Court upholds density bonus law that exempts certain housing
projects from local restrictions
Bob Egelko, Feb 4, 2022
state appeals court says developers who agree to include affordable
housing in their projects can be exempted from zoning rules,
height limits and other local restrictions on neighborhood
construction. The ruling, in a case from San Diego, has potential
statewide impact as tensions over local control and the state’s
housing crisis continue to escalate.
1979 density bonus law incentivizes the construction
of affordable housing, the Fourth District Court of
Appeal said in a decision it certified Wednesday as a precedent
for future cases.
the developer commits to making a specified portion of the
project affordable to lower-income households, local
government must allow increased building density, grant permits,
and waive any conflicting local development standards unless
certain limited exceptions apply, Justice Judith Haller
said in the 3-0 ruling.
exceptions include threats to public health or safety, harm
to a historic resource, or conflicts with state or federal
laws. None applied to the proposed 20-story project overlooking
Balboa Park in San Diego, so it can be built despite opposition
from some community organizations, Haller said.
court had first issued the ruling Jan. 7 as a decision that
applied only to the San Diego project, but agreed to make
it a published precedent after hearing from the California
Building Industry Association and its Bay Area affiliate,
as well as the project contractor.
local governments have attempted to erect all manner
of obstacles to the construction of new housing, whether market-rate
or affordable, Bryan Wenter, an attorney for the builders
groups, said Thursday. This makes new housing harder
to provide generally, and substantially more expensive than
it would otherwise be.
tensions between local governments seeking to limit housing
development and state efforts to alleviate Californias
housing crisis have escalated in recent years. Multiple potential
measures that seek to reinforce local authorities control
over housing development are currently collecting signatures
in order to qualify for a future ballot. Meanwhile, Attorney
General Rob Bonta announced in November the creation of a
statewide housing strike force, intended to enforce laws promoting
housing development and tenants' rights.
Riley, a lawyer for Greystar, the San Diego project developer,
said Thursday that although the Density Bonus Law has been
on the books for more than 40 years and has been upheld by
the courts, it is not always enforced.
agencies are still hesitant to approve density-bonus projects
when neighborhood groups are opposed, she said.
consistent with the principle of local self-government, said
Everett DeLano, lawyer for the Bankers Hill/Park West Community
Association, which challenged the San Diego development.
ruling greatly restricts what influence communities
can have on development projects, what cities are able to
do, DeLano said. It seems be saying that if you
have a density-bonus project, you can do whatever you want.
noted that San Diego, whose Planning Commission and City Council
had approved the development under local standards, also asked
the court not to publish the decision as a precedent for future
cases. The city said the Density Bonus Act, the basis of the
ruling, had not been discussed during arguments in the case.
said his clients have not decided whether to appeal to the
state Supreme Court. If the ruling becomes final, it will
be binding on trial courts statewide.
development is being built on vacant land formerly owned by
a local church. Local standards would normally limit construction
to about 170 feet and 147 housing units, but the city approved
Greystars plan for a 223-foot building with 204 housing
units after the developer promised to make 18 of the units
affordable for households with 50% or less of the local median
project was also allowed to include a courtyard and exempted
from normal requirements for setbacks from lot boundaries.
Riley said construction is almost completed.
client and other neighborhood groups said the development
would interfere with views, cast shade on areas of Balboa
Park and potentially interfere with flight paths to the airport.
the court said the extra height and other exemptions were
proper under the state law, and noted that city officials
had found the project consistent with San Diegos overall
land-use plan. Haller said the law also allows developers
to include amenities, such as the courtyard, that
are unrelated to affordable housing.