HomeMy WebLinkAbout05 Code Amendment 09-006ITEM #5
TUSTIN
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DATE: DECEMBER 8, 2009 ,
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BUILDING OU0. FUTURE
HONORING OUR PAST
TO: PLANNING COMMISSION
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT: CODE AMENDMENT 09-006: DENSITY BONUS LAW
RECOMMENDATION
That the Planning Commission adopt Resolution No. 4128 recommending that the City
Council approve Ordinance No. 1372 (Code Amendment 09-006), amending section
9111 through 9142 of the Tustin City Code to update density bonus law in accordance
with State law.
BACKGROUND AND DISCUSSION
Assembly Bill 2280 ("AB 2280") made the following changes to the State's density
bonus law, which is set forth in Government Cade Section 65915:
1. Increased the time by which a city may utilize funds that are recaptured from the
resale of affordable housing units;
2. Amended the definition of "development standards";
3. Amended the definition of "maximum allowable residential density" to be based
not only on zoning, but also on the general plan land use densities in certain
cases;
4. Added clarifying language with respect to density bonuses for developments with
senior housing units;
5. Provided that before a local agency may grant density bonuses in excess of
those set forth in State law, it must first adopt a local ordinance enabling it to do
so.
A more detailed summary of the changes set forth in AB 2280 to prior density bonus law
is provided below:
1. Time to Utilize Recaptured Funds is Increased From Three to Five Years
Density bonus law enables cities and counties to require owners in owner-occupied
affordable units to enter into equity sharing agreements requiring that when the unit is
sold, the owner retains the value of any improvements, down payment, and a
proportionate share of the appreciation. The local agency then recaptures any initial
subsidy and its share of appreciation for use in certain programs that promote home
Planning Commission Report
Density Bonus
December 8, 2009
Page 2
ownership (Health and Safety Code Section 33334.2). Prior law required that funds
recaptured by local agencies be used within three years. AB 2280 extends the period in
which the recaptured funds must be used from three (3) years to five (5) years.
2. Definition of "Development Standards" is Amended
Density bonus law requires cities and counties to grant a specified number of incentives
or concessions, as described in Government Code Section 65915(d), when an applicant
for a housing development seeks and agrees to reserve certain percentages as
affordable housing units. In addition, the law provides a mechanism for applicants to
seek a waiver of certain development standards that could preclude the development of
an affordable housing project. AB 2280 amended the definition of "development
standard" to include a "site or construction condition, including, but not limited to, a
height limitation a setback requirement a floor area ratio an onsite open-space
requirement, or a parking ratio that applies to a residential development, pursuant to
any ordinance, general plan element, specific plan, charter, or other local condition, law,
policy, resolution, or regulation."
Additionally, the law, as amended, limits the type of waivable development standards to
those that "physically" preclude density bonus development. For example, development
standards that might preclude construction because they are cost-prohibitive may not
meet the definition of "development standards" eligible for a waiver in that the applicant
no longer has to show that the waiver or modification is necessary to make the units
economically feasible (deletion of Government Code Section 65915(f)).
Furthermore, requests for waivers of development standards no longer entitle an
applicant to a reduction or increase in incentives or concessions under density bonus
law.
Neither development standard waivers, concessions, nor incentives need be granted if it
is contrary to state or federal law.
3. Definition of "Maximum Allowable Residential Density" is Amended
Under prior density bonus law, the maximum allowable residential density was defined
to mean the "density allowed under the zoning ordinance, or if a range of density is
permitted, means the maximum allowable density for the specific zoning range
applicable to the project." AB 2280, however, broadens the definition to consider not
only the zoning ordinance, but also the density that might be allowed by the land use
element of the general plan. Further, "where the density allowed under the zoning
ordinance is inconsistent with the density allowed under the land use element of the
general plan, the general plan density shall prevail."
Under prior law, a density bonus applicant could demand a density bonus based on the
highest density allowed under the zoning ordinance, whereas under the amended law,
Planning Commission Report
Density Bonus
December 8, 2009
Page 3
an applicant may request that a density bonus be calculated based on the highest
density allowed under the general plan land use element.
