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HomeMy WebLinkAboutCOM 0200.040 2006-2008 To: Land Use Research Foundation From: David Callies In Re: Kauai Housing Policy Ordinance Draft Date: January 3, 2007 I. INTRODUCTION You asked that I review and analyze the Kauai County draft Housing Policy Ordinance for the purpose of commenting upon its constitutionality under the U.S. Constitution's Fifrh Amendment as interpreted by the U.S. Supreme Court. The draft appears to require that residential developments of five or more dwelling units and "large" resort. commercial and industrial developments provide workforce housing at substantially below prevailing market prices equivalent to 30% of the total units constructed plus 10% of the project's land area, at the time of rezoning or, presumably, if no rezoning is necessary, at a development permitting stage. Furthermore, such workforce housing must be available within ("integrated...being mixed along side market units") a residential project area, or suffer a further financial penalty if located outside such a residential project area. Substantially identical requirements apply to resort, commercial and industrial developments of 50 or more rooms, or which are estimated to generate 100 or more new "fulltime equivalent jobs," except that affordable units may be located outside the project area "where no residential units are produced onsite" without penalty. The sole "bonus" to which a developer may be entitled is limited expedited permit processing, except for for projects with 100% workforce housing, at least 51% of which must be affordable, which projects appear to be entitled to reduced development standards. The balance of the proposed Housing Policy Ordinance -indeed, most of it - is devoted to ensuring that workforce housing Comm. No. 200- ~'V 1 Ref. To: ~ Ref. Date stays in the contemplated affordable housing range, through a series of transfer and buyback restrictions. II. CONCLUSION While Kauai County should be congratulated for recognizing and attempting to address the workforce and affordable housing shortage in the county -and in particular, ensuring that that contemplated workforce units remain affordable over time - it may not do so except by constitutional means. First, the draft Housing Policy Ordinance appears to "exact" the workforce/affordable housing increment at an inappropriate and unconstitutional stage in the land development process: rezoning. The premise upon which any and all legal land development conditions -exactions, dedications, impact fees, in lieu fees -rests is that they are development driven: the contemplated project will require public facilities for which the landowner/developer must contribute a fair share. Rezoning, while it may be a necessary precedent to land use and development, neither creates nor drives the need for public facilities. It is therefore unconstitutional to require exactions of any kind as a condition for change of use by means of zoning map amendments (rezoning). Second, unless the county can demonstrate a clear rational and proportional nexus between market cost developments and the imposition ofbelow-market cost housing set-asides,it may not require them at any stage in the land development process. What scant precedent exists for imposing such exactions on residential developments does so only when the local government requiring such exactions provides a series of bonuses to help offset the cost of the mandatory affordable housing set-asides. Thus, for example, a recent intermediate California 2 Court of Appeals so provided, but only after aetailed studies and at a far lower percentage (10%) of affordable housing set-asides and -more importantly, against the backdrop of a California statute which, in its recently amended form, requires such bonuses as soon as the affordable units set-asides reach a threshold of 5%, and escalating sharply in terms of number and kinds of bonuses as the percentage of affordable housing set-asides increases. As to housing exactions or set-asides on commercial development, the principle -indeed virtually only -federal case approving such set-asides did so only after the local government requiring such set-asides engaged in thorough and detailed studies of the workforce jobs required and generated by the proposed commercial development, which requirements were then cut in half -far less than the 40% which the draft County of Kauai Housing Policy Ordinance would require of such commercial development. In sum, the proposed ordinance imposes the mandatory housing set-asides at the wrong stage of the land development process, without nexus or proportionality, all required by the U.S. Constitution's Fifth Amendment as interpreted by the U.S. Supreme Court. III. ANALYSIS A. The Constitutionality of Mandatory Affordable/Work1'orce Housing (Linkage) Mandatory affordable housing requirements or linkage fees in lieu of housing raise two basic takings