Aug 19, 2025
City
of
Goleta
130
Cremona
Dr.
Goleta,
CA
93117
Re: Proposed Density Bonus Guidelines By Email: [email protected]; [email protected]; [email protected]; [email protected]; [email protected] CC: [email protected]; [email protected]; [email protected]; [email protected] Dear Goleta City Council, The California Housing Defense Fund (“CalHDF”) submits this letter as a public comment concerning
item
D-1
for
the
August
19,
2025
City
Council
meeting,
guidelines
that
would
implement
the
state
Density
Bonus
Law
(“DBL”;
Gov.
Code,
§
65915
et
seq.).
While
it
is
laudable
that
the
City
is
creating
guidelines
for
the
DBL,
the
proposed
guidelines
have
serious
legal
problems.
We
urge
the
City
to
address
these
problems
before
adopting
the
guidelines.
The Density Bonus Law Preempts the City’s Proposed Guidelines As background, the DBL preempts provisions in local ordinances (and guidelines) that clash with
the
DBL.
This
is
unambiguous.
(See,
e.g.,
Bankers
Hill
150
v.
City
of
San
Diego
(2022)
74 Cal.App.5th
755,
771
[“The
Density
Bonus
Law
…
preempts
any
inconsistent
local
provisions.”].)
Furthermore,
compliance
with
the
DBL
is
mandatory:
if
a
proposed
project
satisfies
the
terms
of
the
DBL,
then
it
is
entitled
to
take
advantage
of
the
DBL,
whatever
the
local
government
might
think.
(Gov.
Code,
§
65915,
subd.
(a)(1)
[“local
government
shall
comply
with
this
section”].)
This
is
consistent
with
the
larger
legal
principle
that
state
law
overrides
local
rules
that
clash
with
it:
the
City
“cannot
choose
to
forgo
application
of
land
use
policies
imposed
by
the
Legislature.”
(
Ailanto
Properties,
Inc.
v.
City
of
Half
Moon
Bay
(2006)
142
Cal.App.4th
572,
595.)
There
is
no
room
for
cities
to
add
their
own
gloss
on
the
DBL,
and
attempts
to
do
so
have
no
effect.
2201 Broadway, PH1, Oakland, CA 94612 www.calhdf.org
The bottom line is this: if a proposed development project complies with the terms of the DBL,
it
may
use
the
DBL.
It
does
not
matter
whether
the
local
government
has
nominally
created
additional
hurdles
that
must
be
cleared
before
a
project
may
use
the
DBL.
As
far
as
the
DBL
is
concerned,
those
nominal
hurdles
do
not
exist.
The City’s proposed DBL implementation guidelines on tonight’s agenda would create such nominal
hurdles.
Regulations on Affordable Units The City’s proposed DBL guidelines, section VI.A Fair Housing Requirements, require that state
DBL
projects’
affordable
units
must
contain
a
“proportional
mix
of
bedroom
sizes
as
the
market-rate
units.”
The
guidelines
also
require
equivalent
exterior
design
for
the
affordable
units.
The
guidelines
also
require
“All
affordable
housing
units
must
be
dispersed
within
market-rate
projects
whenever
feasible.”
Such provisions find no support in the text of the DBL and, in fact, clash with the text of the DBL,
which
makes
no
mention
of
the
size
or
physical
characteristics
of
the
affordable
units
that
can
be
used
to
claim
a
density
bonus.
(See
generally
Gov.
Code,
§
65915.)
The
DBL
also
–
contradicting
the
purpose
and
effect
of
the
City’s
proposed
amendments
–
states
that
it
is
to
be
interpreted
“liberally
in
favor
of
producing
the
maximum
number
of
total
housing
units.”
(
Id.
at
subd.
(r);
see
also
id.
at
subd.
(u)(1)
[“the
intent
behind
the
Density
Bonus
Law
is
to
allow
…
a
developer
to
include
more
total
units
in
a
project
than
would
otherwise
be
allowed”].)
The
DBL,
then,
is
intended
to
produce
more
housing
units
and
more
affordable
housing
units
–
note
the
emphasis
on
“total
units”
–
and
it
is
not
intended
to
restrict
the
size
or
physical
characteristics
of
those
units.
Of note, the California Department of Housing and Community Development (“HCD”) has issued
technical
guidance
that,
while
not
directly
on
point,
clearly
demonstrates
that
any
type
of
housing
unit
can
count
towards
the
DBL’s
requirements.
On
November
15,
2024,
HCD
sent
the
City
of
Antioch
a
letter
explaining
that
accessory
dwelling
units
attached
to
larger
primary
dwelling
units
counted
towards
the
DBL’s
“total
unit”
calculation
and
therefore
could
be
used
as
affordable
units
to
satisfy
the
requirements
of
the
DBL.
(See
attached
letter
from
HCD.)
