STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov SECRETORE
February 5, 2024
Noah Housh
City of Cotati Planning Department
201 W Sierra Avenue
Cotati, CA 94931
Dear Noah Housh:
RE: State Density Bonus Law - Letter of Technical Assistance The purpose of this letter is to provide technical assistance to the City of Cotati (City) regarding the application of State Density Bonus Law (SDBL) to housing projects, specifically concerning public hearings and discretionary processes. This assistance is based upon an inquiry submitted through the California Department of Housing and Community Development's (HCD) Housing Accountability Unit (HAU) portal by City staff on August 15, 2023. The submittal asked whether it would be appropriate for the City Council to take action on a requested density bonus, even if there is no longer any use permit requirement for implementing a density bonus for a project.
After meeting with City staff on August 22, 2023, HCD understands that under City Code Section 17.62.050, a request for a density bonus and other incentives has traditionally been evaluated and decided through use permit approval, where the density bonus and incentives are approved or denied by the City Council. The City no longer requires a use permit for a density bonus request but is unsure whether the density bonus request can still be evaluated by the City Council.
The density bonus request should not be heard by the City Council, as that would represent an additional, and potentially discretionary, process that a project not requesting a density bonus would not have to go through. A development project which meets the requirements of the SDBL is entitled to an increase in the number of units allowed on the site (i.e., a "density bonus"). Because approving density bonus requests for compliant projects is a mandatory duty, there is no need for City Council hearings. Such hearings may create the perception of discretionary power where none exists. This, in turn, may place elected officials under pressure to violate the statute by denying compliant applications. City Council hearings, by their very nature, invite prohibited discretionary consideration. Thus, HCD encourages the City to end the practice of requiring a City Council hearing to review density bonus applications.
Noah Housh, City of Cotati Planning Department
This is supported by Government Code section 65915, subdivision (f)(5), which states, "The granting of a density bonus shall not require, or be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval." Furthermore, Government Code section 65915, subdivision ()(1), provides similar guidance for concessions and incentives: "The granting of a concession or incentive shall not require or be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, study, or other discretionary approval." Therefore, a request for a density bonus or for concessions and incentives should not be subject to an additional discretionary process.
To the extent that these requests are heard by the Planning Commission at the time of the other approvals required for the housing project, such requests should not be subject to an additional approval by the City Council. Potential findings of denial made by the Planning Commission for the requested density bonus and related concessions and incentives should be limited those found in Government Code section 65915, subdivision (d).
HCD reminds the City that HCD has enforcement authority over SDBL, among other state housing laws. Accordingly, HCD may review local government actions and inactions to determine consistency with these laws. If HCD finds that a local government's actions do not comply with state law, HCD may notify the California Office of the Attorney General that the local government is in violation of state law. (Gov. Code, § 65585, subd. (i).) HCD recognizes the challenge of interpreting ever-changing housing and land use laws and appreciates the opportunity to provide technical assistance. If you have any questions regarding the content of this letter or would like additional technical assistance, please contact Bentley Regehr at [email protected].
Sincerely,
shawest
Shannan West
Housing Accountability Unit Chief