CITY OF MERCED
ADMINISTRATIVE REPORT
Merced Civic Center
678 W. 18th Street
Merced, CA 95340
File #: 23-824 Meeting Date: 10/4/2023
Planning Commission Staff Report
Report Prepared by: Julie Nelson, Senior Planner, Development Services Department SUBJECT: Density Bonus #23-02, initiated by the Richman Group, on behalf of Devonwood 64, LP, property owner. This application involves a request to reduce the minimum parking requirements and concessions for relief from certain Design Standards for Multi-family Dwellings.
The reduction in parking requirements and granting of concessions would allow the construction of a 156-unit affordable apartment complex on approximately 5.9 acres of land, generally located on the south side of Devonwood Drive between Loughborough Drive and Austin Avenue.
ACTION: PLANNING COMMISSION:
Recommendation to City Council
1) Environmental Review #23-30 (Categorical Exemption)
2) Density Bonus Application #23-02
CITY COUNCIL:
Approve/Disapprove/Modify
1) Environmental Review #23-30 (Categorical Exemption)
2) Density Bonus Application #23-02
SUMMARY
This is a request to consider Density Bonus #23-02 which would allow a reduction to the minimum parking requirements and concessions for relief from certain Design Standards for Multi-family Dwellings. Approval of the Density Bonus would allow the construction of a 100% affordable apartment complex with 156 units on the south side of Devonwood Drive, between Loughborough Drive and Austin Avenue. Staff is recommending the Planning Commission recommend approval to the City Council. No public hearing is required per state statutes and local ordinances.
RECOMMENDATION
Planning staff recommends that the Planning Commission recommend approval to the City Council of Environmental Review #23-30 (Categorical Exemption) and Density Bonus #23-02 (including the adoption of the Draft Resolution at Attachment A) subject to the findings/considerations in Exhibit A of the Draft Resolution.
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1 ATTACHMENT 8
File #: 23-824 Meeting Date: 10/4/2023
DISCUSSION
The California State Density Bonus Law (SDBL) was adopted in 1976 in recognition of California’s acute and growing affordable housing needs. The SDBL has been amended multiple times since adoption in response to evolving housing conditions, to provide clarification on the legislation, to respond to legal and implementation challenges, and to incorporate new or expanded provisions. The SDBL, as originally enacted, sought to address the affordable housing shortage by encouraging development of low- and moderate-income units; over time, the law was expanded to recognize the need for housing for households at a wider range of income levels and with specialized needs.
The SDBL incentivizes affordable and other specialized housing production by requiring local agencies to grant an increase to the maximum allowable residential density for eligible projects, and to support the development of eligible projects at greater residential densities by granting incentives, concessions, waivers, or reductions to applicable development regulations. An example of a concession or incentive is a reduction in the number of parking spaces that may be required for a project, or an increase in the allowable building height that applies to the project. The SDBL applies to projects providing five or more residential units, including mixed-use developments. Density bonuses and associated incentives, concessions, waivers, or reductions are intended to offset the financial burden of constructing affordable or specialized units.
The City of Merced originally adopted a local Density Bonus Ordinance in 1993 and amended it in 2016 (included in Zoning Ordinance Chapter 20.56) to comply with State law at the time the ordinances were adopted. Several updates to SDBL have occurred since the Zoning Ordinance was adopted in 2016. An ordinance amending the Density Bonus section of the Zoning Ordinance was adopted by City Council on September 5, 2023. This ordinance would become effective October 18, 2023, and would bring the City’s ordinance into compliance with current state law.
To provide additional information and a more in-depth overview of the SDBL, the document entitled Guide to the California Density Bonus Law
(revised January 2023), prepared by Jon Goetz and Tom
Sakai of the Meyers-Nave Law Firm, is provided at Attachment B.
One of the basic elements of this law is that a development that meets the requirements of the state law is entitled to receive a density bonus to increase the density of a project by right. This means that no discretionary review is required to allow an increase in the density of a project. The requested density is allowed to exceed the density established by the General Plan and/or Zoning Ordinance.
Additionally, the developer may ask for concessions and waivers to certain design standards that may make the project infeasible. In the case of the project under consideration, the request is not for an increase in density, but to obtain concessions related to certain Design Standards and parking requirements.
The proposed project would provide affordable housing for tenants whose household income is between 0% and 80% of the Area Median Income (AMI). The Area Median Income for 2023 in Merced County is $70,700. The table below shows the income limits for the different income levels based on household size:
No. of Persons
in Household
1 2 3 4 5 6 7 8
Extremely Low
Income
$16,350 $18,700 $23,030 $27,750 $32,470 $37,19 $41,910 $46,630 Very Low
Income
$27,300 $31,200 $35,100 $38,950 $42,100 $45,200 $48,300 $51,450 Low Income $43,650 $49,850 $56,100 $62,300 $37,300 $72,300 $77,300 $82,250 Median Income $56,200 $64,250 $72,250 $80,300 $86,700 $93,150 $99,550 $106,000 Moderate
Income
$67,450 $77,100 $86,700 $96,350 $104,050 $111,750 $119,450 $127,200 CITY OF MERCED Printed on 9/29/2023Page 2 of 6
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No. of Persons
in Household
1 2 3 4 5 6 7 8
Extremely Low
Income
$16,350 $18,700 $23,030 $27,750 $32,470 $37,19 $41,910 $46,630 Very Low
Income
$27,300 $31,200 $35,100 $38,950 $42,100 $45,200 $48,300 $51,450 Low Income $43,650 $49,850 $56,100 $62,300 $37,300 $72,300 $77,300 $82,250 Median Income $56,200 $64,250 $72,250 $80,300 $86,700 $93,150 $99,550 $106,000 Moderate
Income
$67,450 $77,100 $86,700 $96,350 $104,050 $111,750 $119,450 $127,200 As part of the process for a Density Bonus, the developer/property owner will enter into an agreement specifying the length of time the units will be kept affordable. This agreement will be recorded and will remain in effect for the term of the agreement. The developer is proposing to keep the units affordable for a term of 55 years. The agreement will be presented to the City Council for approval and execution.
In addition to the concessions and waivers allowed by the SDBL, the law also places maximum parking requirements the City is allowed to impose on a development if the developer requests a reduction in parking. This reduction is not considered a concession or waiver. The minimum parking requirements are shown in the table below:
Type of Unit Parking Spaces Required Per Unit
Studio 1
1 Bedroom 1
2 Bedroom 1.5 spaces
3 Bedroom 1.5 spaces
4 Bedroom 2.5 spaces
Specific Findings for a Density Bonus are required by Section 20.56 of the City’s Zoning Ordinance.
Those Findings are provided at Exhibit A of Draft Planning Commission Resolution #4123 (Attachment A of Planning Commission Staff Report #23-824. Additional information regarding the State Density Bonus Law is provided in Finding A of Draft Planning Commission Resolution #4123. It should be noted that the City may not add conditions to any Density Bonus approval.
Project Description
The proposed project is located on an approximately 6-acre site located on the south side of Devonwood Drive, between Loughborough Drive and Austin Avenue (refer to the Location Map at Attachment C). The project would provide 156 units, all being affordable to either Acutely Low-, Extremely Low-, Very Low-, or Low-income households.
The site would consist of 5 three-story apartment buildings, an office/club house building, open space, and parking. The project would provide 1, 2, and 3-bedroom units. Three of the buildings would contain 36 units (12 units on each floor) and two of the buildings would contain 24 units (8 units on each floor) for a total of 156 units. The complex would be gated with the primary entrance on Devonwood Drive near the center of the complex. A secondary access is located near the CITY OF MERCED Printed on 9/29/2023Page 3 of 6
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3 File #: 23-824 Meeting Date: 10/4/2023
on Devonwood Drive near the center of the complex. A secondary access is located near the western edge of the property (refer to the Site Plan at Attachment D).
Each of the three-story buildings would be approximately 37’ 10” tall at the highest point. The office/club house would be a single-story building located next to the main entrance (shown as Building 6 on the Site Plan at Attachment D). The elevations for all the building would be the same.
The color palette for the buildings would be a combination of light brown/gray, dusty blue, light gray, and white. Railings for the stairways would be black wrought-iron. The building elevations are provided at Attachment E.
Density Bonus Request
The Density Bonus request is not for additional units. The density of the project is consistent with the developer’s vision and design for the site. However, in order to provide affordable housing, the developer is seeking a reduction in the minimum parking requirements and relief from the Multi- Family Design Standard requiring each unit to have a private outdoor space (i.e., a patio or balcony) and the standard prohibiting roof-mounted mechanical equipment.
As previously described, Density Bonus law allows concessions, incentives, waivers, and reductions to allow for the construction of affordable housing. Based on the income level served by the proposed units, this project is eligible for 4 concessions or incentives (refer to Finding A of Draft Planning Commission Resolution #4123 on how the number of concessions is determined). In addition to those concessions or incentives, the City may not impose any development standard that would physically preclude the construction of the affordable housing units. According to Density Bonus law, the reduction in parking does not count as a concession or waiver.
The table below shows the applicant’s request for two concessions. As previously mentioned, the project is eligible for 4 concessions. Justification for each concession in providing in Finding D of Planning Commission Resolution #4123 at Attachment A. As previously mentioned, in addition to these concessions, the developer is requesting a reduction in parking requirements which does not constitute a concession or waiver.
Standard Requested Concessions/Incentives Type of Request Private Outdoor
Space
Allow relief from the requirement of
Private Outdoor Space as required by
MMC Section 20.46.030 (I) (1) and (2).
MMC Section 20.46.030 (I) (1) and (2)
states that every unit should have a
private outdoor usable space, if feasible,
of a minimum size of 5 feet by 8 feet.
Concession
Mechanical
Equipment
Allow roof-mounted mechanical
equipment if screened from public view.
Roof-mounted mechanical equipment is
prohibited by Zoning Ordinance Section
20.46.040 (A) (5a).
Concession
Surrounding Uses
As shown on the map at Attachment C, the project site is located on the south side of Devonwood CITY OF MERCED Printed on 9/29/2023Page 4 of 6
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As shown on the map at Attachment C, the project site is located on the south side of Devonwood Drive, between Loughborough Drive and Austin Avenue. The surrounding uses are identified on the location map at Attachment C and listed in the table below.
Surrounding uses as noted in Attachment C.
Surrounding Land Existing Use of Land City Zoning
Designation
City General Plan
Land Use Designation
North Merced Marketplace
Shopping Center
(across Devonwood
Drive)
P-D #16 Regional/Community
Commercial (RC)
South Single-family
Residential (across the
railroad tracks)
RP-D #29 Low-Medium Density
Residential (LMD)
East Single-family
Residential
P-D #16 Low-Medium Density
Residential (LMD)
West Walmart P-D #16 Regional/Community
Commercial (RC)
Background
The project site was approved for a 156-unit apartment complex with General Plan Amendment #20- 01 and Site Utilization Plan Revision #23 to Planned Development (P-D) #16, and Site Plan Review Permit #479 in 2021. At that time, another developer had intended to construct the project, but was unable to secure funding for the project. The current developer wants to construct the project as originally proposed with the exception of a few minor changes to the site related to the location of parking spaces, the orientation of the office/club house building, and the request for the concessions outlined above.
The proposed developer, the Richman Group, recently completed the Childs Court Apartment complex at Childs Avenue and B Street. They are experienced developers in both market-rate and affordable multi-family developments.
Findings/Considerations
Please refer to Exhibit A of the Draft Planning Commission Resolution at Attachment A for the Findings related to Density Bonus #23-02.
ATTACHMENTS
A) Draft Planning Commission Resolution
B) Meyers/Nave
C) Location Map
D) Site Plan
E) Elevations
F) Letter regarding Parking
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G) Letter regarding Patios/Balconies
H) Categorical Exemption
I) Presentation
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6 CITY OF MERCED
Planning Commission
Resolution #4123
WHEREAS, the Merced City Planning Commission at its regular meeting of October 4, 2023 , held a public hearing and considered Density Bonus #2 3-02, initiated by The Richman Group on behalf of Devonwood 64, LP , property owner.
This application involves a request to consider Density Bonus #23-02 which allows concessions to certain development standards and a reduction in parking requirements to allow the construction of a 156 -unit apartment complex with 155 affordable housing units on an approximately 6-acre parcel, generally located on the south side of Devonwood Drive, between Loughborough Drive and Austin Avenue; also known as Assessor Parcel: 058-220-048; and,
WHEREAS, t he Merced City Planning Commission concurs with Findings/Considerations A through G of Attachment A of Planning Commission Staff Report #23-824 (Exhibit A); and,
NOW THEREFORE, after reviewing the City’s Initial Study and Draft Environmental Determination, and fully discussing all the issues, the Merced City Planning Commission does resolve to hereby recommend to City Council adoption of a Categorical Exemption regarding Environmental Review # 23-30, and recommend approval of Density Bonus #23 -02, subject to the Findings set forth in Exhibit A, attached hereto and incorporated herein by the reference.
Upon motion by Commissioner ____________________, seconded by Commissioner ____________________ and carried by the following vote:
AYES: Commissioner(s)
NOES: Commissioner(s)
ABSENT: Commissioner(s)
ABSTAIN: None
ATTACHMENT A
7 PLANNING COMMISSION RESOLUTION #4123
October 4, 2023
Adopted this 4th day of October 2023.
______________________________
Chairperson, Planning Commission of
the City of Merced, California
ATTEST:
_______________________________
Secretary
Exhibits:
Exhibit A – Findings/Considerations
\\vm-merfile01\DATA\SHARED\PLANNING\PC RESOLUTIONS\RESOLUTIONS\#4123 DB 23-01.docx
8 EXHIBIT A
OF PLANNING COMMISSION RESOLUTION #4123
Findings and Considerations
Planning Commission Resolution #4123
Density Bonus #23-01
FINDINGS/CONSIDERATIONS:
State Density Bonus Law
A) State Density Bonus Law (SDBL) states that a development which meets the requirements of the SDBL is entitled to receive a density bonus to increase the density of a project by right. This means that no discretionary review is required to allow an increase in the density of a project.
In addition to an increase in density, the City is required to grant concessions or incentives proposed by the developer unless it finds one of the following:
• That the proposed concession or incentive does not result in identifiable and actual cost reductions: or,
• Would cause a public health or safety project: or,
• Would cause an environmental problem; or,
• Would harm historical property; or,
• Would be contrary to law.
The City has the burden of proof in the event it declines to grant a requested incentive or concession. Financial incentives, fee waivers, and reductions in dedication requirements may be, but are not required to be , granted by the City.