4. Clarification of Required Density Bonus as 20 percent of the Number of Senior
Housing Units, not 20 percent of the Total Number of Units Within the
Development
AB 2280 adds language which states that density bonuses based on senior housing
developments must be based on the number of senior housing units, not the total
number of units in the development. This change clarifies that the required density
bonus must be based on the number of affordable senior housing units, not the total
number of units within the development.
5. Cities and Counties are Allowed to Grant Greater Density Bonuses, but Only if
Permitted by Local.Ordinance
Density bonus law states that it shall not be construed to prohibit a local agency from
granting density bonuses greater than those required under State law. AB 2280
stipulates, however, that a local agency must include such latitude in a local ordinance
in order to grant a greater density. The amendment does not require a local agency to
provide for a greater density than under State law but does make the tool available to
those agencies that wish to do so.
ENVIRONMENTAL ANALYSIS
The proposed amendment is not considered a "project" subject to the California
Environmental Quality Act ("CEQA").
CITY ATTORNEY REVIEW
The City Attorney has reviewed the content and form of Code Amendment 09-006
(Ordinance No. 1372).
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Amy Thomas Elizabeth A. Binsack
Senior Planner Community Development Director
Attachments: A. Resolution No. 4128
B. Draft Ordinance No. 1372
C. Assembly Bill 2280 (AB 2280)
ATTACHMENT A
Resolution No. 4128
Code Amendment 09-006 Amending Density Bonus Law
RESOLUTION N0.4128
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE
CITY COUNCIL APPROVE ORDINANCE NO. 1372 (CODE
AMENDMENT 09-006) AMENDING SECTION 9111 THROUGH
9142 OF THE TUSTIN CITY CODE TO UPDATE DENSITY
BONUS LAW IN ACCORDANCE WITH STATE LAW.
The Planning Commission does hereby resolve as follows:
I. The Planning Commission finds and determines as follows:
A. That the proposed amendment to the Tustin City Code is necessary to remain
consistent with numerous changes to the State's density bonus law, which is set
forth in Government Code Section 65915;
B. That proposed Ordinance No. 1372 (Code Amendment 09-006) is regulatory in
nature and would provide for consistency with State Law;
C. That the City of Tustin has a substantial interest in ensuring that Tustin City
Codes are clear, concise, and updated when needed;
D. That proposed Ordinance No. 1372 (Code Amendment 09-006) is not considered
a "project" subject to the terms of the California Environmental Quality Act
("CEQA") and is therefore exempt from further environmental analysis;
E. That on December 8, 2009, the Planning Commission held the duly noticed
public hearing at which interested persons had an opportunity to testify in support
of, or opposition to, Ordinance No. 1372 (Code Amendment 09-006) and at
which the Planning Commission considered such Code Amendment;
G. That proposed Ordinance No. 1372 (Code Amendment 09-006) is consistent with
the goals, policies, and general plan land use programs specified in the Tustin
General Plan for the City of Tustin in that Code Amendment 09-006 will provide
specific procedures in density bonus law within the Zoning Code. Code
Amendment 09-006 complies with the General Plan, including the following land
use goals and policies:
LU Goal 1: Provide for a well balanced land use pattern that accommodates
existing and future needs for housing, commercial and industrial
land, open space and community facilities and services, while
maintaining a healthy, diversified economy adequate to provide
future City services.
LU Goal 2: Ensure that future land use decisions are the result of sound and
comprehensive planning.
LU Goal 3: Ensure that new development is compatible with surrounding land
uses in the community, the City's circulation network, availability
Resolution No. 4128
Page 2
of public facilities, existing development constraints, and the City's
unique characteristics and resources.
LU Goal 4: Assure a safe, healthy, and aesthetically pleasing community for
residents and businesses;
II. The Planning Commission hereby recommends that the City Council approve Ordinance
No. 1372 (Code Amendment 09-006) amending various sections of the Tustin City Code
to update density bonus law in accordance with State law.
PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular
meeting on the 8th day of December; 2009.
