Chapter 18.185
AFFORDABLE HOUSING

Sections:

18.185.010    Purpose.

18.185.020    Applicability.

18.185.030    Review authority.

18.185.040    Inclusionary housing requirements.

18.185.050    Density bonus program.

18.185.060    Affordable housing incentive program.

18.185.070    Affordable housing agreements.

18.185.080    Application requirements and review.

18.185.090    Duration of affordability.

18.185.100    Compliance monitoring fees.

18.185.010 Purpose.

A. The purpose of this chapter is to facilitate and encourage the development of housing affordable to a broad range of households with varying income levels within the city. It is intended to implement the city’s general plan housing element policies and programs pertaining to the need for housing affordable to persons of very low, low and moderate income. In addition, this chapter is intended to ensure that at least a minimum percentage of units affordable to very low, low, and/or moderate income individuals is included within new residential developments and that appropriate incentives are established to encourage the inclusion of affordable units beyond the stated minimum. This chapter is further intended to allow for density bonuses and related incentives consistent with state density bonus law.

B. Terms referenced in this section are defined in CDC 18.20.030 under the subheading “Affordable Housing Definitions.” [Ord. 12-4. DC 2012 § 122-576].

18.185.020 Applicability.

A. The provisions of this chapter apply to all development containing five or more residential units. More specific applicability provisions are noted below:

1. CDC 18.185.040 (Inclusionary housing requirements) requires the inclusion of a minimum percentage of affordable housing units in all projects with five units or more. Its intent is to integrate affordable housing throughout areas of the city where housing is permitted. An option for payment of in-lieu fees is provided in the event that development of inclusionary units as part of the project is not feasible. The requirements of CDC 18.185.040 apply in all districts where residential uses are permitted.

2. CDC 18.185.050 (Density bonus program) allows increased housing densities with a corresponding increase in affordable housing units consistent with state of California density bonus requirements. It applies in all districts where residential uses are permitted.

3. CDC 18.185.060 (Affordable housing incentive program) includes additional incentives for projects incorporating affordable units and permits density bonuses above those provided under CDC 18.185.050, in accordance with the Concord housing element. CDC 18.185.060 is only applicable in specified districts where high density multifamily housing and residential mixed-use development is permitted. The provisions of CDC 18.185.060 are intended as an alternative to those in CDC 18.185.050 for qualifying projects, and are not cumulative. Projects using the density bonus provisions of CDC 18.185.060 are not eligible for additional bonuses under CDC 18.185.050.

B. Affordable housing units are units which are specifically designated for very low, low income, or moderate income households. They may be developed in all districts that allow residential uses. Affordable housing developments may consist of owner-occupied units or rental units.

C. The standards in this chapter are supplemental to, and supersede when in conflict with, the standards in the applicable districts in Division II of this title (Zoning DistrictsUses and Standards) and in other divisions of the development code, except that the provisions of Chapter 18.530 CDC (Nonconforming Uses, Structures, and Parcels) and Chapter 18.535 CDC (Nonconforming Physical Improvements/Property Upgrades) shall apply in all cases. [Ord. 12-4. DC 2012 § 122-577].

18.185.030 Review authority.

A. The community and economic development department shall be the review authority for new affordable housing developments. All applications for density bonuses, concessions, incentives, and waivers shall be reviewed by the community and economic development director.

B. Design and site development review, as described in Chapter 18.415 CDC, is required for all new affordable housing developments in all districts. This includes projects in which only a portion of the units are designated as affordable as well as those that are 100 percent affordable.

C. Projects containing affordable housing units are subject to all permit requirements and permitting procedures established by Division VII of this title (Permits and Permit Procedures). All predevelopment and public notice provisions established by that division shall apply.

D. The review authority for density bonuses and for the modifications to development standards identified in CDC 18.185.060 shall be the city of Concord community and economic development department. Staff may deny a density bonus by making certain findings as described in CDC 18.185.050(I)(2). Such denials are appealable to the city council. As indicated by Division VII of this title (Permits and Permit Procedures), planning commission and/or city council approval shall only be required where a use permit or major subdivision approval is required, where a decision is being appealed, or where actions related to financial incentives or agreements are included. [Ord. 12-4. DC 2012 § 122-578].

18.185.040 Inclusionary housing requirements.

A. Applicability. The following requirements shall apply to all residential projects of five or more units. No application for a general plan amendment, rezoning, tentative subdivision map, parcel map, use permit, design and site development review, hillside development plan, or building permit for a residential project shall be approved, nor shall any such residential project be constructed or occupied, without compliance with this chapter, except as noted in subsection (B) of this section (Exemptions).

1. All residential ownership projects shall either include the minimum number of inclusionary units required under subsection (C) of this section (Required Number of Inclusionary Units), or if eligible, pay the in-lieu fee determined pursuant to subsection (D) of this section (In-Lieu Fees).

2. Residential rental projects shall either include the minimum number of inclusionary units required under subsection (C) of this section (Required Number of Inclusionary Units), or if eligible, pay the in-lieu fee determined pursuant to subsection (D) of this section (In-Lieu Fees), only in the event that the project:

a. Receives a direct financial contribution from the city or any other form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code; or

b. Is subject to a development agreement.

3. An affordable housing agreement governing the number, size, and location of affordable units, and terms of their use, shall be required pursuant to CDC 18.185.070.

4. If affordable rental housing units are required, the city shall require as a condition of city assistance that the affordable housing agreement include the applicant’s agreement to any limitation on rents in consideration for the city assistance to ensure compliance with the Costa-Hawkins Act (Chapter 2.7 of Title 5 of Part 4 of Division 3 of the Civil Code).

B. Exemptions. This chapter shall not apply to the following:

1. A residential project consisting solely of the construction of one to four single-family dwelling units; or

2. The reconstruction of any dwelling units that were destroyed by a fire, flood, earthquake, or other act of nature; or

3. Residential rental projects that are not either: (a) receiving a direct financial contribution or any other form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code; or (b) subject to a development agreement.