The number of required incentives or concessions is based on the percentage of affordable units in the project as shown in the table below:
No. of Incentives
/ Concessions
Very Low-
Income
Percentage
Low-Income
Percentage
Moderate
Income
Percentage
1 5% 10% 10%
2 10% 17% 20%
3 15% 24% 30%
4 100% Low/Very
Low/Mod (20%
Moderate
allowed)
100% Low/Very
Low/Mod (20%
Moderate
allowed)
100% Low/Very
Low/Mod (20%
Moderate
allowed)
9 EXHIBIT A
OF PLANNING COMMISSION RESOLUTION #4123
A concession or incentive is defined as:
1. A reduction in site development standards or a modification of zoning requirements or archi tectural design requirements that exceed the minimum State building standards, such as reductions in setback, square footage, or vehicular and bicycle parking space requirements.
The requested concession or incentive must result in an identifiable and actual cost reduction to provide for affordable housing costs or rents.
2. Approval of mixed- use zoning for housing projects if associated commercial, office, industrial, or other land uses will reduce the cost of the housing project, and existing or planned development in the immediate area.
3. Other regulatory incentives or concessions that result in identifiable and actual cost reductions to provide for affordable housing costs, which may include the provision of direct financial incentives or land for the housing development by the City.
Concessions and incentives are differentiated from waivers and reductions in the SDBL. Projects that are eligible for a density bonus, and that are approved for concessions or incentives, cannot be subjected to any development standard that will have the effect of physically precluding the construction of the project. If a local development standard is found to have this effect, applicants have the option of requesting a waiver or reduction of any development standard that may preclude completion of the project; there is no limit on the number of waivers that may be requested. Waivers or reductions do not take the place of concessions or incentives that the project is qualified to receive.
Additional information about Density Bonus Law is pr
ovided in the Guide
to the California Density Bonus Law (revised January 2023) by Jon Goetz and Tom Sakai of Meyers- Nave Law Firm (Attachment B of Planning Commission Staff Report #23-471.
Parking Requirements
B) State Density Bonus Law (SDBL) also provides relief from parking requirements. If a project provides 100% affordable housing units to lower income residents (excluding a manager’s unit) the City cannot require on-site parking spaces in excess of the requirements shown in the table below:
10 EXHIBIT A
OF PLANNING COMMISSION RESOLUTION #4123
Studio 1 space
1 Bedroom 1 space
2 Bedroom 1.5 spaces
3 Bedroom 1.5 spaces
4 Bedroom 2.5 spaces
The proposed project consists of 156 units. Based on the current requirements of the Zoning Ordinance, the project as proposed would be required to provide 248 parking spaces. Based on the maximum parking requirements allowed under the Density Bonus Law, the project maximum number of parking spaces the City would be able to require is 200 spaces.
The project is proposing 200 parking spaces. Therefore, the project complies with the SDBL and the City shall not require additional parking spaces.
Although the project complies with the minimum parking requirements allowed by SDBL, the letter at Attachment F provides more details as to why the reduction in parking is needed and the cost savings attributed to the reduction.
Zoning Ordinance Fi
ndings
E) Merced Municipal Code Section 20.56.080 (C) establishes specific findings that must be made to approve a Density Bonus. These findings are as following:
1. The findings included in Section 20.56.030 (land Donation) if the density bonus is based all or in part on donation of land.
This finding does not apply as the project does not include land donation.
2. The findings included in Section 20.56.040 (Child Care Facilities) if the density bonus, incentive, or concession is based all or in part on the inclusion of a child care facility.
This finding does not apply as the project does not include a Child Care Facility.
3. The findings included in Section 20.56.070 (Modifying Development Standards) if the incentive or concession includes mixed use development.
11 EXHIBIT A
OF PLANNING COMMISSION RESOLUTION #4123
This finding does not apply as the project does not include a mixed-use development.
4. If a waiver or modification is requested, the developer has to prove by submitting substantial evidence that the waiver or modification is necessary to make the housing units economically feasible.
A 2021 appellate court case, Schreiber v. City of Los Angeles, held that a local government may not require an applicant to submit a pro forma or other documentation to prove that a requested incentive or concession is required in order to make the housing development economically feasible. However, local agencies can require applicants to show that requested incentives and concessions will result in cost reductions for the project to provide for affordable housing costs or rents. The local jurisdiction has the burden of proof in the event it declines to grant a requested incentive or concession.
The requested concessions are outlined below along with the applicant’s justification as to how the concession would result in cost reductions to provide affordable housing costs or rents.
Concessions and Waivers
F) Private Outdoor Space (Concession)
Merced Municipal Code (MMC) Section 20.46.040 establishes design standards for any multi-family dwelling with 5 or more units (or 3 or more units on corner lots). Section 20.46.040 (I) - Private Outdoor Space, subsection (1) states: “ Ground Floor Units. Every dwelling unit which is on the ground floor should have a private outdoor usable space, if feasible, of a minimum size of 5 feet by 8 feet.” Subsection (2) of this section states: “Units Above Ground Floor. Every dwelling unit which is above the ground floor should, if feasible, have a useable outdoor balcony space of a minimum size of 5 feet by 8 feet.
Justification:
The applic ant has requested this concession primarily due to the increased costs involved with providing private outdoor space. The cost of including patios/balconies would have a significant impact on structural design, material cost, waterproofing, and long-term maintenance. Please refer to the letter at Attachment G for additional details.
12 EXHIBIT A
OF PLANNING COMMISSION RESOLUTION #4123
Additionally, the noise pollution related to the nearby train tracks would expose the private outdoor spaces to above -average noise pollution levels. An acoustic study conc luded that the exterior noise level is 75 DNL, which is an above-average level.
Roof- mounted Mechanical Equipment (Concession)
The applicant is requesting a relief from Zoning Ordinance Section
20.46.040 (A)(5a) which prohibits roof -mounted mechanical equipment.
Justification:
Allowing roof -mounted mechanical equipment screened from public view, allows more space on the ground for this small parcel. Placing mechanical equipment on the ground takes up space that could be otherwise used for open space or general outdoor area. Additionally, the cost of a roof -mounted HVAC unit is typically less be cause the entire unit is on the roof. Ground-mounted units require a portion of the unit to be inside the living area. This not only takes up space, but adds cost to the apartment unit.
As described above, the applicant is requesting three concessions. Based on the affordability, the project is eligible for four concessions. Without the requested concessions, the project would not be feasible to build. The requested concessions would not result in any of the conditions listed in Finding A of this resolution that would result in the denial of the requested concession. Therefore, the concessions comply with State Density Bonus Law.
Environmental Clearance
G) Planning staff has con ducted an environmental review (Environmental Review #23-30) of the project in accordance with the requirements of the California Environmental Quality Act (CEQA), and recommends a Categorical Exemption based on the previous environmental review (Initial Study #20-32 for GPA #20-01) remains sufficient and no further documentation is required (CEQA Section 15162 Findings) (Attachment H of Planning Commission Staff Report #23-824).
13 REVISED JANUARY 2023
Guide to the California Density Bonus Law
BY JON GOETZ AND TOM SAKAI
ATTACHMENT B
14 T able of Contents
INTRODUCTION AND OVERVIEW........................................................................................................
HOW THE DENSITY BONUS WORKS...................................................................................................
DENSITY BONUS CHART ...........................................................................................................
HOW THE DENSITY BONUS CAN HELP IN A FRIENDLY JURISDICTION.......................................
HOW THE DENSITY BONUS CAN HELP IN A HOSTILE JURISDICTION..........................................
CEQA ISSUES IN DENSITY BONUS PROJECTS.................................................................................
USING THE DENSITY BONUS TO SATISFY INCLUSIONARY HOUSING REQUIREMENTS............
HOW THE DENSITY BONUS WORKS FOR SUPPORTIVE HOUSING PROJECTS............................
HOW THE DENSITY BONUS WORKS FOR LOW INCOME HOUSING TAX CREDIT .........................
DENSITY BONUS AND REPLACEMENT HOUSING...........................................................................
DENSITY BONUS IN THE COASTAL ZONE........................................................................................
DENSITY BONUS - A FLEXIBLE TOOL...............................................................................................
DENSITY BONUS STATUTES..............................................................................................................
MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 1
JON GOETZ
E-mail: [email protected]
Direct: 800.464.3559
Jon Goetz is an attorney at Meyers Nave. He has over 35 years of experience in real estate, land use, environmental, redevelopment, housing and municipal law. Jon represents private and public entities in complex real estate development transactions, land use planning, public-private development, infrastructure financing and affordable housing. He has advised on acquiring, financing, leasing and disposing of all forms of improved and unimproved property.
ABOUT THE AUTHORS
TOM SAKAI
E-mail: [email protected]
Direct: 949.833.2599
T om Sakai is the Principal of Springbrook Realty Advisors, Inc., a real estate consulting practice located in Newport Beach. His practice specializes in consulting to land developers and homebuilders, focusing on pro formas and feasibilities for master-planned communities, school negotiations, assessment district and Mello-Roos financing, affordable housing issues, and other services to the real estate industry.
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Introduction and Overview
Savvy housing developers are taking advantage of California’s Density Bonus Law, a mechanism which allows them to obtain more favorable local development requirements in exchange for offering to build or donate land for affordable or senior units. The Density Bonus Law (found in California Government Code Sections 65915 – 65918) provides developers with powerful tools to encourage the development of affordable and senior housing, including up to a 50% increase in project densities for most projects, depending on the amount of affordable housing provided, and an 80% increase in density for projects which are completely affordable. The Density Bonus Law is about more than the density bonus itself, however. It is actually a larger package of incentives intended to help make the development of affordable and senior housing economically feasible. Other tools include reduced parking requirements, and incentives and concessions such as reduced setback and minimum square footage requirements. Often these other tools are even more helpful to project economics than the density bonus itself, particularly the special parking benefits. Sometimes these incentives are sufficient to make the project pencil out, but for other projects financial assistance is necessary to make the project feasible.
In determining whether a development project would benefit from becoming a density bonus project, developers also need to be aware that:
• The Density Bonus is a state mandate. A developer who meets the requirements of the state law is entitled to receive the density bonus and other benefits as a matter of right. As with any state mandate, some local governments will resist complying with the state requirement. But many local governments favor the density bonus as a helpful tool to cut through their own land use requirements and local political issues.
• Use of a density bonus may be particularly helpful in those jurisdictions that impose inclusionary housing requirements for new developments.
• Special development bonuses are available for developers of commercial projects who partner with affordable housing developers to provide onsite or offsite affordable housing. Special bonuses are also available for condominium conversion projects and projects that include childcare facilities. • The Legislature has adopted density bonuses for housing developments for foster youth, disabled veterans, homeless persons and college students.
2 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 16 How the Density Bonus Works
PROJECTS ENTITLED TO A DENSITY BONUS
Cities and counties are required to grant a density bonus and other incentives or concessions to housing projects which contain one of the following:
• At least 5% of the housing units are restricted to very low income residents. • At least 10% of the housing units are restricted to lower income residents. • At least 10% of the housing units in a for-sale common interest development are restricted to moderate income residents.
• 100% of the housing units (other than manager’s units) are restricted to very low, lower and moderate income residents (with a maximum of 20% moderate).
• At least 10% of the housing units are for transitional foster youth, disabled veterans or homeless persons, with rents restricted at the very low income level. • At least 20% of the housing units are for low income college students in housing dedicated for full-time students at accredited colleges.
• The project donates at least one acre of land to the city or county for very low income units, and the land has the appropriate general plan designation, zoning, permits and approvals, and access to public facilities needed for such housing.
• The project is a senior citizen housing development (no affordable units required). • The project is a mobilehome park age-restricted to senior citizens (no affordable units required).
DENSITY BONUS AMOUNT
The density bonus is the number of units permitted to be built in addition to the “base density” of the num- ber of units that would be permitted to be built under generally applicable local requirements without a den- sity bonus. The amount of the density bonus is set on a sliding scale, based upon the percentage of afford- able units at each income level, as shown in the chart on the following page. (Note that maximum density bonus amounts for very low, lower and moderate income housing were increased by legislation approved in 2020.)
MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 3 17 DENSITY BONUS CHART*
*All density bonus calculations resulting in fractions are rounded up to the next whole number. **Affordable unit percentage is calculated excluding units added by a density bonus. ***Moderate income density bonus applies to for sale units, not to rental units. ****No affordable units are required for senior units.
***** Applies when 100% of the total units (other than manager’s units) are restricted to very low, lower and moderate income (maximum 20% moderate). 4 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 5% 20% - - - 20% - -
6% 22.5% - - - 20% - -
7% 25% - - - 20% - -
8% 27 .5% - - - 20% - -
9% 30% - - - 20% - -
10% 32.5% 20% 5% 15% 20% 20% -
11% 35% 21.5% 6% 16% 20% 20% -
12% 38.75% 23% 7% 17% 20% 20% -
13% 42.5% 24.5% 8% 18% 20% 20% -
14% 46.25% 26% 9% 19% 20% 20% -
15% 50% 27 .5% 10% 20% 20% 20% -
16% 50% 29% 11% 21% 20% 20% -
17% 50% 30.5% 12% 22% 20% 20% -
18% 50% 32% 13% 23% 20% 20% -
19% 50% 33.5% 14% 24% 20% 20% -
20% 50% 35% 15% 25% 20% 20% 35%
21% 50% 38.75% 16% 26% 20% 20% 35%
22% 50% 42.5% 17% 27% 20% 20% 35%
23% 50% 46.25% 18% 28% 20% 20% 35%
24% 50% 50% 19% 29% 20% 20% 35%
25% 50% 50% 20% 30% 20% 20% 35%
26% 50% 50% 21% 31% 20% 20% 35%
27% 50% 50% 22% 32% 20% 20% 35%
28% 50% 50% 23% 33% 20% 20% 35%
29% 50% 50% 24% 34% 20% 20% 35%
30% 50% 50% 25% 35% 20% 20% 35%
31% 50% 50% 26% 35% 20% 20% 35%
32% 50% 50% 27% 35% 20% 20% 35%
33% 50% 50% 28% 35% 20% 20% 35%
34% 50% 50% 29% 35% 20% 20% 35%
35% 50% 50% 30% 35% 20% 20% 35%
36% 50% 50% 31% 35% 20% 20% 35%
37% 50% 50% 32% 35% 20% 20% 35%
38% 50% 50% 33% 35% 20% 20% 35%
39% 50% 50% 34% 35% 20% 20% 35%
40% 50% 50% 35% 35% 20% 20% 35%
41% 50% 50% 38.75% 35% 20% 20% 35%
42% 50% 50% 42.5% 35% 20% 20% 35%
43% 50% 50% 46.25% 35% 20% 20% 35%
44% 50% 50% 50% 35% 20% 20% 35%
100%***** 80% 80% 80% 35% 20% 20% 35%
AFFORDABLE UNIT
PERCENTAGE**
VERY LOW INCOME
DENSITY BONUS
LOW INCOME
DENSITY BONUS
MODERATE INCOME
DENSITY BONUS***
LAND DONATION
DENSITY BONUS SENIOR****
FOSTER YOUTH/
DISABLED VETS/
HOMELESS
COLLEGE
STUDENTS
18 REQUIRED INCENTIVES AND CONCESSIONS
In addition to the density bonus, the city or county is also required to provide one or more “incentives” or “concessions” to each project which qualifies for a density bonus (except that market rate senior citizen projects with no affordable units, and land donated for very low income housing, do not appear to be entitled to incentives or concessions). A concession or incentive is defined as:
• A reduction in site development standards or a modification of zoning code or architectural design requirements, such as a reduction in setback or minimum square footage requirements; or • Approval of mixed use zoning; or
• Other regulatory incentives or concessions which actually result in identifiable and actual cost reductions.
