California cities and counties must ensure that they can accommodate the housing needs of their citizens, including low- and moderate-income households. To this end, Government Code § 65863, passed in 2002, provides that, if a city or county reduces the residential density for any parcel to a density level lower than the density in the city or county’s general plan (sometimes referred to as downzoning), the city or county must increase density in another area (sometimes referred to a upzoning).
With passage of Assembly Bill 1192, § 65863 has been amended by adding subsection (f), which makes it clear that cities and counties generally must bear the burden of ensuring compliance with § 65863. In other words, cities and counties generally may not require developers to locate alternate sites or charge developers for upzoning an alternate site. However, if a developer, in its initial application, requests a lower density level, the city or county may require the developer to bear the burden of complying with § 65863.
The Legislature also added subsection (g) to § 65863, stating that it does not “apply to parcels that, prior to January 1, 2003, were either (1) subject to a development agreement, or (2) parcels for which an application for a subdivision map had been submitted.”
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