HomeMy WebLinkAboutMINUTES - 04012003 - C24 TO: BOARD OF SUPERVISORS
Centra
FROM: DENNIS M. BARRY, AICDCosta
COMMUNITY DEVELOPMENT DIRECTOR a County
DATE: APRIL 1, 2003
SUBJECT: REPORT ON NEW HOUSING LAWS(AB1866 AND AB 2292)REGARDING SECOND
UNITS, RESIDENTIAL DENSITIES, AND GENERAL PLAN HOUSING ELEMENT
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
ACCEPT report on new housing laws (AB 1866 and AB 2292) regarding second units,
residential densities, and General Plan dousing Element.
FISCAL IMPACT
Uncertain. There Will be costs incurred by Community Development and County Counsel in
preparing County Ordinance Code amendments as a result of AB 1866, but these costs are
unknown at this time.
CONTINUED ON ATTACHMENT: X YES SIGNATURE
®.--9ECOMMEND7TION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMM EE
'APPROVE OTHER
r
SIGNATURE(S):
ACTION OF BO. ON- April 1, 2003 APPROVED AS RECOMMENDED X OTHER X
*5' See attached addendum for Board action***
VOJE OF SUPERVISORS
UNANIMOUS
(ABSENT Ione ) I HEREBY CERTIFY THAT THIS IS A TRUE AND
AYES: NOES: CORRECT COPY OF AN ACTION TAKEN AND
ABSENT: ABSTAIN: ENTERED ON THE MINUTES OF THE BOARD OF
DISTRICT III SEAT VACANT SUPERVISORS ON THE DATE SHOWN
Contact: P. Roche(925)335-1242 ATTESTED April 1, 2003
cc:Clerk of the Board JOHN SWEETEN, CLERK OF THE BOARD OF
CAO SUPERVISORS AND COUNTY ADMINISTRATOR
County Counsel
County Planning Commission
East County Regional Planning Commission
San Ramon Valley Regional Planning Commission BY��3.�1 ii� ,DEPUTY
April 1,2003
Board of Supervisors
Report on New Housing Laws
Page 2
BACKGROUNDIREASON FOR RECOMMENDATION
In 2002 the State Legislature amended the California Planning and Zoning Law in furtherance of its
stated interest in creating housing opportunities with the passage of AS 1866 (Wright) and AB 2202
(Dutra). These two new laws will affect the planning process for residential development in the
unincorporated areas of Contra Costa County in a number of ways. California has had legislation
encouraging second units for many years, but the State Legislature believing that local policies and
actions have frustrated second unit development passed AB 1866 amending three sections of the
Planning and Zoning Law relating to second units and density bonuses. AB 2292 adds Government
Code section 65863 and deals with "no-net-loss" of residential densities. Attached for the Board of
Supervisors information is an analysis of the two new laws prepared by the Office of County Counsel
(see Exhibit "A").
The primary change in state law under AB 1866 is that approval of second units becomes a ministerial
process rather than a discretionary process now currently used by the County. As noted in the
attached analysis of AB 18661, County Counsel has advised that Contra Costa County must amend its
Ordinance Code to eliminate the land use permit requirement for second units,eliminate the provision
authorizing variances for second units, and add specific standards for second units in planned unit
districts. The County may continue to require minimum lot size in residential districts for a second unit
application and may continue to prohibit second units on lots zoned for agricultural use. These
provisions of AB 1866 relating to second units will go into effect on July 1, 2003.
AB 1866 also amended the state law relating to the grant of a bonus density or other incentives to
developers of affordable housing. As of January 1, 2003, under amended California Government
Code section 65915 the County must now either grant a density bonus and at least one incentive, or
provide other incentives of equivalent financial value,to an applicant proposing a condominium project
where twenty (20) percent of the total units are moderate-income households. As noted in the
attached analysis of AB 1866, County Counsel has advised that the County's recently enacted Density
Bonus Ordinance should be amended to define a "condominium project", to require a statement of
findings if it does not grant an applicant a requested density bonus or financial incentive, and link
affordable sales price for condominium units to the area median income.
AB 2292, effective January 1, 2003, places limits on the ability of Counties and Cities to reduce
residential densities on a site identified in an inventory or program of adequate sites as described in
the jurisdiction's adapted Housing Element. A Housing Element must contain an inventory of land
suitable for residential development, including vacant sites .and sites having potential for .
redevelopment,and analysis of the relationship of zoning and public facilities and services to the sites.
The California Department of Housing and Community Development Department (HCD) reviews a
jurisdiction's Housing Element to determine compliance with state law based on the densities specified
in the inventory. Under AB 2292, a jurisdiction may reduce the residential density of any site to a
lower density than that used by HCD in determining compliance of the Housing Element only in limited
circumstances. A jurisdiction may make written findings to reduce a site's density, supported by
substantial evidence, if it finds that the density reduction is consistent with the General Plan, including
the Housing Element, and it must find that the remaining sites identified in the Housing Element
inventory of suitable sites are adequate to accommodate its share of the regional housing need.
April 1,20033
Board of Supervisors
Report on New Housing Laws
Page 3
BACKGROUND/REASON FOR RECOMMENDATION (continued)
As noted in the attached analysis of AB 2292, County Counsel has advised that any time the County
reduces density on a residentially zoned parcel written findings must be made to show either that the
Housing Element continues to identify enough sites to accommodate the County's share of the
regional housing need or that the reduced density will not result in a net loss of residential density
capacity. AB 2292 does not require any additions or changes to the County Ordinance Code.
Staff further notes that Assemblyman Darrell Steinberg has introduced AB 1160 for the current
legislative session as a follow-up to AB 1866.As presently drafted,AB 1160 would further amend the
Planning and Zoning Law in relation to second units, as follows: 1) prohibit local jurisdictions from
applying standards or conditions which are not "objective" or would preclude the construction of
second units at a defined affordable housing cost(an income base formula applied to state subsidized
housing, including criteria for extremely low income households at 34 percent of 30 percent of the
median income; 2)it would prohibit a local ordinance from requiring an owner-occupant to live on the
property in either the primary or second unit;3)it would prohibit a local ordinance from requiring more
than one parking space for every two bedrooms or requiring covered parking, and allows for a
reduction in parking by 50 percent if the unit is within a 'h mile of rail station or intersection of major
transit routes; 4) it would prohibit a local ordinance from restricting the rent or income of occupants;
and 5) it increases the minimum permissible size of a second unit to 400 square feet and sets a
maximum of 40 percent of the existing dwelling, or 1240 square feet. Assembly Bill 1160 is still
pending in the Assembly for committee assignment. A copy of the bill as introduced is attached as
Exhibit "B" to this report for the Board's information. Staff will monitor this piece of legislation, and
report back its status, as necessary.
As described in the memorandum from County Counsel, the County Ordinance Code must be
amended to conform to the new state law as established under AB 1866. The Community
Development Department will be working with the Office of County Counsel in drafting appropriate
amendments to the Ordinance Code specifically as they relate to processing applications for second
units in residential zoning districts and the provision for bonus densities or incentives for condominium
projects. In order to comply with the new law relating to second units by July 1,2403,the Department
intends to bring proposed amendments to the Ordinance Code before the County Planning
Commission in May with the aim of bringing the matter before the Board of Supervisors in June.
Attachments(2)
Exhibit"A":3/14/2003 Memorandum,office of County Counsel,re:Analysis of New Housing Laws(AB 1866 and AB 2292)
Exhibit T": AB 1160 (Steinberg)
G:\Advance Planning\adv-plan\Board orders\BOARD ORDER NEW HOUSING LAW APRIL 1 2003.doe
ADDENDUM TO ITEM +x.24
April 1, 2003
On this date,the Board of Supervisors considered the report from the Community Development
Department on new Housing Laws (AB 1866 and AB 2292)regarding second units,residential
densities, and General Plan Housing Element.
Dennis Barry, Community Development Department Director,presented the staff report and
recommendations.
The Board discussed the matter. The Chair invited those who wish to address the Board. There
were no speakers.
