This bill requires that a local ordinance provide for administrative approval (without discretionary review by a city council or board of supervisor members) of a property owner’s application to construct a second unit on the property, so long as the second unit meets the existing requirements of the city or county.

BILL NUMBER: AB 1866 CHAPTERED
BILL TEXT
CHAPTER 1062
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2002
APPROVED BY GOVERNOR SEPTEMBER 29, 2002
PASSED THE ASSEMBLY AUGUST 29, 2002
PASSED THE SENATE AUGUST 27, 2002
AMENDED IN SENATE AUGUST 22, 2002
AMENDED IN SENATE AUGUST 5, 2002
AMENDED IN SENATE JUNE 19, 2002
AMENDED IN ASSEMBLY MAY 23, 2002
AMENDED IN ASSEMBLY MAY 14, 2002
AMENDED IN ASSEMBLY APRIL 22, 2002
AMENDED IN ASSEMBLY APRIL 1, 2002

INTRODUCED BY Assembly Member Wright

JANUARY 31, 2002

An act to amend Sections 65583.1, 65852.2, and 65915 of the
Government Code, relating to housing.

LEGISLATIVE COUNSEL'S DIGEST

AB 1866, Wright. Housing: density bonuses.
(1) The Planning and Zoning Law requires the housing element of
the general plan of a city or county, among other things, to identify
adequate sites for housing, including rental housing, factory-built
housing, and mobilehomes, and to make adequate provision for the
existing and projected needs of all economic segments of the
community. That law permits the Department of Housing and Community
Development to allow a city or county to identify adequate sites by a
variety of methods.
This bill would authorize the department to also allow a city or
county to identify sites for 2nd units based upon relevant factors,
including the number of 2nd units developed in the prior housing
element planning period.
(2) The Planning and Zoning Law authorizes a local agency to
provide by ordinance for the creation of 2nd units on parcels zoned
for a primary single-family and multifamily residence, as prescribed.

This bill would require, when a local agency receives its first
application on or after July 1, 2003, that the application shall be
considered ministerially without discretionary review or hearing,
notwithstanding other laws that regulate the issuance of variances or
special use permits.
The bill would authorize a local agency to charge a fee to
reimburse the agency for costs it incurs as a result of these
provisions.
(3) The Planning and Zoning Law also 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 incentives or concessions for the
production of lower income housing units within the development if
the developer meets specified requirements. Existing law requires
the local government to establish procedures for carrying out these
provisions.
This bill would revise those provisions to refer to an applicant
who proposes a housing development and would recast them to, among
other things, revise criteria for making written findings that a
concession or incentive is not required, add criteria for continued
affordability of housing in a condominium project, authorize an
applicant to request a meeting on its proposal for a specific density
bonus, incentive, or concession or for the waiver or reduction of
development standards, and exempt developments meeting certain
affordability criteria from specified laws. By increasing the duties
of local public officials, the bill would impose a state-mandated
local program.
The bill would also authorize an applicant to initiate judicial
proceedings if the city, county, or city and county refuses to grant
a requested density bonus, incentive, or concession in violation of
these provisions, and would require the court to award the plaintiff
reasonable attorney's fees and costs of suit. It would authorize a
local agency to charge a fee to reimburse it for costs that it incurs
as a result of these provisions.
(4) 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 no reimbursement is required by this
act for a specified reason.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 65583.1 of the Government Code is amended to
read:
65583.1. (a) The Department of Housing and Community Development,
in evaluating a proposed or adopted housing element for compliance
with state law, may allow a city or county to identify adequate
sites, as required pursuant to Section 65583, by a variety of
methods, including, but not limited to, redesignation of property to
a more intense land use category and increasing the density allowed
within one or more categories. The department may also allow a city
or county to identify sites for second units based on the number of
second units developed in the prior housing element planning period
whether or not the units are permitted by right, the need for these
units in the community, the resources or incentives available for
their development, and any other relevant factors, as determined by
the department. Nothing in this section reduces the responsibility
of a city or county to identify, by income category, the total number
of sites for residential development as required by this article.