HCD’s
interpretation
of
state
housing
laws
merits
deference
from
the
courts.
(Cf.
Hoffmaster
v.
City
of
San
Diego
(1997)
55 Cal.App.4th
1098,
1113,
fn.
13 [“We
substantially
rely
on
the
Department
of
Housing
and
Community
Development’s
interpretation
[…]
regarding
compliance
with
the
housing
element
law”];
see
also
Boling
v.
Public
Employment
Relations
Bd.
(2018)
5 Cal.5th
898,
911,
citing
Yamaha
Corp.
of
America
v.
State
Bd.
of
Equalization
(1998)
19 Cal.4th
1,
12.)
In fact, it is easy to provide examples of how this code provision could inhibit a mixed-unit development.
A
developer
might
propose
a
mixed-income
development
with
the
affordable
2 of 4
units in a separate building in order to establish eligibility for federal Low-Income Housing Tax
Credits
(LIHTC).
This
would
run
contrary
to
the
City’s
requirement
for
the
affordable
units
to
be
distributed
throughout
the
development.
A
LIHTC-funded
building
will
be
subject
to
strict
design
requirements
and
bedroom
counts
from
the
funding
agency.
Requiring
equivalent
exterior
design
and
bedroom
count
would
inhibit
such
a
development.
We understand that it is a bad “look” for affordable units to be of different size, design, etc. than
market
rate
units,
and
we
understand
the
desire
to
have
them
distributed
through
the
development.
However,
this
desire
for
equity
inhibits
real
projects,
with
the
result
that
fewer
units
will
be
produced,
housing
costs
(and
homelessness)
will
continue
to
worsen,
and
fewer
families
will
have
access
to
the
good
schools
and
employment
opportunities
that
come
from
living
in
high
opportunity
areas.
The City must therefore delete the provisions of DBL guidelines, section VI.A Fair Housing Requirements
that
regulate
the
size,
exterior
design,
and
location
of
affordable
units,
other
than
the
requirements
directly
derived
from
Health
&
Safety
Code
section
17929
that
only
pertain
to
mixed-income
buildings.
Density Bonus Applicants Would Be Able to Waive the City’s Proposed Requirements Furthermore, even assuming the City’s proposed guidelines have an effect, the DBL allows a project
proponent
to
waive
those
rules.
(See
Gov.
Code,
§
65915,
subds.
(d)
[outlining
concessions
and
incentives
to
which
DBL
projects
are
entitled],
(e)
[outlining
waivers
of
local
standards
to
which
DBL
projects
are
entitled],
and
(k)
[defining
concessions
and
incentives].)
If
the
City
refuses
to
allow
such
a
waiver,
the
proponent
may
sue
and
collect
attorney’s
fees
and
costs
of
suit.
(
Id.
at
subds.
(d)(3)
and
(e)(1).)
⧫⧫⧫
Again, CalHDF applauds the City for implementing state law by adopting DBL guidelines.
However,
the
City
should
be
careful
not
to
attempt
to
illegally
limit
the
application
of
the
DBL
through
these
guidelines.
The
City
“cannot
choose
to
forgo
application
of
land
use
policies
imposed
by
the
Legislature.”
(
Ailanto
Properties,
Inc.
v.
City
of
Half
Moon
Bay
(2006)
142
Cal.App.4th
572,
595.)
CalHDF is a 501(c)(3) non-profit corporation whose mission includes advocating for increased
access
to
housing
for
Californians
at
all
income
levels,
including
low-income
households. You may learn more about CalHDF at www.calhdf.org. 3 of 4
Sincerely, Dylan Casey CalHDF Executive Director James M. Lloyd CalHDF Director of Planning and Investigations 4 of 4
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
651 Bannon Street, Suite 400
Sacramento, CA 95811
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
November 15, 2024
Kevin Scudero, Community Development Director
City of Antioch
200 H Street
Antioch, CA 9 4531
Dear Kevin Scudero:
RE: City of Antioch State Density Bonus Law Implementation – Letter of Technical Assistance
The California Department of Housing and Community Development (HCD) received a request for technical assistance regarding the application of the State Density Bonus Law (SDBL)
1 to the housing development project proposed at 3001 Oakley Road (Project). The SDBL allows housing developments with at least five residential units to obtain increases in allowable density, incentives/concessions, development standard waivers, and, for qualifying projects, reductions in parking requirements, by providing affordable housing. The purpose of this letter is to provide technical assistance to the City of Antioch (City) regarding the ability of the project to use accessory dwelling units (ADUs) to qualify for the benefits of the SDBL.
Background
HCD understands the Project proposes the construction of 150 units (consisting of 52 duplex units, 51 single-family houses, and 47 ADUs) on two contiguous lots with a combined area of approximately 14.58 acres. All units in the project would be offered for rent and managed together as a single community. The Project seeks to deed restrict 11 of the ADUs as low-income units to obtain a 22 percent density bonus under the SDBL. This density bonus will enable the construction of eight of the 52 duplex units.
