Can a California city require that the bonus market-rate units a developer earns under the state Density Bonus Law also be sold or rented as affordable?
Plain-English summary
The Density Bonus Law (DBL), Government Code sections 65915-65918, is California's principal statutory tool for nudging private developers to include affordable units in market-rate housing projects. The mechanism is a quid pro quo: a developer who voluntarily includes a defined percentage of affordable units in a project gets to build a defined number of "density-bonus units," meaning units beyond the local zoning's density cap, plus other state-law incentives like reduced parking ratios, height bumps, and waivers of conflicting local development standards.
The math is the heart of the program. Section 65915(f) sets a precise schedule: for example, a 10% lower-income set-aside earns the developer a 20% density bonus; a 15% very-low-income set-aside earns 50%; and so on, up to 80% bonuses for 100% affordable projects. The formula is an exchange ratio. The DBL was specifically designed to leave the bonus units themselves unrestricted, so the developer can sell or rent them at market and recoup the cost of the affordable set-aside.
The question asked: can a city or county require that those bonus units also be sold or rented at affordable prices? The AG said no. Layering local affordability on the state-mandated bonus units changes the trade ratio and undermines the developer's incentive to participate. Because the DBL is comprehensive in how it treats bonus unit calculation, local rules requiring affordability on bonus units are preempted under California Constitution article XI, section 7's conflict-preemption analysis.
The AG carved out a parallel-program safety valve. A city or county can adopt its own local density-bonus program that goes beyond the state law and award additional bonus units of its own. The city can attach whatever conditions it likes to those locally-awarded extra units, including affordability requirements. The state law sets a floor for what state-law bonus units must look like, not a ceiling on what locally-awarded extras can include.
What this means for you
If you are a city planner or housing official
If your jurisdiction has been imposing affordability covenants on state-law density-bonus units, you have a preemption problem. Rewrite the program. Two paths forward:
- Strip affordability requirements from state-law bonus units. The state-mandated bonus stays unrestricted. Your inclusionary requirements only apply to the underlying base project.
- Build a separate local density-bonus program on top. Define a local incentive that awards additional bonus units beyond the state grant, and attach your affordability conditions to those local extras. Make the local program clearly additive, not a modification of the state grant.
The opinion is not a recommendation that you reduce affordability requirements overall. It is a recommendation that you locate them legally: on the inclusionary base, or on locally-awarded extras, not on state-law bonus units.
If you are a housing developer
This opinion strengthens your hand against local conditions that scramble the state formula. If a city is conditioning state-law bonus unit approval on additional affordability covenants, you have a direct preemption argument. The Bankers Hill 150 decision (2022), cited in the opinion, also confirms that the state law overrides conflicting local zoning. Document the local condition in writing, raise the preemption argument early, and consider Housing Accountability Act remedies (Gov. Code section 65589.5) if the city denies or downsizes the project on that basis.
If you are an affordable housing advocate
The opinion does not weaken state policy. It clarifies the architecture: state-law bonus units are explicitly market rate to keep the incentive working, and additional local affordability tools (inclusionary zoning, locally-awarded extra bonuses, in-lieu fees) operate in parallel. Advocacy for stronger inclusionary requirements should target the base project and locally-awarded extras, not the state-law bonus units.
If you are a land use attorney
The opinion is a useful citation in any density-bonus dispute. The chain runs: section 65915 is comprehensive, the state-law bonus is calibrated, conflict preemption applies, locally-imposed affordability on bonus units is invalid. The Latinos Unidos and Wollmer cases provide the standing and procedural framework for challenging non-conforming local programs.
Background and statutory framework
The Density Bonus Law has been on California's books since 1979 (Stats. 1979, ch. 1207, section 10). It sits within the Planning and Zoning Law (Gov. Code sections 65000-66499.58) but functions as a state preemption of local zoning whenever the developer triggers it. Section 65915(b) requires cities and counties to "grant one density bonus" plus incentives when a developer's project meets the affordability thresholds. Section 65915(f) gives the precise bonus schedule. The Legislature said "shall" with knowledge that section 14 of the Government Code defines "shall" as mandatory.