Steve Kozak
Chairperson
ELIZABETH A. BINSACK
Planning Commission Secretary
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
City of Tustin )
I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission
Secretary of the City of Tustin, California, that Resolution No. 4128 was duly passed and
adopted at a regular meeting of the Tustin Planning Commission, held on the 8th day of
December, 2009.
ELIZABETH A. BINSACK
Planning Commission Secretary
ATTACHMENT B
Draft Ordinance No. 1372
ORDINANCE NO. 1372
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, AMENDING SECTION 9111 THROUGH
9142 (CODE AMENDMENT 09-006) OF THE TUSTIN CITY
CODE TO UPDATE DENSITY BONUS LAW IN ACCORDANCE
WITH STATE LAW
The City Council of the City of Tustin does hereby ordain as follows:
Section 1. Section 9112 of the Tustin City Code is hereby revised as follows:
"Development Standards" mews includes a site or construction conditions,
including but not limited to, a height limitation, a setback requirement, or a
parking ratio that apply to a residential development pursuant to any ordinance,
general plan element, specific plan, or other local condition, law, policy,
resolution, or regulation.
"Density Bonus" means a density increase over the otherwise maximum
allowable residential density,
. as
of the date of application by the applicant to the city. The applicant may elect to
accept a lesser percentage of density bonus. The amount of density bonus to
which the applicant is entitled shall vary according to the amount by which the
percentage of affordable housing units exceeds the percentage established in
Section 9121.
"Maximum Allowable Residential Density" means the
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ensity allowed under the zoning_ordinance and land use
element of the general plan, or if a range of density is permitted, means the
maximum allowable density for the specific zoning range and land use element of
the general plan applicable to the project. Where the density allowed under the
zoning ordinance is inconsistent with the density allowed under the land use
element of the general plan, the general plan density shall prevail with the
exception of the MCAS Tustin Specific Plan; which excludieges the density
bonus allowed by this Chapter.
Section 2. Section 9121(x)(3) of the Tustin City Code is hereby revised as follows:
(3) Senior citizen housing development or mobile home 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 housing developments
meeting such criteria, the density bonus shall be 20 percent of the number of
senior housing units; or
Section 3. Section 9121(x)(6) of the Tustin City Code is hereby added as follows:
(6) For the purposes of this section, "total units" or "total dwelling units" does not
include units added by a density bonus awarded pursuant to this section or
any local law granting a greater density bonus.
Ordinance No. 1372
Page 2
Section 4. Section 9121(b) of the Tustin City Code is hereby revised as follows:
(b) When an applicant for a tentative subdivision map, parcel map, or other
residential development approval donates land to the City as provided for in
this subsection, the City shall grant a density bonus, the amount of which
shall be as specified in Section 9122. This increase shall be in addition to any
increase in density mandated by subsection (a), into a maximum combined
mandated density increase of thirty-five (35) percent if an applicant seeks
both the increase required pursuant to this subsection and subsection (a). All
density calculations resulting in fractional units shall be rounded up to the
next whole number. Nothing in this subsection shall be construed to enlarge
or diminish the authority of the City to require a developer to donate land as a
condition of development. An applicant shall be eligible for the increased
density bonus described in this subsection if all of the following conditions are
met:
(1) The applicant donates and transfers the land no later than the date of
approval of the final subdivision map, parcel map, or residential
development application.
(2) 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 ten
(10) percent of the number of residential units of the proposed
development.
(3) The transferred land is at least one (1) acre in size or of sufficient size to
permit development of at least forty (40) units, has the appropriate
general plan designation, is appropriately zoned at the density described
in paragraph U of subdivision (c) of Government Code Section 65583.2
for development of affordable housing on land suitable for residential
development, and is or will be served by adequate public facilities and
infrastructure. The land shall have appropriate zoning and development
standards to make the development of affordable units feasible. No later
than the date of approval of the final subdivision map, parcel map, or of
the residential development, the transferred land shall have all of the
permits and approvals, other than building permits, necessary for the
development of the very low income housing units on the transferred
land, except that the le City may subject the proposed
development to subsequent design review to the extent authorized by
subdivision (i) of Government Code Section 65583.2 if the design is not
reviewed by the City prior to the time of transfer.
