JMBM Wins First Density Bonus Case Against the City of Los Angeles Under SB 1818

On December 8, 2008, JMBM attorneys successfully challenged an attempt by the City of Los Angeles to unlawfully impose conditions of approval on a proposed infill apartment project that was entitled to a height limit increase under SB 1818, the state density bonus law. Louise Apts. LLC v. City of Los Angeles is the first successful lawsuit of its kind against the City of Los Angeles.

SB 1818 imposes a ministerial duty on local governments to provide a range of development incentives and concessions for projects that provide affordable housing. In this case, the developer applied for additional height beyond the limit imposed by the Zoning Code in order to better accommodate the project. However, the City’s Planning Commission refused to approve the height concession without adding a condition requiring a "tapered" design for the building. This requirement significantly reduced the rentable space in the apartment building, rendering the project infeasible.

JMBM challenged the City’s action, arguing that the City has no discretionary authority to impose design changes to mitigate the project’s aesthetic impacts. The Court agreed, holding that the Planning Commission’s action was arbitrary, capricious and an abuse of discretion.

In reaching this conclusion, the Court found that the Planning Commission had not provided evidence that an aesthetic impact amounted to a "specific adverse impact upon health or safety or the physical environment", which is the legal standard in SB 1818. Further, the Court recognized that the design condition would have "nullified the effect of the density bonus." Therefore, the Court concluded that the City’s unlawful condition was merely "a clever way to evade compliance with the legislative requirement to grant a density bonus concession and a height increase incentive to a developer in exchange for his including affordable housing units in his apartment building…".

JMBM is preparing a motion for attorneys fees, which successful plaintiffs are entitled to receive under SB 1818.

SB 1818 provides a very powerful system of land use incentives to induce responsible development and increase the supply of affordable housing throughout the State of California. However, as shown by JMBM’s successful lawsuit against the City of Los Angeles, SB 1818 also limits local government discretion to impose additional conditions on projects that are entitled to development incentives.