(b) Sites that contain permanent housing units located on a
military base undergoing closure or conversion as a result of action
pursuant to the Defense Authorization Amendments and Base Closure and
Realignment Act (Public Law 100-526), the Defense Base Closure and
Realignment Act of 1990 (Public Law 101-510), or any subsequent act
requiring the closure or conversion of a military base may be
identified as an adequate site if the housing element demonstrates
that the housing units will be available for occupancy by households
within the planning period of the element. No sites containing
housing units scheduled or planned for demolition or conversion to
nonresidential uses shall qualify as an adequate site.
Any city, city and county, or county using this subdivision shall
address the progress in meeting this section in the reports provided
pursuant to paragraph (1) of subdivision (b) of Section 65400.
(c) (1) The Department of Housing and Community Development may
allow a city or county to substitute the provision of units for up to
25 percent of the community's obligation to identify adequate sites
for any income category in its housing element pursuant to paragraph
(1) of subdivision (c) of Section 65583 if the community includes in
its housing element a program committing the local government to
provide units in that income category within the city or county that
will be made available through the provision of committed assistance
during the planning period covered by the element to low- and very
low income households at affordable housing costs or affordable
rents, as defined in Sections 50052.5 and 50053 of the Health and
Safety Code, and which meet the requirements of paragraph (2).
Except as otherwise provided in this subdivision, the community may
substitute one dwelling unit for one dwelling unit site in the
applicable income category. The program shall do all of the
following:
(A) Identify the specific, existing sources of committed
assistance and dedicate a specific portion of the funds from those
sources to the provision of housing pursuant to this subdivision.
(B) Indicate the number of units that will be provided to both
low- and very low income households and demonstrate that the amount
of dedicated funds is sufficient to develop the units at affordable
housing costs or affordable rents.
(C) Demonstrate that the units meet the requirements of paragraph
(2).
(2) Only units that comply with subparagraph (A), (B), or (C)
qualify for inclusion in the housing element program described in
paragraph (1), as follows:
(A) Units that are to be substantially rehabilitated with
committed assistance from the city or county and constitute a net
increase in the community's stock of housing affordable to low- and
very low income households. For purposes of this subparagraph, a
unit is not eligible to be "substantially rehabilitated" unless all
of the following requirements are met:
(i) At the time the unit is identified for substantial
rehabilitation, (I) the local government has determined that the unit
is at imminent risk of loss to the housing stock, (II) the local
government has committed to provide relocation assistance pursuant to
Chapter 16 (commencing with Section 7260) of Division 7 of Title 1
to any occupants temporarily or permanently displaced by the
rehabilitation or code enforcement activity, (III) the local
government requires that any displaced occupants will have the right
to reoccupy the rehabilitated units, and (IV) the unit has been cited
and found by the local code enforcement agency or a court to be
unfit for human habitation and vacated or subject to being vacated
because of the existence for not less than 120 days of four of the
conditions listed in subdivisions (a) to (g), inclusive, of Section
17995.3 of the Health and Safety Code.
(ii) The rehabilitated unit will have long-term affordability
covenants and restrictions that require the unit to be available to,
and occupied by, persons or families of low- or very low income at
affordable housing costs for at least 20 years or the time period
required by any applicable federal or state law or regulation, except
that if the period is less than 20 years, only one unit shall be
credited as an identified adequate site for every three units
rehabilitated pursuant to this section, and no credit shall be
allowed for a unit required to remain affordable for less than 10
years.
(iii) Prior to initial occupancy after rehabilitation, the local
code enforcement agency shall issue a certificate of occupancy
indicating compliance with all applicable state and local building
code and health and safety code requirements.
(B) Units that are located in a multifamily rental housing complex
of 16 or more units, are converted with committed assistance from
the city or county from nonaffordable to affordable by acquisition of
the unit or the purchase of affordability covenants and restrictions
for the unit, are not acquired by eminent domain, and constitute a
net increase in the community's stock of housing affordable to low-
and very low income households. For purposes of this subparagraph, a
unit is not converted by acquisition or the purchase of
affordability covenants unless all of the following occur:
(i) The unit is made available at a cost affordable to low- or
very low income households.
