XAVIER BECERRA Attorney General
AGO 17-602
No. 17-602
California Attorney General Opinion
Office of The Attorney General State of California
April 9, 2019
ANYA M.
BINSACCA Deputy Attorney General
OPINION
THE
HONORABLE SHARON QUIRK-SILVA, MEMBER OF THE STATE ASSEMBLY,
has requested an opinion on the following question:
The
Density Bonus Law (Gov. Code, §§ 65915-65918)
rewards real estate developers who provide affordable housing
by permitting them to build additional units, called
“density-bonus units.” May a city or county
condition its grant of a developer’s application for a
density bonus upon the developer’s payment of a
“public benefit fee” that is imposed only on the
density-bonus units?
CONCLUSION
No. A
city or county may not condition its grant of a
developer’s application for a density bonus under the
state Density Bonus Law upon the developer’s payment of
a public benefit fee imposed only on the density-bonus units.
ANALYSIS
Under
the Planning and Zoning Law,1 “[t]he Legislature
has required every county and city to adopt ‘a
comprehensive, long-term general plan for the physical
development of the county or city . . .
.’”2 The general plan provides a roadmap
for future development, as well as the city’s or
county’s “fundamental policy decisions about such
development.”3 A general plan is required to include,
among many other things, “a statement of the standards
of population density and building intensity recommended for
the various districts . . . .”4
The
Legislature has enacted several statutes aimed at redressing
the shortage of affordable housing in the state, including
section 65915, the Density Bonus Law5 at issue here. The
Density Bonus Law incentivizes the building of affordable
housing by granting developers “a density increase over
the otherwise maximum allowable gross residential
density,”6 as well as other incentives or
concessions,7 in return for a commitment to provide
affordable housing as part of a development
project.8 “In other words, the Density
Bonus Law ‘reward[s] a developer who agrees to build a
certain percentage of low-income housing with the opportunity
to build more residences than would otherwise be permitted by
the applicable local regulations.’”[9] In general,
the larger the percentage of affordable housing included in
the project and the needier the population served, the larger
the density bonus.10 Furthermore, if the developer meets
the requirements of section 65915, the city or county
must award a density bonus.11
We are
informed that several cities12 have adopted
ordinances that condition the grant of a...