Supervisor C.7ilkema requested the Community Development Department staff to provide
additional information regarding the implication of this legislation on Covenants, Conditions and
Restrictions (CC&R's)within a jurisdiction and if it will impact the approvals of a local
jurisdiction and to return to the Board with further discussion.
Supervisor Uilkema moved to accept the report. Supervisor Gioia second the motion and the
Board of Supervisors took the following action.
u ACCEPTED report from the Community Development Director on new housing laws
(AB 1866 and AB 2292)regarding second units, residential densities, and General Plan
Housing Element
Exhibit "A": 3/14/2003 Memorandum, Office of County Counsel,
re: Analysis of New Housing Laws (AB 1866 and AB
2292)
Office of Etre County Counsel Contra Costa County
651 Pine Street, 9th Floor Phone: (925)335-1800
Martinez, CA 94553 Fax: (925)646-1078
Late: March 14, 2003
To: Dennis M. Barry, AICD, Community Development Director
Attn: Patrick Roche,Advance Planning Division
From: Silvano B. Marchesi, County Counsel
By: Thomas L. Geiger,Deputy County Counsel •—
Re: ANALYSIS OF NEW HOUSING LAWS REGARDING SECOND UNITS,
RESIDENTIAL DENSITIES AND GENERAL PLAN HOUSING ELEMENTS
ASSEMBLY BILLS 1866 AND 2292
SUMMARY
This responds to your request for an analysis of Assembly Bills 1866 and 2292 (2002),
which amended several sections of the Planning and Zoning Law pertaining to second units,residential
densities,and housing elements.'
The new second unit law(A.B. 1866) applies to second unit applications received on or
after July 1, 2003. Under the new law, the County may continue to limit second units to a maximum
total floor area of 1,000 square feet,may continue to require a minimum lot size in a residential district
for a second unit application, and may continue to prohibit second units on lots zoned for agricultural
use, even if they are primarily residential in nature. However, effective July 1, 2003, second unit
applications must be considered ministerially. Accordingly, the Ordinance Code should be amended to
eliminate the land use permit requirement for second units, eliminate the provision authorizing variances
for second units, and add specific standards for second units in planned unit districts.
The new density bonus law(A.B. 1866)requires the County to grant a density bonus or
other incentives to developers of affordable condominiums. To comply with the law, the County's
density bonus ordinance should define "condominium project" and provide that the affordable sales
price of condominium units for moderate income households must not exceed a price affordable to
households whose income is at or below 120 percent of area median income.
The new housing element law(A.B. 2292) allows the reduction of the residential density of
any parcel only under limited circumstances. Any time the County reduces the density on a parcel, the
County must make.written findings showing either that the housing element continues to identify enough
sites to accommodate the County's share of the regional housing need or that the reduced density will
not result in a net loss of residential unit capacity.
1 All statutory references are to the Govemment Code unless otherwise indicated.
Patrick Roche
March 14, 2003
Pa e 2
DISCUSSION
1. Assembly Bill 1866
Assembly Bill 1866 amended three sections of the Planning and Zoning Law. The bill
amended sections 65583.1 (housing elements), 65852.2 (second unit regulations), and 65915 (density
bonuses).
A. Housing Element—IdentiWng Second Unit Sites
Under section 65583, the housing element of a general plan must identify sites for housing,
including rental housing, factory-built housing, and mobilehomes. The Department of Housing and
Community Development evaluates a proposed or adopted housing element for consistency with state
law. (§ 65583.1.) In evaluating a proposed or adopted housing element, the Department of Housing
and Community Development may allow a county or city to identify adequate sites for housing by a
variety of methods.
A.B. 1866 amended section 65583.1 to authorize the Department of Housing and
Community Development to allow a county or city to identify sites for second units based on several
factors. These factors include the number of units developed in the prior housing element planning
period, the need for second units in the community,the resources or incentives available for their
development, and other relevant factors.
B. Second Unit Regulations
1. Statutory Analysis
Section 65852.2 authorizes local agencies to provide for the creation of second units in
single-family and multifamily residential zones. If a local agency has a second unit ordinance,the
ordinance may impose standards on second units regarding parking,height, setback, lot coverage,
architectural review, and maximum size of second unit. (§ 65852.2(a)(1)(B).) If local agency does
not have a second-unit ordinance, section 65852.2 establishes standards for second units. Under one
of these standards, the total area of floorspace for a detached second unit must not exceed 1,200
square feet. (§ 65852.2(b)(1)(F).) These provisions were not affected by A.B. 1866.
Before it was amended, section 65852.2 authorized discretionary approvals of second unit
applications by allowing local agencies to require conditional use permits for second units. (Former §
65852.2 (a)(4).) A second unit application was thus subject to a public hearing under the former
section 65852.2.
Patrick Roche
March 14, 2003
Pa e 3
A.B. 1866 amended section 65852.2 to require that second unit permit applications
received on or after July 1, 2003,be approved ministerially.' Decisions on second unit permits must
be ministerial whether or not a local agency has a second unit ordinance. Amended section 65852.2
specifically provides that a second unit application must not be subject to discretionary review or a
hearing.'
The amendment to section 65852.2(a)(3) authorizes a local agency to charge a fee to
recover its costs of amending any ordinance that provides for the creation of second units.
A.B. 1866 also amended section 65852.2 to allow second unit ordinances to impose
standards on second units that prevent adverse impacts on any real property that is listed in the
California Register of Historic Places. (§ 65852.2(a)(1)(B).) In addition,A.B. 1866 added language
clarifying that section 65852.2 is not meant to supersede the California Coastal Act, except that local
governments are not required to held public hearings for coastal development permit applications for
second units. (§ 65852.20).)
2. Implementation Issues
a. Land Use Permit Requirement Conflicts With New Law and Should Be
Changed
Before turning to your questions, we note that Ordinance Code article 82-24.10 appears to
conflict with the requirements of the amended section 65852.2. Ordinance Code article 82-24.1.0
requires a land use permit for a second unit. The issuance of a land use(conditional use) permit is
discretionary because a public agency exercises judgment or deliberation when it decides whether to
issue a conditional use permit. (Prentiss v. City of South Pasadena (1993) 15 Cal.AppAth 85, 90.)
The new law explicitly states that all second unit hermit applications are to be decided ministerially
despite the provisions of section 65901(a)authorizing local agencies to issue conditional use permits.
Because all second unit permit applications are to be decided ministerially, the new law does not allow
2 A ministerial decision involves only the use of fixed standards or objective measurements,and a
public official cannot use personal,subjective judgment in deciding whether or how the project should be carried
out. (See,e.g.,CEQA Guidelines,§ 15369.)
3 Amended section 65852.2 also states that second unit applications must be considered
ministerially"notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or
special use permits." Section 65901 provides that the board of zoning adjustment or zoning administrator hears and
decides applications for conditional uses or other permits and for variances from the terms of the zoning ordinance.
An application for a variance may be decided without a public hearing. (§65901(a).) Section 65906 provides that a
variance is subject to conditions to assure that the adjustment does not constitute a grant of special privileges
inconsistent with the limitations upon other properties in the vicinity and zone where the property is located.
Section 65852.2 therefore supersedes the provisions of sections 65901 and 65906.
Patrick Roche
March 14, 2003
Pae 4
the County to issue conditional land use permits for second units. Ordinance Code article 82-24.10
should be amended to eliminate the land use permit requirement for a second unit.
b. Ordinance Code Provisions Allowin t� he Zoning Administrator to Impose
Discretion4a Standards on Second Units Should Be Changed
We note further that Ordinance Code section 82-24.1002(6) appears to conflict with the
amended section 65852.2. Ordinance Code section 82-24.1002(6)provides that for second units in
planned unit districts, where no fixed standards are specified, the zoning administrator is authorized to
establish reasonable standards for floor area, yards,building height, distance between buildings,and lot
coverage. Ordinance Code chapter 84-66, which governs planned unit districts,does not specify fixed
standards for second units in planned unit districts.' The Zoning Administrator's discretion in
establishing standards for second units in planned unit districts conflicts with the new law. The
Ordinance Code should be amended to establish fixed standards for second units in planned unit
districts.