C. Required Number of Inclusionary Units.

1. Basic Requirement. The required number of inclusionary units to be provided shall vary depending upon the total number of dwelling units in the project and the income category for the inclusionary units being provided. Within the parameters set forth in Table 18.185.040, the applicant may choose which income category of inclusionary units to provide.

 

Table 18.185.040

Required Percentage of Inclusionary Units 

Project Size and Type

Inclusionary Requirement

Residential Ownership Projects

Either 10 percent at moderate income, or six percent at low income

Residential Rental Projects (not otherwise exempt)

Either 10 percent at low income, or six percent at very low income

2. Fractional Units. When the application of the percentages set forth above results in a number that includes a fractional unit, the fraction shall be rounded up to the next whole number if the fraction is one-half or more. If the result includes a fraction below one-half, the applicant shall have the option of either rounding up to the next whole number and providing an additional inclusionary unit, or paying an in-lieu fee as provided in subsection (D) of this section (In-Lieu Fees).

3. Blended Income Levels for Inclusionary Units. A developer may request that the development project include inclusionary units affordable to a mix of income levels (very low, low and moderate) instead of a single income level. Authority to approve a particular mix of income levels shall rest with the final city review authority for the underlying application.

4. Projects of Five to Nine Units. The developer of a residential project containing from five to nine units, inclusive, shall have the option of either providing one inclusionary unit or paying an in-lieu fee as provided in subsection (D) of this section (In-Lieu Fees).

5. Rental Alternative. As an alternative to providing ownership inclusionary units on site in residential ownership projects as required by subsection (A) of this section, and pursuant to Government Code Section 65589.8, the applicant for a residential ownership project may provide rental inclusionary units. In such cases, the number of rental units provided shall be such that at least 10 percent of the total number of units in the project (including the ownership and rental units) are affordable to low income households or at least six percent of the total number of units in the project (including the ownership and rental units) are affordable to very low income households. To ensure compliance with the Costa-Hawkins Act (Civil Code Sections 1954.51 through 1954.535), the city may only approve such a proposal if the applicant agrees in a rent regulatory agreement with the city to limit rents in consideration for a direct financial contribution or other form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code.

D. In-Lieu Fees.

1. Amount. A fee may be paid in lieu of providing inclusionary units for a residential project as provided in subsections (C)(2) (Fractional Units) and (4) (Projects of Five to Nine Units) of this section and for a residential project which contains less than 20 acres in gross land area. The fee shall be set by resolution of the city council and shall be an amount sufficient to pay the proportionate cost of providing inclusionary units elsewhere in the city. The fee may be periodically reviewed and updated by the city.

2. Use. All fee revenues shall be deposited in a restricted fund earmarked for housing developments affordable to very low, low, and/or moderate income households. Fees may also be used for administration of city affordable housing programs and to administer fair housing requirements for affordable units.

3. Timing of Payment. In-lieu fees shall be paid prior to issuance of a certificate of occupancy or prior to building permit issuance, for projects for which a certificate of occupancy is not issued; or as otherwise provided in the conditions of approval.

4. Purpose of In-Lieu Fees. Nothing in this title shall deem or be used to deem the in-lieu fee authorized in this section as an ad hoc exaction, as a mandated fee required as a condition to developing property, or as a fee subject to the analysis in Building Industry Association of Central California v. City of Patterson, 171 Cal.App.4th 886 (2009). Any in-lieu fee adopted by the city council is a menu option that may serve as an alternative to the provision of on-site inclusionary units as otherwise required by subsection (C) of this section.

5. The planning division or review authority may permit a developer to pay in-lieu fees rather than fulfilling the requirements of an executed inclusionary housing agreement requiring the construction of below market rate units if the reduced market price of the proposed units falls to within 15 percent of the “affordable price” for a moderate income four-person household.

E. Duration of Affordability. The duration of designated affordable inclusionary units shall conform to CDC 18.185.090.

F. Design Standards. The following design standards shall apply to all inclusionary units constructed pursuant to this chapter:

1. Inclusionary units shall be dispersed throughout the residential project and shall have access to all on-site amenities that are available to market rate units.

2. The construction quality and exterior design of inclusionary units shall be comparable to the market rate units. However, inclusionary units may be smaller in size, developed on smaller lots, and/or have alternative interior finishes.

3. The average number of bedrooms for all inclusionary units must be equivalent to the average number of bedrooms for market rate units within the same residential project.

G. Timing of Construction and Occupancy. All inclusionary units must be constructed and occupied prior to or concurrently with the market rate units within the same residential project. For phased residential projects, the inclusionary units may be constructed and occupied in proportion to the number of dwelling units in each phase of the project.

H. Development Incentives.

1. The city may grant one or more of the following affordable housing development incentives in order to mitigate the financial impact of this chapter’s requirements on a particular residential project:

a. Provision of housing set-aside funds, tax exempt financing, or other financial assistance, as approved by the city council.

b. A density bonus, incentive, concession, or waiver authorized pursuant to CDC 18.185.050 (Density bonus program).

c. Modification of zoning or development standards as described in CDC 18.185.060 (Affordable housing incentive program) for projects seeking a density bonus above and beyond the inclusionary housing requirements, as negotiated with and approved by the city. Authority to act on a request for these development incentives shall rest with the final review authority regarding the underlying application.

d. Expedited processing of a development application and/or deferral of development fees, as authorized by the city manager or designee. The terms and payment schedule for any deferred development fees shall be subject to the approval of the city manager or designee. Fees shall not be deferred any later than occupancy of the first dwelling unit in the residential project.

2. No development incentive shall be provided by the city pursuant to this section unless the applicant enters into an affordable housing agreement consistent with CDC 18.185.070.

I. Off-Site Alternatives.

1. As a complete or partial alternative to the provision of on-site inclusionary units pursuant to this chapter, an applicant for a residential project may propose a plan for providing affordable housing units at an off-site location within the city of Concord, as follows:

a. Acquire existing unrestricted multifamily units located elsewhere within the city and rehabilitate those dwelling units. At least two rehabilitated dwelling units shall be provided for each inclusionary unit required pursuant to this chapter.

b. Construct new affordable residential dwelling units. At least two new dwelling units shall be provided for each inclusionary unit required pursuant to this chapter.