(4) The transferred land and the affordable units shall be subject to a deed
restriction ensuring continued affordability of the units consistent with
subsections 9131(d) and (e) which shall be recorded on the property at
the time of dedication.
(5) The land is transferred to the City or to a housing developer approved by
the City. The City may require the applicant to identify and transfer the
land to the developer.
Ordinance No. 1372
Page 3
(6) The transferred land shall be within the boundary of the proposed
development or, if the City agrees, within one-quarter (1/4) mile of the
boundary of the proposed development.
~7) 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.
Section 5. Section 9123(a)(3) of the Tustin City Code is hereby added as follows:
(3) The concession or incentive would be contrary to state of federal law.
Section 6. Section 9123(c) of the Tustin City Code is hereby revised as follows:
(c) Incentives or concessions may include the following:
1. A reduction of site development standards or a modification of zoning
code requirements or architectural design requirements that exceed
the minimum building standards approved by the Mate California
Building Standards Commission as provided in Part 2.5
(commencing with Section 18901) of Division 13 of the Health and
Safety Code, which result in identifiable, financially sufficient, and
actual costs reductions, including but not limited to:
a) Reduced minimum lot size.
b) Reduced minimum setbacks.
c) Reduced minimum street standards such as reduced minimum
street width.
d) Increased maximum lot coverage.
e) Increased building height.
f) Reduced ratio of vehicular parking spaces that would otherwise
be reauired.
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, including the
City's General Plan, where the proposed housing project will be
located; or
3. Other regulatory incentives or concessions proposed by the applicant
or the City that result in identifiable, financially sufficient, and actual
cost reductions.
4. The granting of a concession or incentive shall not be interpreted, in
and of itself, to require a eq neral plan amendment, zoning change, or
other discretionary approval. This provision is declatory of existing
law.
Section 7. Section 9124(a) of the Tustin City Code is hereby revised as follows:
(a) An Applicant may submit to the City a proposal for the waiver or
reduction of development standards and may request a meeting with the
Ordinance No. 1372
Page 4
City.
. A proposal
for the waiver or reduction of development standards pursuant to this
section shall neither reduce nor increase the number of incentives or
concessions to which the applicant is entitled pursuant to Section 9123.
Section 8. Section 9131(d) of the Tustin City Code is hereby revised as follows:
(d) An applicant shall agree to, and the City shall ensure, continued
affordability of all low- and very low income units that qualified the
applicant for the award of the density bonus for at least thirty (30) years
or a longer period of time if required by the construction or mortgage
financing assistance program, mortgage insurance program, or rental
subsidy program,
..Rents for the lower
income density bonus target units shall be set at an affordable rent as
defined in Section 50053 of the Health and Safety Code. Owner-
occupied units shall be available at an affordable housing cost as
defined in Section 50052.5 of the Health and Safety Code.
Section 9. Section 9131(e) of the Tustin City Code is hereby revised as follows:
(e) An applicant shall agree to, and the City shall ensure that, the initial
occupant of the moderate-income units that are directly related to the
receipt of the density bonus in the common interest development, as
defined in Section 1351 of the Civil Code are persons and families of
moderate income, as defined in Section 50093 of the Health and Safety
Code, and that the units are offered at an affordable housing cost, as
that cost is defined in Section 50052.5 of the Health and Safety Code.
The City shall enforce an equity-sharing agreement, unless it is in
conflict with the requirements of another public funding source or law.
The following apply to the equity-sharing agreement:
(1) Upon resale, the seller of the unit shall retain the value of any
improvements, the down payment, and the seller's proportionate
share of appreciation. The local government shall recapture any
initial subsidy and its proportionate share of appreciation, which shall
then be used within tk~ee-(3} five 5 years for any of the purposes
described in subdivision (e) of Section 33334.2 of the Health and
Safety Code that promote homeownership.
(2) For purposes of this subsection, the le City'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 down payment 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.
(3) For purposes of this subdivision, the City's proportionate share of
appreciation shall be equal to the ratio of the initial subsidy to the fair
market value of the home at the time of initial sale.
Ordinance No. 1372
Page 5
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this
5t" day of January, 2010.
