WALNUT CREEK, CALIFORNIA — When a developer proposes an eight-story building on land with a 50-foot height limit, the obvious question is: How is that legal?
The short answer is that local zoning is no longer always the final word on how large a California housing development can become.
State lawmakers have created several legal pathways that allow qualifying housing projects to exceed local limits on height, density, setbacks, parking and other features. These projects are not technically violating zoning. Instead, state law requires cities to treat them as compliant after granting the applicable bonuses, concessions or waivers.
That distinction helps explain how Walnut Creek recently approved an approximately 89-foot-tall building at 1532 Mt. Diablo Boulevard — nearly 40 feet taller than the site’s normal limit.
Sign up for the free 925 News newsletter for more local development news.
The Density Bonus Is Much More Than Extra Apartments
The most important tool is California’s Density Bonus Law.
It’s fairly simple at its core: A developer agrees to reserve some apartments for qualifying lower-income households, and the state allows the project to contain more homes than local zoning would otherwise permit.
The larger the affordable component, the greater the potential bonus.
In the case of 1532 Mt. Diablo Boulevard, Walnut Creek determined that a building following all of the site’s normal development standards could realistically accommodate 60 apartments.
The developer plans to reserve nine apartments for very-low-income households and five for moderate-income households. That combination qualified the development for a cumulative 77.5% density bonus, allowing as many as 107 apartments.
The final proposal contains 104.
Part of that unusually large increase comes from a 2024 expansion of the law created by Assembly Bill 1287. It allows certain developers that have already qualified for the maximum conventional density bonus to earn an additional bonus by providing more affordable homes.
In other words, a developer can effectively stack two bonuses. With enough qualifying affordable housing, some projects can reach twice the density ordinarily permitted on the property.
More Apartments Can Mean a Much Taller Building
A density bonus directly increases the number of homes allowed. It does not automatically increase a building’s height by the same percentage.
But the extra apartments still have to fit somewhere.
That is where waivers become particularly powerful.
If a local development standard would physically prevent a developer from constructing the number of homes authorized under the Density Bonus Law, the developer can ask the city to waive or reduce that standard.
Those requests can cover building height, setbacks, lot coverage, open space, parking, loading areas and other dimensional requirements. There is no small, predetermined limit on the number of qualifying waivers a project can receive.
Developers may also request incentives or concessions intended to reduce the cost of producing the affordable homes.
A city cannot reject those requests simply because officials or neighbors believe the resulting building is too large. State law establishes narrow grounds for denying them and generally places the burden on the local government to justify a refusal with written findings and substantial evidence.
The downtown Walnut Creek project received relief involving its height, setbacks, private open space, parking, passenger-loading area and part of the ground-floor commercial space.
That is how a site with an ordinary 50-foot height limit can legally accommodate an eight-story building approaching 90 feet.
It can also impact factors like parking spaces available and other considerations.
The Planning Commission Cannot Simply Vote It Down
California’s Housing Accountability Act adds another layer of protection.
For a housing project that complies with the applicable objective rules — including any waivers and concessions it is entitled to receive — a city generally cannot reduce its density or reject it based on subjective objections.
Calling a building too bulky, out of character or inappropriate for the neighborhood is not necessarily enough.
To deny a protected project, a city may have to demonstrate a specific, significant and unavoidable threat to public health or safety, based on objective standards that were already in place. It may also have to show that there is no feasible way to mitigate that impact.
That is an intentionally demanding standard.
It does not mean local review is meaningless. Walnut Creek’s design process led the Mt. Diablo Boulevard developer to pull the eighth floor considerably farther away from the street, create a large outdoor terrace and reduce the proposal from 106 apartments to 104.
Cities can still influence architecture, circulation, landscaping and other details. What they frequently cannot do is use that process to eliminate the additional housing authorized by state law.
The Builder’s Remedy Is a Different Tool
Density bonuses are often confused with the “builder’s remedy,” but they are separate legal mechanisms.
Every California city and county must periodically adopt a housing element showing where and how it will accommodate its state-assigned share of regional housing needs.
If a jurisdiction does not have a substantially compliant housing element when a qualifying application is filed, the builder’s remedy can sharply restrict its ability to reject a housing proposal merely because it conflicts with the local general plan or zoning.
Walnut Creek’s Mitchell Townhomes development provides a dramatic local example.
That proposal would replace a Shadelands office campus with 422 three-story townhomes, including 55 homes reserved for lower-income households. Residential development was not normally permitted under the property’s business-park designation.
The developer submitted its preliminary application on October 18, 2023. The state certified Walnut Creek’s housing element on October 24 — just six days later.
Because the city had not yet received certification when the application was submitted, the project secured builder’s-remedy protections. Walnut Creek’s subsequent return to compliance did not erase the rights attached to that application.
The City Council rejected appeals of the project in April 2026, allowing it to move forward without the general-plan amendment and rezoning that would ordinarily have been necessary.
California revised the builder’s-remedy rules for newer applications beginning in 2025, adding clearer density limits, site restrictions and objective standards. It is therefore no longer accurate to describe the current version as allowing absolutely anything to be built anywhere.
But the underlying consequence remains: Missing a housing-element deadline can temporarily cost a city a significant amount of control over development.
Cities Still Have Some Authority
State housing laws do not erase every local requirement.
Projects may still need building permits, engineering review, fire and life-safety approval, utility work and compliance with applicable objective design rules. Environmental review may also remain necessary unless a separate exemption or streamlined approval process applies.
A waiver must relate to a standard that interferes with the project authorized under state law. It is not a blanket exemption from building codes or public-safety requirements.
Approval also does not guarantee construction. Developers still must secure financing, prepare construction documents, satisfy conditions of approval and decide that a project remains economically feasible.
Local Zoning Is Now the Starting Point
The scale of these projects reflects a deliberate decision made in Sacramento.
State lawmakers concluded that California’s housing shortage could not be addressed if every city retained unrestricted authority to enforce low density, strict height limits and discretionary approval standards. They consequently made affordable housing a bargaining chip: Include a relatively small number of income-restricted homes, and a project can become substantially larger.
Supporters argue that the approach produces both affordable apartments and more market-rate housing on land where cities had allowed too little development.
Critics argue that a modest affordable component can unlock a disproportionately large building while leaving local residents and elected officials with limited recourse.
Both sides are responding to the same underlying reality.
A zoning map may say 50 feet. A general plan may designate a property for offices. A previous proposal may have contained only 30 homes.
But in the 925 — and throughout California — those local rules are increasingly only the first step in calculating what can legally be built.