2. Any new or rehabilitated dwelling units shall be regulated pursuant to an affordable housing agreement, as applicable, between the developer and the city pursuant to CDC 18.185.070 (Affordable housing agreements).

3. All off-site inclusionary units must be rehabilitated or constructed and occupied prior to or concurrently with the market rate units for the related residential project. For phased residential projects, the inclusionary units may be constructed and occupied in proportion to the number of dwelling units in each phase of the project.

4. The applicant may partner with a nonprofit affordable housing provider in order to meet its inclusionary housing obligations through one of the alternatives set forth in this section.

5. Authority to act on off-site alternative proposals shall rest with the final city review authority regarding the underlying application.

J. Waivers or Adjustments. The city council may approve a reduction or waiver of the requirements of this chapter for residential projects which: (1) are the subject of a disposition and development agreement, owner participation agreement, acquisition agreement, or other arrangement with the city of Concord; and (2) are receiving assistance from the city of Concord, such as relocation of occupants, acquisitions and disposition of land for site assemblage, use of eminent domain, write-down of land costs, fee waivers, or other forms of direct city assistance. The city may also adjust or waive the requirements of this chapter if the applicant demonstrates that its strict application would affect a taking of private property without just compensation or otherwise constitute a violation of the United States Constitution, California Constitution or other applicable federal or state laws. Any applicant requesting a reduction or waiver must submit a pro forma and such other financial analysis sufficient to support a determination that the reduction or waiver is necessary to ensure the economic feasibility of the project. Consistent with its responsibilities under the Public Records Act, the city shall take reasonable steps to protect the confidentiality of any proprietary financial information submitted by the applicant.

K. Allocation Priority. In the event that there exists a greater number of qualified persons than the number of available inclusionary units for any residential project subject to this chapter, then first priority for allocating available inclusionary units shall be given to qualified purchasers or renters who live or work within the city of Concord. [Ord. 12-4. DC 2012 § 122-579].

18.185.050 Density bonus program.

A. Purpose. The purpose of this section is to provide density bonuses for the production of affordable housing and senior housing in accordance with Sections 65915 and 65917 of the California Government Code. A density bonus is an increase in the number of dwelling units authorized for a particular parcel of land. Bonuses range from five to 35 percent over the maximum residential density otherwise permitted, depending on the level of affordability, the percentage of units that are affordable, and the inclusion of child care facilities in the development project.

B. Relationship to Inclusionary Housing Requirements. All projects utilizing a density bonus shall also comply with CDC 18.185.040 for inclusionary housing. For the purposes of calculating the required number of affordable units required by CDC 18.185.040, the additional units which may be authorized by a density bonus under this section are not included.

C. Relationship to Transit Station Overlay Zone. The provisions of this section may be used in lieu of those specified in the transit station (TS) overlay zoning district, but may not be used in addition to those specified in the TS overlay. Because the TS overlay already offers density bonuses and other development incentives which may exceed those listed in this section, the bonus densities offered through this section and the TS overlay (Chapter 18.105 CDC) are separate and not cumulative. Projects in the TS overlay are eligible to use the affordable housing incentive program components in CDC 18.185.060, as noted in that section.

D. General Provisions.

1. State Law Governs. When conflict occurs between the provisions of this chapter and Government Code Section 65915, state law shall govern.

2. Land Use Compatibility. Affordable housing units in projects using density bonuses shall be built on site and dispersed within market-rate projects, whenever feasible. Density bonus units within market-rate projects shall be comparable with the design of market-rate units in building appearance, use of materials, and finished quality.

3. Availability. Density bonus units shall be constructed concurrently with, and made available for, qualified occupants at the same time as the market-rate housing units within the same project unless both the city and the applicant agree to an alternative schedule for development.

4. Effect of Granting a Density Bonus. The granting of a density bonus shall not, in and of itself, require a general plan amendment, zoning change, or other discretionary approval.

5. Income Levels. For purposes of determining income levels of households under this chapter, the city shall use the Contra Costa County income limits in Title 25, Section 6932 of the California Code of Regulations.

6. Affordability Term. The duration of affordability shall comply with CDC 18.185.090.

7. Affordable Housing Agreement. Applicants requesting a density bonus shall enter into an affordable housing agreement with the city pursuant to CDC 18.185.070.

E. Density Bonus Requirements.

1. Minimum Density Bonus and Composition of Qualifying Projects. The provisions of this section apply to the construction of five or more housing units that satisfy at least one of the following criteria:

a. At least 10 percent of the units are designated as affordable to low income households. For each one percent increment over 10 percent in the number of low income designated units, the amount of the density bonus as defined in Table 18.185.050(A) shall be increased by one and one-half percent, up to a maximum of 35 percent.

b. At least five percent of the units are designated as affordable to very low income households. For each one percent increment over five percent in the number of very low income designated units, the amount of the density bonus as defined in Table 18.185.050(A) shall be increased by two and one-half percent, up to a maximum of 35 percent.

c. One hundred percent of the units are designated for senior citizens as defined in Section 51.3 and 51.12 of the Civil Code or are located in a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code.

d. At least 10 percent of the units in a common interest development as defined in California Civil Code Section 1351 are designated for moderate income households; provided, that all units in the development are offered to the public for purchase. For each one percent increment over 10 percent in the number of moderate income designated units, the amount of the density bonus as defined in Table 18.180.050(A) shall be increased by one percent, up to a maximum of 35 percent.