C. Second Unit Maximum Floor Space Provisions Need Not Be Changed
You asked whether the County's second unit ordinance should be amended to establish a
maximum total floor area of 1,200 square feet for second units. Ordinance Code section 82-24.1002
generally provides that the total floor area of a second unit may not exceed 1,000 square feet.' The
1,200 square foot area specified in section 65852.2 applies only to entities that do not have second unit
ordinances. Section 65852.2(a)(1)(B)authorizes entities with ordinances to set standards for maximum
second unit sizes. Based on this authorization,the County's second unit ordinance does not need to be
amended to increase the maximum total floor area for second units to 1,200 square feet.
d. Second Unit Minimum Lot Size Provisions Need Not Be Change
You also asked whether the Ordinance Code may continue to require a minimum lot size in
a residential district for a second unit application. Ordinance Code section 82-24.1002 provides that a
' The only provision in ordinance Code chapter 84-66 dealing with second units is section 84-
66.442(3). This section provides that in a residential planned unit district,the second unit must comply with the
provisions of ordinance Code chapter 82-24,which,as previously stated,authorizes the Zoning Administrator to
establish"reasonable standards"for second units in planned unit districts. In addition,although the latest
published version of ordinance Code section 84-66.402(3)refers to ordinance Code chapter 84-24,Ordinance No.87-
67 correctly refers to chapter 82-24. We have advised the Clerk of the Board of this error so that she may notify the
publisher of the ordinance Code.
5 ordinance Code section 82-24.1002 provides,in the alternative,that the maximum lot coverage of
a structure with a second unit may not exceed a certain percentage,depending on whether the land use district is a
single-family or multiple-family residential district.
Patrick Roche
March 14, 2003
Page 5
second unit must meet lot size standards that are established in the applicable zoning district. Section
65852.2(a)(1)(B)authorizes entities with ordinances to set standards for lot coverage. Accordingly,
the Ordinance Code may continue to require a minimum lot size for a second unit application in a
residential district.
C. Ordinance Code Provisions Authorizing a Public Hearing on Second Unit
Applications Should Be Changed
You asked whether the notice procedures in the County's second unit ordinance should be
revised. Bob Drake asked whether the new law allows local agencies to notice nearby properties and
community groups after a ministerial decision has been made.
The County's second unit ordinance currently requires a public hearing for a second unit
application in accordance with Ordinance Code chapter 26-2. (Ord. Code, § 82-24.£08.) Because
the new statute prohibits public hearings for second unit applications, Ordinance Code section 82-
24.608 should be revised to eliminate the public hearing requirement. This would be accomplished if
Ordinance Code article 82-24.10 is revised to eliminate the land use permit requirement.
The new law does not address whether local agencies may notice nearby properties and
community groups after a decision has been made. The approval of a second unit is public record and
presumably the Community Development Department could send courtesy notices to neighbors if it
chooses to do so. However, because there is no right of appeal of a ministerial decision, you should
consider whether sending such a notice serves the Department's interests and whether this would
conflict with the Department's policy regarding notice of ministerial decisions. It is our understanding
that the Department generally does not mail notice to the public after making a ministerial decision.
f. Variances for Second Units Are Not Allowed
Bob Drake also asked whether the County could issue variance permits for second units,
and whether this would trigger the requirement that a public hearing be held if requested. The County's
second unit ordinance currently authorizes the County to grant variance permits to modify zoning district
provisions that would apply to a second unit in a district. (Ord. Code, § 82-24.1010.) The Zoning
Administrator decides variance permit applications. (Ord. Code, § 26-2.2102.) The decision is made
without a public hearing unless a public hearing is requested pursuant to Ordinance Code sections 26-
2.2104 and 26-2.2106.
The issuance of a variance is discretionary because a public agency exercises judgment or
deliberation when it decides whether to issue a variance. (Prentiss, supra, 15 Cal.AppAth at 90.)
The new law explicitly states that all second unit permit applications are to be decided ministerially
despite Government Code provisions (§§ 65901,65906) authorizing local agencies to issue variances
with conditions. Because all second unit permit applications are to be decided ministerially, the new
Patrick Roche
March 14, 2003
Pa e 6
law does not appear to allow the County to issue any variance Permits for second units.
g. The CouM Mgy Continue to Prohibit Second Units in Agicultural.Zones
You also asked whether lots that are zoned for agricultural use but are primarily residential
in nature may apply for second units. Section 65852.2 provides that any local agency may,by
ordinance,provide for the creation of second units in single-family and multifamily residential zones.
A.B. 1866 did not change this provision of section 65852.2. Accordingly,the County may continue to
prohibit second units on lots zoned for agricultural use, even if they are primarily residential in nature.
(Ord. Code, § 82-24.2€}4.)
C. Densit Byes
1. Statutory Analysis
Section 65915 requires a county or city to grant a density bonus or other incentives to
developers of affordable housing. Section 65915 requires counties and cities to adopt an ordinance
that specifies how the law will be implemented. Ordinance Code division 822 is the County's
residential density bonus ordinance.
Under section 65915,when an applicant proposes a housing development where 20
percent of the total units are for lower income households, 10 percent of the total units are for very low
income households, or 50 percent of the total units are for senior citizens, a county or city must either
grant a density bonus and at least one specified concession or incentive,or provide other incentives of
equivalent financial value. The local agency must provide these additional concessions or incentives
unless it mares written findings that the incentives or concessions are not necessary to make the
affordable housing feasible. All lower income density bonus units must be affordable for at least 30
years. A.B. 1866 did not affect these provisions.
A.B. 1866 amended section 65915 to require incentives for proposals for affordable
condominium units. Section 65915 provides that when an applicant proposes a condominium project
where 20 percent of the total units are for persons and families of moderate income, a county or city
must either grant a density bonus and at least one specified concession or incentive, or provide other
incentives of equivalent financial value. All moderate income density bonus condominium units must be
affordable for at least 10 years.
Before section 65915 was amended,a developer could submit a preliminary proposal for
affordable housing before submitting any formal entitlement requests. The county or city had 90 days to
notify the developer of the procedures it must follow to comply with the density bonus law. The
"procedures" include the procedures set out in the density bonus ordinance and the method of waiving
development and zoning standards that would otherwise prevent the proposed density on specific sites.
Patrick Roche
March 14, 2003
Pa e L-
-Under the amended section 65915, which went into effect January 1,2003, once an
applicant submits a proposal for specific incentives or concessions,the local agency must grant the
concession or incentive requested by the applicant unless the agency makes a written finding that the
incentive is not required to provide for affordable housing costs or that it would have an adverse impact
on public health and safety, the environment, or a historic site or building. The amended section 65915
provides that the applicant may initiate judicial proceedings if the county or city 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 violates section 65915,the court may award the applicant
attorneys' fees and costs.
The amended section 65915 also prohibits a county or city from applying any development
standard that would preclude the construction of a development that meets the criteria of the density
bonus law at the densities or with the concessions or incentives permitted by the law. An applicant may
submit a proposal for waiving or reducing development standards for a proposed development. If a
court finds that the refusal to grant a waiver or reduction of development standards violates section
65915,the court may award the applicant attorneys' fees and costs.
2. Implementation Issues
a. Density Bonus Ordinance Should Be Amended to Define "Condominium
Project"
You asked whether your redline/strikeout version of the density bonus ordinance
adequately reflects the changes made to section 65915 by A.B. 1866. Under amended section 65915,
developers receive incentives for building condominium units that are affordable to moderate income
households. However, the redline/strikeout version could he read to mean that a purpose of the
ordinance is to provide incentives for building moderate income units of any type. The redline/strikeout
version should state that one purpose of the ordinance is to provide incentives for the production of
moderate income condominium units. The redline/strikeout version should also define"condominium
project."
b. Density Bonus Ordinance Should Be Amended to Require Statement of
Findings
You also asked whether the provisions of new sections 65915(4) and (f) should be
addressed in the Ordinance Code. New section 65915(d) requires the County to make written findings
if it does not grant requested concessions or incentives. Because Ordinance Code section 822-6.402
already refers to the written findings required under section 65915(b), it also should refer to the written
Patrick Roche
March 14, 2003
Pae 8
findings required under section 65915(d). With respect to new section 65195(f), this subdivision is the
former section 65915(e), which is currently referenced in Ordinance Code section 822-6.402.