The number of required incentives or concessions is based on the percentage of affordable units in the project:
1 5% 10%* 10%
2 10% 17% 20%
3 15% 24% 30%
4 100% Low/Very
Low/Mod
(20% Moderate allowed)
100% Low/Very
Low/Mod
(20% Moderate allowed)
100% Low/Very
Low/Mod
(20% Moderate allowed)
* One incentive or concession is also required for projects that include at least 20 percent of the total units for lower income students in a student housing development.
The city or county is required to grant the concession or incentive proposed by the developer unless it finds that the proposed concession or incentive does not result in identifiable and actual cost reductions to provide for affordable housing costs or rents, would cause a public health or safety problem, would harm historical property, or would be contrary to law. The Density Bonus Law restricts the types of information and reports that a developer may be required to provide to the local jurisdiction in order to obtain the requested incentive or concession. A 2021 appellate court case, Schreiber v. City of Los Angeles, held that a local government may not require an applicant to submit a pro forma or other documentation to prove that a requested incentive or concession is required in order to make the housing development economically feasible. However, local agenices can require applicants to show that requested incentives and concessions will result in cost reductions for the project to provide for affordable housing costs or rents. The local jurisdiction has the burden of proof in the event it declines to grant a requested incentive or concession.
Financial incentives, fee waivers and reductions in dedication requirements may be, but are not required to be, provided by the city or county. The developer may be entitled to the incentives and concessions even without a request for a density bonus.
OTHER FORMS OF ASSISTANCE
A development qualifying for a density bonus also receives two additional forms of assistance which have important benefits for a housing project:
• Waiver or Reduction of Development Standards. If any other city or county development standard would physically prevent the project from being built at the permitted density and with the granted concessions/incentives, the developer may propose to have those standards waived or reduced. The city or county is not permitted to apply any development standard which physically precludes the construction of the project at its permitted density and with the granted concessions/incentives. The NO. OF INCENTIVES/
CONCESSIONS
VERY LOW INCOME
PERCENTAGE
LOWER INCOME
PERCENTAGE
MODERATE INCOME
PERCENTAGE
MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 519 city or county is not required to waive or reduce development standards that would cause a public health or safety problem, cause an environmental problem, harm historical property, or would be contrary to law. The waiver or reduction of a development standard does not count as an incentive or concession, and there is no limit on the number of development standard waivers that may be requested or granted.
Development standards which have been waived or reduced utilizing this section include setback, lot coverage and open space requirements, and should apply to building height limits as well. This ability to force the locality to modify its normal development standards is sometimes the most compelling reason for the developer to structure a project to qualify for the density bonus. A recent appellate court case, Banker’s Hill 150 v. City of San Diego, ruled that a developer who seeks to waive or reduce development standards under the Density Bonus Law cannot be required to strip the project of amenities or redesign the project in order to meet local development standards. • Maximum Parking Requirements. Upon the developer’s
request, the city or county may not require more than the following parking ratios for a density bonus project (inclusive of parking for persons with disabilities):
Studio 1 space
1 Bedroom 1 space
2 Bedroom 1.5 spaces
3 Bedroom 1.5 spaces
4 Bedroom 2.5 spaces
• Special Parking Requirements. Lower parking ratios apply to specified projects (although local jurisdictions can require higher parking ratios if supported by a specified parking study):
Rental/for sale projects with at least 11% very low income or 20% lower income units, within 1/2 mile of accessible major transit stop
0.5 spaces per unit
Rental projects 100% affordable to lower income, within 1/2 mile of accessible major transit stop
0 spaces per unit
Rental senior projects 100% affordable to lower income, either with paratransit service or within 1/2-half mile of accessible bus route (operating at least eight times per day)
0 spaces per unit
Rental special needs projects 100% affordable to lower income households, either with paratransit service or within 1/2-half mile of accessible bus route (operating at least eight times per day)
0 spaces per unit
Rental supportive housing developments 100% affordable to lower income households
0 spaces per unit
For sale projects with at least 40% moderate income units, within ½ mile of accessible major transit stop
0.5 spaces per bedroom
Onsite spaces may be provided through tandem or uncovered parking, but not onstreet parking. Re- questing these parking standards does not count as an incentive or concession, but the developer may request further parking standard reductions as an incentive or concession. This is one of the most important benefits of the density bonus statute. In many cases, achieving a reduction in parking require- ments may be more valuable than the additional permitted units. In higher density developments requir- ing the use of structured parking, the construction cost of structured parking is very expensive, costing upwards of $20,000 per parking space. While this provision of the density bonus statute can be used to reduce excessive parking requirements, care must be taken not to impact the project’s market- ability by reducing parking to minimum requirements which lead to parking shortages. 6 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 20 AFFORDABLE HOUSING RESTRICTIONS
• Rental Units. Affordable rental units must be restricted by an agreement which sets maximum incomes and rents for those units. As of January 1, 2015, the income and rent restrictions must remain in place for a 55 year term for very low or lower income units (formerly only a 30 year term was required).
Rents must be restricted as follows (continue to page 7):
• For very low income units, rents may not exceed 30% x 50% of the area median income for a household size suitable for the unit.
• For lower income units, rents may not exceed 30% x 60% of the area median income for a household size suitable for the unit.
• In 100% affordable housing developments, the rent for at least 20% of the units must meet the rent standards of Health and Safety Code Section 50053, and the remaining units may instead meet Low Income Housing T ax Credit rent standards.
• Area median income is determined annually by regulation of the California Department of Housing and Community Development, based upon median income regulations adopted by the U.S.
Department of Housing and Urban Development.
• Rents must include a reasonable utility allowance.
• Household size appropriate to the unit means 1 for a studio unit, 2 for a one bedroom unit, 3 for a two bedroom unit, 4 for a three bedroom unit, etc.
• For Sale Units. Affordable for sale units must be sold to the initial buyer at an affordable housing cost.
Housing related costs include mortgage loan payments, mortgage insurance payments, property taxes and assessments, homeowner association fees, reasonable utilities allowance, insurance premiums, maintenance costs, and space rent.
• For very low income units, housing costs may not exceed 30% x 50% of the area median income for a household size suitable for the unit.
• For lower income units, housing costs may not exceed 30% x 70% of the area median income for a household size suitable for the unit.
• For moderate income units, housing costs may not exceed 35% x 110% of the area median income for a household size suitable for the unit.
• Buyers must enter into an equity sharing agreement with the city or county, unless the equity sharing requirements conflict with the requirements of another public funding source or law. The MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 7 21 equity sharing agreement does not restrict the resale price, but requires the original owner to pay the city or county a portion of any appreciation received on resale. • The city/county percentage of appreciation is the purchase price discount received by the original buyer, plus any down payment assistance provided by the city/county. (For example, if the original sales price is $300,000, and the original fair market value is $400,000, and there is no city/county down payment assistance, the city/county subsidy is $100,000, and the city/county’s share of appreciation is 25%).
• The seller is permitted to retain its original down payment, the value of any improvements made to the home, and the remaining share of the appreciation.
• The income and affordability requirements are not binding on resale purchasers (but if other public funding sources or programs are used, the requirements may apply to resales for a fixed number of years).
As an alternative to the above requirements, developers of for-sale density bonus housing developments may sell affordable units to nonprofit housing corporations rather than selling the units directly to a low or moderate income homebuyer. The nonprofit housing corporation must then sell each home to a lower income buyer subject to affordability requirements with a term of at least 45 years, an equity sharing agreement, and a repurchase option in favor of the nonprofit corporation.
LOCAL GOVERNMENT PROCESSING OF DENSITY BONUS APPLICATIONS Under new legislation effective in 2019, local governments are now required to notify developers what information must be submitted for a complete density bonus application. Once a development application is determined to be complete, the local government must notify the developer the level of density bonus and parking ratio the development is eligible to receive. If the developer requests incentives, concessions, waivers or reductions of development standards, the local jurisdiction is required to notify the developer if it has submitted sufficient information necessary for the local government to make a determination on those issues.
HOW THE DENSITY BONUS WORKS FOR 100% AFFORDABLE PROJECTS 2019 legislation requires local governments to grant an 80% density bonus to housing projects in which all of the units (other than manager’s units) are restricted to very low, low and moderate income residents, with a maximum of 20% restricted to moderate income units. If a 100% affordable project is located within a half mile of a major transit stop, or is in a “very low vehicle travel area, ” the local government may not impose any maximum density limits at all, and the project is further entitled to receive a maximum height increase of up to three additional stories or 33 feet. However, if the project receives a waiver from maximum controls on density, it is not eligible for the waiver or reduction of any development standards which would otherwise be available. 100% affordable projects are also entitled to a fourth incentive or concession.
HOW THE DENSITY BONUS WORKS FOR SENIOR PROJECTS
As shown in the Density Bonus Chart on page 4, a senior citizen housing development of at least 35 units meeting the requirements of Section 51.3 or 51.12 of the Civil Code qualifies for a 20% density bonus. This is a very desirable option for senior housing developments. In jurisdictions where the local ordinances do not reduce the parking requirements for senior housing developments, the reduced parking requirements alone may justify applying for a density bonus.
8 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 22
HOW THE DENSITY BONUS WORKS FOR STUDENT HOUSING PROJECTS New legislation taking effect in 2019 requires cities and counties to grant a 35% density bonus for housing developments that will include at least 20% of the units for low income college students. The housing must be used exclusively for full-time students at accredited colleges, and must be subject to an operating agreement or master lease with one or more colleges. Unlike the maximum income requirements for other forms of affordable housing, resident income levels are determined through the student’s eligibility for the state’s Cal Grant financial aid program. Affordable rent levels are also specially tailored for a student population, with maximum rents established per bed for individual residents, rather than for the entire apartment unit. Homeless students receive priority for affordable units.
HOW THE DENSITY BONUS WORKS FOR COMMERCIAL PROJECTS
The Density Bonus Law requires that cities and counties provide a “development bonus” to commercial developers who partner with affordable housing developers for the construction of affordable housing on the commercial project site, or offsite within the jurisdiction located near schools, employment and a major transit stop. The commercial developer may participate through the donation of land or funds for the affordable housing, or direct construction of the housing units. The partnership between the commercial developer and the affordable developer can occur through a newly formed legal entity such as a corporation, LLC or partnership, or can take the shape of a contractual agreement between the parties. T o be eligible for the development bonus, at least 30% of the housing units must be restricted to lower income residents or 15% of the housing units must be restricted to very low income residents. Unlike the primary Density Bonus Law, there is no fixed amount of increased density awarded to the developer. Instead, the development bonus can be any mutually agreeable incentive, including up to a 20% increase in development intensity, floor area ratio, or height limits, up to a 20% reduction in parking requirements, use of a limited use elevator, or an exception to a zoning ordinance or land use requirement. Commercial developers who need extra leverage to obtain more favorable development standards for their project may want to consider providing affordable housing in order to take advantage of the benefits of the development bonus.
HOW THE DENSITY BONUS WORKS FOR CONDOMINIUM CONVERSION PROJECTS The density bonus statute provides for a density bonus of up to 25% for condominium conversion projects providing at least 33% for the total units to low or moderate income households or 15% of the units to lower income households. Many condominium conversion projects are not designed in a manner that allows them to take advantage of the opportunity to construct additional units, but some projects may find this helpful.
HOW THE DENSITY BONUS WORKS FOR CHILDCARE
Housing projects that provide childcare are eligible for a separate density bonus equal to the size of the childcare facility. The childcare facility must remain in operation for at least the length of the affordability covenants. A percentage of the childcare spaces must also be made available to low and moderate income families. A separate statute permits cities and counties to grant density bonuses to commercial and industrial projects of at least 50,000 square feet, when the developer sets aside at least 2,000 square feet in the building and 3,000 square feet of outside space for a childcare facility.
HOW TO OBTAIN A DENSITY BONUS THROUGH LAND DONATION
Many market rate housing developers are uncomfortable with building and marketing affordable units themselves, whether due to their lack of experience with the affordable housing process or because of their desire to concentrate on their core market rate homes. Other developers may have sites that are underutilized in terms of project density. The Density Bonus Law contains a special sliding scale bonus for land donation which allows those developers to turn over the actual development of the affordable units to local agencies or experienced low income developers. The density bonus is available for the donation of at MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 923 least an acre of fully entitled land, with all needed public facilities and infrastructure, and large enough for the construction of a high density very low income project containing 10% of the total homes in the development. The parcel must be located within the boundary of the proposed development or, subject to the approval of the jurisdiction, within one-fourth mile of the boundary of the proposed development. The more units that can be built on the donated land, the larger the density bonus. Because of the parcel size requirements, this option is only practical for larger developments. The land donation density bonus can be combined with the regular density bonus provided for the development of affordable units, up to a maximum 35% density bonus. A master planned community developer needs to carefully evaluate the land donation option as opposed to engaging an affordable housing developer to fulfill the project’s affordable housing obligations. In many cases the master developer will prefer to control the affordable component of the project through a direct agreement with the affordable housing developer, rather than allowing the local government to control the project.
FLOOR AREA RATIO BONUSES
Under new legislation effective in 2019, a local jurisdiction is permitted to grant a floor area ratio bonus rather than a traditional density bonus to certain high density affordable housing projects adjacent to public transit. Eligible projects are also entitled to special parking ratios of one-tenth of a parking space per affordable unit and one-half space per market rate unit. T o be eligible for the floor area ratio bonus, the project must restrict at least 20 percent of the units to very low income tenants, must be located within a transit priority area or near a major transit stop, and must be in compliance with local height limits.
How the Density Bonus Can Help in a Friendly Jurisdiction While the Density Bonus Law is often used by developers to obtain more housing than the local jurisdiction would ordinarily permit, it can also be a helpful land use tool in jurisdictions which favor the proposed project and want to provide support. Planners in many cities and counties may be disposed by personal ideology or local policy to encourage the construction of higher density housing and mixed use developments near 10 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 24 transit stops and downtown areas, but are hampered by existing general plan standards and zoning from approving these sorts of projects. Elected officials often support these projects too, but may find it politically difficult to oppose neighborhood and environmental groups over the necessary general plan amendments, zoning changes and CEQA approvals.