 

Table 18.185.050(A)

Percentage of Affordable Units and Corresponding Density Bonus 

Very Low Income Households Earning < 50 percent AMI

Low Income Households Earning < 80 percent AMI

Moderate Income 120 percent AMI Persons/Families in Common Interest Development

Percent Units Set Aside as Very Low Income Units

Percentage Density Bonus

Percent Units Set Aside as Low Income Units

Percentage Density Bonus

Percent Units Set Aside as Moderate Income Units

Percentage Density Bonus

5 percent

20.0 percent

10 percent

20.0 percent

10.0 percent

5.0 percent

6 percent

22.5 percent

11 percent

21.5 percent

11.0 percent

6.0 percent

7 percent

25.0 percent

12 percent

23.0 percent

12.0 percent

7.0 percent

8 percent

27.5 percent

13 percent

24.5 percent

13.0 percent

8.0 percent

9 percent

30.0 percent

14 percent

26.0 percent

14.0 percent

9.0 percent

10 percent

32.5 percent

15 percent

27.5 percent

15.0 percent

10.0 percent

11 percent

35.0 percent

16 percent

29.0 percent

16.0 percent

11.0 percent

 

 

17 percent

30.5 percent

17.0 percent

12.0 percent

 

 

18 percent

32.0 percent

18.0 percent

13.0 percent

 

 

19 percent

33.5 percent

19.0 percent

14.0 percent

 

 

20 percent

35.0 percent

20.0 percent

15.0 percent

 

 

 

 

21.0 percent

16.0 percent

 

 

 

 

22.0 percent

17.0 percent

 

 

 

 

23.0 percent

18.0 percent

 

 

 

 

24.0 percent

19.0 percent

 

 

 

 

25.0 percent

20.0 percent

 

 

 

 

26.0 percent

21.0 percent

 

 

 

 

27.0 percent

22.0 percent

 

 

 

 

28.0 percent

23.0 percent

 

 

 

 

29.0 percent

24.0 percent

 

 

 

 

30.0 percent

25.0 percent

 

 

 

 

31.0 percent

26.0 percent

 

 

 

 

32.0 percent

27.0 percent

 

 

 

 

33.0 percent

28.0 percent

 

 

 

 

34.0 percent

29.0 percent

 

 

 

 

35.0 percent

30.0 percent

 

 

 

 

36.0 percent

31.0 percent

 

 

 

 

37.0 percent

32.0 percent

 

 

 

 

38.0 percent

33.0 percent

 

 

 

 

39.0 percent

34.0 percent

 

 

 

 

40.0 percent

35.0 percent

2. Calculating the Density Bonus. The density bonus shall be calculated as shown in Table 18.185.050(A). The maximum number of units shall be equal to the percentage indicated applied to the maximum allowable density in the applicable zoning district. For senior housing projects, the density bonus shall be 20 percent of the number of senior housing units.

3. An applicant must state in its application which of the density bonuses above is being sought.

4. Density bonus applicants shall meet the minimum inclusionary housing requirements before being eligible for density bonuses.

5. Fractional Units. When calculating the number of permitted density bonus units, any fractions of units shall be rounded to the next highest number.

6. An applicant may elect to receive a density bonus that is less than the amount required by this section. In such cases, no reduction will be allowed in the number of affordable units required.

7. As provided in CDC 18.185.060, projects meeting certain locational criteria may be eligible for a density bonus that is greater than the amount made available by this section. In such cases, the criteria in CDC 18.185.050 shall no longer be used and the criteria in CDC 18.185.060 shall apply.

F. Development Incentives and Concessions.

1. In addition to the density bonus set forth in subsection (E) of this section, the city shall provide a concession or incentive for qualified projects, unless the city makes a finding that the concession or incentive is not necessary as provided in subsection (F)(6) of this section. The development incentive(s) granted shall contribute significantly to the economic feasibility of providing the affordable or senior units.

2. Applicants seeking a waiver or modification of development or zoning standards shall show that such waivers or modifications are necessary to make the housing development economically feasible in accordance with California Government Code Section 65915(f).

3. Number of Concession or Incentives. If an applicant proposes to provide at least one of the percentages of affordable units indicated in Table 18.185.050(B), one or more concessions or incentives shall be granted in order to facilitate achievement of the density bonus.

Table 18.185.050(B)

Incentive Schedule 

Affordable Unit Set-Aside

Number of Incentives*

Percent Units Set Aside as Very Low Income Units

Percent Units Set Aside as Low Income Units

Percent Units Set Aside as Moderate Income Units (in Common Interest Development)

5 percent

10 percent

10 percent

1

10 percent

20 percent

20 percent

2

15 percent or more

30 percent or more

30 percent or more

3

*    As stipulated in CDC 18.185.060, development projects meeting specified criteria may be eligible for additional incentives. Such projects would not be subject to the requirements above.

4. Development Incentives Defined. For the purposes of this section, concession or incentive means any of the following:

a. Reduced minimum lot sizes and/or dimensions;

b. Reduced minimum setbacks;

c. Reduced minimum common and/or private outdoor open space;

d. Increased maximum lot coverage;

e. Increased maximum building height and/or stories;

f. Reduced on-site parking standards, including the number or size of spaces and garage requirements, such that no more than (i) one on-site space shall be required for each studio or one-bedroom unit; (ii) two on-site spaces shall be required for each two- or three-bedroom unit; (iii) two and one-half on-site spaces shall be required for each four-bedroom unit. For the purposes of this section, at the applicant’s request, on-site parking may be provided through tandem or uncovered spaces but not through on-street parking. Pursuant to Government Code Section 65915, guest parking is not required;

g. Reduced minimum building separation requirements;

h. Reduced street standards, including street widths;

i. Approval of mixed-use zoning if commercial, office, or other land uses will reduce the cost of the housing development and if the commercial, office, or other land uses are compatible with the housing development and the existing or planned development in the area;

j. Reduced or deferred permit application fees;

k. Expedited or accelerated permitting process;

l. Direct financial aid in the form of a loan or grant to subsidize or provide low interest financing for on- or off-site improvements, or land or construction costs.

m. Other regulatory incentives or concessions proposed by the developer or the city which result in identifiable cost reductions or avoidance.

5. The city may offer an equivalent financial incentive in lieu of granting a density bonus, a concession or incentive, or both. The value of the equivalent financial incentive shall equal at least the land cost per dwelling unit savings that would result from a density bonus and must contribute significantly to the economic feasibility of providing the affordable or senior units pursuant to this section.

6. Restrictions. The city will grant the number of development incentives or concessions as required by this subsection, unless, on the basis of substantial evidence, it makes any of the following written findings below:

a. The development incentives or concessions are not required in order to provide affordable housing, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in Section 65915(c) of the California Government Code.

b. The development incentives or concessions would have a specific adverse impact, as defined in California Government Code Section 65589.5(d)(2), upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low and moderate income households.

c. The development incentives or concessions would be contrary to state or federal law.