Mayor
PAMELA STOKER, City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
ORDINANCE N0. 1372
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of
Tustin, California, does hereby certify that the whole number of the members of the City Council
of the City of Tustin is five; that the above and foregoing Ordinance No. 1372 was duly and
regularly introduced and read at the regular meeting of the City Council held on the 5t" day of
January, 2010, and was given its second reading, passed and adopted at a regular meeting of
the City Council held on the 15t" day of February 2010, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
PAMELA STOKER, City Clerk
Published:
ATTACHMENT C
Assembly Bill 2280 (AB 2280)
AB 2280 - 2 -
CHAPTER
An act to amend Section 65915 of the Government Code,
relating to housing.
LEGISLATIVE COUNSEL'S DIGEST
AB 2280, Saldana. Density bonus.
The Planning and Zoning Law requires, when a developer of
housing proposes a housing development within the jurisdiction
of the local government, that the city, county, or city and county
provide the developer with a density bonus and other incentives
or concessions for the production of lower income housing units
ar the donation of land within the development if the developer,
among other things, agrees to construct a specified percentage of
units for low-, very low, or moderate-income households or
qualifying residents.
This bill would impose certain procedures on the application for
a density bonus and other incentives or concessions.
The bill would require a city, county, or city and county to grant
a concession or incentive requested by the applicant under existing
law unless the city, county, or city and county makes a written
finding, based upon substantial evidence, that, among other things,
the concession or incentive would be contrary to state or federal
law.
The bill would delete a requirement that an applicant for a waiver
or reduction of development standards show that the waiver or
modification is necessary to make proposed housing units
economically feasible.
The bill would require, as a condition for the granting of a density
bonus to a developer in exchange for donating land to a city,
county, or city and county for very low income housing, that the
local agency identify a source of funding for the very low income
units.
The people of the State of California do enact as follows:
SECTION 1. Section 65915 of the Government Code is
amended to read:
93
- 3 - AB 2280
65915. (a) When an applicant seeks a density bonus for a
housing development within, or for the donation of land for housing
within, the jurisdiction of a city, county, or city and county, that
local government shall provide the applicant with incentives or
concessions for the production of housing units and child care
facilities as prescribed in this section. All cities, counties, or cities
and counties shall adopt an ordinance that specifies how
compliance with this section will be implemented. Failure to adopt
an ordinance shall not relieve a city, county, or city and county
from complying with this section.
(b) (1) A city, county, or city and county shall grant one density
bonus, the amount of which shall be as specified in subdivision
(f), and incentives or concessions, as described in subdivision (d),
when an applicant for a housing development seeks and agrees to
construct a housing development, excluding any units permitted
by the density bonus awarded pursuant to this section, that will
contain at least any one of the following:
(A) Ten percent of the total units of a housing development for
lower income households, as defined in Section 500'79.5 of the
Health and Safety Code.
(B) Five percent of the total units of a housing development for
very low income households, as defined in Section 50105 of the
Health and Safety Code.
(C) A senior citizen housing development, as defined in Sections
51.3 and 51.12 of the Civil Code, or mobilehome park that limits
residency based on age requirements for housing for older persons
pursuant to Section 798.76 or 799.5 of the Civil Code.
(D) Ten percent of the total dwelling units in a common interest
development as defined in Section 1351 of the Civil Code for
persons and families of moderate income, as defined in Section
50093 of the Health and Safety Code, provided that all units in the
development are offered to the public for purchase.
(2) For purposes of calculating the amount of the density bonus
pursuant to subdivision (f), the applicant who requests a density
bonus pursuant to this subdivision shall elect whether the bonus
shall be awarded on the basis of subparagraph (A), (B), (C), or (D)
of paragraph (1).
(3) For the purposes of this section, "total units" or "total
dwelling units" does not include units added by a density bonus
93
AB 2280 - 4
awarded pursuant to this section or any local law granting a greater
density bonus.
(c) (1) An applicant shall agree to, and the city, county, or city
and county shall ensure, continued affordability of all low- and
very low income units that qualified the applicant for the award
of the density bonus for 30 years or a longer period of time if
required by the construction or mortgage financing assistance
program, mortgage insurance program, or rental subsidy program.
