Posted by: Patricia Salkin | April 27, 2011

CA Appeals Court Upholds Bonus Density for Senior Housing Infill Project

Wollmer’s petitioned for administrative mandamus challenging two approvals by the City granting a mixed-use affordable housing project.  The use permit for the project was for a building with 98 residential units, almost 8,000 square feet of ground floor commercial space, 114 parking spaces and a right of way to allow a left-hand turn lane.  Developers sought a density bonus, which was approved for a minimum of 32.5 percent because of the percentage of proposed units being affordable for low-income and very-low income households.  Later, developers requested a modification to its use that would allow them to proceed with the affordable housing project or a mixed-use building to be available for senior housing.  The original project and the modification were approved.

On appeal, Wollmer alleged violations of the City’s zoning ordinance and state density bonus statutes. Specifically, Wollmer alleged the City approvals violated the state density bonus because developers were allowed to receive Section 8 subsidies for qualifying units which exceeded the maximum affordable rent set forth in the Health and Safety code.  Additionally, Wollmer alleged amenities should not have been considered when the City determined which standards should be waived to accommodate the project and that the City improperly calculated the project’s density bonus.

The Court looked to the state density bonus law which establishes a scale whereby bonus percentages increase based on how many affordable units were being constructed.  For example, a minimum of 10 percent of units for low-income households would enable a developer to receive a 20 percent density bonus.  Similar bonuses are available for very low income units as well senior housing developments.  The Court defined the term “maximum allowable residential density” as the density that was permitted pursuant to the zoning ordinance and land use element in the general plan. Further, the Court noted that when the ordinance is inconsistent with the density found in the general plan, the general plan would prevail.

In this case, based on the proposed projects and the general plan, the Court agreed with the City’s calculations. The City had properly determined that the project would increase density but that the units per acre would still be well below the general plan standard for the area.  The denial of Wollmer’s petition for mandamus was affirmed,

Wollmer v. City of Berkeley, 2011 WL 847013 (Cal.App. 1 Dist. 3/11/2011)

The opinion can be accessed at: http://www.courtinfo.ca.gov/opinions/documents/A128121.PDF

For more information about this case, including environmental review, see: http://www.rtmmlaw.com/?p=972 and http://www.allenmatkins.com/emails/Alert_StateDensityBonusLaw_Condas-Scoll_Jan2010/email.html and http://ceqablog.blogspot.com/2011/04/in-fill-categorical-exemption-upheld.html


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