G. Child Care Facility Density Bonus.

1. Additional Density Bonus. When an applicant proposes to construct a housing development that conforms to the requirements of the state density bonus law and includes a child care facility other than a family day care home that will be located on the premises of or adjacent to the project, the city shall grant either of the following:

a. A density bonus of additional residential space that is equal to or greater than the square footage of the child care facility; or

b. An additional concession or incentive that significantly contributes to the economic feasibility of the construction of the child care facility.

2. Additional Requirements. The city shall also require that:

a. The child care facility remains in operation for a period that is as long as, or longer than, the length of time during which the affordable housing units must remain affordable; and

b. The percentage of children of very low, low or moderate income households who attend the child care facility shall be the same or greater than the percentage of dwelling units in the project that are required for households at each income level.

3. Exceptions. The city shall not be required to provide a density bonus or concession for a child care facility if it finds, based upon substantial evidence, that the community has adequate child care facilities.

H. Donation of Land. When an applicant for a tentative subdivision map, parcel map, or other residential development approval donates land to the city that meets all of the requirements of Government Code Section 65915(h), the applicant shall be entitled to a density bonus of at least 15 percent, up to a maximum of 35 percent, depending on the amount of land donated. This section shall not apply when the city requires a developer to donate land as a condition of development. The density bonus shall be in addition to any other density bonus awarded pursuant to this section; provided, that the maximum combined density bonus for any housing development utilizing this provision shall be no more than 35 percent.

I. Waivers and Modifications of Development Standards.

1. In accordance with Government Code Section 65915(e), an applicant may propose a waiver or modification of development standards if the established standard(s) would physically preclude the construction of a project meeting the criteria of subsection (E) of this section (Density Bonus Requirements) at increased densities or with the development incentives permitted by this section. A proposal for the waiver or reduction of development standards pursuant to the subdivision shall neither reduce nor increase the number of development incentives to which the applicant is entitled pursuant to subsection (F) of this section (Development Incentives and Concessions).

2. Grounds for Denial. In accordance with Government Code Section 65915(e), the city may deny an applicant’s request to waive or modify the city’s development standards in any of the following circumstances:

a. The application does not conform to the requirements of this section or Government Code Section 65915 through 65918.

b. The applicant fails to demonstrate that the city’s development standards physically preclude the utilization of a density bonus on a specific site.

c. The waiver or reduction would have a specific, adverse impact, as defined in Government Code Section 65589.5(d)(2), upon health, safety, or the physical environment, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

d. The waiver or reduction would have an adverse impact on any real property that is listed in the California Register of Historical Resources.

e. The waiver or reduction would be contrary to state or federal law.

J. Appeals. The denial of a request for a density bonus on the basis of the findings or exceptions listed in subsection (F)(6) of this section (Restrictions), subsection (G) of this section (Child Care Facility Density Bonus), or subsection (I)(2) of this section (Grounds for Denial) may be appealed to the city council. [Ord. 12-4. DC 2012 § 122-580].

18.185.060 Affordable housing incentive program.

A. Purpose. The purpose of the affordable housing incentive program is to provide incentives above and beyond those offered by the density bonus program in CDC 18.185.050 (Density bonus program) in order to encourage the development of affordable and mixed income housing, consistent with the Concord housing element. The development standards listed in this section modify those established in other applicable divisions of the development code. The standards are intended to help Concord meet its fair share of the region’s affordable housing needs while improving and complementing the design of surrounding neighborhoods, protecting the use and enjoyment of neighboring properties, and promoting economic and environmental sustainability.

B. Applicability.

1. The provisions of this section shall apply to residential and mixed-use projects in the RM (residential medium density), RH (residential high density), community office (CO), NC (neighborhood commercial), CMX (commercial mixed-use), DMX (downtown mixed-use), and DP (downtown pedestrian) districts.

2. Where parcels within these districts are also covered by a transit station overlay designation and are proposed for qualifying affordable housing developments, the provisions in this section relating to additional density, additional floor area ratio, and reduced parking shall supersede those in Chapter 18.105 CDC (Transit Station Overlay District (TS)).

3. Where parcels within these zones are also covered by an airport overlay designation, all requirements of Chapter 18.100 CDC (Airport Overlay District (A)) shall apply.

4. Projects utilizing the density bonus provisions in this section are not eligible for additional density bonuses pursuant to CDC 18.185.050. The intent of the affordable housing incentive program is to provide an alternative to the density bonus program, and the bonuses are not additive.

C. Eligibility. The provisions of this section shall apply to all projects in eligible zoning districts meeting the following criteria:

1. For rental projects, at least 20 percent of the units in the project must be affordable to very low income households. Another 20 percent must be either affordable to low or very low income households. The total percentage of affordable units in the project must be at least 40 percent.

2. For for-sale projects, at least 20 percent of the units must be affordable to low or very low income households. Another 20 percent must be affordable to households earning up to the area wide median income (e.g., 100 percent AMI). The total percentage of affordable units in the project must be at least 40 percent.

3. Development projects exceeding the affordability thresholds identified in subsection (C)(1) and (2) of this section are eligible for the provisions of this section.

4. A minimum parcel area of at least 10,000 square feet (prior to any subdivision associated with the proposed project) is required for a project to be eligible for the provisions of this section.

D. Increased Density and Floor Area Ratio. Qualifying affordable and mixed income housing developments may utilize the density and FAR standards in Table 18.185.060(A), in lieu of the density and FAR standards in Division II of this title.

