Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 2222


Introduced by Assembly Member Nazarian

February 20, 2014


An actbegin insert to amend Section 65915 of the Government Code,end insert relating to housing.

LEGISLATIVE COUNSEL’S DIGEST

AB 2222, as amended, Nazarian. Housing density bonus.

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 and other incentives or concessions for the production of lower income housing units or the donation of land within the development if the developer, among other things, agrees to construct a specified percentage of units for very low, low-, or moderate-income households or qualifying residents.

begin insert

Existing law requires continued affordability for 30 years or longer, as specified, of all very low and low-income units that qualified an applicant for a density bonus.

end insert
begin insert

This bill instead would require continued affordability for 55 years or longer, as specified, of all very low and low-income units that qualified an applicant for a density bonus. This bill also would prohibit an applicant from receiving a density bonus unless the proposed housing development would maintain the number and proportion of affordable housing units on parcels included within the proposed development.

end insert
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This bill would declare the intent of the Legislature to enact legislation relating to density bonuses.

end delete

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 65915 of the end insertbegin insertGovernment Codeend insertbegin insert is
2amended to read:end insert

3

65915.  

(a) When an applicant seeks a density bonus for a
4housing development within, or for the donation of land for housing
5within, the jurisdiction of a city, county, or city and county, that
6local government shall provide the applicant with incentives or
7concessions for the production of housing units and child care
8facilities as prescribed in this section. All cities, counties, or cities
9and counties shall adopt an ordinance that specifies how
10compliance with this section will be implemented. Failure to adopt
11an ordinance shall not relieve a city, county, or city and county
12from complying with this section.

13(b) (1) A city, county, or city and county shall grant one density
14bonus, the amount of which shall be as specified in subdivision
15(f), and incentives or concessions, as described in subdivision (d),
16when an applicant for a housing development seeks and agrees to
17construct a housing development, excluding any units permitted
18by the density bonus awarded pursuant to this section, that will
19contain at least any one of the following:

20(A) Ten percent of the total units of a housing development for
21lower income households, as defined in Section 50079.5 of the
22Health and Safety Code.

23(B) Five percent of the total units of a housing development for
24very low income households, as defined in Section 50105 of the
25Health and Safety Code.

26(C) A senior citizen housing development, as defined in Sections
2751.3 and 51.12 of the Civil Code, or mobilehome park that limits
28residency based on age requirements for housing for older persons
29pursuant to Section 798.76 or 799.5 of the Civil Code.

30(D) Ten percent of the total dwelling units in a common interest
31development as defined in Section 4100 of the Civil Code for
32persons and families of moderate income, as defined in Section
3350093 of the Health and Safety Code, provided that all units in the
34development are offered to the public for purchase.

P3    1(2) For purposes of calculating the amount of the density bonus
2pursuant to subdivision (f), the applicant who requests a density
3bonus pursuant to this subdivision shall elect whether the bonus
4shall be awarded on the basis of subparagraph (A), (B), (C), or (D)
5of paragraph (1).

6(3) For the purposes of this section, “total units” or “total
7dwelling units” does not include units added by a density bonus
8awarded pursuant to this section or any local law granting a greater
9density bonus.

10(c) (1) An applicant shall agree to, and the city, county, or city
11and county shall ensure, continued affordability of all low- and
12very low income units that qualified the applicant for the award
13of the density bonus forbegin delete 30end deletebegin insert 55end insert years or a longer period of time if
14required by the construction or mortgage financing assistance
15program, mortgage insurance program, or rental subsidy program.
16Rents for the lower income density bonus units shall be set at an
17affordable rent as defined in Section 50053 of the Health and Safety
18Code. Owner-occupied units shall be available at an affordable
19housing cost as defined in Section 50052.5 of the Health and Safety
20Code.