C. Density Bonus Ordinance Should Be Amended to Link Affordable Sales Price
of Condominium Units to the Area Median Income
You also asked whether the County has flexibility in defining the affordable sales price for
moderate income households. Ordinance Code section 822-2.406 links the affordable sales price for
lower income and very low income households to the area median income. Specifically, Ordinance
Code section 822-2.406 provides that the affordable sales price for lower income households must not
exceed a price affordable to households whose income is at or below 70 percent of area median
income. Ordinance Code section 822-2.406 further provides that the affordable sales price for very
low income households must not exceed a price affordable to households whose income is at or below
50 percent of area median income.
For purposes of consistency, the Ordinance Code should link the affordable sales price of
condominium units to the area median income. Ordinance Code section 822-2.406 should state that
the affordable sales price of condominium units for moderate income households must not exceed a
price affordable to households whose income is at or below 120 percent of area median income. (See
Health and Saf. Code, § 50093 [defining"persons and families of low or moderate incomes'as persons
and families whose income does not exceed 120 percent of area median income].)
H. Assembly Bill 2292
A. Density Reductions—Statutory Analysis
Assembly Bill 2292, effective January 1, 2003, added section 65863 to the Planning and
Zoning Law. It places limits on the ability of counties and cities to reduce residential densities once
densities are established in a housing element.
A housing element of a county or city general plan must identify and analyze existing and
projected housing needs and make adequate provision for the existing and projected needs of all
economic segments of the community. (§ 65583.) The existing and projected needs must include the
locality's share of the regional housing need. (§ 65583.) This share of the regional housing need is
determined by the Department of Housing and Community Development in consultation with each
council of government. (§ 65584.)
A housing element must contain an inventory of land suitable for residential development,
including vacant sites and sites having potential for redevelopment,and an analysis of the relationship of
Patrick Roche
March 14, 2003
Pae 9
zoning and public facilities and services to these sites. (§ 65583(a)(3).) The Department of Housing
and Community Development reviews a housing element to determine compliance with state law based
on densities specified in the housing element. (§ 65583.1.) "Once the land is zoned, however, there is
virtually no limit on the ability of local governments to reduce the zoning on a site below the density
designated by the local government in its housing element." (Assem. Com. on Judiciary, Analysis of
A.B. 2292 (2001-2002 Reg. Sess.) April 16, 2002 hearing.) A housing element is reviewed as
frequently as appropriate, and revised as appropriate but not less than every five years. (§ 65588.)
Under section 65863, added by A.B. 2292, a county or city may reduce the residential
density of any parcel to a lower density than that used by the Department of Housing and Community
Development in determining the entity's compliance with state law only in limited circumstances, A
county or city may reduce density if the entity makes written findings. The entity must find that the
reduction is consistent with the general plan, including the housing element. The entity must also find
that the remaining sites in its housing element are adequate to accommodate its share of the regional
housing need determined pursuant to section 65584. The findings must be supported by substantial
evidence. In the alternative, a county or city may reduce residential density on a parcel if it identifies
sufficient additional, adequate, and available sites with an equal or greater residential density so that
there is no net loss of residential unit density.
If a court finds that a county or city violates section 65863,the court will award attorneys'
fees and costs to the plaintiff or petitioner who proposes the housing development. In other words, if a
developer proposed a project at a particular density and the County reduced it without making the
proper findings supporting the reduction, the developer would have a right to sue and, if successful,to
have the County pay for all of his or her attorneys' fees and court costs. The award of attorneys' fees
and costs is mandatory, except under extraordinary circumstances where the court finds that awarding
fees would not further the purposes of section 65863 or that the action was frivolous. The fees clause
expires on January 1, 2007, unless a later statute deletes or extends the date.
B. Density Reductions_-Implementation Issues
You asked for guidance in interpreting and implementing section 65863. Essentially, any
time the County reduces the density on a parcel, the County must make written findings showing either
that the housing element continues to identify enough sites to accommodate the County's share of the
regional housing need or that the reduced density will not result in a net loss of residential unit capacity.
This does not require any additions or changes to the Ordinance Code.
This office is available to assist in the preparation of findings for particular projects to
determine whether the findings comply with section 65863. This office is also available to meet with
Patrick Roche
March 14, 2003
Pae 10
you to discuss these new laws and to,prepare revised second unit and density bonus ordinances.
TLG:
cc: Dennis M.Barry,AICD,Community Development Director
Catherine Kutsuris,Deputy Community Development Director
Aruna Bhat,Current Planning,CDD
Bob Drake,Current Planning,CDD
Kara Douglas,Housing,CDD
HA2003\Cam'wnity Dmkpnxw&a hah iN la%s.wpd
Exhibit "B": AB 1160 (Steinberg)
CALIFORNIA LEGISLATURE-200344 REGULAR SESSION
ASSEMBLY BILL No. 1160
Introduced by Assembly Member Steinberg
February 21,2003
An act to amend Sections 65583, 65852.2,and 65915 of,and to add
Section 65917.1 to, the Government Code, relating to housing.
LF(31SLATIVE COUNSE12S DIGEST
AB 1160,as introduced, Steinberg. Housing: second units.
(1) The Planning and Zoning Law requires the housing element of
the general plan of a city or county to include, among other things, a
program with a 5-year schedule of actions that the local government is
undertaking or intends to undertake to implement the goals and
objectives of the housing element. The program is also required to
provide for sufficient sites with zoning that permits owner-occupied
and rental multifamily residential use by right.
This bill would revise the definition of the phrase "use by right" as
specified and state that the changes are declaratory of existing law.
(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. When the local
agency has not adopted an ordinance,it is required to grant a variance
or special use permit for the creation of a 2nd unit that complies with
statutory requirements but may require the applicant to be an
owner-occupant. Existing law specifies the floor area of a permitted 2nd
unit and parking requirements.
This bill would provide that a local agency that has not adopted an
ordinance may not require a variance or special use permit and shall
approve an application for a 2nd unit that complies with the statutory
99
AB 11,60 —2—
requirements.
---2requirements. The bill would provide that a local agency may not adopt
an ordinance that requires an applicant or occupant of a 2nd unit or
principal dwelling unit to be an owner-occupant or his or her dependent
or a caregiver for the owner or dependent or that restricts the rent or
income of occupants of 2nd units or that limits occupancy based on age
as specified. The bill would revise the floor area and parking
requirements for 2nd units.
(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
certain requirements.
This bill would additionally require the city, county, or city and
county to grant a requesting applicant a reduction in parking standards
or requirements as specified, and would revise the definition of
development standard. The bill would also provide, with respect to
those incentives, that multifamily and single-family residential use is
a permitted use on any parcel zoned and developed for primary or
secondary education. By increasing the duties of local public officials,
the 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,including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed$1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
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: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
1 SECTION 1. Section 65583 of the Government Cade is
2 amended to read:
99
-3— AB .1.160
1 65583. The housing element shall consist of an identification
2 and analysis of existing and projected housing needs and a
3 statement of goals, policies, quantified objectives, financial
4 resources, and scheduled programs for the preservation,
5 improvement, and development of housing. The housing element
6 shall identify adequate sites for housing,including rental housing,
7 factory-built housing,and mobilehomes,and shall make adequate
8 provision for the existing and projected needs of all economic
9 segments of the community. The element shall contain all of the
10 following:
11 (a) An assessment of housing needs and an inventory of
12 resources and constraints relevant to the meeting of these needs.
13 The assessment and inventory shall include all of the following:
14 (1) An analysis of papulation and employment trends and
15 documentation of projections and a quantification of the locality's
16 existing and projected housing needs for all income levels. These
17 existing and projected needs shall include the locality's share of the
18 regional housing need in accordance with Section 65584.
19 (2) An analysis and documentation of household
20 characteristics,including level of payment compared to ability to
21 pay,housing characteristics, including overcrowding,and housing
22 stock condition.