The density bonus can provide a useful mechanism for increasing allowable density without requiring local officials to approve general plan amendments and zoning changes. A project that satisfies the requirements of the Density Bonus Law often can obtain the necessary land use approvals through the award of the density bonus units and requested concessions and incentives, without having to amend the underlying land use requirements. Friendly local officials may encourage the use of the density bonus to “force” the jurisdiction to approve a desired project.
How the Density Bonus Law Can Help in a Hostile Jurisdiction It is important to know that the density bonus is a state law requirement which is mandatory on cities and counties, even charter cities which are free from many other state requirements. A developer who meets the law’s requirements for affordable or senior units is entitled to the density bonus and other assistance as of right, regardless of the locality’s desires (subject to limited health and safety exceptions). The density bonus statute can be used to achieve reductions in development standards or the granting of concessions or incentives from jurisdictions that otherwise would not be inclined to grant those items. Examples might include a reduction in parking standards if those standards are deemed excessive by the developer, or other reductions in development standards if needed to achieve the total density permitted by the density bonus.
Developers who nonetheless encounter hostility from local jurisdictions are provided several tools to ensure that a required density bonus is actually granted. Developers are entitled to an informal meeting with a local jurisdiction which fails to modify a requested development standard. If a developer successfully sues the locality to enforce the density bonus requirements, it is entitled to an award of its attorneys’ fees. The obligation to pay a developer’s attorneys’ fees is a powerful incentive for local jurisdictions to voluntarily comply with the state law density bonus requirements, even when the jurisdiction is not in favor of its effects on the project.
CEQA Issues in Density Bonus Projects
Although there is no specific density bonus exemption from the California Environmental Quality Act (CEQA), many density bonus projects are likely candidates for urban infill and affordable housing exemptions from CEQA. One commonly invoked exemption is the Class 32 urban infill exemption found in CEQA Guidelines Section 15332. That exemption is available if the project is consistent with applicable general plan designation and zoning, the site is five acres or less and surrounded by urban uses, is not habitat for endangered, rare or threatened species, does not have any significant effects relating to traffic, noise, air quality or water quality, and is adequately served by utilities and public services. Other exemptions are available for high density housing projects near major transit stops (CEQA Guidelines Section 15195) and affordable housing projects of up to 100 units (CEQA Guidelines Section 15194).
A 2011 case, Wollmer v. City of Berkeley, clarified the use of the CEQA infill exemption for density bonus projects. In that case, an opponent of a Berkeley density bonus project challenged the City’s use of the urban infill exemption on the grounds that the City’s modifications and waivers of development standards, as required under the Density Bonus Law, meant that the project was not consistent with existing zoning.
The court rejected that argument, finding that the modifications required by the Density Bonus Law did not disqualify the project from claiming the exemption.
Not all density bonus projects will qualify for one of these CEQA exemptions, however. Sometimes the additional density provided to non-exempt projects may bring the project out of the coverage of an existing CEQA approval for a general plan, specific plan or other larger project. For instance, if a previously approved MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 1125 environmental impact report analyzed a 100 unit project as the largest allowed under existing zoning, but the developer is able to qualify for 120 units with a density bonus, the existing EIR may not cover the larger project. The larger density bonus project may require additional CEQA analysis for approval.
Using the Density Bonus to Satisfy Inclusionary Housing Requirements Many of California’s cities and counties have adopted inclusionary housing ordinances, which typically require that a specified percentage of units in a new housing development be restricted as affordable units.
The inclusionary requirements significantly reduce income from rental units and sales prices of for-sale homes. In today’s tight housing market, compliance with local inclusionary requirements may make many projects economically infeasible. The density bonus provides one method for developers to improve the economics of their project while still complying with the inclusionary A 2013 case, Latinos Unidos del Valle de Napa y Solano v. County of Napa, held that inclusionary units qualify as affordable units for purposes of the Density Bonus Law. The case confirmed that the density bonus is a financial tool available to help developers achieve city and county inclusionary housing requirements. In 2021, the Legislature clarified that for purposes of qualifying for a density bonus, the “total units” in a housing development include affordable units that are designated to satisfy local inclusionary housing requirements.
How the Density Bonus Works for Supportive Housing Projects The Legislature has adopted legislation (AB 2162 of 2018) that is very helpful to developers of “supportive housing projects” that are linked to services for residents. This legislation streamlines project approvals for these developments, making supportive housing a use by right in zones where multifamily housing is permitted, even in nonresidential zones. “Use by right” means that the local jurisdiction may not require a discretionary approval for the project, such as a conditional use permit or planned unit development permit, although it may apply written objective development standards to the project. As a use by right, the project is also exempt from CEQA. In addition, special parking rules are available to supportive housing projects within a half mile of a public transit stop.
There are a number of requirements that must be satisfied in order to qualify for the streamlined approval process for supportive housing projects. All of the units in the project (other than manager’s units) must be restricted to lower income residents at an affordable rent, for a 55 year period. A minimum number of those units must also be made available to a target population that may include persons with disabilities or other persons who are homeless or at risk of homelessness. The project must provide a plan for providing onsite supportive services to residents, and must devote a minimum amount of space in the development that can be used for providing those services.
The supportive housing legislation specifically allows applicants for these projects to also obtain the benefits of the density bonus law. Supportive housing projects should generally qualify for a density bonus due to the 100% low income affordability requirement under the supportive housing law. The density bonus law can be a helpful tool for supportive housing projects that require additional density, modifications or waivers of development standards, or relaxed parking requirements.
How the Density Bonus Works for Low Income Housing T ax Credit Projects The density bonus can be a very helpful tool for housing projects that qualify for federal and state low in- come housing tax credits (LIHTC). These projects often need both density increases and changes in local development requirements in order to be economically feasible. The Legislature’s recent adoption of the 80% density bonus for projects that are 100% affordable has made the density bonus law even more useful for LIHTC housing projects.
In order to successfully compete for tax credits, most LIHTC projects in California restrict the income limits of project residents at levels that also meet the density bonus law’s affordability requirements. While the 12 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 26 tenant income levels required under the two programs are generally compatible, the maximum rent levels for affordable units permitted under the state density bonus law can often be significantly lower than the rents permitted for affordable units under the LIHTC standards. In some circumstances. this difference in permitted rent levels can significantly impact the economics of a LIHTC project that obtains a density bonus.
However, the rent requirements for the 80% density bonus are specifically tailored to be compatible with the LIHTC law, allowing up to 80% of the affordable units to meet the LIHTC affordable rent restrictions instead of the affordable rent levels normally required under the density bonus law. This feature has made the density bonus increasingly attractive for LIHTC projects.
While the density bonus law and LIHTC program are largely compatible, it is still necessary for LIHTC projects to meet all of the requirements of the density bonus law for tenant incomes and affordable rents.
These requirements will be contained in separate regulatory agreements implementing the density bonus requirements. Compliance with LIHTC requirements does not supersede or automatically satisfy all density bonus law requirements.
Density Bonus and Replacement Housing
Developers obtaining a density bonus are required to replace existing units which were previously occupied by very low or lower income households or subject to rent control, when those units have been demolished or vacated prior to the density bonus application. The housing development must also meet the applicable affordable housing standards, including the replacement units. As a result of uncertainty about how to apply these standards when the income levels of prior residents is unknown, the Density Bonus Law establishes a rebuttable presumption for the income level of the replacement unit when the income level of the actual prior resident is unknown.
Density Bonus in the Coastal Zone
When affordable housing is proposed in the coastal zone, the Density Bonus Law’s focus on encouraging the development of affordable housing could clash with the California Coastal Act’s focus on environmental protection. Legislation effective in 2019 now requires the density bonus to be administered in the Coastal Zone in a manner that is consistent and harmonized with the California Coastal Act. This legislation overturns a 2016 appellate court ruling, Kalnel Gardens, LLC v. City of Los Angeles, which found that a proposed housing project that violates the Coastal Act as a result of a density bonus could be denied on that basis. The court in Kalnel Gardens held that the Density Bonus Law is subordinate to the Coastal Act, but the new language attempts to strike a balance between the state goals of promoting housing and protecting the coast.
Density Bonus – A Flexible T ool
The Density Bonus Law can be a powerful tool for different types of development projects, whether they are traditional affordable housing projects, predominantly market rate housing developments, or senior projects. Obtaining greater density can help the developer of any project bring costs and financing sources into line by putting more homes on the land, reducing the per unit land costs. Use of the favorable parking requirements can reduce the amount of costly land needed for parking. The incentives and concessions to be provided by the local government can provide a helpful way to modify development requirements which may stand in the way of a successful project. Of course there is a price to pay for these benefits—the affordable units needed to earn the density bonus. Developers need to make a cost-benefit determination whether the cost of compliance is worth the benefits. But the Density Bonus Law is unquestionably a usful option for housing developers trying to make financial sense of projects in today’s economy.
MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 1327 Density Bonus Statutes
Government Code Sections 65915 – 65918.
Effective as of January 1, 2023
65915.
(a) (1) 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 comply
with this section. A city, county, or city and county shall adopt an ordinance that specifies how compliance with
this section will be implemented. Except as otherwise
provided in subdivision (s), failure to adopt an ordi-
nance shall not relieve a city, county, or city and county from complying with this section.
(2) A local government shall not condition the submis-
sion, review, or approval of an application pursuant to this chapter on the preparation of an additional report or study that is not otherwise required by state law,
including this section. This subdivision does not pro-
hibit a local government from requiring an applicant
to provide reasonable documentation to establish
eligibility for a requested density bonus, incentives or concessions, as described in subdivision (d), waivers
or reductions of development standards, as described
in subdivision (e), and parking ratios, as described in subdivision (p).
(3) In order to provide for the expeditious processing of a density bonus application, the local government shall do all of the following:
(A) Adopt procedures and timelines for processing a
density bonus application.
(B) Provide a list of all documents and information
required to be submitted with the density bonus ap-
plication in order for the density bonus application to be deemed complete. This list shall be consistent with
this chapter.
(C) Notify the applicant for a density bonus whether
the application is complete in a manner consistent with the timelines specified in Section 65943.
(D) (i) If the local government notifies the applicant
that the application is deemed complete pursuant to
subparagraph (C), provide the applicant with a deter-
mination as to the following matters:
(I) The amount of density bonus, calculated pursuant
to subdivision (f), for which the applicant is eligible. (II) If the applicant requests a parking ratio pursuant to subdivision (p), the parking ratio for which the appli- cant is eligible.
14 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 (III) If the applicant requests incentives or concessions pursuant to subdivision (d) or waivers or reductions of development standards pursuant to subdivision (e),
whether the applicant has provided adequate informa-
tion for the local government to make a determina-
tion as to those incentives, concessions, or waivers or reductions of development standards.
(ii) Any determination required by this subparagraph
shall be based on the development project at the time
the application is deemed complete. The local govern-
ment shall adjust the amount of density bonus and
parking ratios awarded pursuant to this section based
on any changes to the project during the course of
development.
(b) (1) A city, county, or city and county shall grant one density bonus, the amount of which shall be as speci-
fied in subdivision (f), and, if requested by the applicant and consistent with the applicable requirements of
this section, incentives or concessions, as described in subdivision (d), waivers or reductions of development
standards, as described in subdivision (e), and parking ratios, as described in subdivision (p), if 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) T en percent of the total units of a housing develop- ment, including a shared housing building develop-
ment, for rental or sale to 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 devel- opment, including a shared housing building develop-
ment, for rental or sale to 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 a mo-
bilehome 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. For purposes of this subparagraph, “development” includes a shared
housing building development.
(D) T en percent of the total dwelling units of a hous- ing development are sold to 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.
(E) T en percent of the total units of a housing develop- ment for transitional foster youth, as defined in Section 66025.9 of the Education Code, disabled veterans,
as defined in Section 18541, or homeless persons, as
defined in the federal McKinney-Vento Homeless As-
sistance Act (42 U.S.C. Sec. 11301 et seq.). The units
28 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 15 households, as defined in Section 50053 of the Health
and Safety Code. For purposes of this subparagraph,
“development” includes a shared housing building
development.
(2) For purposes of calculating the amount of the den-
sity bonus pursuant to subdivision (f), an 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), (D), (E), (F), or (G) of paragraph (1).
(c) (1) (A) An applicant shall agree to, and the city,
county, or city and county shall ensure, the continued
affordability of all very low and low-income rental units that qualified the applicant for the award of the density bonus for 55 years or a longer period of time if required by the construction or mortgage financing assistance
program, mortgage insurance program, or rental sub-
sidy program.
(B) (i) Except as otherwise provided in clause (ii), 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.
(ii) For housing developments meeting the criteria of
subparagraph (G) of paragraph (1) of subdivision (b),
rents for all units in the development, including both
base density and density bonus units, shall be as fol-
lows:
(I) The rent for at least 20 percent of the units in the de- velopment shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code.
(II) The rent for the remaining units in the development shall be set at an amount consistent with the maxi-
mum rent levels for lower income households, as those
rents and incomes are determined by the California T ax Credit Allocation Committee.
(2) (A) An applicant shall agree to ensure, and the city, county, or city and county shall ensure, that a for-sale unit that qualified the applicant for the award of the
density bonus meets either of the following conditions:
(i) The unit is initially occupied by a person or family of very low, low, or moderate income, as required, and it is offered at an affordable housing cost, as that cost is de- fined in Section 50052.5 of the Health and Safety Code
and is subject to an equity sharing agreement.
(ii) The unit is purchased by a qualified nonprofit hous- ing corporation pursuant to a recorded contract that
satisfies all of the requirements specified in paragraph (10) of subdivision (a) of Section 402.1 of the Revenue and T axation Code and that includes all of the following:
described in this subparagraph shall be subject to a
recorded affordability restriction of 55 years and shall be provided at the same affordability level as very low income units.
(F) (i) T wenty percent of the total units for lower in- come students in a student housing development that
meets the following requirements:
(I) All units in the student housing development will
be used exclusively for undergraduate, graduate, or
professional students enrolled full time at an institution of higher education accredited by the Western Associa-
tion of Schools and Colleges or the Accrediting Com-
mission for Community and Junior Colleges. In order
to be eligible under this subclause, the developer shall, as a condition of receiving a certificate of occupancy, provide evidence to the city, county, or city and county that the developer has entered into an operating agree- ment or master lease with one or more institutions of
higher education for the institution or institutions to occupy all units of the student housing development
with students from that institution or institutions. An operating agreement or master lease entered into pur-
suant to this subclause is not violated or breached if, in any subsequent year, there are not sufficient students
enrolled in an institution of higher education to fill all units in the student housing development.
(II) The applicable 20-percent units will be used for
lower income students.
(III) The rent provided in the applicable units of the
development for lower income students shall be calcu-
lated at 30 percent of 65 percent of the area median
income for a single-room occupancy unit type.
(IV) The development will provide priority for the ap-
plicable affordable units for lower income students ex- periencing homelessness. A homeless service provider,
as defined in paragraph (3) of subdivision (e) of Section 103577 of the Health and Safety Code, or institution
of higher education that has knowledge of a person’s
homeless status may verify a person’s status as home-
less for purposes of this subclause.