21(2) An applicant shall agree to, and the city, county, or city and
22county shall ensure that, the initial occupant of the
23moderate-income units that are directly related to the receipt of
24the density bonus in the common interest development, as defined
25in Section 4100 of the Civil Code, are persons and families of
26moderate income, as defined in Section 50093 of the Health and
27Safety Code, and that the units are offered at an affordable housing
28cost, as that cost is defined in Section 50052.5 of the Health and
29Safety Code. The local government shall enforce an equity sharing
30agreement, unless it is in conflict with the requirements of another
31public funding source or law. The following apply to the equity
32sharing agreement:

33(A) Upon resale, the seller of the unit shall retain the value of
34any improvements, the downpayment, and the seller’s proportionate
35share of appreciation. The local government shall recapture any
36initial subsidy, as defined in subparagraph (B), and its proportionate
37share of appreciation, as defined in subparagraph (C), which
38amount shall be used within five years for any of the purposes
39described in subdivision (e) of Section 33334.2 of the Health and
40Safety Code that promote home ownership.

P4    1(B) For purposes of this subdivision, the local government’s
2initial subsidy shall be equal to the fair market value of the home
3at the time of initial sale minus the initial sale price to the
4moderate-income household, plus the amount of any downpayment
5assistance or mortgage assistance. If upon resale the market value
6is lower than the initial market value, then the value at the time of
7the resale shall be used as the initial market value.

8(C) For purposes of this subdivision, the local government’s
9proportionate share of appreciation shall be equal to the ratio of
10the local government’s initial subsidy to the fair market value of
11the home at the time of initial sale.

begin insert

12(3) An applicant shall be ineligible for a density bonus or any
13other incentives or concessions under this section if the housing
14development is proposed on any property that includes a parcel
15or parcels on which dwelling units have, at any time in the five-year
16period preceding the application, been occupied by lower or very
17low income households, been subject to a recorded covenant,
18ordinance, or law that restricts rents to levels affordable to persons
19and families of lower or very low income, or been subject to any
20other form of rent or price control through a public entity’s valid
21exercise of its police power, unless the proposed housing
22development includes at least the same number of units to be made
23available for rent at affordable housing costs to, and occupied by,
24persons and families in the same or lower income category in the
25same proportion as the existing affordable units.

end insert

26(d) (1) An applicant for a density bonus pursuant to subdivision
27(b) may submit to a city, county, or city and county a proposal for
28the specific incentives or concessions that the applicant requests
29pursuant to this section, and may request a meeting with the city,
30county, or city and county. The city, county, or city and county
31shall grant the concession or incentive requested by the applicant
32unless the city, county, or city and county makes a written finding,
33based upon substantial evidence, of any of the following:

34(A) The concession or incentive is not required in order to
35provide for affordable housing costs, as defined in Section 50052.5
36of the Health and Safety Code, or for rents for the targeted units
37to be set as specified in subdivision (c).

38(B) The concession or incentive would have a specific adverse
39impact, as defined in paragraph (2) of subdivision (d) of Section
4065589.5, upon public health and safety or the physical environment
P5    1or on any real property that is listed in the California Register of
2Historical Resources and for which there is no feasible method to
3satisfactorily mitigate or avoid the specific adverse impact without
4rendering the development unaffordable to low- and
5moderate-income households.

6(C) The concession or incentive would be contrary to state or
7federal law.

8(2) The applicant shall receive the following number of
9incentives or concessions:

10(A) One incentive or concession for projects that include at least
1110 percent of the total units for lower income households, at least
125 percent for very low income households, or at least 10 percent
13for persons and families of moderate income in a common interest
14development.

15(B) Two incentives or concessions for projects that include at
16least 20 percent of the total units for lower income households, at
17least 10 percent for very low income households, or at least 20
18percent for persons and families of moderate income in a common
19 interest development.

20(C) Three incentives or concessions for projects that include at
21least 30 percent of the total units for lower income households, at
22least 15 percent for very low income households, or at least 30
23percent for persons and families of moderate income in a common
24interest development.

25(3) The applicant may initiate judicial proceedings if the city,
26county, or city and county refuses to grant a requested density
27bonus, incentive, or concession. If a court finds that the refusal to
28grant a requested density bonus, incentive, or concession is in
29violation of this section, the court shall award the plaintiff
30reasonable attorney’s fees and costs of suit. Nothing in this
31subdivision shall be interpreted to require a local government to
32grant an incentive or concession that has a specific, adverse impact,
33as defined in paragraph (2) of subdivision (d) of Section 65589.5,
34upon health, safety, or the physical environment, and for which
35there is no feasible method to satisfactorily mitigate or avoid the
36specific adverse impact. Nothing in this subdivision shall be
37interpreted to require a local government to grant an incentive or
38concession that would have an adverse impact on any real property
39that is listed in the California Register of Historical Resources.
40The city, county, or city and county shall establish procedures for
P6    1carrying out this section, that shall include legislative body
2approval of the means of compliance with this section.