issues. The first issue is whether such fees pass scrutiny under the Supreme 3 Court's "essential nexus" test in Nollan v. California Coastal Commission. ~ Because linkage fees are generally a legislative form of exactions, the second issue is whether the "rough proportionality" test in Dolan v. City of Tigard2 applies. The resolution of this second issue turns in part on whether a jurisdiction accepts the administrative-legislative distinction, a question which the Hawaii appellate courts have yet to resolve. By way of background, "[t]he broad concept of linkage describes any of a wide range of municipal regulations that condition the grant of development approval on the payment of funds to help finance services and facilities needed as a result of development." 3 "In the context of developing affordable housing, linkage refers to any scheme that requires developers to mitigate the adverse effects ofnon-residential development upon the shortage of housing either indirectly, by contributing to anaffordable-housing trust fund, or directly, by actually constructing affordable housing.i4 Before addressing the issues, note that Hawai`i's impact fee statute, Hawaii Revised Statutes 46-141 to 148, does not apply to housing linkage fees, and, indeed, expressly excludes such fees from the authority granted to Hawaii's four counties to levy impact fees for public facilities. Section 46-142(b) of the Hawaii Revised Statutes states that "impact fees may ~ 483 U.S. 825, 837 (1987). ~ 512 U.S. 374, 391 (1994). ' Holmdel Builders Assn v. Holmdel, 583 A.2d 277, 284 (N.J. 1990). /d.; accord John A. Henning, Jr., Comment, Mitigating Price Effects wUh a Housing Linkage Fee, 78 Cali£ L. Rev. 721, 722 (1990) (linkage fees are a form of exactions that levy "fees on downtown office development to subsidize low- and middle-income housing" (footnote omitted)); Jane E. Schukoske, Housing Linkage: Regulating Development Lmpact on Housing Costs, 76 Iowa L. Rev. ]Ol 1, 1011 (1991) ("Housing linkage programs require or offer inducements to private developers to produce affordable housing or to pay a sum for development of affordable housing into housing trust funds."); 1 Land Use Law § 9.23 ("A number of cities have adopted exaction programs that require downtown office and commercial developers to provide housing for lower-income groups or contribute to a municipal fund for the construction of such housing." (footnote omitted)). 4 be imposed only for those types of public facility capital improvements specifically identified in a county in a county comprehensive plan or a facility needs assessment study."5 However, Section 46-141 defines "impact fees," as "the charges imposed upon a developer by a county or board to fund all or a portion of the public facility capital improvement costs required by the development from which it is collected, or to recoup the cost of existing public facility capital improvements made in anticipation of the needs of a development."6 That same section also defines "public facility capital improvement costs," and explains that such costs "do not include expenditures for required affordable housing."~ Although Section 46-141 does not define "required affordable housing," Section 516-1, which concerns leaseholds, explains that a "[s]ustainable affordable development," requires, inter olio, the satisfaction of "the state or county agency's affordable housing requirements as set forth in the applicable state or county law, regulation, policy, or agreement."8 In addition, Section 46-143(c) imposes nexus and proportionality requirements, providing that "[a]n impact fee shall be substantially related to the needs arising from the development and shall not exceed a proportionate share of the costs incurred or to be incurred in accommodating the development."9 In view of Section 516-1, Section 46-141's "required affordable housing" language likely refers to housing exactions. For example, Section 2.94.030 of the Maui County Code requires ' Haw. Rev. Stat. § 46-142(6) (2006). s Haw. Rev. Stat. § 46-141 (emphasis added). ' !d. The legislative history of Haw. Rev. Stat. § 46-] 41 does not explain what is mean[ by "required affordable housing." "Haw. Rev. Stat. § 516-1. 91d. § 46-143 (c). 5 that individuals seeking to build hotels must "construct affordable housing at a minimum of one affordable housing unit for every four apartment-hotel, hotel, or motel rooms or fraction thereof."10 Likewise, Section 11-4 of the Hawaii County Code, which is entitled "affordable housing requirements" requires affordable housing when a rezoning occurs. ~ ~ Under Section 11-4, when the application rezones and seeks to create "[fJive or more residential units or lots," it must "earn affordable housing credits equal to twenty percent of the number of units or lots (rounded to the nearest .5)."