(ii) For purposes of calculating a density bonus granted pursuant to this subparagraph, the term “unit” as used
in this section means one rental bed and its pro rata
share of associated common area facilities. The units
described in this subparagraph shall be subject to a
recorded affordability restriction of 55 years.
(G) One hundred percent of all units in the develop-
ment, including total units and density bonus units, but exclusive of a manager’s unit or units, are for lower in- come households, as defined by Section 50079.5 of the
Health and Safety Code, except that up to 20 percent
of the units in the development, including total units
and density bonus units, may be for moderate-income
29 16 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 (I) A repurchase option that requires a subsequent pur- chaser of the property that desires to resell or convey the property to offer the qualified nonprofit corporation the right to repurchase the property prior to selling or conveying that property to any other purchaser.
(II) An equity sharing agreement.
(III) Affordability restrictions on the sale and convey- ance of the property that ensure that the property will be preserved for lower income housing for at least 45
years for owner-occupied housing units and will be sold or resold only to persons or families of very low, low, or moderate income, as defined in Section 50052.5 of the
Health and Safety Code.
(B) For purposes of this paragraph, a “qualified non-
profit housing corporation” is a nonprofit housing
corporation organized pursuant to Section 501(c)(3) of
the Internal Revenue Code that has received a welfare
exemption under Section 214.15 of the Revenue and
T axation Code for properties intended to be sold to low- income families who participate in a special no-interest loan program.
(C) The local government shall enforce an equity shar-
ing agreement required pursuant to clause (i) or (ii)
of subparagraph (A), unless it is in conflict with the
requirements of another public funding source or law
or may defer to the recapture provisions of the public
funding source. The following apply to the equity shar- ing agreement:
(i) Upon resale, the seller of the unit shall retain the value of any improvements, the downpayment, and the
seller’s proportionate share of appreciation.
(ii) Except as provided in clause (v), the local govern- ment shall recapture any initial subsidy, as defined in clause (iii), and its proportionate share of appreciation, as defined in clause (iv), which amount shall be used
within five years for any of the purposes described in
subdivision (e) of Section 33334.2 of the Health and
Safety Code that promote home ownership.
(iii) For purposes of this subdivision, the local govern- ment’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.
(iv) For purposes of this subdivision, the local gov-
ernment’s proportionate share of appreciation shall
be equal to the ratio of the local government’s initial subsidy to the fair market value of the home at the time of initial sale.
(v) If the unit is purchased or developed by a qualified nonprofit housing corporation pursuant to clause (ii)
of subparagraph (A) the local government may enter
into a contract with the qualified nonprofit housing
corporation under which the qualified nonprofit hous-
ing corporation would recapture any initial subsidy and its proportionate share of appreciation if the qualified nonprofit housing corporation is required to use 100
percent of the proceeds to promote homeownership
for lower income households as defined by Health and
Safety Code Section 50079.5 within the jurisdiction of
the local government.
(3) (A) An applicant shall be ineligible for a density
bonus or any other incentives or concessions under
this section if the housing development is proposed on
any property that includes a parcel or parcels on which rental dwelling units are or, if the dwelling units have been vacated or demolished in the five-year period pre- ceding the application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very
low income; subject to any other form of rent or price
control through a public entity’s valid exercise of its police power; or occupied by lower or very low income
households, unless the proposed housing development
replaces those units, and either of the following applies:
(i) The proposed housing development, inclusive of the
units replaced pursuant to this paragraph, contains
affordable units at the percentages set forth in subdivi- sion (b).
(ii) Each unit in the development, exclusive of a man-
ager’s unit or units, is affordable to, and occupied by, either a lower or very low income household.
(B) For the purposes of this paragraph, “replace” shall mean either of the following:
(i) If any dwelling units described in subparagraph (A) are occupied on the date of application, the proposed
housing development shall provide at least the same
number of units of equivalent size to be made available at affordable rent or affordable housing cost to, and
occupied by, persons and families in the same or lower
income category as those households in occupancy. If
the income category of the household in occupancy is
not known, it shall be rebuttably presumed that lower
income renter households occupied these units in the
same proportion of lower income renter households to
all renter households within the jurisdiction, as deter- mined by the most recently available data from the
United States Department of Housing and Urban Devel-
opment’s Comprehensive Housing Affordability Strat-
egy database. For unoccupied dwelling units described
in subparagraph (A) in a development with occupied
units, the proposed housing development shall provide
units of equivalent size to be made available at afford- able rent or affordable housing cost to, and occupied
30 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 17 is for-sale units, the units replaced shall be subject to paragraph (2).
(ii) Require that the units be replaced in compliance
with the jurisdiction’s rent or price control ordinance, provided that each unit described in subparagraph (A)
is replaced. Unless otherwise required by the jurisdic- tion’s rent or price control ordinance, these units shall not be subject to a recorded affordability restriction. (D) For purposes of this paragraph, “equivalent size”
means that the replacement units contain at least the
same total number of bedrooms as the units being
replaced.
(E) Subparagraph (A) does not apply to an applicant
seeking a density bonus for a proposed housing devel-
opment if the applicant’s application was submitted
to, or processed by, a city, county, or city and county before January 1, 2015.
(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 request- ed by the applicant unless the city, county, or city and county makes a written finding, based upon substantial
evidence, of any of the following:
(A) The concession or incentive does not result in
identifiable and actual cost reductions, consistent with subdivision (k), 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 subdivi- sion (d) of Section 65589.5, upon public health and
safety or on any real property that is listed in the Cali- fornia Register of Historical Resources and for which
there is no feasible method to satisfactorily mitigate
or avoid the specific, adverse impact without render-
ing the development unaffordable to low-income and
moderate-income households.
(C) The concession or incentive would be contrary to
state or federal law.
(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
by, persons and families in the same or lower income
category as the last household in occupancy. If the
income category of the last household in occupancy is
not known, it shall be rebuttably presumed that lower
income renter households occupied these units in the
same proportion of lower income renter households to
all renter households within the jurisdiction, as deter- mined by the most recently available data from the
United States Department of Housing and Urban Devel-
opment’s Comprehensive Housing Affordability Strat-
egy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole
number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded afford- ability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been vacated or demolished within the five-year
period preceding the application, the proposed housing
development shall provide at least the same number
of units of equivalent size as existed at the highpoint of those units in the five-year period preceding the
application to be made available at affordable rent or
affordable housing cost to, and occupied by, persons
and families in the same or lower income category as
those persons and families in occupancy at that time, if known. If the incomes of the persons and families in oc- cupancy at the highpoint is not known, it shall be rebut- tably presumed that low-income and very low income
renter households occupied these units in the same
proportion of low-income and very low income renter
households to all renter households within the jurisdic- tion, as determined by the most recently available data from the United States Department of Housing and
Urban Development’s Comprehensive Housing Afford-
ability Strategy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be
rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years.
If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2).
(C) Notwithstanding subparagraph (B), for any dwell-
ing unit described in subparagraph (A) that is or was,
within the five-year period preceding the application,
subject to a form of rent or price control through a local government’s valid exercise of its police power and that is or was occupied by persons or families above lower
income, the city, county, or city and county may do
either of the following:
(i) Require that the replacement units be made avail-
able at affordable rent or affordable housing cost to,
and occupied by, low-income persons or families. If the replacement units will be rental dwelling units, these
units shall be subject to a recorded affordability restric- tion for at least 55 years. If the proposed development 31 18 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 and families of moderate income in a development in
which the units are for sale.
(B) T wo incentives or concessions for projects that
include at least 17 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 development in
which the units are for sale.
(C) Three incentives or concessions for projects that
include at least 24 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 development in
which the units are for sale.
(D) Four incentives or concessions for a project meet-
ing the criteria of subparagraph (G) of paragraph (1) of subdivision (b). If the project is located within one-half mile of a major transit stop or is located in a very low vehicle travel area in a designated county, the applicant shall also receive a height increase of up to three ad- ditional stories, or 33 feet.
(E) One incentive or concession for projects that
include at least 20 percent of the total units for lower income students in a student housing 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. This subdivision shall not 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 subdivi- sion (d) of Section 65589.5, upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. This
subdivision shall not 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.
(4) The city, county, or city and county shall bear the burden of proof for the denial of a requested conces-
sion or incentive.
(e) (1) In no case may a city, county, or city and county apply any development standard that will have the
effect of physically precluding the construction of a de- velopment meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permit- ted by this section. Subject to paragraph (3), an ap-
plicant may submit to a city, county, or city and county a proposal for the waiver or reduction of development
standards that will have the effect of physically preclud- ing the construction of a development meeting the cri-
teria of subdivision (b) at the densities or with the con- cessions or incentives permitted under this section, 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 reason- able attorney’s fees and costs of suit. This subdivision shall not 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 or safety, and for which there is
no feasible method to satisfactorily mitigate or avoid
the specific adverse impact. This subdivision shall not 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, or to grant any waiver or reduction that would be contrary to state or federal law.
(2) A proposal for the waiver or reduction of develop-
ment standards pursuant to this subdivision shall
neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d).
(3) A housing development that receives a waiver from
any maximum controls on density pursuant to clause
(ii) of subparagraph (D) of paragraph (3) of subdivi-
sion (f) shall only be eligible for a waiver or reduction of development standards as provided in subparagraph
(D) of paragraph (2) of subdivision (d) and clause (ii) of subparagraph (D) of paragraph (3) of subdivision
(f), unless the city, county, or city and county agrees to additional waivers or reductions of development
standards.
(f) For the purposes of this chapter, “density bonus”
means a density increase over the otherwise maximum
allowable gross residential density as of the date of ap- plication by the applicant to the city, county, or city and county, or, if elected by the applicant, a lesser percent- age of density increase, including, but not limited to, no increase in density. The amount of density increase 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).
32 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 19 of the type of units giving rise to a density bonus under that subparagraph.
(C) For housing developments meeting the criteria of
subparagraph (F) of paragraph (1) of subdivision (b),
the density bonus shall be 35 percent of the student
housing units.
(D) For housing developments meeting the criteria of
subparagraph (G) of paragraph (1) of subdivision (b),
the following shall apply:
(i) Except as otherwise provided in clauses (ii) and (iii), the density bonus shall be 80 percent of the number of
units for lower income households.
(ii) If the housing development is located within one-
half mile of a major transit stop, the city, county, or city and county shall not impose any maximum controls on
density.
(iii) If the housing development is located in a very low vehicle travel area within a designated county, the city, county, or city and county shall not impose any maxi-
mum controls on density.
(4) For housing developments meeting the criteria of
subparagraph (D) of paragraph (1) of subdivision (b),
the density bonus shall be calculated as follows:
Perecentage
Moderate-
Income Units
Percentage
Density
Bonus
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
(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
Units
Percentage
Density
Bonus
10 20
11 21.5
12 23
13 24.5
14 26
15 2 7. 5
16 29
17 30.5
18 32
19 33.5
20 35
21 38.75
22 42.5
23 46.25
24 50
(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
Low-Income
Units
Percentage
Density
Bonus
5 20
6 22.5
7 25
8 2 7. 5
9 30
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50
(3) (A) For housing developments meeting the criteria
of subparagraph (C) of paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the number of
senior housing units.
(B) For housing developments meeting the criteria of
subparagraph (E) of paragraph (1) of subdivision (b),
the density bonus shall be 20 percent of the number
33 20 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
41 38.75
42 42.5
43 46.25
44 50
(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 require, or be
interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning
change, or other discretionary approval.
(g) (1) When an applicant for a tentative subdivision
map, parcel map, or other residential development ap-
proval donates land to a city, county, or city and county in accordance with this subdivision, the applicant shall be entitled to a 15-percent increase above the otherwise maximum allowable residential density for the entire
development, as follows:
Percentage
Very Low
Income
Percentage
Density
Bonus
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 an increase pursuant to both 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 ap-
plicant shall be eligible for the increased density bonus described in this subdivision if all of the following condi- tions 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 applica-
tion.
(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 devel-
opment.
(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 with appropriate development
standards for development at the density described
in paragraph (3) of subdivision (c) of Section 65583.2, and is or will be served by adequate public facilities and infrastructure.
(D) 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, not later than the date of approval of the final subdivision map, parcel map, or
residential development application, except that the
local government may subject the proposed develop-
ment to subsequent design review to the extent autho-
rized by subdivision (i) of Section 65583.2 if the design is not reviewed by the local government before the time of transfer.
(E) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued af- fordability of the units consistent with paragraphs (1) 34 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 21 (4) “Childcare facility, ” as used in this section, means a child daycare facility other than a family daycare home, including, but not limited to, infant centers, preschools, extended daycare facilities, and schoolage childcare
centers.
(i) “Housing development, ” as used in this section,
means a development project for five or more residen-
tial units, including mixed-use developments. For the
purposes of this section, “housing development” also
includes a subdivision or common interest develop-
ment, as defined in Section 4100 of the Civil Code, ap- proved 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 multifam- ily 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 shall be on contiguous sites that are the subject of one development application, but 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.
(j) (1) 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 amend-
ment, zoning change, study, or other discretionary
approval. For purposes of this subdivision, “study” does not include reasonable documentation to establish
eligibility for the concession or incentive or to dem-
onstrate that the incentive or concession meets the
definition set forth in subdivision (k). This provision is declaratory of existing law.
(2) Except as provided in subdivisions (d) and (e), the granting of a density bonus shall not require or be
interpreted to require the waiver of a local ordinance
or provisions of a local ordinance unrelated to develop- ment standards..
(k) 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 architec-
tural design requirements that exceed the minimum
building standards approved by the California Build-
ing 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 and
actual cost reductions, to provide for affordable hous- ing costs, as defined in Section 50052.5 of the Health
and (2) of subdivision (c), which shall be recorded on
the property at the time of the transfer.
(F) 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.
(G) 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.
(H) A proposed source of funding for the very low
income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application.
(h) (1) When an applicant proposes to construct a
housing development that conforms to the require-
ments of subdivision (b) and includes a childcare facil- ity 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 childcare facility.
(B) An additional concession or incentive that con-
tributes significantly to the economic feasibility of the construction of the childcare 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 childcare 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 childcare 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 per-
centage of dwelling units that are required for very low income households, lower income households, or fami-
lies of moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subdivi-
sion, a city, county, or city and county shall not be
required to provide a density bonus or concession for a childcare facility if it finds, based upon substantial
evidence, that the community has adequate childcare
facilities.
35 22 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c).
(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 pro-
posed by the developer or the city, county, or city and county that result in identifiable and actual cost reduc- tions 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).
(l) Subdivision (k) does not limit or require the provi- sion of direct financial incentives for the housing devel- opment, including the provision of publicly owned land, by the city, county, or city and county, or the waiver of fees or dedication requirements.
