The short answer is No. The Second District Court of Appeal has maintained that while creating affordable housing in California is an important matter and that housing density bonuses do apply in coastal zones, the Coastal Act supersedes these statutes when there are project violations.
Developer versus the City of Los Angeles
The case in question is with a developer who submitted a proposal to demolish a one-story building and replace it with a three-story 15-unit residential building near the coastline in Venice.
The proposed project exceeded restrictions on local density and height, but the developer was granted a permit under the Coastal Act in addition to a density bonus under the Density Bonus Act, Mello Act, and Housing Accountability Act (HAA).
However, the city revoked the permit when residents opposed the development, stating that it was in violation of height and local density restrictions, and that its visual elements are not consistent with the neighborhood’s character.
The developer then sought re-approval and sued the city, claiming that its retraction violates the Density Bonus Act, HAA, and Mello Act.
But the Court of Appeal ultimately ruled that the Coastal Act takes precedence over such laws, and that density bonuses for affordable housing units only apply if the project adheres to the act’s protective provisions.
What is the Coastal Act?
The California Coastal Act protects local coastal zones and regulates land use planning for these areas. Anyone who wants to develop land area within defined coastal zones must secure a coastal development permit from the Coastal Commission or the local government if it has been certified to issue permits.
“Development” in this case covers more than just the conversion of undeveloped property into a developed one. It also covers a range of activities, such as:
- “the placement or erection of any solid material or structure”
- “discharge or disposal of any dredged material or of any gaseous, liquid, solid, or thermal waste”
- “grading, removing, dredging, mining, or extraction of any materials”
- “change in the density or intensity of use of land, including, but not limited to subdivision under the Subdivision Map Act. . . and any other division of land, including lot splits”
- “change in the intensity of use of water, or of access thereto”
- “construction, reconstruction, demolition, or alteration of the size of any structure”
- “the removal or harvesting of major vegetation”
However, activities like maintenance dredging, minor improvements for existing single-family residences and the replacement of any structure that has been destroyed by natural calamities may be exempt from permitting requirements.
What is a density bonus and when is it granted?
Development incentives like density bonuses were meant to address the housing shortage in the state. Developers are allowed to exceed height and density restrictions if they set aside a certain percentage of units for low and very low income tenants.
However, such bonuses may be denied if the residential development is in violation of the Coastal Act’s protective measures, if it is not designed to preserve scenic views and its visual aesthetic does not cohere with that of the surrounding neighborhood.
What it means for you as a developer
The courts are primarily concerned with the protection of California’s coastal resources. It is imperative that your project comply with the Coastal Act’s provisions, even if you intend to set aside units for low income tenants.
Failure to secure a coastal development permit for any type of development or activity you intend to undertake within defined coastal zones is punishable by a civil fine of $1,000 to $15,000 per day.