3(e) (1) In no case may a city, county, or city and county apply
4any development standard that will have the effect of physically
5precluding the construction of a development meeting the criteria
6of subdivision (b) at the densities or with the concessions or
7incentives permitted by this section. An applicant may submit to
8a city, county, or city and county a proposal for the waiver or
9reduction of development standards that will have the effect of
10physically precluding the construction of a development meeting
11the criteria of subdivision (b) at the densities or with the
12concessions or incentives permitted under this section, and may
13request a meeting with the city, county, or city and county. If a
14court finds that the refusal to grant a waiver or reduction of
15development standards is in violation of this section, the court
16shall award the plaintiff reasonable attorney’s fees and costs of
17suit. Nothing in this subdivision shall be interpreted to require a
18local government to waive or reduce development standards if the
19waiver or reduction would have a specific, adverse impact, as
20defined in paragraph (2) of subdivision (d) of Section 65589.5,
21upon health, safety, or the physical environment, and for which
22there is no feasible method to satisfactorily mitigate or avoid the
23specific adverse impact. Nothing in this subdivision shall be
24interpreted to require a local government to waive or reduce
25development standards that would have an adverse impact on any
26real property that is listed in the California Register of Historical
27Resources, or to grant any waiver or reduction that would be
28contrary to state or federal law.

29(2) A proposal for the waiver or reduction of development
30standards pursuant to this subdivision shall neither reduce nor
31increase the number of incentives or concessions to which the
32applicant is entitled pursuant to subdivision (d).

33(f) For the purposes of this chapter, “density bonus” means a
34density increase over the otherwise maximum allowable residential
35density as of the date of application by the applicant to the city,
36county, or city and county. The applicant may elect to accept a
37lesser percentage of density bonus. The amount of density bonus
38to which the applicant is entitled shall vary according to the amount
39by which the percentage of affordable housing units exceeds the
40percentage established in subdivision (b).

P7    1(1) For housing developments meeting the criteria of
2subparagraph (A) of paragraph (1) of subdivision (b), the density
3bonus shall be calculated as follows:


4

 

Percentage Low-Income UnitsPercentage Density Bonus
1020 
1121.5
1223 
1324.5
1426 
1527.5
1730.5
1832 
1933.5
2035 
P7   1721P7   3037P7   303P7   26

 

18(2) For housing developments meeting the criteria of
19subparagraph (B) of paragraph (1) of subdivision (b), the density
20bonus shall be calculated as follows:

 

Percentage Very Low Income UnitsPercentage Density Bonus
520 
622.5
725 
827.5
930 
1032.5
1135 
P7   3037P7   303P7   26

 

31(3) For housing developments meeting the criteria of
32subparagraph (C) of paragraph (1) of subdivision (b), the density
33bonus shall be 20 percent of the number of senior housing units.

34(4) For housing developments meeting the criteria of
35subparagraph (D) of paragraph (1) of subdivision (b), the density
36bonus shall be calculated as follows:

 

Percentage Moderate-Income UnitsPercentage Density Bonus
105
116
127
138
149
1510
1611
1712
1813
1914
2015
2116
2217
2318
2419
2520
2621
2722
2823
2924
3025
3126
3227
3328
3429
3530
3631
3732
3833
3934
4035
P7   303P7   26

 

31(5) All density calculations resulting in fractional units shall be
32rounded up to the next whole number. The granting of a density
33bonus shall not be interpreted, in and of itself, to require a general
34plan amendment, local coastal plan amendment, zoning change,
35or other discretionary approval.

