2004
AMENDED IN SENATE APRIL 1, 2004
INTRODUCED BY Senator Hollingsworth
(Principal coauthor: Senator Ducheny)
FEBRUARY 20, 2004
An act to amend Section 65915 of the Government Code, relating to
housing.
LEGISLATIVE COUNSEL'S DIGEST
SB 1818, as amended, Hollingsworth. 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.
Existing law prohibits the legislative body from establishing fees to
support the work of the planning agency that exceed the reasonable
cost of providing the service for which the fee is charged.
This bill would revise the above-described provision to, among
other things, require, when a developer seeks a density bonus for a
housing development within, or for the donation of land within, the
jurisdiction of the local government, that the local government
provide a density bonus or other incentives or concessions for the
production of housing units and child care facilities, as specified.
By increasing its duties of local officials, this bill would impose
a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
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 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 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 (l), 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
seeks and agrees to construct at least any one of the following:
(1) 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) 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) A senior citizen housing development as defined in Sections
51.3 and 51.12 of the Civil Code.
(4) Ten percent of the total dwelling units in a condominium
project as defined in subdivision (f) of, or in a planned development
as defined in subdivision (k) 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 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 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 percent of 50 percent of
area median income.
(2) An applicant shall agree to, and the city, county, or city and
county shall ensure that, the initial occupant of the
moderate-income units that are directly related to the receipt of the
density bonus in the condominium project as defined in subdivision
(f) of, or in the planned unit development as defined in subdivision
(k) of, Section 1351 of the Civil Code, are persons and families of
moderate income, as defined in Section 50093 of the Health and Safety
Code. 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 its
proportionate share of appreciation, which shall then be used within
three years for any of the purposes described in subdivision (e) of
Section 33334.2 of the Health and Safety Code that promote
homeownership. For purposes of this subdivision, the local
government's proportionate share of appreciation shall be equal to
the percentage by which the initial sale price to the moderate-income
household was less than the fair market value of the home at the
time of initial sale.
(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
12.5 20 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.
The amount of density bonus 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). For each 1 percent increase above 10 percent in the
percentage of units affordable to lower income households, the
density bonus shall be increased by 1.5 percent up to a maximum of 40
percent. For each 1 percent increase above 5 percent in the
percentage of units affordable to very low income households, the
density bonus shall be increased by 2.5 percent up to a maximum of 40
percent. For each 1 percent increase above 25 percent in the
percentage of units affordable to seniors, the density bonus shall be
increased by 1 percent up to a maximum of 40 percent. 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 that is equal to 5, 10, or 25 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, or a planned development as
defined in subdivision (k) of, Section 1351 of the Civil Code, in
which at least 10 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 5
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. For each 1 percent increase
above 10 percent of the percentage of units affordable to
moderate-income households, the density bonus shall be increased by 1
percent up to a maximum of 40 percent. 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 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) 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 as provided for in this subdivision, the
applicant shall be entitled to a 15 percent increase above the
otherwise maximum allowable residential density under the applicable
zoning ordinance and land use element of the general plan for the
entire development. This increase shall be in addition to any
increase in density mandated by subdivision (b), up to a maximum
combined mandated density increase of 40 percent if an applicant
seeks both the increase required pursuant to this subdivision and
subdivision (b). All density calculations resulting in fractional
units shall be rounded up to the next whole number. An applicant
shall be eligible for the increased density bonus described in this
subdivision if all of the following conditions are met:
(1) The applicant irrevocably agrees to donate the land no later
than 60 days after approval of the final map, parcel map, or
residential development application.
(2) The developable acreage and zoning classification of the land
being donated 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.
(3) The donated land is appropriately zoned for development as
affordable housing and served by adequate public facilities and
infrastructure. The land shall have appropriate multifamily zoning
and development standards to make the development of the affordable
units feasible. The donated land shall be fully entitled for the
development of the affordable units, except that the local government
may subject the proposed development to subsequent design review if
the design is not known at the time of donation.
(4) The donated 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 dedication.
(5) The land is donated to the local agency or to a housing
developer approved by the local agency.
(6) Donated 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.
(i) (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.
(j) "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.
(k) 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.
(l) 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,
financially sufficient, and actual cost reductions.
(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, financially sufficient, 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.
(m) 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 under this section although the city, county, or
city and county may, at its discretion, grant more than one density
bonus.
(n) 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).
(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.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.