~~ Accordingly, the Hawaii impact fee statute, HRS 46-141 to 148, likely does not apply to affordable housing requirements, and, consequently, does not apply to linkage fees because such fees necessarily concern the government's expenditures for affordable housing.13 Nonetheless, although linkage fees may not be subject to nexus and proportionality tests statutorily, they may still be subject to such tests under the United States, U.S. Const. amend. V, XIV, and Hawaii Constitutions, Haw. Const. art I, § 5. Turning to the first issue, because linkage fees are a form of exactions they are subject to the "essential nexus" takings test under Nollan.14 Under Nollan, "a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to 10 Maui, Haw., Maui County Code § 2.94.030. Hawaii, Haw., Hawaii County Code § 11-4. 12 Id. § 11-4(b)(2). " See Holmdel Builders Assn, 583 A.2d at 284. 14 483 U.S. 825, 837 (1987). See Commercial Builders oJN. Cal. v. Sacramento, 941 F.2d 872, 874 (9th Cir. 1991). 6 be a taking if the refusal to issue the permit would not constitute a taking."15 In addition, under Nollan, the government bears the burden of proving this nexus.tb In the context of linkage fees in particular, one treatise explains that linkage fees satisfy this test "only if the municipality can show that downtown development contributes to the housing problem~~ the linkage exaction is intended to remedy."~$ There is no disagreement that Nollan's nexus test, or its close equivalent, applies to linkage fees. For example, in Commercial Builders ofN Cal. v. Sacramento,19 the Ninth Circuit held that an ordinance which imposed a linkage "fee in connection with the issuance of permits for nonresidential development of the type that will generate jobs,i20 was constitutional under Nollan.21 The court explained that "the [o]rdinance was implemented only after a detailed study is Nolan, 483 U.S. at 836 (emphasis added). 16 Dolan, 512 U.S. 391 n.8 (citing Nollan, 483 U.S. at 836). A "housing problem," 1 Land Use Law § 9.23, is the typical interest which the Counties of Hawaii identify as a legitimate state interest in Cheir ordinances, see, e. g., Maui, Haw., Maui County Code § 2.94.010 ("The council finds that there is a critical shortage of affordable housing in the counTy."); Hawaii, Haw., Hawaii County Code § 11-2(5) (setting forth the objective of"Requir[ing] large resort and industrial enterprises to address related affordable housing needs as a condition of rezoning approvals, based upon current economic and housing conditions"). In Assn of Owners v. Honolulu, 7 Haw. App. 6Q 742 P.2d 974 (1987), the Intermediate Court of Appeals of Hawaii acknowledged the legitimacy of this interest in the context of the challenge to a condominium declaration, stating that "affordable housing and public parking for downtown Honolulu were important [o the welfare of the community." Id. at 78, 742 P.2d at 985. 18 I Land Use Law § 9.23. ~e 941 F.2d 872 (9th Cir. 1991). zo !d. at 873. 21 Id. at 875. 7 revealed a substantial connection between development and the problem to be addressed."zz Consequently, the court found "that the nexus between the fee provision here at issue, designed to further the city's legitimate interest in housing, and the burdens caused by commercial development is sufficient to pass constitutional muster."zs Even courts that decline to apply heightened scrutiny to legislatively imposed fees nonetheless apply some form of Nollan's essential nexus test. For instance, in San Remo Hotel L. P. v. City & County of San Francisco,24 although the California Supreme Court reaffirmed that legislatively imposed, ministerial impact fees are not subject to the tests in Nollan or Dolan,25 it nonetheless required that there "be a `reasonable relationship' between the fee and the deleterious impacts for the mitigation of which the fee is collected,"26 Similarly, in Holmdel Builders Association v. Township of Holmdel,~~ although the Supreme Court of New Jersey concluded that legislative fees are not subject to the heightened scrutiny of its "but-for," `Yational-nexus" test, it still required that some relationship between the development and the harm caused.28 The court essentially explained that "relationship between the private activity zz /d. z3 /d. 24 41 P.3d 87 (Cal. 2002). zs /d. at 102-03. ae Id. at 103 (citations omitted). 27 583 A.2d 277 (NJ. 1990). 28Id. at 288. 8 that gives rise to the exaction and the public activity to which it is applies," must be "founded on [an] actual, albeit indirect and general, impac*."z9 Notably, the only part of the Nollan test that was not applied in San Remo or Holmdel Bulders Association, is the shifting of the burden of proof to the government. That fact that the burden of proof shifts to the government was not clear in Nollan; however, the Court clarified this fact in Dolan, because there, the Court cited to Nollan when it said that "the burden properly rests on the city." 30 What is important, however, is that all jurisdictions at least require some form of nexus between the harm caused by the development and the interest which the exaction purportedly serves. Thus, even under the California or New Jersey approach, Nollan's requirement that the "same" interest be served by the exaction,31 still applies, albeit in different terms. The second and more difficult issue in a takings analysis of a linkage fee is whether the Court's "rough proportionality" test in Dolan applies.32 That test, in addition to requiring an "individualized determination" of "rough proportionality," 33 also shifts the burden of proof to the ze /d. 3u Dolan, 512 U.S. 391 n.8 (citing Nollan, 483 U.S. at 836). Nollan, 483 U.S. at 836. 