 

Table 18.185.060(A)

Increased Density and Floor Area Ratio (FAR) Provisions for Qualifying Affordable Housing and Mixed Income Developments(1)  

Zone

Maximum Base Density (specified in Division II of this title)

Modified Density for Qualifying Projects

Maximum Base FAR (specified in Division II of this title) 

Modified FAR for Qualifying Projects(2)

RM

1 unit per 1,360 SF lot area (32 DU/AC)

1 unit per 970 SF lot area (40 percent bonus)

N/A

N/A

RH

1 unit per 435 SF lot area (100 DU/AC)

1 unit per 300 SF lot area (45 percent bonus)

N/A

N/A

NC

1 unit per 1,815 SF lot area (24 DU/AC)

1 unit per 1,300 SF lot area (40 percent bonus)

0.35

1.0

CO

1 unit per 1,360 SF lot area (32 DU/AC)

1 unit per 970 SF lot area (40 percent bonus)

1.0

1.4

CMX

1 unit per 1,090 SF lot area (40 DU/AC)

1 unit per 750 SF lot area (45 percent bonus)

1.0

1.5

DMX

1 unit per 435 SF lot area (100 DU/AC)

1 unit per 300 SF lot area (45 percent bonus)

6.0

6.0

DP

1 unit per 435 SF lot area (100 DU/AC)

1 unit per 300 SF lot area (45 percent bonus)

4.0

4.0

TS overlay

Add 25 percent to base densities above

Where 40 percent bonus is indicated above, replace with 50 percent. Where 45 percent bonus is indicated above, replace with 55 percent.

Add 25 percent to base FAR above

Add 20 percent to base FAR above

(1)    All densities are based on net developable area, excluding streets and unbuildable portions of the property.

(2)    FAR applies to mixed-use projects only. Projects that are 100 percent residential are not subject to an FAR requirement.

E. Lot Area and Dimension. Qualifying affordable and mixed income housing developments may utilize the lot area and dimension standards in Table 18.185.060(B), in lieu of the lot area and dimension standards in Division II of this title.

Table 18.185.060(B)

Modified Lot Area and Lot Dimension Standards for Qualifying Affordable Housing and Mixed Income Developments (*) 

Zone

Base Minimum Lot Size (as specified in Division II of this title)

Modified Minimum Lot Size for Qualifying Projects

Base Minimum Lot Width (as specified in Division II of this title)

Modified Minimum Lot Width for Qualifying Projects

Base Minimum Lot Depth (as specified in Division II of this title)

Modified Minimum Lot Depth for Qualifying Projects

RM

1,920 (detached)

1,440 (attached)

1,800 (detached)

1,200 (attached)

24 feet (detached)

18 feet (attached)

22 feet (detached)

16 feet (attached)

80 feet (detached)

60 feet (attached)

70 feet (detached)

50 feet (attached)

RH

5,000

4,000

50 feet

40 feet

100

80 feet

NC

10,000

10,000

100 feet

100 feet

100 feet

100 feet

CO

10,000

5,000

100 feet

50 feet

100 feet

80 feet

CMX

10,000

5,000

100 feet

50 feet

100 feet

80 feet

DMX

10,000

5,000

100 feet interior

110 feet corner

50 feet interior

60 feet corner

100 feet

80 feet

DP

5,000

4,000

50 feet interior

60 feet corner

40 feet interior

50 feet corner

100 feet

80 feet

TS overlay

N/A

N/A

N/A

N/A

N/A

N/A

(*)    Lots smaller than the standards listed here may be created within a multifamily development that is subdivided into individual fee-simple units.

F. Lot Coverage. Qualifying affordable and mixed income housing developments in the RM and RH districts may utilize the lot coverage standards in Table 18.185.060(C), in lieu of the lot coverage standards in Division II of this title.

Table 18.185.060(C)

Modified Lot Coverage Standards for Qualifying Affordable Housing and Mixed Income Developments(*) 

Zone

Base Maximum Lot Coverage (as specified in Division II of this title)

Modified Maximum Lot Coverage for Qualifying Projects

RM

60 percent (detached)

80 percent (attached)

70 percent (detached)

85 percent (attached)

RH

75 percent

85 percent

(*)    For RM and RH zones only. Development in NC, CMX, DP, and DMX is not subject to lot coverage standards. Lot coverage for RH is for the entire project site. Where an RH site is subdivided into small fee simple parcels (e.g., condominiums), there is no lot coverage limit for the individual units.

G. Height. Qualifying affordable and mixed income housing developments may utilize the height standards in Table 18.185.060(D), in lieu of the height standards in Division II of this title.

Table 18.185.060(D)

Modified Height Standards for Qualifying Affordable Housing and Mixed Income Developments 

Zone

Base Maximum Height (as specified in Division II of this title)

Modified Maximum Height for Qualifying Projects

RM

4 stories/40 feet

45 feet

RH

6 stories/60 feet

75 feet

NC

40 feet

45 feet

CO

30 feet

45 feet

CMX

30 feet

45 feet

DMX

200 feet

200 feet

DP

70 feet

85 feet

TS overlay

N/A

Add 20 percent to figures above

H. Setbacks. Qualifying affordable and mixed income housing developments shall be eligible for a 20 percent reduction in the setback standards that are otherwise required for each zone under Division II of this title, except as noted in subsection (I) of this section (Transitional Requirements). In the DMX zone, a 50 percent reduction in the required front setback shall be permitted (five feet instead of 10 feet).

I. Transitional Requirements. Qualifying affordable and mixed income housing developments shall be subject to all transitional requirements established by CDC 18.150.180 (Transitional requirements), including height limits and setbacks on properties abutting lower density residential zones.

J. Open Space. Qualifying affordable and mixed income housing developments may utilize the open space standards in Table 18.185.060(E), in lieu of the open space standards in CDC 18.150.100.