(m) This section does not supersede or in any way
alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with
Section 30000) of the Public Resources Code). Any
density bonus, concessions, incentives, waivers or re-
ductions of development standards, and parking ratios
to which the applicant is entitled under this section
shall be permitted in a manner that is consistent with
this section and Division 20 (commencing with Section
30000) of the Public Resources Code.
(n) If permitted by local ordinance, nothing in this sec- tion 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 grant-
ing 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 defini- tions shall apply:
(1) “Designated county” includes the Counties of Alam-
eda, Contra Costa, Los Angeles, Marin, Napa, Orange,
Riverside, Sacramento, San Bernardino, San Diego,
San Francisco, San Mateo, Santa Barbara, Santa Clara,
Solano, Sonoma, and Ventura.
(2) “Development standard” includes a site or con-
struction condition, including, but not limited to, a
height limitation, a setback requirement, a floor area
ratio, an onsite open-space requirement, a minimum
lot area per unit requirement, or a parking ratio that
applies to a residential development pursuant to any
ordinance, general plan element, specific plan, char-
ter, or other local condition, law, policy, resolution, or regulation.
(3) “Located within one-half mile of a major transit
stop” means that any point on a proposed develop-
ment, for which an applicant seeks a density bonus,
other incentives or concessions, waivers or reductions
of development standards, or a vehicular parking ratio
pursuant to this section, is within one-half mile of any point on the property on which a major transit stop is
located, including any parking lot owned by the transit authority or other local agency operating the major
transit stop.
(4) “Lower income student” means a student who has a
household income and asset level that does not exceed
the level for Cal Grant A or Cal Grant B award recipients as set forth in paragraph (1) of subdivision (k) of Sec- tion 69432.7 of the Education Code. The eligibility of a student to occupy a unit for lower income students un-
der this section shall be verified by an affidavit, award letter, or letter of eligibility provided by the institution of higher education in which the student is enrolled
or by the California Student Aid Commission that the
student receives or is eligible for financial aid, including an institutional grant or fee waiver from the college or university, the California Student Aid Commission, or
the federal government.
(5) “Major transit stop” has the same meaning as
defined in subdivision (b) of Section 21155 of the Public Resources Code.
(6) “Maximum allowable residential density” or “base
density” means the maximum number of units allowed
under the zoning ordinance, specific plan, or land use
element of the general plan, or, if a range of density
is permitted, means the maximum number of units
allowed by the specific zoning range, specific plan, or land use element of the general plan applicable to the
project. If the density allowed under the zoning ordi-
nance is inconsistent with the density allowed under
the land use element of the general plan or specific
plan, the greater shall prevail. Density shall be deter- mined using dwelling units per acre. However, if the
applicable zoning ordinance, specific plan, or land use element of the general plan does not provide a dwell-
ing-units-per-acre standard for density, then the local agency shall calculate the number of units by:
(A) Estimating the realistic development capacity of
the site based on the objective development standards
applicable to the project, including, but not limited to, floor area ratio, site coverage, maximum building height and number of stories, building setbacks and step-
backs, public and private open space requirements,
minimum percentage or square footage of any nonresi-
dential component, and parking requirements, unless
not required for the base project. Parking requirements 36 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 23 (9) “Very low vehicle travel area” means an urban-
ized area, as designated by the United States Census
Bureau, where the existing residential development
generates vehicle miles traveled per capita that is be- low 85 percent of either regional vehicle miles traveled per capita or city vehicle miles traveled per capita. For purposes of this paragraph, “area” may include a travel analysis zone, hexagon, or grid. For the purposes of
determining “regional vehicle miles traveled per capita” pursuant to this paragraph, a “region” is the entirety of incorporated and unincorporated areas governed by
a multicounty or single-county metropolitan planning
organization, or the entirety of the incorporated and
unincorporated areas of an individual county that is not part of a metropolitan planning organization.
(p) (1) Except as provided in paragraphs (2), (3), and
(4), upon the request of the developer, a city, county, or city and county shall not require a vehicular parking ra- tio, inclusive of parking for persons with a disability and guests, of a development meeting the criteria of subdi- visions (b) and (c), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) T wo to three bedrooms: one and one-half onsite
parking spaces.
(C) Four and more bedrooms: two and one-half parking
spaces.
(2) (A) Notwithstanding paragraph (1), if a develop-
ment includes at least 20 percent low-income units
for housing developments meeting the criteria of
subparagraph (A) of paragraph (1) of subdivision (b)
or at least 11 percent very low income units for housing developments meeting the criteria of subparagraph
(B) of paragraph (1) of subdivision (b), is located within one-half mile of a major transit stop, and there is un- obstructed access to the major transit stop from the
development, then, upon the request of the developer,
a city, county, or city and county shall not impose a
vehicular parking ratio, inclusive of parking for persons with a disability and guests, that exceeds 0.5 spaces
per unit. Notwithstanding paragraph (1), if a develop-
ment includes at least 40 percent moderate-income
units for housing developments meeting the criteria of
subparagraph (D) of paragraph (1) of subdivision (b), is located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code, and the residents of the development
have unobstructed access to the major transit stop
from the development then, upon the request of the
developer, a city, county, or city and county shall not impose a vehicular parking ratio, inclusive of parking for persons with a disability and guests, that exceeds 0.5
spaces per bedroom.
(B) For purposes of this subdivision, “unobstructed ac- cess to the major transit stop” means a resident is able shall include considerations regarding number of spac-
es, location, design, type, and circulation. A developer may provide a base density study and the local agency
shall accept it, provided that it includes all applicable objective development standards.
(B) Maintaining the same average unit size and other
project details relevant to the base density study,
excepting those that may be modified by waiver or
concession to accommodate the bonus units, in the
proposed project as in the study.
(7) (A) (i) “Shared housing building” means a residen-
tial or mixed-use structure, with five or more shared
housing units and one or more common kitchens and
dining areas designed for permanent residence of more
than 30 days by its tenants. The kitchens and dining
areas within the shared housing building shall be able
to adequately accommodate all residents. If a local
ordinance further restricts the attributes of a shared
housing building beyond the requirements established
in this section, the local definition shall apply to the extent that it does not conflict with the requirements of this section.
(ii) A “shared housing building” may include other
dwelling units that are not shared housing units, pro-
vided that those dwelling units do not occupy more
than 25 percent of the floor area of the shared housing building. A shared housing building may include 100
percent shared housing units.
(B) “Shared housing unit” means one or more habitable
rooms, not within another dwelling unit, that includes
a bathroom, sink, refrigerator, and microwave, is used
for permanent residence, that meets the “minimum
room area” specified in Section R304 of the California
Residential Code (Part 2.5 of Title 24 of the California Code of Regulations), and complies with the defini-
tion of “guestroom” in Section R202 of the California
Residential Code. If a local ordinance further restricts the attributes of a shared housing building beyond the
requirements established in this section, the local defi- nition shall apply to the extent that it does not conflict with the requirements of this section.
(8) (A) “T otal units” or “total dwelling units” means a calculation of the number of units that:
(i) Excludes a unit added by a density bonus awarded
pursuant to this section or any local law granting a
greater density bonus.
(ii) Includes a unit designated to satisfy an inclusionary zoning requirement of a city, county, or city and county. (B) For purposes of calculating a density bonus granted pursuant to this section for a shared housing building, “unit” means one shared housing unit and its pro rata
share of associated common area facilities.
37 24 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 to access the major transit stop without encountering
natural or constructed impediments. For purposes of
this subparagraph, “natural or constructed impedi-
ments” includes, but is not limited to, freeways, rivers, mountains, and bodies of water, but does not include
residential structures, shopping centers, parking lots, or rails used for transit.
(3) Notwithstanding paragraph (1), if a development
meets the criteria of subparagraph (G) of paragraph (1) of subdivision (b), then, upon the request of the devel- oper, a city, county, or city and county shall not impose vehicular parking standards if the development meets
any of the following criteria:
(A) The development is located within one-half mile of a major transit stop and there is unobstructed access to
the major transit stop from the development.
(B) The development is a for-rent housing development
for individuals who are 55 years of age or older that
complies with Sections 51.2 and 51.3 of the Civil Code
and the development has either paratransit service or
unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day. (C) The development is either a special needs housing
development, as defined in Section 51312 of the Health
and Safety Code, or a supportive housing development,
as defined in Section 50675.14 of the Health and Safety Code. A development that is a special needs housing
development shall have either paratransit service or
unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day. (4) 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 pur-
poses of this subdivision, a development may provide
onsite parking through tandem parking or uncovered
parking, but not through onstreet parking.
(5) This subdivision shall apply to a development that
meets the requirements of subdivisions (b) and (c),
but only at the request of the applicant. An applicant
may request parking incentives or concessions beyond
those provided in this subdivision pursuant to subdivi- sion (d).
(6) This subdivision does not preclude a city, county, or city and county from reducing or eliminating a parking
requirement for development projects of any type in
any location.
(7) Notwithstanding paragraphs (2) and (3), if a city,
county, city and county, or an independent consultant
has conducted an areawide or jurisdictionwide parking
study in the last seven years, then the city, county, or city and county may impose a higher vehicular parking
ratio not to exceed the ratio described in paragraph (1), based upon substantial evidence found in the parking
study, that includes, but is not limited to, an analysis of parking availability, differing levels of transit access, walkability access to transit services, the potential for shared parking, the effect of parking requirements on
the cost of market-rate and subsidized developments,
and the lower rates of car ownership for low-income
and very low income individuals, including seniors and
special needs individuals. The city, county, or city and county shall pay the costs of any new study. The city,
county, or city and county shall make findings, based
on a parking study completed in conformity with this
paragraph, supporting the need for the higher parking
ratio.
(8) A request pursuant to this subdivision shall neither reduce nor increase the number of incentives or con-
cessions to which the applicant is entitled pursuant to subdivision (d).
(q) Each component of any density calculation, includ-
ing base density and bonus density, resulting in frac-
tional units shall be separately rounded up to the next whole number. The Legislature finds and declares that
this provision is declaratory of existing law.
(r) This chapter shall be interpreted liberally in favor of producing the maximum number of total housing units.
(s) Notwithstanding any other law, if a city, including a charter city, county, or city and county has adopted an ordinance or a housing program, or both an ordinance
and a housing program, that incentivizes the devel-
opment of affordable housing that allows for density
bonuses that exceed the density bonuses required by
the version of this section effective through December
31, 2020, that city, county, or city and county is not
required to amend or otherwise update its ordinance
or corresponding affordable housing incentive program
to comply with the amendments made to this section
by the act adding this subdivision, and is exempt from
complying with the incentive and concession calcu-
lation amendments made to this section by the act
adding this subdivision as set forth in subdivision (d), particularly subparagraphs (B) and (C) of paragraph
(2) of that subdivision, and the amendments made to
the density tables under subdivision (f).
(t) When an applicant proposes to construct a hous-
ing development that conforms to the requirements of
subparagraph (A) or (B) of paragraph (1) of subdivision (b) that is a shared housing building, the city, county, or city and county shall not require any minimum unit size requirements or minimum bedroom requirements that
are in conflict with paragraph (7) of subdivision (o).
(u) (1) The Legislature finds and declares that the
intent behind the Density Bonus Law is to allow public
entities to reduce or even eliminate subsidies for a par- ticular project by allowing a developer to include more 38 of a density bonus or other incentives of equivalent financial value as it finds appropriate, including, but not limited to, conditions which assure continued af-
fordability of units to subsequent purchasers who are
persons and families of low and moderate income or
lower income households.
(b) For purposes of this section, “density bonus” means an increase in units of 25 percent over the number of
apartments, to be provided within the existing structure or structures proposed for conversion.
(c) For purposes of this section, “other incentives of
equivalent financial value” shall not be construed to
require a city, county, or city and county to provide cash transfer payments or other monetary compensation
but may include the reduction or waiver of require-
ments which the city, county, or city and county might
otherwise apply as conditions of conversion approval.
(d) An applicant for approval to convert apartments to
a condominium project may submit to a city, county, or
city and county a preliminary proposal pursuant to this section prior to the submittal of any formal requests for subdivision map approvals. The city, county, or city and county shall, within 90 days of receipt of a written pro- posal, notify the applicant in writing of the manner in which it will comply with this section. The city, county, or city and county shall establish procedures for carry- ing out this section, which shall include legislative body approval of the means of compliance with this section.
(e) Nothing in this section shall be construed to require a city, county, or city and county to approve a proposal to convert apartments to condominiums.
(f) An applicant shall be ineligible for a density bonus or other incentives under this section if the apartments proposed for conversion constitute a housing develop-
ment for which a density bonus or other incentives
were provided under Section 65915.
(g) An applicant shall be ineligible for a density bonus or any other incentives or concessions under this sec-
tion if the condominium project is proposed on any
property that includes a parcel or parcels on which
rental dwelling units are or, if the dwelling units have been vacated or demolished in the five-year period pre- ceding the application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very
low income; subject to any other form of rent or price
control through a public entity’s valid exercise of its police power; or occupied by lower or very low income
households, unless the proposed condominium project
replaces those units, as defined in subparagraph (B) of paragraph (3) of subdivision (c) of Section 65915, and
either of the following applies:
MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 25 total units in a project than would otherwise be allowed by the local zoning ordinance in exchange for affordable units. It further reaffirms that the intent is to cover at least some of the financing gap of affordable housing
with regulatory incentives, rather than additional public subsidy.
(2) It is therefore the intent of the Legislature to make modifications to the Density Bonus Law by the act add-
ing this subdivision to further incentivize the construc- tion of very low, low-, and moderate-income housing
units. It is further the intent of the Legislature in mak- ing these modifications to the Density Bonus Law to
ensure that any additional benefits conferred upon a
developer are balanced with the receipt of a public ben- efit in the form of adequate levels of affordable housing.
The Legislature further intends that these modifica-
tions will ensure that the Density Bonus Law creates
incentives for the construction of more housing across
all areas of the state.
65915.1
For purposes of Section 65915, affordable housing im-
pact fees, including inclusionary zoning fees and in-lieu fees, shall not be imposed on a housing development’s
affordable units.
65915.2
If permitted by local ordinance, nothing in Section
65915 shall be construed to prohibit a city, county, or city and county from requiring an affordability period
longer than 55 years for any units that qualified the
applicant for the award of the density bonus developed
in compliance with a local ordinance that requires, as a condition of the development of residential units, that the development include a certain percentage of units
that are affordable to, and occupied by, low-income,
lower income, very low income, or extremely low
income households and that will be financed without
low-income housing tax credits.
