Does the Density Bonus Law (Gov. Code § 65915) Require Local Government to Approve Mixed Use and Housing Projects Where Local Zoning Does Not Allow Housing at All?


In the March, 2008 edition of this Newsalert, the lead article suggested that in the face of the global warming phenomenon, local control over land use decision making may be forced to give way to regional or statewide regulation.1 This article explores whether the legislature, by enacting and amending the Density Bonus Law,2 intended to advance the public policy in favor of low income housing and housing for the elderly by forcing local governments to approve housing or mixed use projects in industrial, commercial, and other areas where local zoning does not allow housing.

The rising price of gasoline and the collapse of single family financing may drive developers in the direction of infill projects. Those developers may find that the mandatory incentives and concessions imposed on local government by the Density Bonus Law improve the pro forma financial performance of such projects significantly. Add to this the power to force local government to approve a housing or mixed-use project in an area where housing would otherwise be prohibited, and where site acquisition cost may be less than elsewhere, and the benefits of invoking the Density Bonus Law could prove irresistible. The question is, does the Density Bonus Law actually confer upon the developer the power to force local government to approve a project that includes low income or elderly housing where housing is otherwise entirely prohibited?

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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