Table 18.185.060(E)

Modified On-Site Open Space Requirements for Qualifying Affordable Housing and Mixed Income Developments 

Zone

Base On-Site Open Space Sq. Ft./Unit (As Specified in Division II of This Title)

Modified On-Site Open Space/Unit for Qualifying Projects

Modified On-Site Open Space/Unit for Qualifying Projects if within 500 Feet of a Public Park One Acre or Larger

RM

200 SF/unit, 60 SF of which must be private (*)

175 SF/unit, 60 SF of which must be private

150 SF/unit, 60 SF of which must be private

RH

200 SF/unit, 60 SF of which must be private

125 SF/unit, 50 SF of which must be private

100 SF/unit, 40 SF of which must be private

NC

200 SF/unit, 60 SF of which must be private

150 SF/unit (private and/or common) 

125 SF/unit (private and/or common)

CO

200 SF/unit, 60 SF of which must be private

150 SF/unit (private and/or common) 

125 SF/unit (private and/or common)

CMX

200 SF/unit, 60 SF of which must be private

150 SF/unit (private and/or common) 

125 SF/unit (private and/or common)

DMX

200 SF/unit, 60 SF of which must be private

100 SF/unit (private and/or common) 

75 SF/unit (private and/or common)

DP

200 SF/unit, 60 SF of which must be private

100 SF/unit (private and/or common) 

75 SF/unit (private and/or common)

TS overlay

No further reduction beyond what is specified above

No further reduction beyond what is specified above

No further reduction beyond what is specified above

(*) Higher standards apply in small lot subdivisions. See Chapter 18.155 CDC.

K. Parking.

1. Qualifying affordable and mixed income housing developments may utilize the parking standards in Table 18.185.060(F), in lieu of the parking requirements in Division IV of this title.

Table 18.185.060(F)

Modified Parking Standards for Qualifying Affordable Housing and Mixed Income Developments 

Bedroom Count

Base Parking Standards

Modified Parking Standards for Qualifying Affordable Housing Developments

Modified Parking Standards for Qualifying Affordable Housing Developments within 0.5 Mile of BART

Studio

1

0.67

0.5

1 bedroom

1.5

1

0.75

2 bedroom

2

1.5

1

3+ bedroom

2.5 spaces, plus 0.5 space for each additional bedroom above 3

1.75 spaces plus 0.25 spaces for each additional bedroom above 3

1.25 spaces plus 0.25 spaces for each additional bedroom above 3

Guest spaces

1 space for each four units

None required

None required

TS overlay

Can reduce above requirements by 25 percent

Can reduce above requirements as noted in the last column of this table

N/A

2. As indicated in Chapter 18.160 CDC (Parking, Loading, and Access), the review authority may grant further reductions for senior and special needs housing based on quantified information provided by the applicant that documents the need for fewer spaces.

3. Other parking standards prescribed by Chapter 18.160 CDC (Parking, Loading, and Access) continue to apply, to the extent they do not conflict with the numeric requirements of this table.

4. Pursuant to California Government Code Section 65915(p)(2), an affordable or mixed income housing development may meet a portion of its on-site parking requirement through tandem and/or uncovered spaces.

5. Affordable housing developments in the DP and DMX zones which are within an established vehicle parking district may pay an in-lieu parking fee as prescribed by CDC 18.160.060(B) (In-Lieu Fees) rather than providing required parking on site or off site.

L. Use Permit Requirements. As indicated in Table 18.185.060(G), the following adjustments to allowed uses and permit requirements shall be permitted for qualified affordable and mixed income housing developments:

Table 18.185.060(G)

Adjustments to Allowed Uses and Permit Requirements for Qualifying Affordable Housing and Mixed Income Developments 

Zone

Use Allowances and Permit Requirements for Multifamily Residential Use, as Specified in Division II of This Title

Use Allowances and Permit Requirements for Qualifying Affordable Housing and Mixed Income Projects(1)

RM

Zoning Clearance Only

Zoning Clearance Only

RH

Zoning Clearance Only

Zoning Clearance Only

NC

Major Use Permit

Major Use Permit

CO

Major Use Permit

Minor Use Permit

CMX

Zoning Clearance Only

Zoning Clearance Only

DMX

Major Use Permit

Zoning Clearance Only

DP

Major Use Permit

Minor Use Permit

(1)    Limitations on ground floor residential uses apply in the NC and DP zones, as noted in Division II of this title. Ground floor residential uses are not permitted in the NC zone and are not permitted on sites facing Todos Santos Plaza in the DP zone. At the discretion of the review authority, a project which meets the affordability criteria listed in this chapter located on a site of at least two acres in the NC zone may include ground floor residential uses, provided the ground floor street frontage is developed with commercial use and residential uses occupy less than 50 percent of the ground floor area.

M. Additional Incentives. Consistent with the density bonus provisions established by CDC 18.185.050, affordable and mixed income housing developments are eligible for additional incentives, including expedited permit processing, reduced or deferred fees, and direct financial aid through housing assistance programs.

N. Neighborhood Meeting. Consistent with Chapter 18.405 CDC (Permit Application Filing and Processing), a neighborhood meeting shall be required following submittal of an application to the planning division for any project requesting affordable housing incentives that is located within a residential zoning district or within 300 feet of a low density residential (RR, RS, RL) zoning district, as measured from the edge of the parcel. Public notification for this meeting shall comply with the city’s notification requirements and procedures, including mailed or delivered notices to all properties within 500 feet of the subject parcel.

O. Duration of Affordability. The term of affordability for units approved under this program shall comply with CDC 18.185.090 (Duration of affordability). [Amended during 2014 recodification; Ord. 12-4. DC 2012 § 122-581].

18.185.070 Affordable housing agreements.

A. Any project subject to the inclusionary housing requirements of CDC 18.185.040 or utilizing the density bonus or development incentives of CDC 18.185.050 and 18.185.060 shall require the applicant to enter into an affordable housing agreement. The form and contents of the agreement shall be consistent with the provisions of Sections 65864 to 65869 of the California Government Code and shall be subject to review by the city attorney in consultation with the planning division. Affordable housing agreements shall be recorded against the property in order to ensure implementation of the requirements of this chapter.

B. The agreement shall include, but is not limited to, the following:

1. The total number of units approved for the development, including the number of affordable housing units;

2. The location, unit sizes (in square feet) and number of bedrooms of the affordable housing units;

3. A description of the household income groups to be accommodated by the project and a calculation of the affordable rent or sales price;

4. The party responsible for certifying sales prices or annual rental rates, and the process that will be used for certification;

5. A schedule for the completion and occupancy of the affordable housing units;

6. Duration of affordability for the affordable housing units, including provisions for resale and deed restrictions on targeted housing units that are binding on property upon sale or transfer;

7. Provisions covering the expiration of the agreement, including notice prior to conversion to market-rate units and a right of first refusal for the city and/or the distribution of accrued equity for for-sale units;

8. A description of the remedies for breach of the agreement by either party.

C. Additional Agreement Provisions for For-Sale Housing. In the case of for-sale housing, the regulatory agreement shall provide the following conditions governing the initial resale and use of affordable units:

1. Affordable units shall, upon initial sale, be sold to eligible very low, lower, or moderate income households at an affordable sales price and housing cost, or to qualified households as defined by the development code.