'Z Dolan, 5I2 U.S. at 391. There is a split of authority on whether Dolan applies to linkage fee, see I Land Use Law § 9.23 ("Post-Dolan a court must also decide whether a linkage fee is a legislative fee subject to the rational basis test, or an adjudicative fee that requires an individualized determination and must satisfy the heightened judicial scrutiny requited by Dolan."). "Dolan, 512 U.S. at391. 9 government to prove such proportionality.34 Although the two appellate courts which have considered this issue in the context of linkage fees both concluded that heightened scrutiny is inappropriate,35 the rationale in those decisions is not limited to the context of linkage fees. The issue extends to all legislatively imposed, non-discretionary (or ministerial) fees. There are essentially two major approaches to the question of legislatively imposed fees. On one hand, some jurisdictions hold Dolan's heightened scrutiny inapplicable to legislative fees by virtue of the Court's rationale in Nollan. First, such jurisdictions observe that in Dolan, the Court distinguished "generally applicable legislative zoning regulations" from an "adjudicative decision." 36 Next, they note the Court's concern in Nollan that "unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but an out-and-out plan of extortion."37 Bridging the logical gap, these courts argue that such regulatory leveraging (i.e., extortion) poses much less of a threat at the legislative level than at the administrative level.38 These courts thus conclude that Dolan's procedural safeguards are unnecessary beyond the administrative decisionmaking context. The Ninth Circuit, Arizona, California, Colorado, New Jersey, and Oregon adhere to this approach.39 34 Id. at 391 n.8. 35 See San Remo, 41 P.3d at 102-03; Holmdel, 583 A.2d at 288. 3B Dolan, 512 U.S. at 39] n.8. Noldan, 483 U.S. at 837 (citation and quotation marks omitted). See, e.g., Ehrlich v. City gfCulver City, 911 P.2d 429, 444 (Cal. 1996). 3v See Carneau v. City of Seattle, 147 F.3d 802, 815-16 (9th Cir. 1998); Home Builders Assn of Central Ariz. v. City ofScottsdole, 930 P.2d 993, 1000 (Ariz. 1997); San Remo, 41 P.3d at 102-04; Krupp v. Breckenridge Sanitation District, 19 P.3d 687, 696 (Colo. 2001) (en banc); Holmde! Builders Assn, 583 A.2d at 288; Home Builders Assn v. Tualatin Hills Park & Recreadion Dist., 62 P.3d 404, 406 (Or. Ct. App. 2003). 10 For example, the Supreme Court of New Jersey illustrated the applicability of this approach to non-residential development linkage fees in Holmdel Builders Association.40 There, in deciding whether to apply a "rational-nexus" test or a "reasonable relationship" test, the court found "a sound basis to support a legislative judgment that there is a reasonable relationship between unrestrained nonresidential development and the need for affordable residential development."a~ This relationship, the court explained, need only be "founded on the actual, albeit indirect and general, impact that such nonresidential development has on both the need for lower-income residential development and on the opportunity and capacity of municipalities to meet that need." Harmonizing its inclusionary zoning doctrine, the court noted that such zoning is "itself is based on that relationship.i42 On the other hand, a number of jurisdictions have strictly followed Dolan in the context of legislative monetary exactions. For example, in Town of Flower Mound v. Stafford Estates Ltd. Partnership,43 the Supreme Court of Texas narrowly held that a legislative exaction concerning off-site public improvements was properly reviewed under Dolan.44 There, the town had the discretion to grant Stafford, a developer, a variance from the exaction requirement, 40Holmdel, 583 A.2d at 288. ai /d. az Id as 135 S.W.3d 620 (Tex. 2004). as Id. a[ 622-24. 