BILL NUMBER: AB 1256 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Caballero
(Principal coauthor: Assembly Member Hancock)
FEBRUARY 23, 2007
An act to amend Section 65915 of the Government Code, relating to
housing.
LEGISLATIVE COUNSEL'S DIGEST
AB 1256, as introduced, Caballero. Density bonus: exemption: local
inclusionary ordinance.
The Planning and Zoning Law requires a city, county, or city and
county to provide a housing developer with a density bonus and other
incentives or concessions for the production of lower income housing
units or the donation of land within a development when the developer
proposes a housing development within the local government's
jurisdiction and meets certain requirements. This law requires that
an applicant for a bonus agree to continued affordability for 30
years or longer of low-and very low-income units that qualified the
applicant for the award of the density bonus.
This bill would exempt a city, county, or city and county from
complying with the density bonus requirement, and the incentive and
concession requirement, if the local government has in effect a local
inclusionary ordinance, as specified, that meets certain
requirements.
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. The Legislature finds and declares all of the
following:
(a) Local agencies should be encouraged to use every policy or
program possible to expand the supply of affordable housing in
California.
(b) Market-rate housing developments, while important in
increasing the state's housing supply, create a need for more
affordable housing. Residents of market-rate homes draw on the
services of law enforcement personnel, firefighters, teachers, retail
clerks, and others who often do not earn enough income to afford a
market-rate home in many California communities.
(c) Cities and counties throughout the state are increasingly
relying on inclusionary housing policies to expand the supply of
housing affordable to very low-, low-, and moderate-income households
in their communities.
(d) Local inclusionary policies and the state density bonus law,
set forth in Section 65915 of the Government Code, have the same goal
of ensuring that affordable housing units are constructed in
conjunction with market-rate developments. The application of the
state's density bonus law, however, has caused confusion among local
agencies that have adopted inclusionary housing policies by imposing
a parallel program with different standards. Those competing
standards have made it very difficult for cities and counties to
effectively apply and enforce local inclusionary policies.
(e) Given the important role that local inclusionary policies play
in providing affordable housing, those ordinances should not be
judged by the state as a constraint on the supply of housing.
SEC. 2. Section 65915 of the Government Code is amended to read:
65915. (a) When (1)
Except as provided in paragraph (2), 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 section. All cities,
counties, or cities and counties shall adopt an ordinance that
specifies how compliance with this section will be implemented.
(2) When an applicant is required to include a percentage of homes
affordable to very low-, low-, or moderate-income households within
a housing development by an ordinance adopted by a city, county, or
city and county, the local government that adopted the ordinance
shall not be required to comply with this section if the local
ordinance includes all of the following:
(A) A requirement that at least 10 percent of the residential
units in a proposed development must be affordable to very low-,
low-, or moderate-income households, except that a local agency may
exclude developments of nine residential units or less from the
inclusionary requirement.
(B) The option of allowing the applicant to donate land with
appropriate zoning and other agency approvals to the local government
or a nonprofit housing developer in lieu of the inclusionary
requirement, if the donated land is proportional in value to the
inclusionary requirement.
(C) If the ordinance allows the option of paying an in lieu fee, a
requirement that the amount of the fee must be proportional to the
cost of constructing the inclusionary units.
(D) (i) A requirement that the residential units remain affordable
for a minimum of 30 years. If the ordinance allows a residential
unit to be sold at fair market value before the expiration of 30
years, a requirement that the local government recapture at least its
initial subsidy and its proportionate share of appreciation upon
resale of the unit. A local government may elect to recapture a
lesser share of appreciation during the affordability period as long
as the average recapture of appreciation over the affordability
period is equal to the local government's proportionate share of
appreciation. However, a local government may not recapture an amount
greater than the difference between the residential unit's initial
sales price and its actual resale price at fair market value.
(ii) For purposes of this subparagraph, the initial subsidy is
equal to the unrestricted fair market value of the residential unit
at the time of initial sale, minus the initial sales price to the
moderate-, low-, or very low-income household. Appreciation is equal
to the difference between the residential unit's unrestricted fair
market value at the time of initial sale and its actual resale price
at fair market value. The proportionate share of appreciation is
equal to the ratio of the initial subsidy to the unrestricted fair
market value of the residential unit at the time of initial sale.
