California Attorney General Opinion 24-501

Syllabus

QUESTIONS: 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? CONCLUSIONS: No. A city or county may not impose affordable housing requirements on density-bonus units that are awarded under the Density Bonus Law because it would impermissibly conflict with the state law formula for calculating how many density-bonus 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 under the Density Bonus Law and may impose affordable housing requirements on those additional units.