Rents for the lower income density bonus units shall be set at an
affordable rent as defined in Section 50053 of the Health and Safety
Code. Owner-occupied units shall be available at an affordable
housing cost as defined in Section 50052.5 of the Health and Safety
Code.
(2) An applicant shall agree to, and the city, county, or city and
county shall ensure that, the initial occupant of the
moderate-income units that are directly related to the receipt of
the density bonus in the common interest development, as defined
in Section 1351 of the Civil Code, are persons and families of
moderate income, as defined in Section 50093 of the Health and
Safety Code, and that the units are offered at an affordable housing
cost, as that cost is defined in Section 50052.5 of the Health and
Safety Code. The local government shall enforce an equity sharing
agreement, unless it is in conflict with the requirements of another
public funding source or law. The following apply to the equity
sharing agreement:
(A) Upon resale, the seller of the unit shall retain the value of
any improvements, the downpayment, and the seller's proportionate
share of appreciation. The local government shall recapture any
initial subsidy, as defined in subparagraph (B), and its proportionate
share of appreciation, as defined in subparagraph (C), 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.
(B) For purposes of this subdivision, the local government's
initial subsidy shall be equal to the fair market value of the home
at the time of initial sale minus the initial sale price to the
moderate-income household, plus the amount of any downpayment
assistance or mortgage assistance. If upon resale the market value
is lower than the initial market value, then the value at the time of
the resale shall be used as the initial market value.
93
- 5 - AB 2280
(C) For purposes of this subdivision, the local government'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.
(d) (1) An applicant for a density bonus pursuant to subdivision
(b) may submit to a city, county, or city and county a proposal for
the specific incentives or concessions that the applicant requests
pursuant to this section, and may request a meeting with the city,
county, or city and county. The city, county, or city and county
shall grant the concession or incentive requested by the applicant
unless the city, county, or city and county makes a written finding,
based upon substantial evidence, of any of the following:
(A) The concession or incentive is not required in order to
provide for affordable housing costs, as defined in Section 50052.5
of the Health and Safety Code, or for rents for the targeted units
to be set as specified in subdivision (c).
(B) The concession or incentive would have a specific adverse
impact, as defined in paragraph (2) of subdivision (d) of Section
65589.5, upon public health and safety or the physical environment
or on any real property that is listed in the California Register of
Historical Resources and for which there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact without
rendering the development unaffordable to low- and
moderate-income households.
(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 and families of moderate income in a common interest
development.
(B) Two incentives or concessions for projects that include at
least 20 percent of the total units for lower income households, at
least 10 percent for very low income households, or at least 20
percent for persons and families of moderate income in a common
interest development.
(C) Three incentives or concessions for projects that include at
least 30 percent of the total units for lower income households, at
93
AB 2280 - 6 -
least 15 percent for very low income households, or at least 30
percent for persons and families of moderate income in a common
interest development.
(3) The applicant may initiate judicial proceedings if the city,
county, or city and county refuses to grant a requested density
bonus, incentive, or concession. If a court finds that the refusal to
grant a requested density bonus, incentive, or concession is in
violation of this section, the court shall award the plaintiff
reasonable attorney's fees and costs of suit. Nothing in this
subdivision shall be interpreted to require a local government to
grant an incentive or concession that has a specific, adverse impact,
as defined in paragraph (2) of subdivision (d) of Section 65589.5,
upon health, safety, or the physical environment, and for which
there is no feasible method to satisfactorily mitigate or avoid the
specific adverse impact. Nothing in this subdivision shall be
interpreted to require a local government to grant an incentive or
concession that would have an adverse impact on any real property
that is listed in the California Register of Historical Resources.
The city, county, or city and county shall establish procedures for
carrying out this section, that shall include legislative body
approval of the means of compliance with this section.