Subdivision (u) declares the legislative intent: to "allow public entities to reduce or remove development standards" that constrain affordable housing, and to incentivize private development of affordable units. The trade ratio embedded in the schedule is policy-calibrated. Tampering with that ratio at the local level breaks the policy choice the Legislature made.
The general rule on preemption comes from California Constitution article XI, section 7, which lets cities and counties make and enforce local ordinances "not in conflict with general laws." Where state law occupies a field comprehensively, or where local ordinances directly conflict with the state's chosen mechanism, the local ordinance is preempted. The AG concluded that imposing affordability on state-law bonus units directly conflicts with section 65915(f)'s formula and is therefore preempted.
The opinion notes that the AG's office sponsored AB 1893 (Stats. 2024, ch. 268), which amended the Housing Accountability Act, and the related 2024 housing reforms. The trajectory of recent state housing legislation has consistently been to strengthen state preemption against local restrictions, not weaken it.
Common questions
Can a city impose affordability requirements on the underlying base project (inclusionary zoning) but not on the bonus units?
Yes. The opinion is specific: state-law bonus units cannot bear additional affordability conditions, but the base project remains subject to local inclusionary zoning. So a 100-unit base project with a 15% inclusionary requirement can still trigger a state density bonus, with the inclusionary set-aside on the base and the bonus units unrestricted.
Can a locality require deed-restricted affordability on extra bonus units beyond the state minimum?
Yes. A locally-awarded extra bonus, on top of the state-law floor, can carry whatever local conditions the city or county chooses. The line is whether the affordability is on the state-law bonus or on a separately authorized local extra.
Does this opinion apply to charter cities?
Charter cities have constitutional home-rule authority for "municipal affairs" but not for matters of "statewide concern." The Legislature has explicitly declared housing supply a matter of statewide concern in multiple recent statutes, and the courts have generally followed (Bankers Hill 150). The Density Bonus Law applies to charter cities and general law cities alike.
Does this affect Housing Accountability Act remedies?
The Housing Accountability Act (Gov. Code section 65589.5) operates as a separate enforcement mechanism that limits local discretion to deny or downsize qualifying housing projects. AB 1893 (2024) and other recent amendments expanded those remedies. A locality that conditions a project on affordability requirements affecting state-law bonus units may also face HAA exposure.
What about parking, height, setbacks, and other waivers under the Density Bonus Law?
Section 65915(d) and related provisions give developers entitlement to incentives like parking reductions and conflicting-standard waivers. Those operate independently of the bonus unit calculation. A city's affordability condition on a bonus unit fails for the reasons explained here, but a city's denial of a parking or height waiver fails on its own state-law grounds under section 65915(d).
Citations
- Government Code section 65915 (Density Bonus Law core provisions)
- Government Code section 65915, subdivision (b) (mandatory grant of density bonus)
- Government Code section 65915, subdivision (f) (bonus calculation formula)
- Government Code section 65915, subdivision (u) (legislative intent)
- Government Code section 65915, subdivision (d) (mandatory incentives)
- Government Code sections 65000-66499.58 (Planning and Zoning Law)
- California Constitution, article XI, section 7 (local ordinances cannot conflict with general laws)
- Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755 (DBL preempts local zoning)
- Wollmer v. City of Berkeley (2009) 179 Cal.App.4th 933 (DBL within Planning and Zoning Law)
- Stats. 2024, ch. 268 (AB 1893, amending the Housing Accountability Act)
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/24-501_0.pdf
Original opinion text
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
OPINION
of
ROB BONTA
Attorney General
CATHERINE BIDART
Deputy Attorney General
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No. 24-501
April 2, 2025
The HONORABLE MONIQUE LIMÓN, MEMBER OF THE STATE SENATE,
has requested an opinion on a question relating to affordable housing.
QUESTION PRESENTED AND CONCLUSION
The Density Bonus Law, codified at Government Code sections 65915-65918,
seeks to incentivize real estate developers to build affordable housing for rental or sale at
below-market prices for households with qualifying incomes. It does so by allowing
developers who include a specified amount of affordable housing units in their
developments to build more housing units—referred to as “density-bonus units” or
“bonus units”—than would otherwise be permitted by local regulations that limit building
density. While nothing in the Density Bonus Law requires the density-bonus units to
themselves qualify as affordable, may a city or county nevertheless impose its own
affordable housing requirements on such units?
