Court upholds density bonus law that exempts certain housing projects from local restrictions

By Bob Egelko, San Francisco Chronicle, February 3, 2022

“A 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.

“ ‘Once the developer commits to making a specified portion of the project affordable to lower-income households [based on the 1979 Density Bonus Law], ‘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.

“The 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.

“The ruling ‘greatly restricts what influence communities can have on development projects, what cities are able to do,’ [Everett DeLano, lawyer for the Bankers Hill/Park West Community Association, which challenged the San Diego development] said. ‘It seems be saying that if you have a density-bonus project, you can do whatever you want.’ 

“He 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.”

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