11 which Stafford had requested and was denied.45 While analogizing to Nollan and Dolan, the court reasoned: It is enough to say that we can find no meaningful distinction between the condition imposed on Stafford and the conditions imposed on Dolan and the Nollans. All were based on general authority taking into account individual circumstances. Dolan's request for a variance was denied. The Town was authorized to grant, and did grant, exceptions to the general requirement that roads abutting subdivisions be improved to specified standards. Stafford applied for an exception and was refused, but the Town nevertheless considered whether an exception was appropriate.4~ Moreover, a number of other jurisdictions, like the United States District Court for the Eastern District of Virginia, Washington, and Ohio, also apply Dolan to legislative exactions, but have not explicitly decided the issue.47 The Hawaii appellate courts have not decided this issue, and indeed, in In re Water Use Permlt Applications,48 the Supreme Court of Hawaii declined to address it, stating that "[w]e need not address the additional question whether and to what degree Nollan and Dolan extend beyond land dedications to include monetary exactions such as those presently at issue."49 as /d at 624. td at 641 (footnotes omitted). The ordinances of the County of Hawaii which require affordable housing requirements, do not provide for variances from such requirements. Thus, the applicability of the analysis in Town afFdower Mound v. Stafford Estates Ltd. Partnership, 135 S.W.3d 620, 641 (Tex. 2004) (footnote omitted), is questionable. See Nat'l Assn of Home Burlders v. Chesterfield County, 907 F. Supp. 166, 168 (E. D. Va. 1995), afPd, 92 F.3d 1180 (4th Cir. 1996); Home Builders Assn v. City ofBeavercreek, 729 N.E.2d 349, 356 (Ohio 2000); Trimen Dev. Co. v. Krng County, 877 P.2d 187, 194 (Wash. 1994) (en banc). °8 94 Hawaii 97, 9 P.3d 409 (2000). av Id at 184 n.102, 9 P.3d at 496 n.102 (citations omitted). 12 Accordingly, the applicability of Dolan to legislatively imposed impact fees remains undecided in Hawaii. B. A Review of Cases Dealing With Inclusionary Affordable Housing Programs Among the cases that rejected a local government's attempt to require a mandatory set- aside of dwelling units for affordable housing is Board of Supervisors v. DeGroff Enterprises.50 There, Fairfax County amended its zoning ordinance to require "the developer of fifty or more dwelling units in several zoning districts to commit himself, before rezoning or site plan approval to build at least 15% of these dwelling units as low and moderate income housing...."5 ~ The trial court found that the amendment was invalid on the grounds that the Board of Supervisors exceeded its authority under the State's zoning enabling act, the amendment was an improper delegation of legislative authority, and the amendment was arbitrary and capricious. On appeal, the Supreme Court of Virginia agreed with the trial court: [T]he zoning enabling act does not authorize the governing body of a county to control compensation for the use of lands or the improvements thereon ...The amendment . exceeds the authority granted by the enabling act to the local governing body because it is socio-economic zoning and attempts to control the compensation for the use of land and the improvements thereon Of greater importance, however, is that the amendment requires the developer or owner to rent or sell 15% of the dwelling units in the development to persons of low or moderate income at rental or sale prices not fixed by a free market ....s~ More recently, the Virginia Circuit Courtin Kansas-Lincoln, L.C. v. Arlington County Board53 found that the County did not have the authority to include a requirement that a so 198 S.E.2d 600 (Va. 1973). 51 /d, at 601. sz Jd, at 602. ss 66 Va. Cir. 274 (Va. Cir. Ct. 2004). 13 developer provide affordable housing as part of the land development process in the zoning and land use regulation, nor the authority to require an affordable housing contribution as part of the site plan approval process.54 Specifically, the court stated [t]here is no authority for the County Board to require site plan applicants to make affordable housing contributions to the County Housing Reserve Fund or provide affordable housing units as part of the County's site plan approval process. Moreover, the County is not authorized to require site plan applicants who seek to provide affordable housing through the bonus density program to also make a contribution to the affordable housing fund as that requirement is specifically prohibited by Va. Code § 15.2-2304.ss The court found that the requirement was outside the legislative authority provided to Arlington County by the Virginia General Assembly and was, therefore, illegal and invalid. Cases upholding inclusionary housing programs are distinguishable. In Commercial Builders of Northern California v. City of Sacramento, the Ninth Circuit held that a City of Sacramento ordinance was constitutional under Nollan. The ordinance conditioned certain types of nonresidential building permits upon the payment of a fee. The fee was intended to offset the cost of affordable housing burdens caused by low-income workers who moved there for jobs. The court found that it was not an unconstitutional taking.sb In analyzing the facts of the case with the then four-year old Nollan test, the court stated: W e ...agree with the City that Nollan does not stand for the proposition that an exaction ordinance will be upheld only where it can be shown that the development is directly responsible for the social ill question. Rather, Nollan holds that where there is no evidence of a nexus between the development and the problem that the exaction seeks to address, the exaction cannot be upheld. Where, as here, the Ordinance was implemented only after a detailed study revealed a substantial connection between development and !d. at 286. ss Id. ss !d at 873 (9th Cir. 1991). 