No. A city or county may not impose affordable housing requirements on densitybonus units that are awarded under the Density Bonus Law because it would
impermissibly conflict with the state law formula for calculating how many densitybonus units are awarded per affordable unit under state law. Because of this conflict, the
state Density Bonus Law would preempt the contemplated local legislation. A city or
county may, however, award its own density-bonus units in addition to those awarded
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under the Density Bonus Law and may impose affordable housing requirements on those
additional units.
BACKGROUND
In 1979, the Legislature enacted the Density Bonus Law “to address the shortage
of affordable housing in California.” 1 Since then, the Law has been amended dozens of
times, but its goal of providing more affordable housing remains unchanged. 2 To
understand this law and the question before us, it is helpful to have some familiarity with
the concepts of density and affordable housing.
“Density” refers to how many units of housing may be built on a property.
“Affordable” housing as relevant here refers to housing that is mandated to be restricted
for rent or sale below the market rate and is restricted to households with an income at or
below certain thresholds. A preliminary step in building affordable housing is obtaining
necessary permits from the governing city or county. Through local regulation such as
zoning ordinances and general plans, cities and counties regulate and limit the number—
that is, the density—of housing units that may lawfully be built on a given property.
Indeed, state law requires each city and county to adopt a “long-term general plan”
for development and requires the plan to include density standards regulating how many
units may be built on a parcel of property within the city or county. 3 Density standards
Latinos Unidos Del Valle De Napa Y Solano v. County of Napa (2013) 217 Cal.App.4th
1160, 1164 (Latinos Unidos); Stats. 1979, ch. 1207, § 10, p. 4748, eff. Oct. 2, 1979. The
Density Bonus Law is located within the Planning and Zoning Law. (Gov. Code,
§§ 65000-66499.58; Wollmer v. City of Berkeley (2009) 179 Cal.App.4th 933, 940-941.)
1
The Legislature has also since enacted other legislation with the goal of more affordable
housing in our state, including legislation sponsored by the Attorney General. (See, e.g.,
Stats. 2024, ch. 268 (enacting Assembly Bill 1893 to amend Housing Accountability Act
provisions relating to so-called “Builder’s Remedy” that requires approval of certain
affordable-housing projects); Assem. Com. on Housing and Community Development,
Assem. Floor Analysis of Assem. Bill no. 1893 (2023-2024 Reg. Sess.), as amended Aug.
23, 2024, p. 4 (referring to Attorney General as sponsor); see also Stats. 2024, ch. 293
(enacting Senate Bill 1037 to create new related remedies), Senate Rules Committee,
Floor Analysis of Sen. Bill no. 1037 (2023-2024 Reg. Sess.), as amended Aug. 23, 2024,
p. 8 (referring to Attorney General as source).)
2
Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 815 (Friends
of Lagoon Valley), citing Gov. Code, § 65300; see also Gov. Code, § 65302 (“general
plan shall consist of a statement of development policies and shall include a diagram or
diagrams and text setting forth objectives, principles, standards, and plan proposals”).
3
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may vary within a city or county; some areas may be designated as allowing (or “zoned”)
for high or medium density, and others for low density.
The Density Bonus Law overrides these local limits on density. The Law’s aim is
to incentivize housing developers to build affordable housing. 4 If a developer includes a
certain percentage of affordable housing in a proposed residential development, the
developer may build more units on the property than a city’s or county’s local regulations
would otherwise allow. 5 In other words, a developer who agrees to build a certain
percentage of affordable housing is rewarded under the Density Bonus Law with
permission to build more residences than would otherwise be permitted by local law. 6
The developer thus receives a “bonus” increase in the number, or density, of units they
are allowed to build on the property (hence, the Density Bonus Law). 7
Nothing in the Density Bonus Law requires the bonus units themselves to qualify
as affordable, i.e., below-market. 8 Instead, the bonus units, priced at a market rate, are
intended to help offset the cost to the developer of building the required percentage of
Gov. Code, § 65915, subd. (u); Friends of Lagoon Valley, supra, 154 Cal.App.4th at
p. 824; Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755, 763.
4
Gov. Code, § 65915, subds. (a), (b), (f); Friends of Lagoon Valley, supra, 154
Cal.App.4th at p. 824; see Gov. Code, § 65915, subd. (h)(4)(i) (defining housing
development as one including at least five residential units).