65915.5
(a) When an applicant for approval to convert apart-
ments to a condominium project agrees to provide
at least 33 percent of the total units of the proposed
condominium project to persons and families of low or
moderate income as defined in Section 50093 of the
Health and Safety Code, or 15 percent of the total units of the proposed condominium project to lower income
households as defined in Section 50079.5 of the Health
and Safety Code, and agrees to pay for the reason-
ably necessary administrative costs incurred by a city, county, or city and county pursuant to this section, the city, county, or city and county shall either (1) grant a density bonus or (2) provide other incentives of equiva- lent financial value. A city, county, or city and county may place such reasonable conditions on the granting
39 (1) The proposed condominium project, inclusive of the units replaced pursuant to subparagraph (B) of para-
graph (3) of subdivision (c) of Section 65915, contains affordable units at the percentages set forth in subdivi- sion (a).
(2) Each unit in the development, exclusive of a man-
ager’s unit or units, is affordable to, and occupied by, either a lower or very low income household.
(h) Subdivision (g) does not apply to an applicant
seeking a density bonus for a proposed housing
development if their application was submitted to, or
processed by, a city, county, or city and county before January 1, 2015.
65915.7
(a) When an applicant for approval of a commercial
development has entered into an agreement for part-
nered housing described in subdivision (c) to contrib-
ute affordable housing through a joint project or two
separate projects encompassing affordable housing,
the city, county, or city and county shall grant to the commercial developer a development bonus as pre-
scribed in subdivision (b). Housing shall be constructed on the site of the commercial development or on a site
that is all of the following:
(1) Within the boundaries of the local government.
(2) In close proximity to public amenities including
schools and employment centers.
(3) Located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the
Public Resources Code.
(b) The development bonus granted to the commercial
developer shall mean incentives, mutually agreed upon
by the developer and the jurisdiction, that may include, but are not limited to, any of the following:
(1) Up to a 20-percent increase in maximum allowable
intensity in the General Plan.
(2) Up to a 20-percent increase in maximum allowable
floor area ratio.
(3) Up to a 20-percent increase in maximum height
requirements.
(4) Up to a 20-percent reduction in minimum parking
requirements.
(5) Use of a limited-use/limited-application elevator for upper floor accessibility.
(6) An exception to a zoning ordinance or other land
use regulation.
(c) For purposes of this section, the agreement for
partnered housing shall be between the commercial
developer and the housing developer, shall identify how the commercial developer will contribute affordable
housing, and shall be approved by the city, county, or
city and county.
(d) For purposes of this section, affordable housing
may be contributed by the commercial developer in
one of the following manners:
(1) The commercial developer may directly build the
units.
(2) The commercial developer may donate a portion of
the site or property elsewhere to the affordable housing developer for use as a site for affordable housing.
(3) The commercial developer may make a cash pay-
ment to the affordable housing developer that shall be
used towards the costs of constructing the affordable
housing project.
(e) For purposes of this section, subparagraph (A) of
paragraph (3) of subdivision (c) of Section 65915 shall apply.
(f) Nothing in this section shall preclude any additional allowances or incentives offered to developers by local governments pursuant to law or regulation.
(g) If the developer of the affordable units does not
commence with construction of those units in ac-
cordance with timelines ascribed by the agreement
described in subdivision (c), the local government may
withhold certificates of occupancy for the commercial
development under construction until the developer
has completed construction of the affordable units.
(h) In order to qualify for a development bonus under
this section, a commercial developer shall partner with a housing developer that provides at least 30 percent
of the total units for low-income households or at least 15 percent of the total units for very low-income house- holds.
(i) Nothing in this section shall preclude an afford-
able housing developer from seeking a density bonus,
concessions or incentives, waivers or reductions of
development standards, or parking ratios under Sec-
tion 65915.
(j) A development bonus pursuant to this section shall
not include a reduction or waiver of the requirements
within an ordinance that requires the payment of a fee
by a commercial developer for the promotion or provi-
sion of affordable housing.
(k) A city or county shall submit to the Department of
Housing and Community Development, as part of the
26 MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 40 (B) The development is located within one of the follow- ing:
(i) An urban infill site that is within a transit priority area.
(ii) One-half mile of a major transit stop.
(C) The site of the development is zoned to allow
residential use or mixed-use with a minimum planned
density of at least 20 dwelling units per acre and does not include any land zoned for low density residential
use or for exclusive nonresidential use.
(D) The applicant and the development satisfy the
replacement requirements specified in subdivision (c)
of Section 65915.
(E) The development includes at least 20 percent of
the units, excluding any additional units allowed under a floor area ratio bonus or other incentives or conces- sions provided pursuant to this chapter, with an afford- able housing cost or affordable rent to, and occupied
by, persons with a household income equal to or less
than 50 percent of the area median income, as deter-
mined pursuant to Section 50093 of the Health and
Safety Code, and subject to an affordability restriction for a minimum of 55 years.
(F) The development complies with the height require-
ments applicable to the underlying zone. A develop-
ment shall not be eligible to use a floor area ratio bonus or other incentives or concessions provided pursuant
to this chapter to relieve the development from a maxi- mum height limitation.
(2) “Floor area ratio” means the ratio of gross build-
ing area of the eligible housing development, exclud-
ing structured parking areas, proposed for the proj-
ect divided by the net lot area. For purposes of this
paragraph, “gross building area” means the sum of all
finished areas of all floors of a building included within the outside faces of its exterior walls.
(3) “Floor area ratio bonus” means an allowance for an
eligible housing development to utilize a floor area ratio over the otherwise maximum allowable density permit-
ted under the applicable zoning ordinance and land use
elements of the general plan of a city or county, calcu- lated pursuant to paragraph (2) of subdivision (b).
(4) “Major transit stop” has the same meaning as de-
fined in Section 21155 of the Public Resources Code.
(5) “T ransit priority area” has the same meaning as
defined in Section 21099 of the Public Resources Code.
(b) (1) A city council, including a charter city council or the board of supervisors of a city and county, or
county board of supervisors may establish a procedure
annual report required by Section 65400, information
describing a commercial development bonus approved
pursuant to this section, including the terms of the
agreements between the commercial developer and
the affordable housing developer, and the developers
and the local jurisdiction, and the number of affordable units constructed as part of the agreements.
(l) For purposes of this section, “partner” means forma- tion of a partnership, limited liability company, corpora- tion, or other entity recognized by the state in which the commercial development applicant and the affordable
housing developer are each partners, members, share-
holders or other participants, or a contract or agree-
ment between a commercial development applicant
and affordable housing developer for the development
of both the commercial and the affordable housing
properties.
(m) This section shall remain in effect only until Janu- ary 1, 2028, and as of that date is repealed.
65916.
Where there is a direct financial contribution to a hous- ing development pursuant to Section 65915 through
participation in cost of infrastructure, write-down of
land costs, or subsidizing the cost of construction, the city, county, or city and county shall assure continued availability for low- and moderate-income units for 30
years. When appropriate, the agreement provided for
in Section 65915 shall specify the mechanisms and
procedures necessary to carry out this section.
6 5 9 17.
In enacting this chapter it is the intent of the Legisla- ture that the density bonus or other incentives offered by the city, county, or city and county pursuant to this chapter shall contribute significantly to the economic
feasibility of lower income housing in proposed hous-
ing developments. In the absence of an agreement by a
developer in accordance with Section 65915, a locality
shall not offer a density bonus or any other incentive
that would undermine the intent of this chapter.
65917 .2
(a) As used in this section, the following terms shall
have the following meanings:
(1) “Eligible housing development” means a develop-
ment that satisfies all of the following criteria:
(A) The development is a multifamily housing develop-
ment that contains five or more residential units, exclu- sive of any other floor area ratio bonus or incentive or concession awarded pursuant to this chapter.
MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 27 41 65917 .5
(a) As used in this section, the following terms shall
have the following meanings:
(1) “Child care facility” means a facility installed, oper- ated, and maintained under this section for the non-
residential care of children as defined under applicable state licensing requirements for the facility.
(2) “Density bonus” means a floor area ratio bonus over the otherwise maximum allowable density permitted
under the applicable zoning ordinance and land use el-
ements of the general plan of a city, including a charter city, city and county, or county of:
(A) A maximum of five square feet of floor area for each one square foot of floor area contained in the child care facility for existing structures.
(B) A maximum of 10 square feet of floor area for each
one square foot of floor area contained in the child care facility for new structures.
For purposes of calculating the density bonus under
this section, both indoor and outdoor square footage
requirements for the child care facility as set forth in applicable state child care licensing requirements shall be included in the floor area of the child care facility. (3) “Developer” means the owner or other person,
including a lessee, having the right under the applicable zoning ordinance of a city council, including a charter city council, city and county board of supervisors, or
county board of supervisors to make an application for
development approvals for the development or redevel-
opment of a commercial or industrial project.
(4) “Floor area” means as to a commercial or industrial project, the floor area as calculated under the appli-
cable zoning ordinance of a city council, including a
charter city council, city and county board of supervi- sors, or county board of supervisors and as to a child
care facility, the total area contained within the exterior walls of the facility and all outdoor areas devoted to the use of the facility in accordance with applicable state child care licensing requirements.
(b) A city council, including a charter city council, city and county board of supervisors, or county board of
supervisors may establish a procedure by ordinance to
grant a developer of a commercial or industrial project, containing at least 50,000 square feet of floor area,
a density bonus when that developer has set aside at
least 2,000 square feet of floor area and 3,000 out-
door square feet to be used for a child care facility. The granting of a bonus shall not preclude a city council,
including a charter city council, city and county board of supervisors, or county board of supervisors from
imposing necessary conditions on the project or on
MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 28 by ordinance to grant a developer of an eligible housing development, upon the request of the developer, a floor area ratio bonus, calculated as provided in paragraph (2), in lieu of a density bonus awarded on the basis of dwelling units per acre.
(2) In calculating the floor area ratio bonus pursuant to this section, the allowable gross residential floor area in square feet shall be the product of all of the following amounts:
(A) The allowable residential base density in dwelling units per acre.
(B) The site area in square feet, divided by 43,560.
(C) 2,250.
(c) The city council or county board of supervisors shall not impose any parking requirement on an eligible housing development in excess of 0.1 parking spaces per unit that is affordable to persons and families with a household in- come equal to or less than 120 percent of the area median income and 0.5 parking spaces per unit that is offered at market rate.
(d) A city or county that adopts a floor area ratio bonus ordinance pursuant to this section shall allow an applicant seeking to develop an eligible residential development to calculate impact fees based on square feet, instead of on a per unit basis.
(e) In the case of an eligible housing development that is zoned for mixed-use purposes, any floor area ratio require- ment under a zoning ordinance or land use element of the general plan of the city or county applicable to the nonresi- dential portion of the eligible housing development shall continue to apply notwithstanding the award of a floor
area ratio bonus in accordance with this section.
(f) An applicant for a floor area ratio bonus pursuant to this section may also submit to the city, county, or city and county a proposal for specific incentives or concessions pursuant to subdivision (d) of Section 65915.
(g) (1) This section shall not be interpreted to do either of the following:
(A) Supersede or preempt any other section within this
chapter.
(B) Prohibit a city, county, or city and county from provid- ing a floor area ratio bonus under terms that are different from those set forth in this section.
(2) The adoption of an ordinance pursuant to this section shall not be interpreted to relieve a city, county, or city and county from complying with Section 65915.
42 supervisors, or county board of supervisors shall be re- quired to make a finding that the need for child care is no longer present, or is not present to the same degree as it was at the time the facility was established.
(f) The requirements of Chapter 5 (commencing with
Section 66000) and of the amendments made to
Sections 53077 , 54997 , and 54998 by Chapter 1002 of
the Statutes of 1987 shall not apply to actions taken in accordance with this section.
(g) This section shall not apply to a voter-approved
ordinance adopted by referendum or initiative.
65918.
The provisions of this chapter shall apply to charter
cities.
the additional square footage. Projects constructed
under this section shall conform to height, setback, lot coverage, architectural review, site plan review, fees, charges, and other health, safety, and zoning require-
ments generally applicable to construction in the zone
in which the property is located. A consortium with
more than one developer may be permitted to achieve
the threshold amount for the available density bonus
with each developer’s density bonus equal to the per-
centage participation of the developer. This facility may be located on the project site or may be located offsite as agreed upon by the developer and local agency. If
the child care facility is not located on the site of the project, the local agency shall determine whether the
location of the child care facility is appropriate and
whether it conforms with the intent of this section. The child care facility shall be of a size to comply with all state licensing requirements in order to accommodate
at least 40 children.
(c) The developer may operate the child care facility
itself or may contract with a licensed child care pro-
vider to operate the facility. In all cases, the developer shall show ongoing coordination with a local child care resource and referral network or local governmental
child care coordinator in order to qualify for the density bonus.
(d) If the developer uses space allocated for child care facility purposes, in accordance with subdivision (b), for purposes other than for a child care facility, an assess- ment based on the square footage of the project may
be levied and collected by the city council, including a charter city council, city and county board of supervi- sors, or county board of supervisors. The assessment
shall be consistent with the market value of the space.
If the developer fails to have the space allocated for the child care facility within three years, from the date upon which the first temporary certificate of occupancy is
granted, an assessment based on the square footage
of the project may be levied and collected by the city
council, including a charter city council, city and county board of supervisors, or county board of supervisors
in accordance with procedures to be developed by the
legislative body of the city council, including a charter city council, city and county board of supervisors, or
county board of supervisors. The assessment shall
be consistent with the market value of the space. A
penalty levied against a consortium of developers shall be charged to each developer in an amount equal to
the developer’s percentage square feet participation.
Funds collected pursuant to this subdivision shall be
deposited by the city council, including a charter city council, city and county board of supervisors, or county board of supervisors into a special account to be used
for child care services or child care facilities.
(e) Once the child care facility has been established,
prior to the closure, change in use, or reduction in the physical size of, the facility, the city, city council, in- cluding a charter city council, city and county board of MEYERS NAVE A professional corporation | CALIFORNIA DENSITY BONUS LAW 2023 29 43 OLIVE AVE
LOUGHBOROUGH DR
AUSTIN AVE
DEVONWOOD DR
BANNON LN
¯
SUBJECT
SITE
Lowe's Shopping Center
Walmart
Devonwood
Village
Disclaimer: This document was prepared for
general inquiries only.The City of Merced
is not liable for errors or ommissions
that might occur.Official information
concerning specific parcels
should be obtained from
recorded or adopted City documents.
DENSITY BONUS #23-02
DEVONWOOD APARTMENTS
ATTACHMENT C
44 R:\2023\2023-0476 RICHMAN - DEVONWOOD APTS - MERCED\03 DESIGN\SCHEMATIC\CAD\23-476_A2.0 - A2.3 BUILDING ELEVATIONS.DWG Friday, September 01, 2023 11:04:27 AM
FRONT ELEVATION
Scale
Date
Job No.