(e) (I) 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 development meeting the criteria
of subdivision (b) at the densities or with the concessions or
incentives permitted by this section. An applicant may submit to
a city, county, or city and county a proposal for the waiver or
reduction of development standards that will have the effect of
physically precluding the construction of a development meeting
the criteria of subdivision (b) at the densities or with the
concessions 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 reasonable attorney's fees and costs of
suit. Nothing in this subdivision shall be interpreted to require a
local government to waive or reduce development standards if the
waiver or reduction would have a specific, adverse impact, as
defined in paragraph (2) of subdivision (d) of Section 65589.5,
upon health, safety, or the physical environment, and for which
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AB 2280
there is no feasible method to satisfactorily mitigate or avoid the
specific adverse impact. Nothing in this subdivision shall be
interpreted to require a local government to waive or reduce
development standards that would have an adverse impact on any
real property that is listed in the California Register of Historical
Resources, 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 development
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).
(f) For the purposes of this chapter, "density bonus" means a
density increase over the otherwise maximum allowable residential
density as of the date of application by the applicant to the city,
county, or city and county. The applicant may elect to accept a
lesser percentage of density bonus. The amount of density bonus
to which the applicant is entitled shall vary according to the amount
by which the percentage of affordable housing units exceeds the
percentage established in subdivision (b).
(1) For housing developments meeting the criteria of
subparagraph (A) of paragraph (1) of subdivision (b), the density
bonus shall be calculated as follows:
Percentage Low-Income Units Percentage Density Bonus
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
17 30.5
18 32
19 33.5
20 35
(2) For housing developments meeting the criteria of
subparagraph (B) of paragraph (1) of subdivision (b), the density
bonus shall be calculated as follows:
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AB 2280
Percentage Very Low Income Units
5
6
7
8
9
10
I1
Percentage Density Bonus
20
22.5
25
27.5
30
32.5
35
(3) 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.
(4) For housing developments meeting the criteria of
subparagraph (D) of paragraph (1) of subdivision (b), the density
bonus shall be calculated as follows:
Percentage Moderate-Income Units
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
8
Percentage Density Bonus
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 '
25
26
27
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33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
(5) All density calculations resulting in fractional units shall be
rounded up to the next whole number. The granting of a density
bonus shall not be interpreted, in and of itself, to require a general
plan amendment, local coastal plan amendment, zoning change,
or other discretionary approval.
(g) (1) When an applicant for a tentative subdivision map,
parcel map, or other residential development approval donates
land to a city, county, or city and county 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
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AB 2280 -10
Percentage Very Low Income Percentage Density Bonus
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 applicant shall be eligible for the increased
density bonus described in this subdivision if all of the following
conditions are met:
(A) The applicant donates and transfers the land no later than
the date of approval of the final subdivision map, parcel map, or
residential development application.
(B) The developable acreage and zoning classification of the
land being transferred are sufficient to permit construction of units
affordable to very low income households in an amount not less
than 10 percent of the number of residential units of the proposed
development.
(C) The transferred land is at least one acre in size or of
sufficient size to permit development of at least 40 units, has the
appropriate general plan designation, is appropriately zoned 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 development to subsequent design review to the extent
authorized by subdivision (i) of Section 65583.2 if the design is
not reviewed by the local government prior to the time of transfer.
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(E) The transferred land and the affordable units shall be subject
to a deed restriction ensuring continued affordability of the units
consistent with paragraphs (1) and (2) of subdivision (c), which
shall be recorded on the property at the time of 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 requirements of subdivision (b)
and includes a child care facility that will be located on the
premises of, as part of, or adjacent to, the project, the city, county,
or city and county shall grant either of the following:
(A) An additional density bonus that is an amount of square
feet of residential space that is equal to or greater than the amount
of square feet in the child care facility.
(B) An additional concession or incentive that contributes
significantly to the economic feasibility of the construction of the
child care facility.
(2) The city, county, or city and county shall require, as a
condition of approving the housing development, that the following
occur:
(A) The child care facility shall remain in operation for a period
of time that is as long as or longer than the period of time during
which the density bonus units are required to remain affordable
pursuant to subdivision (c).
(B) Of the children who attend the child care facility, the
children of very low income households, lower income households,
or families of moderate income shall equal a percentage that is
equal to or greater than the percentage of dwelling units that are
required for very low income households, lower income
households, or families of moderate income pursuant to subdivision
(b).