23 (3) An inventory of land suitable for residential development,
24 including vacant sites and sites having potential for
25 redevelopment,and an analysis of the relationship of zoning and
26 public facilities and services to these sites.
27 (4) An analysis of potential and actual governmental
28 constraints upon the maintenance, improvement, or development
29 of housing for all income levels and for persons with disabilities
30 as identified in the analysis pursuant to paragraph (6), including
31 land use controls, building codes and their enforcement, site
32 improvements, fees and other exactions required of developers,
33 and local processing and permit procedures.The analysis shall also
34 demonstrate local efforts to remove governmental constraints that
35 hinder the locality from meeting its share of the regional housing
36 need in accordance with Section 65584 and from meeting the need
37 for housing for persons with disabilities identified pursuant to
38 paragraph(6).
39 (5) An analysis of potential and actual nongovernmental
40 constraints upon the maintenance,improvement,or development
99
i
AB 1160 —4-
1
4-
1 of housing for all income levels, including the availability of
2 financing, the price of land,and the cost of construction,
3 (6) An analysis of any special housing needs, such as those of
4 the elderly,persons with disabilities,large families,farmworkers,
5 families with female heads of households, and families and
6 persons in need of emergency shelter.
7 (7) An analysis of opportunities for energy conservation with
8 respect to residential development.
9 (8) An analysis of existing assisted housing developments that
10 are eligible to change from low-income housing uses during the
11 next 10 years due to termination of subsidy contracts, mortgage
12 prepayment, or expiration of restrictions on use. "Assisted
13 housing developments," for the purpose of this section,shall mean
14 multifamily rental housing that receives governmental assistance
15 under federal programs listed in subdivision (a) of Section
16 65863.10, state and local multifamily revenue bond programs,
17 local redevelopment programs, the federal Community
18 Development Block Grant Program, or local in-lieu fees.
19 "Assisted housing developments" shall also include multifamily
20 rental units that were developed pursuant to a local inclusionary
21 housing program or used to qualify for a density bonus pursuant
22 to Section 65916.
23 (A) The analysis shall include a listing of each development by
24 project name and address, the type of governmental assistance
25 received,the earliest possible date of change from low-income use
26 and the total number of elderly and nonelderly units that could be
27 lost from the locality's low-income housing stock in each year
28 during the 10-year period. For purposes of state and federally
29 funded projects, the analysis required by this subparagraph need
30 only contain information available on a statewide basis.
31 (B) The analysis shall estimate the total cost of producing new
32 rental housing that is comparable in size and rent levels,to replace
33 the units that could change from low-income use,and an estimated
34 cost of preserving the assisted housing developments. This cost
35 analysis for replacement housing may be done aggregately for
36 each five-year period and does not have to contain a
37 project-by-project cost estimate.
38 (C) The analysis shall identify public and private nonprofit
39 corporations known to the local government which have legal and
99
-5— AB 1160
1 managerial capacity to acquire and manage these housing
2 developments.
3 (D) The analysis shall identify and consider the use of all
4 federal, state,and local financing and subsidy programs which can
5 be used to preserve, for lower income households, the assisted
6 housing developments,identified in this paragraph, including,but
7 not limited to, federal Community Development Block Grant
8 Program funds,tax increment funds received by a redevelopment
9 agency of the community, and administrative fees received by a
10 housing authority operating within the community. In considering
11 the use of these financing and subsidy programs,the analysis shall
12 identify the amounts of funds under each available program which
13 have not been legally obligated for other purposes and which could
14 be available for use in preserving assisted housing developments.
15 (b) (1) A statement of the community's goals, quantified
16 objectives,and policies relative to the maintenance,preservation,
17 improvement, and development of housing.
18 (2) It is recognized that the total housing needs identified
19 pursuant to subdivision(a)may exceed available resources and the
20 community's ability to satisfy this need within the content of the
21 general plan requirements outlined in Article 5 (commencing with
22 Section 65300). Linder these circumstances, the quantified
23 objectives need not be identical to the total housing needs. The
24 quantified objectives shall establish the maximum number of
25 housing units by income category that can be constructed,
26 rehabilitated, and conserved over a five-year time period.
27 (c) A program which sets forth a five-year schedule of actions
28 the local government is undertaking or intends to undertake to
29 implement the policies and achieve the goals and objectives of the
30 housing element through the administration of land use and
31 development controls, provision of regulatory concessions and
32 'incentives, and the utilization of appropriate federal and state
33 financing and subsidy programs when available and the utilization
34 of moneys in a low- and moderate-income housing fund of an
35 agency if the locality has established a redevelopment project area
36 pursuant to the Community Redevelopment Law (Division 24
37 (commencing with Section 33000)of the Health and Safety Code).
38 In order to make adequate provision for the housing needs of all
39 economic segments of the community,the program shall do all of
40 the following:
99
AB 1160 —6-
1 (1) (A) Identify adequate sites which will be made available
2 through appropriate zoning and development standards and with
3 services and facilities,including sewage collection and treatment,
4 domestic water supply, and septic tanks and wells, needed to
5 facilitate and encourage the development of a variety of types of
6 housing for all income levels, including multifamily rental
7 housing, factory-built housing, mobilehomes, housing for
8 agricultural employees, emergency shelters, and transitional
9 housing in order to meet the community's housing goals as
10 identified in subdivision(b).
11 (i) Where the inventory of sites, pursuant to paragraph (3) of
12 subdivision(a), does not identify adequate sites to accommodate
13 the need for groups of all household income levels pursuant to
14 Section 65584,the program shall provide for sufficient sites with
15 zoning that permits owner-occupied and rental multifamily
16 residential use by right, including density and development
17 standards that could accommodate and facilitate the feasibility of
18 housing for very low and low-income households.
19 (ii) Where the inventory of sites pursuant to paragraph (3) of
20 subdivision(a) does not identify adequate sites to accommodate
21 the need for farmworker housing, the program shall provide for
22 sufficient sites to meet the need with zoning that permits
23 farmworker housing use by right, including density and
24 development standards that could accommodate and facilitate the
25 feasibility of the development of farmworker housing for low-and
26 very low income households.
27 (B) For purposes of this paragraph, the phrase "use by right"
28 shall mean the use does not require a conditional use permit or a
29 planned unit development or other discretionary permit, except
30 when the proposed project is a mixed-use project involving both
31 commercial or industrial uses and residential uses.Use by right for
32 all rental multifamily residential housing shall be provided in
33 accordance with subdivision(f)of Section 65589.5. The changes
34 made to this subparagraph by Chapter—of the Statutes of 2003
35 are declaratory of existing law.
36 (C) The requirements of this subdivision regarding
37 identification of sites for farmworker housing shall apply
38 commencing with the next revision of housing elements required
39 by Section 65588 following the enactment of this subparagraph,
99
-7— AB 1160
1 (2) Assist in the development of adequate housing to meet the
2 needs of low-and moderate-income households.
3 (3) Address and, where appropriate and legally possible,
4 remove governmental constraints to the maintenance,
5 improvement, and development of housing,including housing for
6 all income levels and housing for persons with disabilities. The
7 program shall remove constraints to, or provide reasonable
8 accommodations for housing designed for, intended for
9 occupancy by, or with supportive services for, persons with
10 disabilities.
11 (4) Conserve and improve the condition of the existing
12 affordable housing stack, which may include addressing ways to
13 mitigate the loss of dwelling units demolished by public or private
14 action.
15 (5) Promote housing opportunities for all persons regardless of
16 race, religion, sex,marital status,ancestry, national origin, color,
17 familial status,or disability.
18 (6) (A) Preserve for lower income households the assisted
19 housing developments identified pursuant to paragraph (8) of
20 subdivision (a). The program for preservation of the assisted
21 housing developments shall utilize, to the extent necessary, all
22 available federal,state,and local financing and subsidy programs
23 identified in paragraph (8) of subdivision (a), except where a
24 community has other urgent needs for which alternative funding
25 sources are not available. The program may include strategies that
26 involve local regulation and technical assistance.
27 (B) The program shall include an identification of the agencies
28 and officials responsible for the implementation of the various
29 actions and the means by which consistency will be achieved with
30 other general plan elements and community goals. The local
31 government shall make a diligent effort to achieve public
32 participation of all economic segments of the community in the
33 development of the housing element, and the program shall
34 describe this effort.