2. The initial purchaser of each affordable unit shall execute an instrument or agreement approved by the city restricting the sale of the unit in accordance with this chapter during the affordability term. Such instrument or agreement shall be recorded against the parcel and shall contain such provisions as the city may require in order to ensure continued compliance with this chapter.

3. Affordable units which are initially owner-occupied may not be rented by the owner, except in cases of substantial hardship including, but not limited to, active military duty and illness, and on specified terms as provided in an agreement acceptable to the housing manager.

4. The maximum sales price permitted on resale of an affordable unit shall be the lower of: (a) fair market value or (b) the seller’s lawful purchase price, increased by the rate of increase of area median income during the seller’s ownership. The sales price may also be modified to account for capital improvements made by the seller, deferred maintenance, and the seller’s necessary costs of sale. The city shall enter into an equity sharing agreement in accordance with Government Code Section 65915(c) to address disposition of proceeds upon resale.

5. The city may suspend resale restrictions on for-sale units in the event they create an economic hardship for the owner due to periods of significant real estate market decline, based on the criteria defined in the city of Concord’s inclusionary housing program guidelines.

6. The resale restrictions shall provide an option to the city to purchase any affordable owner-occupancy unit at the maximum price which could be charged to a purchaser household, at any time the owner proposes sale.

D. Additional Agreement Provisions for Rental Housing. In the case of rental housing development, the regulatory agreement shall provide for the following conditions governing the use of affordable units during the use restriction period:

1. The rules and procedures for qualifying tenants, establishing affordable rent rates, filling vacancies, and maintaining target units for qualified tenants;

2. Provisions requiring owners to verify tenant incomes and maintain books and records to demonstrate compliance with this section;

3. Provisions requiring owners to submit an annual report to the city, which includes the name, address, and income of each person occupying affordable units, and which identifies the bedroom size and monthly rent or cost of each affordable unit; and

4. A requirement to apply the same rental terms and conditions to the tenants of affordable units as are applied to other tenants, except as required to comply with this chapter (for example, rent levels) or with other applicable government subsidy programs. Discrimination against persons receiving housing assistance is prohibited. [Ord. 12-4. DC 2012 § 122-582].

18.185.080 Application requirements and review.

A. Submittal Requirements. An applicant/developer seeking a density bonus, development concession or incentive, and/or other affordable housing program incentive pursuant to CDC 18.185.050 or 18.185.060 shall submit an application which complies with the submittal requirements set by Division VII of this title (Permits and Permit Procedures). If not already included in that submittal, the following additional information shall be required:

1. The total number of units in the project;

2. The number and affordability level of proposed affordable housing units or other units to be produced through density bonus provisions;

3. The zoning and general plan designations and assessor parcel number(s) of the project site;

4. A vicinity map and preliminary site plan, drawn to scale, including building footprints, driveway, and parking layout;

5. If a concession or incentive is requested, the application shall describe each specific development concession or incentive sought, and why it is necessary to provide the affordable units;

6. If requesting a density bonus based on land donation in accordance with Government Code Section 65915(g), information sufficient to permit the city to determine that the proposed donation conforms with the requirements of Section 65915 and the Government Code;

7. If requesting a density bonus based on the provision of a child care facility in accordance with Government Code Section 65915(h), the application must:

a. Provide the location of the proposed child day care facility and the proposed operator;

b. Agree to have contracted with a child day care facility operator for operation of the child day care facility before the first building permit is issued;

c. Agree that the child day care facility will be in operation when the first certificate of occupancy is issued; and

d. Agree to meet the requirements specified in CDC 18.185.050(G)(2).

B. An application for a density bonus, development incentive or concession, or other affordable housing program incentive, shall be processed concurrently with any other application(s) required for the development project. Final approval or disapproval of an application shall be made by the review authority unless direct financial assistance is requested. If direct financial assistance is requested, the city council shall have the sole authority to make the final decision on the application.

C. Following receipt of the application and in a manner consistent with the Permit Streamlining Act and Chapter 18.405 CDC (Permit Application Filing and Processing), the city shall provide to an applicant or developer a letter which identifies project issues of concern and the procedures for compliance with this chapter. The planning division shall inform the applicant/developer that the requested concession(s) or incentive(s) shall be recommended for consideration with the proposed housing development, or that alternative or modified concession(s) or incentive(s) shall be recommended.

D. The review authority provisions established by CDC 18.185.030 (Review authority) and Division VII (Permits and Permit Procedures) of this title shall apply to all applications for a density bonus or affordable housing incentive or concession. [Ord. 12-4. DC 2012 § 122-583].

18.185.090 Duration of affordability.

The duration of affordability for units created through the inclusionary zoning, density bonus, or affordable housing incentive provisions of this chapter shall be as follows:

A. The sale price for ownership units shall be restricted for a period of 45 years pursuant to an affordable housing agreement recorded against the property. Resale restrictions may be released on a case by case basis by the city manager or designee due to undue hardship or a severe downturn in the residential real estate market, based on criteria defined in the city of Concord’s inclusionary housing program guidelines.

B. The monthly rent for rental inclusionary units shall be restricted for a period of 55 years pursuant to an affordable housing agreement recorded against the property. [Ord. 12-4. DC 2012 § 122-584].

18.185.100 Compliance monitoring fees.

The city council by resolution may establish compliance monitoring fees to recover the city’s actual, reasonable costs incurred for ongoing implementation of this chapter. For ownership units, the fee shall be payable by the developer or future seller of the property at the time of each sale or transfer during the term of the applicable affordable housing agreement. For rental inclusionary units, the property owner shall pay an annual fee each year during the term of the applicable affordable housing agreement. [Ord. 12-4. DC 2012 § 122-585].