36(g) (1) When an applicant for a tentative subdivision map,
37parcel map, or other residential development approval donates
38land to a city, county, or city and county in accordance with this
39subdivision, the applicant shall be entitled to a 15-percent increase
P9    1above the otherwise maximum allowable residential density for
2the entire development, as follows:

 

Percentage Very Low IncomePercentage Density Bonus
1015
1116
1217
1318
1419
1520
1621
1722
1823
1924
2025
2126
2227
2328
2429
2530
2631
2732
2833
2934
3035
P7   26

 

27(2) This increase shall be in addition to any increase in density
28mandated by subdivision (b), up to a maximum combined mandated
29density increase of 35 percent if an applicant seeks an increase
30pursuant to both this subdivision and subdivision (b). All density
31calculations resulting in fractional units shall be rounded up to the
32next whole number. Nothing in this subdivision shall be construed
33to enlarge or diminish the authority of a city, county, or city and
34county to require a developer to donate land as a condition of
35development. An applicant shall be eligible for the increased
36density bonus described in this subdivision if all of the following
37conditions are met:

38(A) The applicant donates and transfers the land no later than
39the date of approval of the final subdivision map, parcel map, or
40residential development application.

P10   1(B) The developable acreage and zoning classification of the
2land being transferred are sufficient to permit construction of units
3affordable to very low income households in an amount not less
4than 10 percent of the number of residential units of the proposed
5development.

6(C) The transferred land is at least one acre in size or of
7sufficient size to permit development of at least 40 units, has the
8appropriate general plan designation, is appropriately zoned with
9appropriate development standards for development at the density
10described in paragraph (3) of subdivision (c) of Section 65583.2,
11and is or will be served by adequate public facilities and
12infrastructure.

13(D) The transferred land shall have all of the permits and
14approvals, other than building permits, necessary for the
15development of the very low income housing units on the
16transferred land, not later than the date of approval of the final
17subdivision map, parcel map, or residential development
18application, except that the local government may subject the
19proposed development to subsequent design review to the extent
20 authorized by subdivision (i) of Section 65583.2 if the design is
21not reviewed by the local government prior to the time of transfer.

22(E) The transferred land and the affordable units shall be subject
23to a deed restriction ensuring continued affordability of the units
24consistent with paragraphs (1) and (2) of subdivision (c), which
25shall be recorded on the property at the time of the transfer.

26(F) The land is transferred to the local agency or to a housing
27developer approved by the local agency. The local agency may
28require the applicant to identify and transfer the land to the
29developer.

30(G) The transferred land shall be within the boundary of the
31proposed development or, if the local agency agrees, within
32one-quarter mile of the boundary of the proposed development.

33(H) A proposed source of funding for the very low income units
34shall be identified not later than the date of approval of the final
35subdivision map, parcel map, or residential development
36application.

37(h) (1) When an applicant proposes to construct a housing
38development that conforms to the requirements of subdivision (b)
39and includes a child care facility that will be located on the
P11   1premises of, as part of, or adjacent to, the project, the city, county,
2or city and county shall grant either of the following:

3(A) An additional density bonus that is an amount of square
4feet of residential space that is equal to or greater than the amount
5of square feet in the child care facility.

6(B) An additional concession or incentive that contributes
7 significantly to the economic feasibility of the construction of the
8child care facility.

9(2) The city, county, or city and county shall require, as a
10condition of approving the housing development, that the following
11occur:

12(A) The child care facility shall remain in operation for a period
13of time that is as long as or longer than the period of time during
14which the density bonus units are required to remain affordable
15pursuant to subdivision (c).

16(B) Of the children who attend the child care facility, the
17children of very low income households, lower income households,
18or families of moderate income shall equal a percentage that is
19equal to or greater than the percentage of dwelling units that are
20required for very low income households, lower income
21households, or families of moderate income pursuant to subdivision
22(b).

23(3) Notwithstanding any requirement of this subdivision, a city,
24county, or city and county shall not be required to provide a density
25bonus or concession for a child care facility if it finds, based upon
26substantial evidence, that the community has adequate child care
27facilities.

28(4) “Child care facility,” as used in this section, means a child
29day care facility other than a family day care home, including, but
30not limited to, infant centers, preschools, extended day care
31facilities, and schoolage child care centers.