14 the problem to be addressed, the Ordinance does not suffer from the infirmities that the Supreme Court disapproved in Nollan.s~ The court was impressed with and convinced by the city-wide findings that explained non- residential development would be a major factor in attracting new employees to the region and that the introduction of these new residents necessitated affordable housing.ss Similarly, in Holmdel Builders Assn v. Township of Holmdel, the court held that the fact the Township utilized development fees rather than mandatory set-asides to accomplish the goal of affordable housing did not negate a real and substantial relationship or nexus between the linkage fees and the development.59 Although development fees were not site-specific in the same sense as mandatory set-asides, they targeted land-related regulations because they were specifically designed and applied to aid in the creation of affordable residential housing.h0 In Home BuildersAss'n of Northern California v. City ofNapa,b~ the city enacted an inclusionary zoning ordinance requiring that 10 percent of all newly constructed units must be affordable after the city made significant findings and studied possible affordable housing solutions.bZ The ordinance offered developers two alternatives. First, developers of single- family units could satisfy the inclusionary requirement through an "alternative equivalent proposal" such as a dedication of land, or the construction of affordable units on another site. s' !d. at 875. ss !d. at 873. e9 Holmdel, 583 A.2d at 288 (N.J. 1990). 60 !d at 288. 61 108 Cal. Rptr. 2d 60 (Ct. App. 2001). b2 (d. at 62. 15 Developers of multifamily units could also satisfy the 10 percent requirement through an "alternative equivalent proposal" if the city council determined that the proposed alternative resulted in affordable housing opportunities equal to or greater than those created by the basic inclusionary requirement.63 As a second alternative, a residential developer could choose to satisfy the inclusionary requirement by paying an in-lieu fee. All fees generated through this option were deposited into a housing trust fund, and could only be used to increase and improve the supply of affordable housing in the City.b' Developments that included affordable housing were entitled to a variety of benefits including expedited processing, fee deferrals, loans or grants, and density bonuses that allow more intensive development than otherwise would be allowed.bs In addition, the ordinance permitted a developer to appeal for a reduction, adjustment, or waiver of obligations under the ordinance "based upon the absence of any reasonable relationship or nexus between the impact of the development and ...the inclusionary requirement.n66 Plaintiffs, anon-profit corporation and an association of builders, contractors, and related trades and professions involved in residential construction, sought to have the inclusionary zoning ordinance declared facially invalid because it: (1) was an impermissible taking under both state and federal law; and (2) violated the Due Process Clause of the United States vs !d. ea Id. as ld. at 62-63. ea !d at 63. 16 Constitution.b~ On appeal, the California Court of Appeals upheld the ordinance against the facial constitutional challenges.68 With respect to the takings claim, although acknowledging that the ordinance imposed significant burdens on developers, the court found relevant that it also provided benefits to those complying with its terms.69 However, this decision must be read in the context of California's statutory mandatory bonus requirements.70 As recently amended and effective on January 1, 2005, the statute requires requires a 20% density bonus as soon as a developer reaches a threshold of 5% of its units affordable to very low income households or10% of its units are affordable to low income households, and increases in density bonuses of 2.5% for each additional increase of 1 % of very low income units, 1.5% for each additional 1% in low income units, and 1% for increase in moderate income units, up to a maximum density bonus of 35% when a project provides either 1 I % very low income units, 20% low income units, or 40% moderate income units. I do not understand the proposed Kauai Housing Policy Ordinance to provide such density bonuses in any form. Id. ax /d. at 63-67. a9 /d. at 64. Cal. Gov. Code Section 65915-65918, as amended 17