The City initially held the position that under State ADU Law, 2 the City was permitted to
stagger the review of the primary units and ADU components of the project, such that the Project would be unable to use the ADUs to obtain a density bonus for the primary units. Following a meeting on September 3, 2024, where HCD provided verbal technical assistance that State ADU Law was meant to allow for simultaneous discretionary primary unit review and ministerial ADU review, the City concluded the Project would
1 Gov. Code, § 65915.
2 Gov. Code, § 66317, subd. (a).
Kevin Scudero, Community Development Director
have to deed restrict primary units as affordable in order to obtain a density bonus for the primary units.
Analysis
The SDBL requires that local governments grant certain housing developments density bonuses if the developments provide specified percentages of their pre-density bonus “total units” as deed restricted affordable housing. Therefore, the relevant question is:
Can deed restricted ADUs serve to qualify a project for a density bonus pursuant to the SDBL, even if the bonus sought is for primary units?
The answer is “yes,” if all the ADUs in the project are counted towards the “total units” in the project. Although the SDBL makes no mention of ADUs in its text, it likewise does not expressly narrow the definition of unit to exclude ADUs. A project initially qualifies under the SDBL when the project’s deed restricted affordable units meet or exceed the percentages specified in the SDBL, not when the project’s deed restricted affordable primary units meet or exceed the specified percentages. ADUs are a type of housing unit that can be used to establish eligibility “provided they are counted within the total units of the project.”
3 However, a project may not deed restrict units to qualify under SDBL if the units are not counted toward the total unit count for the purposes of SDBL. Furthermore, deed restricting ADUs to achieve SDBL eligibility, where they only exist in relation to primary units, makes them a “dependent project” that renders all ADUs in the project, deed restricted or not, part of the total unit count.
4 Applied to the Project, the development has 142 “total units,” 5 including 95 primary units
and 47 ADUs. This means that to use ADUs as deed restricted units, at least 15 units (including ADUs only, if desired) would need to be deed restricted for low-income households to meet the 10-percent SDBL minimum. Alternatively, the Project could deed restrict only 10 primary units so that the 47 ADUs would not be counted toward the Project’s “total units.”
Qualifying for the SDBL with deed restricted ADUs would grant the project up to 29 bonus units, while qualifying with primary units would grant up to 19 bonus units; in
3 See HCD Letter of Technical Assistance to the City of Carlsbad, February 16, 2024, available at https://www.hcd.ca.gov/sites/default/files/docs/planning-and-community/HAU/carlsbad-hau565-ta- 02162024.pdf, page 2. (Emphasis added.)
4 See HCD Letter of Technical Assistance to the City of El Cajon, February 16, 2023, available at https://www.hcd.ca.gov/sites/default/files/docs/planning-and-community/HAU/el-cajon-hau484-ta- 02162024.pdf.
5 “Total units” means the number of units in the project excluding bonus units. See Gov. Code, § 65915, subd. (o)(8)(A).
Kevin Scudero, Community Development Director
either case, this is beyond the eight bonus units the Project seeks to obtain. What is not permitted, however, is for an applicant to include only a portion of the ADUs in the “total units” count – as proposed in the subject Project.
Note that using deed restricted ADUs to qualify for the SDBL is a choice for applicants that comes with responsibilities. In addition to considering whether the applicant should increase its number of total units by using deed restricted ADUs for eligibility, applicants must ensure the continued affordability of the ADUs for the duration of their deed restriction. The purpose of the SDBL is to ensure that deed restricted affordable units are built and continuously occupied by households at qualifying income levels.
Enforcing this in ADUs can be challenging, especially if the development includes for- sale primary units or will be parceled off in the future. In the context of the Project, this is not an immediate issue because the applicant intends to own the Project as a single community and manage it collectively, but it may pose challenges in the future should that ownership and management structure change. In future projects where an applicant may be inclined to qualify under the SDBL by deed restricting ADUs, the City might consider imposing a recurring affordable unit monitoring fee as provided for in the SDBL.
6 This would help to ensure that the affordable ADUs are occupied by households at qualifying income levels.
Conclusion
Deed restricted affordable ADUs can be used to meet the requirements of the SDBL, provided that the developer can ensure the affordability of the ADUs and that all ADUs are counted as “total units” for the purposes of calculating the number of deed restricted units required for SDBL eligibility.
HCD remains committed to supporting the City of Antioch in facilitating housing at all income levels and hopes the City finds this clarification helpful. If you have questions or need additional information, please contact David Ying at [email protected].
Sincerely,
David Zisser
Assistant Deputy Director
Local Government Relations and Accountability
6 Gov. Code, § 65915.3 as created by AB 2430 (Chapter 273, Statutes of 2024), effective January 1, 2025.