35 (d) The analysis and program for preserving assisted housing
36 developments required by the amendments to this section enacted
37 by the Statutes of 1989 shall be adopted as an amendment to the
38 housing element by July 1, 1992.
39 (e) Failure of the department to review and report its findings
40 pursuant to Section 65585 to the local government between July
99
AB 11.64 —8-
1
8s-.-1 1, 1992, and the next periodic review and revision required by
2 Section 65588, concerning the housing element amendment
3 required by the amendments to this section by the Statutes of 1989,
4 shall not be used as a basis for allocation or denial of any housing
5 assistance administered pursuant to Part 2 (commencing with
6 Section 50400)of Division 31 of the Health and Safety Code.
7 SEC. 2. Section 65852.2 of the Government Code is amended
8 to read:
9 65852.2. (a) (1) Any local agency may, by ordinance,
10 provide for the creation of second units in single-family and
11 multifamily residential zones. The ordinance may do any of the
12 following:
13 (A) Designate areas within the jurisdiction of the local agency
14 where second units may be permitted. The designation of areas
15 may be based on criteria,that may include,but are not limited to,
16 the adequacy of water and sewer services and the impact of second
17 units on traffic flow.
18 (B) Impose standards on second units that include,but are not
19 limited to, parking, height, setback, lot coverage, architectural
20 review,maximum size of a unit,and standards that prevent adverse
21 impacts on any real property that is listed in the California Register
22 of Historic Places.
23 (C) Provide that second units do not exceed the allowable
24 density for the lot upon which the second unit is located,and that
25 second units are a residential use that is consistent with the existing
26 general plan and zoning designation for the lot.
27 (2) The ordinance shall not be considered in the application of
28 any local ordinance,policy,or program to limit residential growth.
29 (3) When a local agency receives its first application on or after
30 July 1, 2003, for a permit pursuant to this subdivision, the
31 application shall be considered ministerially without discretionary
32 review or a hearing, notwithstanding Section 65901 or 65906 or
33 any local ordinance regulating the issuance of variances or special
34 use permits.Nothing in this paragraph may be construed to require
35 a local government to adopt or amend an ordinance for the creation
36 of second units. A local agency may charge a fee to reimburse it
37 for costs that it incurs as a result of amendments to this paragraph
38 enacted during the 2041-02 Regular Session of the Legislature,
39 including the costs of adopting or amending any ordinance that
40 provides for the creation of second units.
99
F
-9— AB 1.160
1 (b) (1) When a local agency which that has not adopted an
2 ordinance governing second units in accordance with subdivision
3 (a)or(c)receives its first application on or after July 1, 1983,for
4 a permit pursuant to this subdivision,the local agency shall accept
5 the application and approve or disapprove the application
6 ministerially without discretionary review pursuant to this
7 subdivision unless it adopts an ordinance in accordance with
8 subdivision (a) or (c) within 120 days after receiving the
9 application. Notwithstanding Section 65901 or 65906, every-a
10 local agency sl may not require a variance or special use
1 i permit for the creation of second unit"¢"n se _- and shall
12 approve an application far a second unit that complies with all of
13 the following:
14 (A) The unit is not intended for sale and may be rented.
15 (B) The lot is zoned for single-family or multifamily use.
16 (C) The lot contains an existing single-family dwelling.
17 (D) The second unit is either attached to the existing dwelling
18 and located within the living area of the existing dwelling or
19 detached from the existing dwelling and located on the same lot as
20 the existing dwelling.
21 (E)
22 exeeed 30 pereetit of the ex.4-sting area.
23
rj+� J t V224.i 1.L1224 321L41I
24 nof exeeed 1, .
25 (G -Requirements relating to height, setback, lot coverage,
26 architectural review, site plan review, fees, charges, and other
27 zoning requirements generally applicable to residential
28 construction in the zone in which the property is located.
29 (R€ -
30 (F) Local building code requirements which apply to detached
31 dwellings, as appropriate.
32 (4)--
33 (G) Approval by the local health officer where a private sewage
34 disposal system is being used, if required.
35 (2) No other local ordinance,policy, or regulation shall be the
36 basis for the denial of a building permit or a use permit under this
37 subdivision.
38 (3) This subdivision establishes the maximum standards that
39 local agencies shall use to evaluate proposed second units on lots
40 zoned for residential use which contain an existing single-family
99
AB 1160 _10—
I dwelling. No additional standards, other than these provided in
2 this subdivision or subdivision (a), shall be utilized or imposed;
3
4
5 (4) No changes in zoning ordinances or other ordinances or any
6 changes in the general plan shall be required to implement this
7 subdivision.Any local agency may amend its zoning ordinance or
8 general plan to incorporate the policies, procedures, or other
9 provisions applicable to the creation of second units if these
10 provisions are consistent with the limitations of this subdivision.
11 (5) A second unit which conforms to the requirements of this
12 subdivision shall not be considered to exceed the allowable density
13 for the lot upon which it is located, and shall be deemed to be a
14 residential use which is consistent with the existing general plan
15 and zoning designations for the lot.The second units shall not be
16 considered in the application of any local ordinance, policy, or
17 program to limit residential growth.
18 (c) (1) Local agencies shall permit second units in all
19 residential zones but may impose greater restrictions on second _
20 units in a particular zone or zones than on second units in other
21 zones. No local agency shall adopt an ordinance whie that totally
22 precludes second units within single-family or multifamily zoned
23 areas unless the ordinance contains findings based on substantial
24 evidence acknowledging that the ordinance may limit housing
25 opportunities of the region and further contains findings based on
26 substantial evidence that specific adverse impacts on the public
27 health, and safety, awas defined in paragraph (2) of
28 subdivision (d) of Section 65589.5, that would result from.
29 allowing second units within single-family and multifamily zoned
30 areas justify adopting the ordinance.
31 (2) No local agency may apply any standard or condition for
32 approval ofsecond units that is not objective or that has the effect
33 of precluding the construction of second units at affordable
34 housing costs, as defined in Section 50052.5 of the Health and
35 Safety Code, unless the city, county, or city and county makes a
36 written finding, based upon substantial evidence, that the waiver
37 or reduction of the standard or condition is either of the following..
38 (A) Is not required in order to provide for affordable housing
39 costs, as defined in Section 50052.5 of the Health and Safety Code.
99
1
AB 1160
1 (B) Would have a specific adverse impact, as defined in
2 paragraph (2) qfsubdivision (d)of Section 65589.5, upon public
3 health and safety or the physical environment or on any real
4 property that is listed in the California Register of Historical
5 Resources and for which there is no feasible method to
6 satisfactorily mitigate or avoid the specific adverse impact without
7 rendering the development unaffordable to low- and
8 moderate-income households.
9 (3) No local agency may adopt an ordinance that does either of
10 the following:
11 (A) Requires an applicant or occupant of a second unit or
12 principal dwelling unit to be an owner-occupant, or his or her
13 dependent, or a caregiver for the property owner or dependent.
14 (B) Restricts the rent or income of occupants of second units or
15 that limits occupancy based on age, unless the rent or income
16 restriction is mandated pursuant to a local program regulating
17 rents or requiring a portion of new residential developments to
18 consist of units with rent or income restrictions.
19 (4) Nothing in this section shall be construed to enlarge or
20 diminish the authority of a city, county, or city and county to
21 regulate rents or require a developer to construct housing with rent
22 or income restrictions.
23 (d) A local agency may establish minimum and maximum unit
24 size requirements for both attached and detached second units.No
25 minimum or maximum size for a second unit,or size based upon
26 a percentage of the existing dwelling, shall be established by
27 ordinance for either attached or detached dwellings which does not
28 permit at least an efficiency unit to be constructed in compliance
29 with local development standards.In no case may the total area of
30 floor space of an attached or detached second unit be more than
31 40 percent of the living area of the principal dwelling unit, nor
32 more than 1,200 square feet nor less than 400 square feet.