32(i) “Housing development,” as used in this section, means a
33development project for five or more residential units. For the
34purposes of this section, “housing development” also includes a
35subdivision or common interest development, as defined in Section
364100 of the Civil Code, approved by a city, county, or city and
37county and consists of residential units or unimproved residential
38lots and either a project to substantially rehabilitate and convert
39an existing commercial building to residential use or the substantial
40rehabilitation of an existing multifamily dwelling, as defined in
P12   1subdivision (d) of Section 65863.4, where the result of the
2rehabilitation would be a net increase in available residential units.
3For the purpose of calculating a density bonus, the residential units
4shall be on contiguous sites that are the subject of one development
5application, but do not have to be based upon individual
6subdivision maps or parcels. The density bonus shall be permitted
7in geographic areas of the housing development other than the
8areas where the units for the lower income households are located.

9(j) The granting of a concession or incentive shall not be
10interpreted, in and of itself, to require a general plan amendment,
11local coastal plan amendment, zoning change, or other discretionary
12approval. This provision is declaratory of existing law.

13(k) For the purposes of this chapter, concession or incentive
14means any of the following:

15(1) A reduction in site development standards or a modification
16of zoning code requirements or architectural design requirements
17that exceed the minimum building standards approved by the
18California Building Standards Commission as provided in Part 2.5
19(commencing with Section 18901) of Division 13 of the Health
20and Safety Code, including, but not limited to, a reduction in
21setback and square footage requirements and in the ratio of
22vehicular parking spaces that would otherwise be required that
23results in identifiable, financially sufficient, and actual cost
24reductions.

25(2) Approval of mixed-use zoning in conjunction with the
26housing project if commercial, office, industrial, or other land uses
27will reduce the cost of the housing development and if the
28commercial, office, industrial, or other land uses are compatible
29with the housing project and the existing or planned development
30in the area where the proposed housing project will be located.

31(3) Other regulatory incentives or concessions proposed by the
32developer or the city, county, or city and county that result in
33identifiable, financially sufficient, and actual cost reductions.

34(l) Subdivision (k) does not limit or require the provision of
35direct financial incentives for the housing development, including
36the provision of publicly owned land, by the city, county, or city
37and county, or the waiver of fees or dedication requirements.

38(m)  This section shall not be construed to supersede or in any
39 way alter or lessen the effect or application of the California
P13   1Coastal Act of 1976 (Division 20 (commencing with Section
230000) of the Public Resources Code).

3(n) If permitted by local ordinance, nothing in this section shall
4be construed to prohibit a city, county, or city and county from
5granting a density bonus greater than what is described in this
6section for a development that meets the requirements of this
7section or from granting a proportionately lower density bonus
8than what is required by this section for developments that do not
9meet the requirements of this section.

10(o) For purposes of this section, the following definitions shall
11apply:

12(1) “Development standard” includes a site or construction
13condition, including, but not limited to, a height limitation, a
14setback requirement, a floor area ratio, an onsite open-space
15requirement, or a parking ratio that applies to a residential
16development pursuant to any ordinance, general plan element,
17specific plan, charter, or other local condition, law, policy,
18resolution, or regulation.

19(2) “Maximum allowable residential density” means the density
20allowed under the zoning ordinance and land use element of the
21general plan, or if a range of density is permitted, means the
22maximum allowable density for the specific zoning range and land
23use element of the general plan applicable to the project. Where
24the density allowed under the zoning ordinance is inconsistent
25with the density allowed under the land use element of the general
26plan, the general plan density shall prevail.

27(p) (1) Upon the request of the developer, no city, county, or
28city and county shall require a vehicular parking ratio, inclusive
29of handicapped and guest parking, of a development meeting the
30criteria of subdivision (b), that exceeds the following ratios:

31(A) Zero to one bedroom: one onsite parking space.

32(B) Two to three bedrooms: two onsite parking spaces.

33(C) Four and more bedrooms: two and one-half parking spaces.

34(2) If the total number of parking spaces required for a
35development is other than a whole number, the number shall be
36rounded up to the next whole number. For purposes of this
37subdivision, a development may provide “onsite parking” through
38tandem parking or uncovered parking, but not through onstreet
39parking.

P14   1(3) This subdivision shall apply to a development that meets
2the requirements of subdivision (b) but only at the request of the
3applicant. An applicant may request parking incentives or
4concessions beyond those provided in this subdivision pursuant
5to subdivision (d).

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6

SECTION 1.  

It is the intent of the Legislature to enact
7legislation relating to the provision of density bonuses with respect
8to housing developments.

end delete


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