(ii) At the time the unit is identified for acquisition, the unit
is not available at a cost affordable to low- or very low income
households.
(iii) At the time the unit is identified for acquisition the unit
is not occupied by low- or very low income households.
(iv) The unit is in decent, safe, and sanitary condition at the
time of occupancy.
(v) The acquisition price is not greater than 120 percent of the
median price for housing units in the city or county.
(vi) The unit has long-term affordability covenants and
restrictions that require the unit to be affordable to persons of
low- or very low income for not less than 30 years.
(C) Units that will be preserved at affordable housing costs to
persons or families of low- or very low incomes with committed
assistance from the city or county by acquisition of the unit or the
purchase of affordability covenants for the unit. For purposes of
this subparagraph, a unit shall not be deemed preserved unless all of
the following occur:
(i) The unit has long-term affordability covenants and
restrictions that require the unit to be affordable to and reserved
for occupancy by persons of the same or lower income group as the
current occupants for a period of at least 40 years.
(ii) The unit is multifamily rental housing that receives
governmental assistance under any of the following state and federal
programs: Section 221(d)(3) of the National Housing Act (12 U.S.C.
Sec. 1715l(d)(3) and (5)); Section 236 of the National Housing Act
(12 U.S.C. Sec. 1715z-1); Section 202 of the Housing Act of 1959 (12
U.S.C. Sec. 1701q); for rent supplement assistance under Section 101
of the Housing and Urban Development Act of 1965, as amended (12
U.S.C. Sec. 1701s); under Section 515 of the Housing Act of 1949, as
amended (42 U.S.C. Sec. 1485); and any new construction, substantial
rehabilitation, moderate rehabilitation, property disposition, and
loan management set-aside programs, or any other program providing
project-based assistance, under Section 8 of the United States
Housing Act of 1937, as amended (42 U.S.C. Sec. 1437f); any state and
local multifamily revenue bond programs; local redevelopment
programs; the federal Community Development Block Grant Program; and
other local housing assistance programs or units that were used to
qualify for a density bonus pursuant to Section 65916.
(iii) The city or county finds, after a public hearing, that the
unit is eligible, and is reasonably expected, to change from housing
affordable to low- and very low income households to any other use
during the next five years due to termination of subsidy contracts,
mortgage prepayment, or expiration of restrictions on use.
(iv) The unit is in decent, safe, and sanitary condition at the
time of occupancy.
(v) At the time the unit is identified for preservation it is
available at affordable cost to persons or families of low- or very
low income.
(3) This subdivision does not apply to any city or county that,
during the current or immediately prior planning period, as defined
by Section 65588, has not met any of its share of the regional need
for affordable housing, as defined in Section 65584, for low- and
very low income households. A city or county shall document for any
such housing unit that a building permit has been issued and all
development and permit fees have been paid or the unit is eligible to
be lawfully occupied.
(4) For purposes of this subdivision, "committed assistance" means
that the city or county enters into a legally enforceable agreement
during the first two years of the housing element planning period
that obligates sufficient available funds to provide the assistance
necessary to make the identified units affordable and that requires
that the units be made available for occupancy within two years of
the execution of the agreement. "Committed assistance" does not
include tenant-based rental assistance.
(5) For purposes of this subdivision, "net increase" includes only
housing units provided committed assistance pursuant to subparagraph
(A) or (B) of paragraph (2) in the current planning period, as
defined in Section 65588, that were not provided committed assistance
in the immediately prior planning period.
(6) For purposes of this subdivision, "the time the unit is
identified" means the earliest time when any city or county agent,
acting on behalf of a public entity, has proposed in writing or has
proposed orally or in writing to the property owner, that the unit be
considered for substantial rehabilitation, acquisition, or
preservation.
(7) On July 1 of the third year of the planning period, as defined
by Section 65588, in the report required pursuant to Section 65400,
each city or county that has included in its housing element a
program to provide units pursuant to subparagraph (A), (B), or (C) of
paragraph (2) shall report in writing to the legislative body, and
to the department within 30 days of making its report to the
legislative body, on its progress in providing units pursuant to this
subdivision. The report shall identify the specific units for which
committed assistance has been provided or which have been made
available to low- and very low income households, and it shall
adequately document how each unit complies with this subdivision.