5
Friends of Lagoon Valley, supra, 154 Cal.App.4th at p. 824 (“Although application of
the statute can be complicated, its aim is fairly simple: When a developer agrees to
construct a certain percentage of the units in a housing development for low or very low
income households . . . , the city or county must grant the developer one or more itemized
concessions and a ‘density bonus,’ which allows the developer to increase the density of
the development by a certain percentage above the maximum allowable limit under local
zoning law”).
6
See ibid.; Gov. Code, § 65915, subds. (a), (b), (f). In addition to a density bonus, a
developer may elect to receive what are referred to as incentives or concessions, which
may include, for example, waivers or reductions in development standards, such as
setbacks or parking ratios that would otherwise be required. (Gov. Code, § 65915, subds.
(a)(3)(D)(i)(lll), (b), (d), (k).) A developer may receive similar incentives or concessions
for developments that include housing for seniors, transitional foster youth, veterans with
disabilities, or persons experiencing homelessness, or that include child-care facilities.
(Id., § 65915, subds. (b)(1)(C) & (E), (h).)
7
See Gov. Code, § 65915, subd. (b)(1) (requiring density bonus when developer
proposes certain percentage of affordable units “excluding any units permitted by the
density bonus awarded pursuant to this section”).
8
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below-market, affordable units. 9 Rather than seeking “additional public subsidy” from
the taxpayer, the Density Bonus Law uses regulatory incentives to encourage developers
to build more affordable housing. 10
If a proposed development meets the requirements of the Density Bonus Law, the
city or county is required to award a density bonus. 11 In general, the density bonus grows
larger as more affordable housing is included in the project, both in quantity (number of
units) and degree of affordability (low income or very low income, typically measured as
80% and 50%, respectively, of a county’s median family income). 12 For example,
Gov. Code, §§ 65915, subd. (u) (finding and declaring intent “to allow public entities to
reduce or even eliminate subsidies for a particular project by allowing a developer to
include more total units in a project than would otherwise be allowed by the local zoning
ordinance in exchange for affordable units”), 65917 (“In enacting this chapter it is the
intent of the Legislature that the density bonus or other incentives offered by the city,
county, or city and county pursuant to this chapter shall contribute significantly to the
economic feasibility of lower income housing in proposed housing developments. . . .”);
cf. id., § 65915, subd. (d)(1) (identifying lack of cost savings for developer as reason city
or county may deny developer’s requested concession or incentive).
9
Gov. Code, § 65915, subd. (u) (finding and declaring intent to reduce or eliminate
public subsidy and “cover at least some of the financing gap of affordable housing with
regulatory incentives, rather than additional public subsidy”).
10
Latinos Unidos, supra, 217 Cal.App.4th at p. 1167 (“section 65915 imposes a clear and
unambiguous mandatory duty on municipalities to award a density bonus when a
developer agrees to dedicate a certain percentage of the overall units in a development to
affordable housing”); Gov. Code, § 65915, subd. (b) (“A city, county, or city and county
shall grant one density bonus . . .,” emphasis added), id., § 14 (“‘[s]hall’ is mandatory”),
California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th
1133, 1143 (when interpreting statutes, presumption is “shall” is mandatory).
11
Gov. Code, § 65915, subd. (f); Bankers Hill 150 v. City of San Diego, supra, 74
Cal.App.5th at pp. 755, 770 (“Subdivision (f) of section 65915 includes tables that
prescribe a density bonus percentage, which progressively increases as a developer agrees
to add a greater percentage of affordable units in the Project. The higher the percentage of
affordable units, the higher the percentage of the density bonus allowing a developer to
exceed the zoned density”); see Gov. Code, § 65915, subd. (b)(1)(A) & (B) (defining
“lower income” and “very low income” with reference to Health and Safety Code
sections that adopt definitions in “Section 8 of the United States Housing Act of 1937,”
Title 42 of the United States Code, section 1437 et seq.); Megan Kirkeby, Deputy
Director of the California Department of Housing and Community Development, mem.