33 (e) Parking requirements for second units shall not exceed one
34 parking space per secondary unit or per bedroom every two
35 bedrooms of the secondary unit. Additional pafking may be
36 requir-ed provided that a finding is ntade difft a anal pHdEi"g
37 reqoirefftentsare
difee.., related to the use of the seeend tmit
38 are eoftsisteft.
0- ad standards Wlieable to
39 existing 4welliftgs Covered -parking may not be required.
40 Off-street, tandem, and on-street parking shall be permitted-in
99
AB 1160 —12-
1 ----- ageftey a
3 r_f_____g.y__ __.___.__afetts __ _______e___r____'__®. base
4or,fire find life sa&ty
3
or that it is ftet permifted mywher-e else ift the
6 jefisdiefifm. Upon request of the applicant the city, county, or city
7 and county shall also grant an additional 50 percent reduction in
8 the parking standards or requirements applicable to the secondary
9 unit if the unit is located within one-half mile of an existing rail
10 transit station, a ferry terminal served by either a bus or rail transit
11 service, or the intersection of*two or more major bus routes with
12 a frequency of service interval of.15 minutes or less during the
13 morning and afternoon peak commute periods.
14 (f) Fees charged for the construction of second units shall be
15 determined in accordance with Chapter 5 (commencing with
16 Section 66000).
17 (g) This section does not limit the authority of local agencies
18 to adopt less restrictive requirements for the creation of second
19 units.
20 (h) Local agencies shall submit a copy of the ordinances
21 adopted pursuant to subdivision (a) or (c) to the Department of
22 Housing and. Community .Development within 60 days after
23 adoption.
24 (i) As used in this section, the following terms mean:
25 (1) "Living area,37 means the interior habitable area of a
26 dwelling unit including basements and attics but does not include
27 a garage or any accessory structure.
28 (2) `:Local agency" means a city, county, or city and county,
29 whether general law or chartered.
30 (3) For purposes of this section, "neighborhood"has the same
31 meaning as set forth in Section 65589.5.
32 (4) "Second unit" means an attached or a detached residential
33 dwelling unit which provides complete independent living
34 facilities for one or more persons. It shall .include permanent
35 provisions for living,sleeping, eating,cooking, and sanitation on
36 the same parcel as the single-family dwelling is situated.A second
37 unit also includes the following:
38 (A) An efficiency unit,as defined in Section 17958.1 of Health
39 and Safety Code.
sv
i
® 1.3— AB 1.160
1 (B) A manufactured hone, as defined in Section 18007 of the
2 Health and Safety Code.
3 0) Nothing in this section shall be construed to supersede or in
4 any way alter or lessen the effect or application of the California
5 Coastal Act(Division 20(commencing with Section 30000)of the
6 Public Resources Code),except that the local government shall not
7 be required to held public hearings for coastal development permit
8 applications for second units.
9 SEC. 3. Section 65915 of the Government Code is amended
10 to read:
11 65915. (a) When an applicant proposes a housing
12 development within.the jurisdiction of a city, county, or city and
13 county, that local government shall provide the applicant
14 incentives or concessions for the production of housing units as
15 prescribed in this chapter.All cities,counties,or cities and counties
16 shall adopt an ordinance that specifies how compliance with this
17 section will be implemented.
18 (b) A city,county,or city and county shall either grant a density
19 bonus and at least one of the concessions or incentives identified
20 in subdivision 0), or provide other incentives or concessions of
21 equivalent financial value based upon the land cost per dwelling
22 unit, when the applicant for the housing development agrees or
23 proposes to construct at least any one of the following:
24 (1) Twenty percent of the total units of a housing development
25 for lower income households,as defined in Section 50079.5 of the
26 Health and Safety Code.
27 (2) Ten.percent of the total units of a housing development for
28 very low income households, as defined in Section 50105 of the
29 Health and Safety Code.
30 (3) Fifty percent of the total dwelling units of a housing
31 development for qualifying residents, as defined in Section 51.3
32 of the Civil Code.
33 (4) Twenty percent of the total dwelling units in a
34 condominium project as defined in subdivision(f)of Section 1351
35 of the Civil Code, for persons and families of moderate income,
36 as defined in Section 50093 of the Health and Safety Code.
37 The city, county, or city and county shall grant the additional
38 concession or incentive required by this subdivision unless the
39 city, county, or city and county makes a written finding, based
40 upon substantial evidence, that the additional concession or
99
AB 1160 — 14-
1 incentive is not required in order to provide for affordable housing
2 costs,as defined in Section 50052.5 of the Health and Safety Code,
3 or for rents for the targeted units to be set as specified in
4 subdivision(c).
5 (c) (1) An applicant shall agree to,and the city,county, or city
6 and county shall ensure, continued affordability of all lower
7 income density bonus units for 30 years or a longer period of time
S if required by the construction or mortgage financing assistance
9 program, mortgage insurance program,or rental subsidy program.
10 Those units targeted for lower income households, as defined in
11 Section 50079.5 of the Health and Safety Code,shall be affordable
12 at a rent that does not exceed 30 percent of 60 percent of area
13 median income. Those units targeted for very low income
14 households,as defined in Section 50105 of the Health and Safety
15 Code,shall be affordable at a rent that does not exceed 30 percent
16 of 50 percent of area median income.
17 (2) An.applicant shall agree to, and the city,county,or city and
18 county shall ensure, continued affordability of the
19 moderate-income units that are directly related to the receipt of the
20 density bonus for 10 years if the housing is in a condominium
21 project as defined in subdivision(f) of Section 1351 of the Civil
22 Code.
23 (d) (1) Upon request of the applicant; the city, county, or city
24 and aunty shall also grant a 25 percent reduction in the parking
25 standards or requirements applicable to the proposed
26 development.
27 (2) Upon request of the applicant, the city, county, or city and
28 county shall grant a 50 percent reduction in the parking standards
29 or requirements applicable to the proposed development in lieu of
30 the reduction in paragraph (1)where the proposed development is
31 located within one--half mile of an existing rail transit station, a
32 ferry terminal served by either a bus or rail transit service, or the
33 intersection of*two or more major bus routes with a frequency of
34 service interval of 15 minutes or less during the morning and
35 afternoon peak commute periods.
36 (e) An applicant may submit to a city,county,or city and county
37 a proposal for the specific incentives or concessions that the
38 applicant requests pursuant to this section, and may request a
39 meeting with the city, county,or city and county.The city,county,
40 or city and county shall grant the concession or incentive requested
99
- 15— AB :1.160
1 by the applicant unless the city,county, or city and county makes
2 a written finding,based upon substantial evidence, of either of the
3 following:
4 (1) The concession or incentive is not required in order to
5 provide for affordable housing costs, as defined in Section
6 50052.5 of the Health and Safety Code,or for rents for the targeted
7 units to be set as specified in subdivision(c).
8 (2) The concession or incentive would have a specific adverse
9 impact, as defined in paragraph (2)of subdivision(d) of Section
10 65589.5, upon public health and safety or the physical
11 environment or on any real property that is listed in the California
12 Register of Historical Resources and for which there is no feasible
13 method to satisfactorily mitigate or avoid the specific adverse
14 impact without rendering the development unaffordable to low-
15 and moderate-income households.
16 The applicant may initiate judicial proceedings if the city,
17 county, or city and county refuses to grant a requested density
18 bonus, incentive,or concession. 1f a court finds that the refusal to
19 grant a requested density bonus, incentive, or concession is in
20 violation of this section, the court shall award the plaintiff'
21 reasonable attorney's fees and costs of suit. Nothing in this
22 subdivision shall be interpreted to require a local government to
23 grant an incentive or concession that has a specific, adverse
24 impact, as defined in paragraph(2)of subdivision (d) of Section
25 65589.5,upon health, safety, or the physical environment, and for
26 which there is no feasible method to satisfactorily mitigate or
27 avoid the specific adverse impact.Nothing in this subdivision shall
28 be interpreted to require a local government to grant an incentive
29 or concession that would have an adverse impact on any real
30 property that is listed in the California Register of Historical
31 Resources. The city, county, or city and county shall establish
32 procedures for carrying out this section, that shall include
33 legislative body approval of the means of compliance with this
34 section. The city, county, or city and county shall also establish
35 procedures for waiving or modifying development and zoning
36 standards that would otherwise inhibit the utilization of the density
37 bonus on specific sites. These procedures shall include,but not be
38 limited to,such items as minimum lot size,side yard setbacks,and
39 placement of public works improvements.