If, by July 1 of the third year of the planning period, the city or
county has not entered into an enforceable agreement of committed
assistance for all units specified in the programs adopted pursuant
to subparagraph (A), (B), or (C) of paragraph (2), the city or county
shall, not later than July 1 of the fourth year of the planning
period, adopt an amended housing element in accordance with Section
65585, identifying additional adequate sites pursuant to paragraph
(1) of subdivision (c) of Section 65583 sufficient to accommodate the
number of units for which committed assistance was not provided. If
a city or county does not amend its housing element to identify
adequate sites to address any shortfall, or fails to complete the
rehabilitation, acquisition, purchase of affordability covenants, or
the preservation of any housing unit within two years after committed
assistance was provided to that unit, it shall be prohibited from
identifying units pursuant to subparagraph (A), (B), or (C) of
paragraph (2) in the housing element that it adopts for the next
planning period, as defined in Section 65588, above the number of
units actually provided or preserved due to committed assistance.
SEC. 2. Section 65852.2 of the Government Code is amended to read:

65852.2. (a) (1) Any local agency may, by ordinance, provide for
the creation of second units in single-family and multifamily
residential zones. The ordinance may do any of the following:
(A) Designate areas within the jurisdiction of the local agency
where second units may be permitted. The designation of areas may be
based on criteria, that may include, but are not limited to, the
adequacy of water and sewer services and the impact of second units
on traffic flow.
(B) Impose standards on second units that include, but are not
limited to, parking, height, setback, lot coverage, architectural
review, maximum size of a unit, and standards that prevent adverse
impacts on any real property that is listed in the California
Register of Historic Places.
(C) Provide that second units do not exceed the allowable density
for the lot upon which the second unit is located, and that second
units are a residential use that is consistent with the existing
general plan and zoning designation for the lot.
(2) The ordinance shall not be considered in the application of
any local ordinance, policy, or program to limit residential growth.

(3) When a local agency receives its first application on or after
July 1, 2003, for a permit pursuant to this subdivision, the
application shall be considered ministerially without discretionary
review or a hearing, notwithstanding Section 65901 or 65906 or any
local ordinance regulating the issuance of variances or special use
permits. Nothing in this paragraph may be construed to require a
local government to adopt or amend an ordinance for the creation of
second units. A local agency may charge a fee to reimburse it for
costs that it incurs as a result of amendments to this paragraph
enacted during the 2001-02 Regular Session of the Legislature,
including the costs of adopting or amending any ordinance that
provides for the creation of second units.
(b) (1) When a local agency which has not adopted an ordinance
governing second units in accordance with subdivision (a) or (c)
receives its first application on or after July 1, 1983, for a permit
pursuant to this subdivision, the local agency shall accept the
application and approve or disapprove the application ministerially
without discretionary review pursuant to this subdivision unless it
adopts an ordinance in accordance with subdivision (a) or (c) within
120 days after receiving the application. Notwithstanding Section
65901 or 65906, every local agency shall grant a variance or special
use permit for the creation of a second unit if the second unit
complies with all of the following:
(A) The unit is not intended for sale and may be rented.
(B) The lot is zoned for single-family or multifamily use.
(C) The lot contains an existing single-family dwelling.
(D) The second unit is either attached to the existing dwelling
and located within the living area of the existing dwelling or
detached from the existing dwelling and located on the same lot as
the existing dwelling.
(E) The increased floor area of an attached second unit shall not
exceed 30 percent of the existing living area.
(F) The total area of floorspace for a detached second unit shall
not exceed 1,200 square feet.
(G) Requirements relating to height, setback, lot coverage,
architectural review, site plan review, fees, charges, and other
zoning requirements generally applicable to residential construction
in the zone in which the property is located.
(H) Local building code requirements which apply to detached
dwellings, as appropriate.
(I) Approval by the local health officer where a private sewage
disposal system is being used, if required.
(2) No other local ordinance, policy, or regulation shall be the
basis for the denial of a building permit or a use permit under this
subdivision.
