BILL NUMBER: AB 744 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Chau
FEBRUARY 25, 2015
An act to amend Section 65915 of the Government Code, relating to
housing.
LEGISLATIVE COUNSEL'S DIGEST
AB 744, as amended, Chau. Planning and zoning: density bonuses.
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 or the donation of
land within the development if the developer, among other things,
agrees to construct a specified percentage of units for very low,
low-, or moderate-income households or qualifying residents. Existing
law requires continued affordability for 55 years or longer, as
specified, of all very low and low-income units that qualified an
applicant for a density bonus. Existing law prohibits a city,
county, or city and county from requiring a vehicular
parking ratio for a housing development that meets these criteria in
excess of specified ratios. This prohibition applies only at the
request of the developer and specifies that the developer may request
additional parking incentives or concessions.
This bill would make technical, nonsubstantive changes to these
provisions.
This bill would additionally prohibit, at the request of the
developer, a city, county, or city and county from imposing a minimum
onsite parking requirement on a development that is located within
one-half mile of a major transit stop, is a senior housing
development, or is a special needs housing development, as those
terms are defined. The bill would specify that a city, county, or
city and county may impose a maximum onsite parking requirement for a
development.
By imposing additional duties on local governments in awarding
density bonuses, this bill would impose a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 65915 of the Government Code is amended to
read:
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 50079.5 of the Health
and Safety Code.
(B) Five percent of the total units of a housing development for
very low income households, as defined in Section 50105 of the Health
and Safety Code.
(C) A senior citizen housing development, as defined in Sections
51.3 and 51.12 of the Civil Code, or a 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 4100 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), 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), 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
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, 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 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.
(2) An applicant shall agree to, and the city, county, or city and
county shall ensure that, the initial occupant of all for-sale units
that qualified the applicant for the award of the density bonus are
persons and families of very low, low, or moderate income, as
required, 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.
(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.
(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 preceding 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 subdivision (b).
(ii) Each unit in the development, exclusive of a manager'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
or type, or both, 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.
For unoccupied dwelling units described in subparagraph (A) in a
development with occupied units, the proposed housing development
shall provide units of equivalent size or type, or both, 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 in the same proportion of affordability as the occupied
units. 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).
(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 or type, or both, 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 occupancy at the highpoint is not known, then one-half of
the required units shall be made available at affordable rent or
affordable housing cost to, and occupied by, very low income persons
and families and one-half of the required units shall be made
available for rent at affordable housing costs to, and occupied by,
low-income persons and families. 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) Paragraph (3) of subdivision (c) does not apply to an
applicant seeking a density bonus for a proposed housing development
if his or her 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 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
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) (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 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 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:
Percentage Very Low Percentage Density Bonus
Income Units
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
(3) For housing developments meeting the criteria of subparagraph
(C) of paragraph (1) of subdivision (b), the density bonus shall be
20 percent 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- Percentage Density Bonus
Income Units
10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
(5) All density calculations calculations,
including, but not limited to, maximum allowable density, total
affordable units, and the total amount of density bonus,
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 Percentage Density Bonus
Income
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
18 23
19 24
20 25
21 26
22 27
23 28
24 29
25 30
26 31
27 32
28 33
29 34
30 35
(2) This increase shall be in addition to any increase in density
mandated by subdivision (b), up to a maximum combined mandated
density increase of 35 percent if an applicant seeks an increase
pursuant to both this subdivision and subdivision (b). All density
calculations calculations, including, but not
limited to, maximum allowable density, total affordable units, and
the total amount of density bonus, 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.
(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).
(3) Notwithstanding any requirement of this subdivision, a city,
county, or 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
4100 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) (1) 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.
(2) Except as provided in subdivisions (d) and (e), the granting
of a density bonus shall not be interpreted to require the waiver of
a local ordinance or provisions of a local ordinance unrelated to
development 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 architectural design requirements that
exceed the minimum building standards approved by the California
Building Standards Commission as provided in Part 2.5 (commencing
with Section 18901) of Division 13 of the Health and Safety Code,
including, but not limited to, a reduction in setback and square
footage requirements and in the ratio of vehicular parking spaces
that would otherwise be required that results in identifiable,
financially sufficient, and actual cost reductions.
(2) Approval of mixed-use zoning in conjunction with the housing
project if commercial, office, industrial, or other land uses will
reduce the cost of the housing development and if the commercial,
office, industrial, or other land uses are compatible with the
housing project and the existing or planned development in the area
where the proposed housing project will be located.
(3) Other regulatory incentives or concessions proposed by
the developer or the city, county, or city and county that result in
identifiable, financially sufficient, and actual cost reductions.
(l) 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) This section shall does not
be construed to 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).
(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 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) (1) Upon the request of the developer, no
a city, county, or city and county shall not
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) Upon the request of the developer, a city, county, or city and
county shall not impose a minimum onsite parking requirement on a
development that meets any of the following criteria:
(A) The development is located within one-half mile of a major
transit stop. For the purposes of this subparagraph, "major transit
stop" has the same meaning as that term is defined in Section 21064.3
of the Public Resources Code and also includes a major transit stop
that is included in the applicable regional transportation plan. A
project shall be considered to be within one-half mile of a major
transit stop if all parcels within the project have no more than 25
percent of their area farther than one-half mile of the major transit
stop and if not more than 10 percent of the residential units or 100
units, whichever is fewer, in the project are farther than one-half
mile from the major transit stop.
(B) The development is a senior citizen housing development, as
defined in Sections 51.3 and 51.12 of the Civil Code.
(C) The development is a special needs development, as defined in
Section 51312 of the Health and Safety Code.
(4) Notwithstanding paragraph (3), this subdivision does not
preclude a city, county, or city and county from imposing a maximum
onsite parking requirement for a development.
(3)
(5) 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).
SEC. 2. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.