(continued…)
12
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including 10% low-income units yields a 20% density bonus, while 24% low-income
units yields a 50% density bonus. 13 Five percent very-low-income units yields a 20%
bonus, while 15% very-low-income units yields a 50% density bonus. 14
ANALYSIS
We are asked if a city or county may impose affordability requirements on the
bonus units that are awarded under the Density Bonus Law. Specifically, when a
developer has included the requisite percentage of affordable housing units in a proposed
project to qualify for a density bonus under the Density Bonus Law, may a city or county
require the resulting bonus units to be affordable? In short, the answer is no.
The question posed raises an issue of preemption. The Density Bonus Law
governs all cities and counties. 15 The California Constitution provides that “[a] county or
city may make and enforce within its limits all local, police, sanitary, and other
ordinances and regulations not in conflict with general laws.” 16 But a local ordinance
that conflicts with the Density Bonus Law is invalid. 17 As the Court of Appeal has
recognized, local requirements are preempted by the Density Bonus Law when they
increase what a developer must do to obtain its benefits. 18
As a preliminary matter, cities and counties may, and often do, require new
proposed housing developments to include a certain amount of affordable housing. 19 The
to Interested Parties, May 9, 2024 (describing and setting forth Section 8 levels for low
income and very low income), pp. 1-2, 6-14 available at https://www.hcd.ca.gov/sites
/default/files/docs/grants-and-funding/income-limits-2024.pdf (as of April 2, 2025).
13
Gov. Code, § 65915, subd. (f)(1).
14
Id., subd. (f)(2).
Gov. Code, §§ 65915, subd. (a) (“When an applicant seeks a density bonus for a
housing development within, or for the donation of land for housing within, the
jurisdiction of a city, county, or city and county, that local government shall comply with
this section. . . .”), 65918 (Density Bonus Law applies to charter cities).
15
16
Cal. Const., art. XI, § 7.
17
Ibid.; Latinos Unidos, supra, 217 Cal.App.4th at p. 1169.
Schreiber v. City of Los Angeles (2021) 69 Cal.App.5th 549, 558 (“A local ordinance is
preempted if it conflicts with the density bonus law by increasing the requirements to
obtain its benefits”); Latinos Unidos, supra, 217 Cal.App.4th at p. 1169 (“To the extent
the ordinance requires a developer to dedicate a larger percentage of its units to
affordable housing than required by section 65915, the ordinance is void”).
18
19
California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 441.
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Density Bonus Law contemplates as much, and counts those affordable units required by
a city or county as affordable units proposed by a developer in determining the number of
bonus units that must be awarded. 20 But the Density Bonus Law does not provide that
bonus units awarded pursuant to the Law must be affordable—instead, those bonus units
are an incentive and a reward for including affordable units within the development. 21
The question we must answer is whether imposing a local affordability
requirement on the bonus units themselves would conflict with the Density Bonus Law.
We conclude that it would conflict with the Density Bonus Law by requiring the
developer to include more affordable units than the formula adopted by the Legislature
requires. To encourage the construction of affordable housing, the Legislature has
developed a formula in which a certain amount of proposed affordable units yields a
certain amount of bonus units that would not otherwise be permitted by a city or county
due to local density limits. 22 Put more simply, the amount of affordable units the
developer initially proposes determines the amount of bonus units received. And, the
amount of affordable units (pre-density bonus units) includes whatever amount a city or
county may require to be affordable in proposed developments. 23 In contrast, the state
law does not provide that local affordability requirements apply to the bonus units
awarded—rather, the bonus units are the incentive and reward for including affordable
units to begin with, and presumably help offset the cost of building those affordable
units. 24 It has been suggested that nothing expressly prohibits applying local affordability
requirements to the bonus units. But the express directive in the Law to apply such local
requirements in counting the number of affordable units to pre-density-bonus units
strongly implies that they apply there alone. 25 The same implication arises from the
20
See fn. 23, post, and corresponding text in the body.
21
See ante, fns. 4-7 and corresponding text in the body.
22
Gov. Code, § 65915, subds. (b), (f).
Gov. Code, § 65915, subd. (o)(9)(A)(ii) (expressly stating that “total units” counting
towards density bonus include units “designated to satisfy an inclusionary zoning
requirement”); see id. subds. (b) (“total units” counting towards density bonus exclude
density-bonus units), (f) (setting forth percentages of total units with resulting
percentages of density-bonus units); see also California Building Industry Assn. v. City of
San Jose, supra, 61 Cal.4th at p. 441 (explaining what are known as local “inclusionary”
zoning and housing ordinances to require a certain percentage of affordable housing in
new developments).