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AB 2280 -12
(3) Notwithstanding any requirement of this subdivision, a city,
county, or a city and county shall not be required to provide a
density bonus or concession for a child care facility if it finds,
based upon substantial evidence, that the community has adequate
child care facilities.
(4) "Child care facility," as used in this section, means a child
day care facility other than a family day care home, including, but
not limited to, infant centers, preschools, extended day care
facilities, and schoolage child care centers.
(i) "Housing development," as used in this section, means a
development project for five or more residential units. For the
purposes of this section, "housing development" also includes a
subdivision or common interest development, as defined in Section
1351 of the Civil Code, approved by a city, county, or city and
county and consists of residential units or unimproved residential
lots and either a project to substantially rehabilitate and convert
an existing commercial building to residential use or the substantial
rehabilitation of an existing multifamily dwelling, as defined in
subdivision (d} of Section 65863.4, where the result of the
rehabilitation would be a net increase in available residential units.
For the purpose of calculating a density bonus, the residential units
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) The granting of a concession or incentive shall not be
interpreted, in and of itself, to require a general plan amendment,
local coastal plan amendment, zoning change, or other discretionary
approval This provision is declaratory of existing law.
(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 architectural design requirements
that exceed the minimum building standards approved by the
California Building Standards Commission as provided in Part 2.5
(commencing with Section 18901) of Division 13 of the Health
and Safety Code, including, but not limited to, a reduction in
setback and square footage requirements and in the ratio of
vehicular parking spaces that would otherwise be required that
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13 - AB 2280
results in identifiable, financially sufficient, and actual cost
reductions.
(2) Approval of mixed use zoning in conjunction with the
housing project if commercial, office, industrial, or other land uses
will reduce the cost of the housing development and if the
commercial, office, industrial, or other land uses are compatible
with the housing project and the existing or planned development
in the area where the proposed housing project will be located.
(3) Other regulatory incentives or concessions proposed by the
developer or the city, county, or city and county that result in
identifiable, financially sufficient, and actual cost reductions.
(~ Subdivision (k) does not limit or require the provision of
direct financial incentives for the housing development, including
the provision of publicly owned land, by the city, county, or city
and county, or the waiver of fees or dedication requirements.
(m) Nothing in this section shall be construed to supersede or
in any way alter or lessen the effect or application of the California
Coastal Act (Division 20 (commencing with Section 30000) of
the Public Resources Code).
(n) If permitted by local ordinance, nothing in this section shall
be construed to prohibit a city, county, or city and county from
granting a density bonus greater than what is described in this
section for a development that meets the requirements of this
section or from granting a proportionately lower density bonus
than what is required by this section for developments that do not
meet the requirements of this section.
(o) For purposes of this section, the following definitions shall
apply:
(1) "Development standard" includes a site or construction
condition, including, but not limited to, a height limitation, a
setback requirement, a floor area ratio, an onsite open-space
requirement, or a parking ratio that applies to a residential
development pursuant to any ordinance, general plan element,
specific plan, charter, or other local condition, law, policy,
resolution, or regulation.
(2) "Maximum allowable residential density" means the density
allowed under the zoning ordinance and land use element of the
general plan, or if a range of density is permitted, means the
maximum allowable density for the specific zoning range and land
use element of the general plan applicable to the project. Where
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AB 2280 -14
the density allowed under the zoning ordinance is inconsistent
with the density allowed under the land use element of the general
plan, the general plan density shall prevail.
(p) (I) Upon the request of the developer, no city, county, or
city and county shall require a vehicular parking ratio, inclusive
of handicapped and guest parking, of a development meeting the
criteria of subdivision (b), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: two onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking spaces.
(2) If the total number of parking spaces required for a
development is other than a whole number, the number shall be
rounded up to the next whole number. For purposes of this
subdivision, a development may provide "onsite parking" through
tandem parking or uncovered parking, but not through onstreet
parking.
(3) This subdivision shall apply to a development that meets
the requirements of subdivision (b) but only at the request of the
applicant. An applicant may request parking incentives or
concessions beyond those provided in this subdivision pursuant
to subdivision (d).
93
Approved , 2008
Governor