(3) This subdivision establishes the maximum standards that local
agencies shall use to evaluate proposed second units on lots zoned
for residential use which contain an existing single-family dwelling.
No additional standards, other than those provided in this
subdivision or subdivision (a), shall be utilized or imposed, except
that a local agency may require an applicant for a permit issued
pursuant to this subdivision to be an owner-occupant.
(4) No changes in zoning ordinances or other ordinances or any
changes in the general plan shall be required to implement this
subdivision. Any local agency may amend its zoning ordinance or
general plan to incorporate the policies, procedures, or other
provisions applicable to the creation of second units if these
provisions are consistent with the limitations of this subdivision.
(5) A second unit which conforms to the requirements of this
subdivision shall not be considered to exceed the allowable density
for the lot upon which it is located, and shall be deemed to be a
residential use which is consistent with the existing general plan
and zoning designations for the lot. The second units shall not be
considered in the application of any local ordinance, policy, or
program to limit residential growth.
(c) No local agency shall adopt an ordinance which totally
precludes second units within single-family or multifamily zoned
areas unless the ordinance contains findings acknowledging that the
ordinance may limit housing opportunities of the region and further
contains findings that specific adverse impacts on the public health,
safety, and welfare that would result from allowing second units
within single-family and multifamily zoned areas justify adopting the
ordinance.
(d) A local agency may establish minimum and maximum unit size
requirements for both attached and detached second units. No minimum
or maximum size for a second unit, or size based upon a percentage
of the existing dwelling, shall be established by ordinance for
either attached or detached dwellings which does not permit at least
an efficiency unit to be constructed in compliance with local
development standards.
(e) Parking requirements for second units shall not exceed one
parking space per unit or per bedroom. Additional parking may be
required provided that a finding is made that the additional parking
requirements are directly related to the use of the second unit and
are consistent with existing neighborhood standards applicable to
existing dwellings. Off-street parking shall be permitted in setback
areas in locations determined by the local agency or through tandem
parking, unless specific findings are made that parking in setback
areas or tandem parking is not feasible based upon specific site or
regional topographical or fire and life safety conditions, or that it
is not permitted anywhere else in the jurisdiction.
(f) Fees charged for the construction of second units shall be
determined in accordance with Chapter 5 (commencing with Section
66000).
(g) This section does not limit the authority of local agencies to
adopt less restrictive requirements for the creation of second
units.
(h) Local agencies shall submit a copy of the ordinances adopted
pursuant to subdivision (a) or (c) to the Department of Housing and
Community Development within 60 days after adoption.
(i) As used in this section, the following terms mean:
(1) "Living area," means the interior habitable area of a dwelling
unit including basements and attics but does not include a garage or
any accessory structure.
(2) "Local agency" means a city, county, or city and county,
whether general law or chartered.
(3) For purposes of this section, "neighborhood" has the same
meaning as set forth in Section 65589.5.
(4) "Second unit" means an attached or a detached residential
dwelling unit which provides complete independent living facilities
for one or more persons. It shall include permanent provisions for
living, sleeping, eating, cooking, and sanitation on the same parcel
as the single-family dwelling is situated. A second unit also
includes the following:
(A) An efficiency unit, as defined in Section 17958.1 of Health
and Safety Code.
(B) A manufactured home, as defined in Section 18007 of the Health
and Safety Code.
(j) 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), except that the local government shall not be
required to hold public hearings for coastal development permit
applications for second units.
SEC. 3. Section 65915 of the Government Code is amended to read:
65915. (a) When an applicant proposes a housing development
within the jurisdiction of a city, county, or city and county, that
local government shall provide the applicant incentives or
concessions for the production of housing units as prescribed in this
chapter. All cities, counties, or cities and counties shall adopt
an ordinance that specifies how compliance with this section will be
implemented.
(b) A city, county, or city and county shall either grant a
density bonus and at least one of the concessions or incentives
identified in subdivision (j), or provide other incentives or
concessions of equivalent financial value based upon the land cost
per dwelling unit, when the applicant for the housing development
agrees or proposes to construct at least any one of the following:
(1) Twenty 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.
(2) Ten 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.
(3) Fifty percent of the total dwelling units of a housing
development for qualifying residents, as defined in Section 51.3 of
the Civil Code.