23
24
See ante, fns. 4-9, and corresponding text in the body.
25
See Gov. Code, § 65915, subds. (b) (requiring density bonus based on affordable
(continued…)
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related requirement in the Law to exclude bonus units when calculating affordable units
as a percentage of total units. 26
In sum, we believe that applying local affordability requirements to bonus units
would conflict with the state law formula of how many affordable units are required to
receive the bonus units, contrary to the Legislature’s intent. We therefore conclude that
local affordability requirements may not be applied to bonus units awarded under the
Density Bonus Law.
The Courts of Appeal have reached similar conclusions where a local law has
diminished the benefits of the Density Bonus Law. 27 Of those decisions, the most
relevant here arose under a county ordinance that required a certain percentage of
affordable units in all new developments. 28 The county did not count the affordable units
it required towards a density bonus under the Density Bonus Law. 29 The ordinance
impermissibly required a developer to include a higher percentage of affordable units
than the Density Bonus Law requires “by excluding from the target units necessary to
qualify for the density bonus those units necessary to satisfy the county’s inclusionary
requirement.” 30 The court explained that “allowing the county to increase the minimum
housing included in “total units” proposed “excluding any units permitted by the density
bonus”), (o)(9)(A)(i)-(ii) (defining “total units” to count towards bonus to exclude
density-bonus units, but to include units to satisfy local affordability requirements).
26
Ibid.
See, e.g., Latinos Unidos, supra, 217 Cal.App.4th at pp. 1165-1166, 1169 (concluding
county ordinance was preempted by Density Bonus Law because it required new
developments to include certain percentage of affordable housing but did not count those
units in calculating density bonus under section 65915); California Building Industry
Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 770-771 (concluding city
ordinance is preempted because it excluded from exemption to city growth limit lowincome and senior housing built with a density bonus, discouraging developers from
proposing such housing that would otherwise qualify for bonuses).
27
28
Latinos Unidos, supra, 217 Cal.App.4th at p. 1165.
Ibid. Since then, the Legislature has provided additional clarity on the issue—for
example, expressly defining the “total units” of affordable units proposed (to count for
calculating the density bonus) as including units designated to meet local affordability
requirements. (See, e.g., Stats. 2021, ch. 340 (enacting Senate Bill 290 to add
subdivision (o)(6), which is now subdivision (o)(9), to Government Code section 65915);
see ante, fns. 23, 25 and corresponding text in the body (drawing upon and citing to
Government Code section 65915, subdivision (o)(9).)
29
30
Latinos Unidos, supra, 217 Cal.App.4th at pp. 1165-1166.
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number of affordable units required for a density bonus would conflict with subdivision
(f) of section 65915, which bases the amount of density bonus on the percentage of
affordable housing units in the project.” 31 The ordinance placed a “greater burden on
developers than is permissible under state law.” 32
Here, if a city or county were to impose local affordability requirements on units
awarded as a density bonus under section 65915, it would likewise place a greater burden
on developers to obtain the bonus units than state law does. It would effectively require a
developer to build a higher percentage of affordable units than section 65915 requires to
obtain its benefits.
Some comments we received illustrated this greater burden on developers with
examples. The clearest one involves a proposal to build 100 housing units, with 15
percent of them (i.e., 15 units) very-low-income units. The Density Bonus Law would
award the developer a 50-percent density bonus; that is, the developer would be permitted
to build 50 units more than local zoning rules would otherwise allow. 33 So in this
example there would be a total of 150 units: 15 very-low-income units, and the 135
market-rate units (including the 50 units awarded as a bonus). If instead the development
were subject to a local requirement that 15 percent of the entire resulting 150-unit
development must be very-low-income units, the project would need 23 very-low-income
units (rounding up) rather than 15, to receive a bonus in the same amount of 50 units. 34
The developer would have to finance and build eight more very-low-income units to get
the 50-unit density bonus that the developer is otherwise entitled to receive under the
state density bonus formula, thereby altering and conflicting with that formula for
purposes of a preemption analysis.