2023-08-16
2023-476
DEVONWOOD APARMENTS
1/8"=1'-0"
24'08 '4' 16'
RIGHT ELEVATION1/8"=1'-0"
24'08 '4' 16'
1/8" = 1'
A2.0BUILDING 'A' - 36 PLEX
CONCEPTUAL BUILDING ELEVATIONS
ATTACHMENT E
46 R:\2023\2023-0476 RICHMAN - DEVONWOOD APTS - MERCED\03 DESIGN\SCHEMATIC\CAD\23-476_A2.0 - A2.3 BUILDING ELEVATIONS.DWG Friday, September 01, 2023 11:04:30 AM
REAR ELEVATION
Scale
Date
Job No.
2023-08-16
2023-476
DEVONWOOD APARMENTS
1/8"=1'-0"
24'08 '4' 16'
LEFT ELEVATION1/8"=1'-0"
24'08 '4' 16'
1/8" = 1'
A2.1BUILDING 'A' - 36 PLEX
CONCEPTUAL BUILDING ELEVATIONS
47 R:\2023\2023-0476 RICHMAN - DEVONWOOD APTS - MERCED\03 DESIGN\SCHEMATIC\CAD\23-476_A2.0 - A2.3 BUILDING ELEVATIONS.DWG Friday, September 01, 2023 11:04:34 AM
FRONT ELEVATION
Scale
Date
Job No.
2023-08-16
2023-476
DEVONWOOD APARMENTS
1/8"=1'-0"
24'08 '4' 16'
RIGHT ELEVATION1/8"=1'-0"
24'08 '4' 16'
1/8" = 1'
A2.2BUILDING 'B' - 24 PLEX
CONCEPTUAL BUILDING ELEVATIONS
48 R:\2023\2023-0476 RICHMAN - DEVONWOOD APTS - MERCED\03 DESIGN\SCHEMATIC\CAD\23-476_A2.0 - A2.3 BUILDING ELEVATIONS.DWG Friday, September 01, 2023 11:04:37 AM
REAR ELEVATION
Scale
Date
Job No.
2023-08-16
2023-476
DEVONWOOD APARMENTS
1/8"=1'-0"
24'08 '4' 16'
LEFT ELEVATION1/8"=1'-0"
24'08 '4' 16'
1/8" = 1'
A2.3BUILDING 'B' - 24 PLEX
CONCEPTUAL BUILDING ELEVATIONS
49 R:\2023\2023-0476 RICHMAN - DEVONWOOD APTS - MERCED\03 DESIGN\SCHEMATIC\CAD\23-476_A2.0 - A2.3 BUILDING ELEVATIONS.DWG Friday, September 01, 2023 11:04:41 AM
LEFT ELEVATION
Scale
Date
Job No.
2023-08-16
2023-476
DEVONWOOD APARMENTS
1/8"=1'-0"
24'08 '4' 16'
1/8" = 1'
A2.4CLUBHOUSE
CONCEPTUAL BUILDING ELEVATIONS
REAR ELEVATION1/8"=1'-0"
24'08 '4' 16'
RIGHT ELEVATION1/8"=1'-0"
24'08 '4' 16'
FRONT ELEVATION1/8"=1'-0"
24'08 '4' 16'
50 R:\2023\2023-0476 RICHMAN - DEVONWOOD APTS - MERCED\03 DESIGN\SCHEMATIC\CAD\23-476_A2.0 - A2.3 BUILDING ELEVATIONS.DWG Friday, September 01, 2023 11:04:44 AM
Scale
Date
Job No.
2023-08-16
2023-476
DEVONWOOD APARMENTS
1/8" = 1'
A3.0COLORS & MATERIAL BOARD
SW 7653
SILVER POINT
51 August 2, 2023
Re: Devonwood Apartments
Mr. McBride,
The purpose of this letter is to request a reduction in the parking ratio as proposed when the project was initially entitled. There are various challenging factors that are prohibiting the feasibility of the project in terms of financing, design, and construction which could be resolved by granting the reduction request. The proposed Devonwood Apartments is a low-income housing development proposed just south of Olive Avenue in the northwest quadrant of the City of Merced. The approved site plan was a market-rate project.
The project site is located within a floodplain which requires fill material brought in to raise the building pad elevations. With the parking count at 248 spaces, there’s very little horizontal space between the parking areas and buildings available to maximize the efficiency of the site grading. This is increasing the cost of filling material as well as adding the potential for retaining walls.
Additionally, during the NEPA review process, it was determined that there are NEPA requirements about the proximity of parking spaces to an existing generator on the back side of a building across Devonwood Drive. These requirements prohibit the construction of parking within the applicable radius of the generator without specific mitigation measures. With the constraints on the parking count, there is no flexibility to move these impacted parking spaces outside of the applicable radius. If these stalls must remain within the applicable radius of the existing generator, a blast wall will be required to protect these stalls which contributes significant cost to the project.
Due to the constraints stated in this letter, we kindly request the city grants the request for parking reduction. We believe the reduction in the parking count will best serve the project and residents in the long run. Also, it is important to note, that our recently completed project- known as Childs and B- received approval based on a 1.16 parking ratio and we are requesting a 1.28 ratio for the Devonwood project. The new proposed parking ratio exceeds that of the previous project that was approved.
We greatly appreciate your time and consideration and look forward to your guidance and support.
Please let me know if you have any questions.
Sincerely,
Jason Rastegar
Vice President
310-402-7706
ATTACHMENT F
52 July 19, 2023
Re: Devonwood Apartments
Mr. McBride,
This letter is addressing the request to remove the patio and balcony as proposed during the entitlement process. There are two major reasons for the removal request such as the cost burden and design complications associated with the proposed patio/balconies which will have a significant impact on structural design, material cost, waterproofing, and long-term maintenance, and the noise pollution related to the nearby train tracks.
As part of the NEPA approval process, we commissioned an acoustic study to determine the noise pollution related to the railroad. The report concluded that the exterior noise level is 75 DNL, which indicates an above-average noise pollution level. This level of noise pollution will not support the use of outdoor patios/balconies.
As a result, we kindly request the city grants the removal request bases on the above prohibitive challenges. We believe the removal of the patio and balconies will best serve the project and residents in terms of financial and utilization terms.
We greatly appreciate your time and consideration and look forward to your guidance and support.
Please let me know if you have any questions.
Sincerely,
Jason Rastegar
Vice President
310-402-7706
ATTACHMENT G
53 Statutory Exemptions. State code number:
_______________________________________________
Notice of Exemption Appendix E
From: (Public Agency): ____________________________To: Office of Planning and Research P.O. Box 3044, Room 113 _______________________________________________Sacramento, CA 95812-3044 County Clerk
(Address)
___________________________
___________________________
County of: __________________
Project Title: ____________________________________________________________________________ Project Applicant: ________________________________________________________________________ Project Location - Specific:
Project Location - City: ______________________ Project Location - County:
Description of Nature, Purpose and Beneficiaries of Project:
_____________________
Name of Public Agency Approving Project: _____________________________________________________ Name of Person or Agency Carrying Out Project: ________________________________________________ Exempt Status: (check one):
Ministerial (Sec. 21080(b)(1); 15268);
Declared Emergency (Sec. 21080(b)(3); 15269(a));
Emergency Project (Sec. 21080(b)(4); 15269(b)(c));
Reasons why project is exempt:
Lead Agency
Contact Person: ____________________________ Area Code/Telephone/Extension: _______________ If filed by applicant:
Attach certified document of exemption finding.
Has a Notice of Exemption been filed by the public agency approving the project? Yes No Signature: ____________________________ Date:
6LJQHG E\ /HDG $JHQF\ 6LJQHGE\ $SSOLFDQW
Authority cited: Sections 21083 and 21110, Public Resources Code. Date Received for filing at OPR:
Reference: Sections 21108, 21152, and 21152.1, Public Resources Code. _______________
Categorical Exemption. State type and section number: ____________________________________ ______________________________________________
______________ Title: _______________________
Revised 2011
X 15162
The project is consistent with the previous environmental review done for this site with General Plan Amendment #20-01. There have been no changes to the density of the project or the layout of the site, and no additional impacts beyond those evaluated under the previous environmental review document are expected. Refer to Environmental Review #20-32 and NOD file 8/20/2021 Julie Nelson
209-385-6967
X
p
_________________________________ _________________________________
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City of Merced
678 W. 18th Street
Merced, CA 95340
Merced
2222 M St
Merced, CA 95340
Density Bonus #23-02
The Richman Group
South side of Devonwood Dr., between Loughborough Dr. & Austin Ave.
Merced Merced
Construction of a 156-unit affordable housing project. The project includes 5 three-story apartment buildings and a single-story office/club house building with associated parking for all uses.
City of Merced
Jason Rastegar for the Richman Group
9/5/20223 Acting Planning Manager
ATTACHMENT H
54 Density Bonus #23-02
Devonwood Village Apartments
Planning Commission 10/4/2023
ATTACHMENT I
55 Density Bonus Law
2 California Density Bonus Law adopted in 1976.
Intended to address California’s growing affordable
housing needs.
The law has been amended several times since its
adoption.
The City originally adopted a Density Bonus Ordinance in 1993.
The current version of the City’s DB Ordinance was
adopted in 2016.
The City is in the process of updating its ordinance. The new ordinance, which complies with state law, will be
effective Nov. 18
th.
56 Density Bonus Law
3 A project that meets the requirements of state law for providing affordable housing is allowed an increase in density “by right.” The amount of the density bonus is determined based on the percentage of affordable housing units provided at each income level.
The increase in density may exceed what is allowed by the General Plan and Zoning designations for the project site.
The City may require an agreement to memorialize the affordability component of the development or any other incentives given to assist the project.
A project may apply for Concessions and Waivers without requesting an increase in density.
If requested by the owner/developer, minimum parking requirements outlined in the law shall apply. These requirements are less than the City’s requirements.
57 Concessions & Incentives
4 The number of Concessions allowed is based on the percentage of affordable units.
The maximum number of concessions allowed for a project is 4.
A concession or incentive is defined as:
1. A reduction in site development standards or modification of zoning requirements or architectural design requirements that exceed the minimum State building standards, such as reductions in setback, square footage, or vehicular and bicycle parking space requirements. The requested concession or incentive must result in an identifiable and actual cost reduction to provide for affordable housing costs or rents.
2. Approval of mixed-use zoning for housing pr ojects if associated commercial, office, industrial, or other land uses will reduce the cost of the housing project, and existing or planned development in the immediate area.
3. Other regulatory incentives or concessions that result in identifiable and actual cost reductions to provide for affordable housing costs, which may include the provision of direct financial incentives or land for housing development by the City. 58 5
• The City is required to grant the concession or incentive proposed, unless it finds one of the following:
• That the proposed concession or incentive does not result in identifiable and actual cost reductions; or,
• Would cause a public health or safety problem; or,
• Would cause an environmental problem; or,
• Would harm historical property; or,
• Would be contrary to law.
5555555
The City has the burden of proof in the event it denies a requested concession. Financial incentives, fee waivers, and reductions in dedication requirements may be, but are not required to be granted by the City. 59
Waivers & Reductions
6 Projects that are eligible for a Density Bonus, and are approved for concessions or incentives, cannot be subjected to any development standard that will have the effect of physically precluding the construction of the project.
If a local development standard is found to have this effect, the applicant may request a waiver or reduction of any development standard that may preclude completion of the project.
Waivers or reductions do not take the place of concessions or incentives that the project is qualified to receive.
60 Parking Requirements
7 In addition to waivers or reductions, upon request from In addition to waivers or reduc
the developer, the City may
ctio
educ
y
not
ons, upon request from
ctio
ot
require more than the
the developer, the City may
the developer the City may
y
y
o
o
no
no
o
o
ot
ot
ot
equire more than the
equire more than the
re
re
following parking ratios for a density bonus project:
Type of Unit Parking Requirement
Studio 1 space
1 Bedroom 1 space
2 Bedroom 1.5 spaces
3 Bedroom 1.5 spaces
4 Bedroom 2.5 spaces
61 Background
8 The proposed apartment complex was proposed with General Plan Amendment (GPA) #20-01 and Site Utilization Plan Revision (SUPR) #23 to P-D #16.
The City Council approved the GPA and SUPR on 8/16/21. Site Plan Review #479 was subsequently approved to finalize the design of the proposed apartment complex.
The developer working on the project at that time was unable to secure funding for the project.
A new developer is now working on the project and has requested a Density Bonus to accommodate some changes needed to make the project viable for affordable housing.
The new developer is the Richman Group. They are
experienced developers in both market rate and
affordable housing. They recently completed the Childs Court Apartments at Childs & B Streets.
62 Proposed Project
-
Devonwood
Village
Apartments
9 156 Units
63 Site Plan
64 Elevations
65 Project Details
156 Units, including a manager’s unit
Affordable to acutely low-, extremely low-,
very low-, and low-income households.
The units would remain affordable for a
minimum of 55 years.
Type of Unit No. of Units
1-Bedroom 69
2-Bedroom 48
3-Bedroom 39
66 Concessions
13 Mechanical Equipment – allow roof-mounted
mechanical equipment.
Eliminate the Design Standard requiring Private
Outdoor Space.
The applicant is NOT seeking
an increase in density.
67 Request for Parking Reduction
14 State Density Bonus Law (SDBL) allows an applicant to request a reduction in the minimum parking requirements.
A parking reduction granted under SDBL does not constitute a concession or waiver.
The applicant has requested that the parking requirements be reduced from 248 spaces to 200 spaces.
Based on SDBL, 200 spaces is the minimum number of spaces allowed.
Type of Unit
No. of Spaces
Required/Unit No. of Units
Total Spaces
Required
1-Bedroom 1 69 69
2-Bedroom 1.5 48 72
3-Bedroom 1.5 39 59
68 15
Findings A & B
Finding A – State Density Bonus Law
• Explains the law and what the City is required to grant and what is discretionary. • Outlines the number of incentives/concessions are allowed based on the income level of the units.
• Defines concessions/incentives.
• Defines maximum number of parking spaces the City may require per unit.
Finding B – Parking Requirements
• The applicant is requesting a reduction in parking based on State Density Bonus Law (SDBL). The project would provide a minimum of 200 parking spaces which is consistent with SDBL.
69 Finding C
16 The City’s Zoning Ordinance sets forth 4 specific findings that must be made to grant a density bonus.
Refer to Finding C of Draft Planning Commission Resolution #4123 at Attachment A of Staff Report #23-824.
Findings 1, 2, and 3 do not apply to this project.
Finding #4
If a waiver or modification is requested, the developer has to prove by submitting substantial evidence that the waiver or modification is necessary to make the housing units economically feasible.
The City may not require a pro forma, but the City may require that an applicant show that a requested concession will result in cost reductions for the project.
The requested concession and waiver are outlined in the staff report along with the applicant’s justification as to why the request is needed. Documentation provided by the applicant, including the justification for each request is provided in Finding D of Planning Commission Resolution #4123 and a letter describing the cost savings is provided at Attachment G of Staff Report #23-824.70
Planning Commission Action
Recommend to City Council
Approval/Denial of:
1. Environmental Review #23-30
(Categorical Exemption)
2. Density Bonus #23-02
71