A recent tweet from Chris Elmendorf, a prominent expert in California land-use and housing law, has sparked discussion among housing policy circles regarding a nuanced challenge within the state's efforts to boost housing supply. Elmendorf, a Martin Luther King, Jr. Professor of Law at UC Davis, posed a question to "CA housing nerds" concerning the potential for local "density-decontrol ordinances" – often intended as upzonings – to paradoxically function as "restrictive downzonings" when interacting with the State Density Bonus Law.
California's Density Bonus Law (DBL), codified under Government Code Section 65915, is a cornerstone of the state's strategy to alleviate its severe housing shortage. Enacted in 1979 and significantly amended over the years, including by recent legislation like AB 1287, the DBL mandates that local governments grant developers increased density and other incentives if they include a certain percentage of affordable housing units in their projects. This law is designed to allow developers to exceed local zoning limits and reduce requirements like parking, thereby incentivizing the construction of more affordable and market-rate homes.
The DBL operates on the principle that state law prevails over conflicting local regulations. Court decisions, such as Latinos Unidos Del Valle De Napa Y Solano v. County of Napa, have affirmed that local agencies cannot impose conditions on density bonuses that exceed state requirements, nor can they void state-mandated incentives. The law aims to provide a clear pathway for increased housing production, particularly for affordable units, by overriding local resistance or restrictive zoning.
However, Elmendorf's query highlights a complex interplay between state mandates and local implementation. While local "density-decontrol ordinances" aim to increase allowable housing units by loosening zoning restrictions, the concern is whether the specific structure or conditions of these local changes could, in practice, limit a developer's ability to fully leverage the state's Density Bonus Law. If a local upzoning, for instance, sets a new "base" density that is then used for DBL calculations in a way that yields fewer units than a different interpretation or if other local requirements remain burdensome, it could inadvertently restrict the total housing output.
This potential paradox points to ongoing tensions between state-level housing goals and local land-use control. The effectiveness of California's housing policies hinges not only on increasing zoned capacity but also on ensuring that the mechanisms designed to incentivize development, like the Density Bonus Law, are not inadvertently undermined by the very local ordinances intended to complement them. The debate underscores the intricate legal and practical challenges in translating legislative intent into tangible housing solutions across California's diverse municipalities.