Last summer, I learned that two real estate developers, Ellis Partners and Spirit Living Group, had filed a preliminary proposal to build a residential senior care facility right over my backyard fence at 6230 Claremont Avenue, the site of the now-abandoned Red Cross blood bank building.
My initial reaction was, “Great!” The site was already becoming blighted, and a senior care facility seemed like a welcome addition to our neighborhood. Then I saw the plans: 85 feet high, no affordable units, a footprint covering the entire 1.06-acre lot with minimal setbacks from adjacent properties, and little open space.
My neighbors and I were alarmed at the threats to traffic safety, fire safety, and emergency access on the narrow neighborhood streets from this massive structure, as well as the threats to public health from the greatly increased shadow and decreased access to sunlight from this tower.
So the question was how to mitigate those risks by reducing the project’s size. That’s when I ran headlong into a maze of state housing laws and local zoning codes.
To try to understand these laws, their interactions with one another, and how they apply to the 6230 Claremont proposal, I wrote up notes that were intended just for my own understanding. But when I showed them to a few neighbors, they found them helpful. Maybe you will too.
Summary of Laws and Codes Affecting Land Use
The California Density Bonus Law (Government Code 65915) focuses on providing incentives (such as extra units and height) in exchange for affordable housing. However, legislation passed in 2024 (AB 2694) extends the Density Bonus Law to residential senior care facilities (RCFEs), with no requirement for RCFEs to contain affordable units.
The Housing Accountability Act (Government Code Section 65589.5) focuses on the permissible reasons for denial of an application, while SB 330 regulates the process.
SB 330, also known as the Housing Crisis Act of 2019 (Government Code Section 66300), significantly strengthened the Housing Accountability Act. It also introduced a “preliminary application” process: when a developer submits a preliminary application, the local zoning, policies, and fees in effect at that moment are frozen. This prevents a city from changing rules mid-project to make a project non-compliant under the Housing Accountability Act.
Ellis and Spirit Living, exercising their rights under SB 330, submitted a preliminary application in late July for a residential senior care facility at 6230 Claremont Avenue. This locked in the zoning rules and fees in effect at that time and gave them six months to file a complete application. They then calculated the maximum number of units for which the 1.06-acre property is eligible under local zoning laws.
The developers claim that the inclusion of 24 memory units qualifies their planned facility for “mixed-use” designation under the Neighborhood Center Mixed Use designation in the General Plan’s Land Use & Transportation Element. This designation allows an increased number of units per square acre for regular dwelling units (165 units per acre compared to 124 per acre for non–mixed use) and for rooming units (330 per acre compared to 249 per acre for non–mixed use).
The base number of units allowed at the site under local zoning codes would be 147 without mixed-use designation; the developers say their base number of units is 195, claiming mixed-use eligibility. The developers then invoked the Density Bonus Law (relying on its extension to Residential Senior Care Facilities by AB 2694) to allow them to increase the number of units by up to 20 percent over that base.
(Note: “mixed use” usually refers to a development that includes both commercial and residential spaces. It is questionable whether the proposed facility at 6230 Claremont should qualify for mixed-use designation, and that question should be explicitly raised.)
On December 19, Ellis filed a full proposal in advance of the six-month deadline from the date they filed their preliminary proposal. The planning staff deemed it incomplete and asked Ellis to provide more information in several specific areas. Under SB 330, Ellis has 90 days to respond; according to Patrick Flynn, their project manager, they expect to respond with the requested information around the end of February (which would be well within the 90-day limit).
Denial Based on Public Health and Safety
Cities can still deny senior housing developments based on public health or safety, but California law sets an extremely high and strictly defined burden of proof for such denials.
Under the Housing Accountability Act (HAA), which applies to senior housing and Residential Care Facilities for the Elderly (RCFEs) through legislation such as AB 2694, a city may disapprove a project that is otherwise consistent with objective standards only if it makes specific findings.
To legally deny a project on these grounds, a city must prove both of the following conditions by a preponderance of the evidence:
1. A “Specific, Adverse Impact” Must Exist
The city must demonstrate that the project would have a significant, quantifiable, direct, and unavoidable impact on public health or safety. This impact must be based on objective, identified written standards that were in effect at the time the project application was deemed complete.
- What does not qualify: Vague or subjective concerns, such as a project’s inconsistency with “neighborhood character,” do not meet the legal definition of a health or safety impact.
- Zoning is not safety: The law explicitly states that inconsistency with a city’s zoning ordinance or general plan land use designation does not constitute a “specific, adverse impact” on public health or safety.
2. No Feasible Mitigation Is Possible
Even if a legitimate health or safety risk is identified, the city cannot deny the project if there is any feasible method to satisfactorily mitigate or avoid the impact other than by disapproving the development or reducing its density.
Strict Enforcement and Standards
- Infrequent occurrence: The California Legislature has stated its intent that conditions giving rise to a valid health or safety denial should arise infrequently.
- Density Bonus incentives: For senior housing projects utilizing the Density Bonus Law, a city is required to grant requested waivers unless they would result in a “specific, unavoidable adverse impact” on health or safety for which there is no feasible mitigation.
- Consequences of unlawful denial: If a city denies a project based on health or safety concerns but fails to meet the high evidentiary standard required by the HAA, it can be fined a minimum of $10,000 per housing unit and may be ordered by a court to approve the project. These fines can be multiplied by five if the city is found to have acted in bad faith.
