Highlights
- California's Density Bonus Law gives housing developments with below market rate homes the right to additional density, to waivers of local standards that preclude development, to incentives that reduce affordable housing costs and to reduced parking requirements. The law also creates strong presumptions that housing applicants are entitled to the waivers and incentives they seek - but these provisions had not been interpreted in published case law until now.
- Schreiber v. City of Los Angeles holds that density bonus applicants need not prove that incentives such as increased floor area and height will result in actual cost reductions. Requested incentives are presumed to result in cost reductions, and local governments may either accept this presumption or make a showing with substantial evidence to the contrary.
- Bankers Hill 150 v. City of San Diego affirms that density bonus projects are entitled to waive development standards that would prevent the project as designed from being built - even if the project could be redesigned to comply with the relevant standards.
Recent decisions from two court cases - Schreiber v. City of Los Angeles1 and Bankers Hill 150 v. City of San Diego2 - make California's Density Bonus Law a powerful tool not just for accessing increased density, but also for obtaining relief from zoning limitations that restrict feasible housing development. Housing and mixed-used development applicants should strongly consider the benefits of designing their developments to take maximum advantage of the Density Bonus Law.
Density Bonus Law Background
Originally enacted in 1979, California's Density Bonus Law3 gives housing and mixed-use developments with five or more homes the right to increased density beyond applicable local limits in exchange for providing homes at below market rate (BMR) rents or costs. The law's protections apply if the "base" project (i.e., the project as considered before the additional density) provides at least 10 percent BMR homes for low-income households, 5 percent BMR homes for very-low-income households or, if the homes in the development are for sale, 10 percent BMR homes for moderate-income households.4 Even greater benefits are available for projects that reach higher percentages of affordability (with even unlimited density available for certain transit-adjacent, 100-percent BMR projects).
Probably even more important than the additional density that gives the law its name are three provisions of the law that require local governments to grant qualifying projects: 1) incentives that provide cost reductions, 2) waivers of development standards that would physically preclude the development of a project at the density permitted and with the incentives granted and 3) reductions in parking requirements.
In recent years, the California legislature has adopted several amendments to the Density...
