Minimum Density Requirement & Commercial Development
Some community comments have asserted that the City’s reliance on a minimum density requirement for sites that could be developed with non-residential uses is contrary to the provisions of Government Code section 65583.2(c)(1). Specifically, they argue that the Site Inventory Guidebook (p.19) explicitly states a minimum density ordinance must require the specified minimum number of residential units, regardless of zoning allowing non-residential uses. They requested that the City obtain clarification from HCD pertaining to the red-outlined box below:
Staff emailed HCD with the following question:
In the red box above, the City takes this to mean that on a site that allows multiple uses, if a development has both commercial and residential uses proposed on the site, the residential portion would have to meet the minimum density requirement. We assume this does NOT mean that if a Taco Bell’s owner decided to replace the building with a different retail building, that the site is required to have residential too, at the minimum density. We know that in the analysis we would have to discuss the extent to which commercial uses are replaced by other commercial uses, but this section does not require redevelopment with mixed use. Is this a correct interpretation?
HCD’s response: If the zoning or base zone still allows 100 percent non-residential uses, then you can’t use the minimum density without analysis. There would need to be analysis of the non-residential likelihood.
(Emphasis added by staff)
Based on this response, the City has to provide an analysis of the likelihood of non-residential development on opportunity sites, which already exists in the Housing Element. This requirement for analysis is consistent with Government Code section 65583.2(c)(2), which provides the number of units calculated when using minimum density as determined by Government Code section 65583.2(c)(1), “shall be adjusted as necessary, based on land use controls and site improvements requirement identified in paragraph (5) of subdivision (a) of Section 65583, the realistic development capacity for the site, typical densities of existing or approved residential development at similar affordability level in the jurisdiction, and on the current or planned availability and accessibility of sufficient water, sewer, and dry utilities.”
Furthermore, the need to analyze the potential for non-residential development is consistent with the HCD guidelines that were cited by members of the public. The last sentence of the text box from the guidelines states “Otherwise, the capacity of the site much be calculated using the factors outlined in Step 2. Step 2 cites to Government Code section 65583.2(c)(2).
In the Element, staff has shown that recent mixed-use developments have achieved residential densities of at least 88% of zoned density, and that all-multifamily residential projects over the last six years have had an average built density of 107% of zoned density. Based on this analysis, staff believes a minimum density requirement of 88% will not be a constraint on future development.