40 (e)--
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AB 11.60 —16-
1 (f) In no case may a city, county, or city and county apply any
2 development standard that will have the effect of precluding the
3 construction of a development meeting the criteria of subdivision
4 (b) at the densities or with the concessions or incentives permitted
5 by this section. An applicant may submit to a city, county,or city
6 and county a proposal for the waiver or reduction of development
7 standards and may request a meeting with the city,county, or city
8 and county. If a court finds that the refusal to grant a waiver or
9 reduction of development standards is in violation of this section,
10 the court shall award the plaintiff reasonable attorney's fees and
1I costs of suit. Nothing in this subdivision shall be interpreted to
12 require a local government to waive or reduce development
13 standards if the waiver or reduction would have a specific,adverse
14 impact, as defined in paragraph (2) of subdivision(d) of Section
15 65589.5,upon health, safety,or the physical environment,and for
16 which there is no feasible method to satisfactorily mitigate or
17 avoid the specific adverse impact.Nothing in this subdivision shall
18 be interpreted to require a local government to waive or reduce
19 development standards that would have an adverse impact on any
20 real property that is listed in the California Register of Historical
21 Resources.
22 (4)--
23 (g) The applicant shall show that the waiver or modification is
24 necessary to make the housing units economically feasible.
25 (g)-
26 (h) (1) For the purposes of this chapter,except as provided in
27 paragraph(2), "density bonus" means a density increase of at least
28 25 percent,unless a lesser percentage is elected by the applicant,
29 over the otherwise maximum allowable residential density under
30 the applicable zoning ordinance and land use element of the
31 general plan as of the date of application by the applicant to the
32 city,county,or city and county.All density calculations resulting
33 in fractional units shall be rounded up to the next whole number.
34 The granting of a density bonus shall not be interpreted,in and of
35 itself, to require a general plan amendment, local coastal plan
36 amendment, zoning change, or other discretionary approval. The
37 density bonus shall not be included when determining the number
38 of housing units which is equal to 10,20,or 50 percent of the total.
39 The density bonus shall apply to housing developments consisting
40 of five or more dwelling units.
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1.7— AB 1.160
1 (2) For the purposes of this chapter, if a development does not
2 meet the requirements of paragraph(1), (2),or(3)of subdivision
3 (b), but the applicant agrees or proposes to construct a
4 condominium project as defined in subdivision(f)of Section 1351
5 of the Civil Code,in which at least 20 percent of the total dwelling
6 units are reserved for persons and families of moderate income,as
"r defined in Section 50093 of the Health and Safety Code,a"density
8 bonus" of at least 10 percent shall be granted, unless a lesser
9 percentage is elected by the applicant, over the otherwise
10 maximum allowable residential density under the applicable
11 zoning ordinance and land use element of the general plan as of the
12 date of application by the applicant to the city,county,or city and
13 county. All density calculations resulting in fractional units shall
14 be rounded up to the next whole number.The granting of a density
15 bonus shall not be interpreted,in and of itself,to require a general
16 plan amendment, local coastal plan amendment,zoning change,or
17 other discretionary approval. The density bonus shall not be
18 included when determining the number of housing units which is
19 equal to 20 percent of the total. The density bonus shall apply to
20 housing developments consisting of five or more dwelling units.
21 (4i}-
22 (i) "Housing development," as used in this section,means one
23 or more groups of projects for residential units constructed in the
24 planned development of a city,county, or city and county. For the
25 purposes of this section, "housing development" also includes
26 either (1) a project to substantially rehabilitate and convert an
27 existing commercial building to residential use, or (2) the
28 substantial rehabilitation of an existing multifamily dwelling, as
29 defined in subdivision(d)of Section 65863.4,where the result of
30 the rehabilitation would be a net increase in available residential
31 units. For the purpose of calculating a density bonus, the
32 residential units do not have to be based upon individual
33 subdivision maps or parcels.The density bonus shall be permitted
34 in geographic areas of the housing development other than the
35 areas where the units for the lower income households are located.
36 (+)-
37 6) The granting of a concession or incentive shall not be
38 interpreted, in and of itself,to require a general plan amendment,
39 local coastal plan amendment, zoning change, or other
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1
AB 1.160 —18-
1
18-
1 discretionary approval. This provision is declaratory of existing
2 law.
3 q)-
4 (k) For the purposes of this chapter, concession or incentive
5 means any of the following:
6 (1) A reduction in site development standards or a modification
7 of zoning code requirements or architectural design requirements
8 that exceed the minimum building standards approved by the
9 California Building Standards Commission as provided in Part 2.5
10 (commencing with Section 18901) of Division 13 of the Health
11 and Safety Code, including, but not limited to, a reduction in
12 setback and square footage requirements and in the ratio of
13 vehicular parking spaces that would otherwise be required.
14 (2) Approval of mixed use zoning in conjunction with the
15 housing project if commercial,office,industrial,or other land uses
16 will reduce the cost of the housing development and if the
17 commercial, office, industrial, or other land uses are compatible
18 with the housing project and the existing or planned development
19 in the area where the proposed housing project will be located.
20 (3) Other regulatory incentives or concessions proposed by the
21 developer or the city, county, or city and county that result in
22 identifiable and actual cost reductions.
23 This subdivision does not limit or require the provision of direct
24 financial incentives for the housing development, including the
25 provision of publicly owned land,by the city, county, or city and
26 county, or the waiver of fees or dedication requirements.
27
28 (l) If an applicant agrees to construct both 20 percent of the total
29 units for lower income households and 10 percent of the total units
30 for very low income households,the developer is entitled to only
31 one density bonus and at least one additional concession or
32 incentive identified in Section 65913.4 under this section although
33 the city, city and county, or county may, at its discretion, grant
34 more than one density bonus.
35 ()--
36 (m) Nothing in this section shall be construed to supersede or
37 in any way alter or lessen the effect or application of the California
38 Coastal Act(Division 20(commencing with Section 30000)of the
39 Public Resources Code).
40 {- j---
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_ 19--- AB 1160
1 (n) A local agency may charge a fee to reimburse it for costs it
2 incurs as a result of amendments to this section enacted during the
3 2001-02 Regular Session of the Legislature.
4 ot�-
5 (o) For purposes of this section,the following definitions shall
6 apply:
7 (1) "Development standard" fftemys--erfty includes site,
8 construction, or use standards or conditions that apply to
9 residential development, whether adopted by ordinance, general
10 plan element, specific plan, charter amendment, or other local
I1 eoftdittoft;law,policy, resolution, or regulation.
12 (2) "Maximum allowable residential density" means the
13 density allowed under the zoning ordinance, or if a range of
14 density is permitted, means the maximum allowable density for
15 the specific zoning range applicable to the project.
16 SEC.4. Section 65917.1 is added to the Government Code,to
17 read:
18 65917.1. Multifamily and single-family residential use is a
19 permitted use on any parcel zoned and developed for primary or
20 secondary education. The residential density permitted on such a
21 parcel is the greatest multifamily residential density permitted on
22 any parcel within 300 feet plus any density bonus mandated by
23 Section 65915.If there is no multifamily residential use permitted
24 within 300 feet, the permitted residential density on the parcel
25 being developed for primary or secondary education is the greatest
26 multifamily residential density on the nearest parcel zoned for
27 multifamily residential use plus any density bonus mandated by
28 Section 65915.
29 SEC. 5. Notwithstanding Section 17610 of the Government
30 Code, if the Commission on State Mandates determines that this
31 act contains costs mandated by the state,reimbursement to local
32 agencies and school districts for those costs shall be made pursuant
33 to Part 7(commencing with Section 17500)of Division 4 of Title
34 2 of the Government Code. If the statewide cost of the claim for
35 reimbursement does not exceed one million dollars($1,000,000),
36 reimbursement shall be made from the State Mandates Claims
37 Fund.
0
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