(3)The requirements described in paragraph (2) set a minimum
threshold for exemption of a local government from this section. This
subdivision does not prohibit a city, county, or city and county
from adopting an inclusionary housing requirement that does not meet
the requirements described in paragraph (2).
(b) (1) A Unless it is exempted from this
section in accordance with subdivision (a), a city, county, or
city and county shall grant one density bonus, the amount of which
shall be as specified in subdivision (g), and incentives or
concessions, as described in subdivision (d), 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 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 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 1351 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.
(2) For purposes of calculating the amount of the density bonus
pursuant to subdivision (f) (g) , the
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), or (D) of paragraph (1).
(c) (1) An applicant shall agree to, and the city, county, or city
and county shall ensure, continued affordability of all low-and very
low income units that qualified the applicant for the award of the
density bonus 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. 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.
Owner-occupied units shall be available at an affordable housing cost
as defined in Section 50052.5 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 the
moderate-income units that are directly related to the receipt of the
density bonus in the common interest development, as defined in
Section 1351 of the Civil Code, are persons and families of moderate
income, as defined in Section 50093 of the Health and Safety Code,
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 and 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.
(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 initial subsidy to the fair market value of the home at the time
of initial sale.
(d) (1) An applicant for a density bonus pursuant to subdivision
(b) may submit to a city, county, or city and county a proposal for
the specific incentives or concessions that the applicant requests
pursuant to this section, and may request a meeting with the city,
county, or city and county. The city, county, or city and county
shall grant the concession or incentive requested by the applicant
unless the city, county, or city and county makes a written finding,
based upon substantial evidence, of either of the following:
(A) 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).
(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- and moderate-income
households.
(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 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) For the purposes of this chapter, "density bonus" means a
density increase 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 applicant may elect to
accept a lesser percentage of density bonus. 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).
(1) For housing developments meeting the criteria of subparagraph
(A) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:
Percentage Low-Income Percentage Density Bonus
Units
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
17 30.5
18 32
19 33.5
20 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:
Percentage Very Low Percentage Density Bonus
Income Units
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
(3) For housing developments meeting the criteria of subparagraph
(C) of paragraph (1) of subdivision (b), the density bonus shall be
20 percent.
(4) For housing developments meeting the criteria of subparagraph
(D) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:
Percentage Moderate- Percentage Density Bonus
Income Units
10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
(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 be interpreted, in and of itself, to require a
general plan amendment, local coastal plan amendment, zoning change,
or other discretionary approval. As used in subdivision (b), "total
units" or "total dwelling units" does not include units permitted by
a density bonus awarded pursuant to this section or any local law
granting a greater density bonus. The density bonus provided by this
section shall apply to housing developments consisting of five or
more dwelling units.
(h) (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 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, as follows:
Percentage Very Low Percentage Density Bonus
Income
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 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. 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 for
development as affordable housing, and is or will be served by
adequate public facilities and infrastructure. The land shall have
appropriate zoning and development standards to make the development
of the affordable units feasible. No later than the date of approval
of the final subdivision map, parcel map, or of the residential
development, the transferred land shall have all of the permits and
approvals, other than building permits, necessary for the development
of the very low income housing units on the transferred land, 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.
(D) 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 dedication.
(E) 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.
(F) 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.
(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 a
subdivision or common interest development, as defined in Section
1351 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 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) 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) 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 site or construction
conditions that apply to a residential development pursuant to 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.
(p) (1) Upon the request of the developer, no city, county, or
city and county shall require a vehicular parking ratio, inclusive of
handicapped and guest parking, of a development meeting the criteria
of subdivision (b), that exceeds the following ratios:
(A) Zero to one bedrooms: 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) 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.
(3) This subdivision shall apply to a development that meets the
requirements of subdivision (b) but only at the request of the
applicant. An applicant may request additional parking incentives or
concessions beyond those provided in this section, subject to
subdivision (d).