Some input we received argues that the resulting increase in affordable housing
units aligns with the legislative intent to create more affordable housing. Others believe
that imposing local affordability requirements on bonus units awarded under the Density
Bonus Law would disincentivize building affordable housing, contrary to legislative
intent. It is not our role, however, to determine which approach would result in more
affordable housing being built. The Legislature has determined how many affordable
units to require for how much of a reward. Because a local affordability requirement on
the reward would conflict with the Legislature’s determination, such a requirement is
preempted.
31
Id. at pp. 1167-1168.
32
Id. at p. 1166.
33
Gov. Code, § 65915, subd. (f)(2).
34
Id., § 65915, subds. (f)(5) (directing to round up), (q) (same).
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An advocate for a contrary conclusion cites an excerpt from a Memorandum by
the Department of Housing and Community Development as support for the view that
local affordability requirements may apply to density-bonus units. 35 But the excerpt
pertains to an entirely different statutory scheme, the Housing Element Law, and arose in
the context of when affordable housing projects under that Law are “by-right” (meaning
the locality must ministerially approve the project). 36 Specifically, the Memorandum
presented a hypothetical “shortfall” zoning scenario, where a city failed to hit prior
housing element targets—an entirely different situation from density-bonus applications,
where the goal is to incentivize developers to build more affordable housing units. In that
“shortfall” zoning scenario, the entire number of units in the development, whether it
utilizes the Density Bonus Law or not, must meet a 20 percent affordability requirement
to meet the by-right provisions of the Housing Element Law. 37 The Memorandum
explains that to invoke the by-right provisions, 20 percent of the whole project must be
affordable, and all units (even bonus units awarded under the Density Bonus Law) count
in calculating the 20 percent. Nothing in the Memorandum, therefore, contradicts the
judicial interpretations of the Density Bonus Law.
We emphasize that our conclusion does not preclude a city or county from
imposing affordability requirements on additional bonus units awarded under local law,
and not under the Density Bonus Law. It is conceivable that a city or county could award
more bonus units than the state law requires as a means of increasing the number of units
in the development—including affordable ones. Indeed, the Density Bonus Law
expressly allows as much and specifies that such additional bonus units granted by a
locality are not counted in the state formula in determining a bonus. 38 Also, the Court of
See Department of Housing and Community Development Memorandum from Megan
Kirkeby, Acting Deputy Director of the Division of Housing Policy Development, on
Housing Element Site Inventory Guidebook, Government Code Section 65583.2, dated
June 10, 2020, p. 38, available at https://www.hcd.ca.gov/community-development/
housing-element/docs/sites_inventory_memo_final06102020.pdf (as of April 2, 2025).
35
Id., pp. 1 (“The housing element of the general plan must include an inventory of land
suitable and available for residential development to meet the locality’s regional housing
need by income level. The purpose of this Guidebook is to assist jurisdictions and
interested parties with the development of the site inventory analysis” and identify recent
changes in relevant laws), 39 (recent changes to Housing Element Law).
36
37
See Gov. Code, § 65583.2, subd. (c).
Id., § 65915, subds. (n) (“If permitted by local ordinance, nothing in this section shall
be construed to prohibit a city, county, or city and county from granting a density bonus
greater than what is described in this section for a development that meets the
(continued…)
38
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Appeal has determined that a locality may do so, reasoning that a greater bonus furthered
the objectives of the Law. 39 Should a city or county ordinance offer a developer even
more density as a reward, it could impose affordability requirements on those units
without affecting the Density Bonus Law’s formula for how many bonus units are
awarded under state law. It would leave that formula intact because the local
affordability requirements would only apply to those units awarded under local law on
top of what was already awarded under the state law. As a result, there would be no
preemptive conflict with the Density Bonus Law. As explained above, however, a
locality may not apply affordability requirements to the bonus units awarded under the
Density Bonus Law itself because it would conflict with the formula set forth in that Law.
requirements of this section . . .”), (o)(9)(A)(i) (units used to calculate density bonus are
referred to as “total units” and “[e]xclud[e] a unit added by a density bonus awarded
pursuant to this section or any local law granting a greater density bonus”).
39
Friends of Lagoon Valley, supra, 154 Cal.App.4th at pp. 823-826.
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