(4) Twenty percent of the total dwelling units in a condominium
project as defined in subdivision (f) of Section 1351 of the Civil
Code, for persons and families of moderate income, as defined in
Section 50093 of the Health and Safety Code.
The city, county, or city and county shall grant the additional
concession or incentive required by this subdivision unless the city,
county, or city and county makes a written finding, based upon
substantial evidence, that the additional 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).
(c) (1) An applicant shall agree to, and the city, county, or city
and county shall ensure, continued affordability of all lower income
density bonus units 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.
Those units targeted for lower income households, as defined in
Section 50079.5 of the Health and Safety Code, shall be affordable at
a rent that does not exceed 30 percent of 60 percent of area median
income. Those units targeted for very low income households, as
defined in Section 50105 of the Health and Safety Code, shall be
affordable at a rent that does not exceed 30 percent of 50 percent of
area median income.
(2) An applicant shall agree to, and the city, county, or city and
county shall ensure, continued affordability of the moderate-income
units that are directly related to the receipt of the density bonus
for 10 years if the housing is in a condominium project as defined in
subdivision (f) of Section 1351 of the Civil Code.
(d) An applicant 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 either of the
following:
(1) 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).
(2) 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.
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. The city, county, or city and county
shall also establish procedures for waiving or modifying development
and zoning standards that would otherwise inhibit the utilization of
the density bonus on specific sites. These procedures shall include,
but not be limited to, such items as minimum lot size, side yard
setbacks, and placement of public works improvements.
(e) In no case may a city, county, or city and county apply any
development standard that will have the effect of 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 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.
(f) The applicant shall show that the waiver or modification is
necessary to make the housing units economically feasible.
(g) (1) For the purposes of this chapter, except as provided in
paragraph (2), "density bonus" means a density increase of at least
25 percent, unless a lesser percentage is elected by the applicant,
over the otherwise maximum allowable residential density under the
applicable zoning ordinance and land use element of the general plan
as of the date of application by the applicant to the city, county,
or city and county. 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. The density bonus
shall not be included when determining the number of housing units
which is equal to 10, 20, or 50 percent of the total. The density
bonus shall apply to housing developments consisting of five or more
dwelling units.
(2) For the purposes of this chapter, if a development does not
meet the requirements of paragraph (1), (2), or (3) of subdivision
(b), but the applicant agrees or proposes to construct a condominium
project as defined in subdivision (f) of Section 1351 of the Civil
Code, in which at least 20 percent of the total dwelling units are
reserved for persons and families of moderate income, as defined in
Section 50093 of the Health and Safety Code, a "density bonus" of at
least 10 percent shall be granted, unless a lesser percentage is
elected by the applicant, over the otherwise maximum allowable
residential density under the applicable zoning ordinance and land
use element of the general plan as of the date of application by the
applicant to the city, county, or city and county. 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. The density bonus shall not be included when determining
the number of housing units which is equal to 20 percent of the
total. The density bonus shall apply to housing developments
consisting of five or more dwelling units.
(h) "Housing development," as used in this section, means one or
more groups of projects for residential units constructed in the
planned development of a city, county, or city and county. For the
purposes of this section, "housing development" also includes either
(1) a project to substantially rehabilitate and convert an existing
commercial building to residential use, or (2) 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 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.
(i) 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.
(j) 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.
(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 and actual cost reductions.
This subdivision 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.
(k) If an applicant agrees to construct both 20 percent of the
total units for lower income households and 10 percent of the total
units for very low income households, the developer is entitled to
only one density bonus and at least one additional concession or
incentive identified in Section 65913.4 under this section although
the city, city and county, or county may, at its discretion, grant
more than one density bonus.
(l) 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).
(m) A local agency may charge a fee to reimburse it for costs it
incurs as a result of amendments to this section enacted during the
2001-02 Regular Session of the Legislature.
(n) For purposes of this section, the following definitions shall
apply:
(1) "Development standard" means any ordinance, general plan
element, specific plan, charter amendment, or other local condition,
law, policy, resolution, or regulation.
(2) "Maximum allowable residential density" means 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.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.