Chapter 18.43
DENSITY BONUS AND OTHER INCENTIVES

Sections:

18.43.010    Purpose.

18.43.020    Definitions.

18.43.030    General provisions.

18.43.040    Density bonus.

18.43.045    Affordability.

18.43.050    Concessions/incentives.

18.43.060    Waiver/modification of development standards.

18.43.070    Land donation.

18.43.080    Child care facility.

18.43.090    Parking standards.

18.43.100    Condominium conversions.

18.43.110    Development bonus for commercial developers.

18.43.010 Purpose.

When an applicant proposes a housing development within the city and builds affordable housing, donates land, or provides child care facilities as prescribed in this chapter and Government Code Section 65915, upon request of the applicant, the city is required to provide a density bonus and concessions or incentives. The purpose of this chapter is to satisfy the requirements of state law and thereby increase the housing supply and availability of child care facilities in the city. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.020 Definitions.

For purposes of this chapter, the following definitions shall apply:

“Adverse impact” shall be as defined in Government Code Section 65589.5.

“Affordable housing agreement” shall mean an agreement between the city and the applicant guaranteeing the affordability of the rental or ownership affordable units in accordance with this chapter and Government Code Section 65915.

“Affordable housing costs” shall be as defined in Health and Safety Code Section 50052.5.

“Affordable rent” shall be as defined in Health and Safety Code Section 50053.

“Child care facility” shall mean a child day care facility, other than a family day care home, including, but not limited to, infant centers, preschools, extended day care facilities, and school age child care centers.

“Common interest development” shall be as defined in Civil Code Section 4100.

“Density bonus” shall mean a density increase over the otherwise maximum allowable gross residential density under the applicable zoning code provisions and land use element as of the date of the application by the applicant to the city, or, if elected by the applicant, a lesser percentage of density increase.

“Development standard” shall mean a site or construction condition that applies to a residential development pursuant to any ordinance, general plan element, specific plan, or other city condition, law, policy, resolution, or regulation. This includes, but is not limited to: height limitation; setback requirement; floor area ratio; on-site open space requirement; or parking ratio that applies to a residential development.

“Director” shall mean the general services director or the director’s designee.

“Disabled veteran” shall be as defined in Government Code Section 18541.

“Homeless person” shall be as defined in the federal McKinney-Vento Homeless Assistance Act, 42 U.S.C. Section 11301 et seq.

“Housing development” shall mean a development project for five or more residential units, including mixed use developments, and includes, but is not limited to: a subdivision or common interest development approved by the city and consists of residential units or unimproved residential lots and either a project to substantially rehabilitate and convert an existing commercial building to residential use or the substantial rehabilitation of an existing multifamily dwelling as defined in Government Code Section 65863.4(d) where the result of the rehabilitation would be a net increase in available residential units.

“Incentive or concession” or “incentive/concession” shall mean any of the following:

1. A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Commission as provided in Health and Safety Code Section 18901 et seq. This includes, but is not limited to, a reduction in setback and square footage requirements and a reduction in the ratio of vehicular parking spaces that would otherwise be required that result in identifiable and actual cost reductions, to provide for affordable housing costs or for affordable rents for the targeted units.

2. Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located.

3. Other regulatory incentives or concessions proposed by the developer or the city that result in identifiable and actual cost reductions to provide for affordable housing costs or affordable rents for the targeted units.

“Lower income households” shall be as defined in Health and Safety Code Section 50079.5.

“Major transit stop” shall be as defined in Public Resources Code Section 21155.

“Maximum allowable residential density” shall mean the density allowed under the zoning ordinance and land use element of the general plan, or, if a range of density is permitted, means the maximum allowable density for the specific zoning range and land use element of the general plan applicable to the project. In case of inconsistency, the density allowed under the general plan shall prevail.

“Moderate income households” shall be as defined in Health and Safety Code Section 50093.

“Persons or families of low or moderate income” shall be as defined in Health and Safety Code Section 50093.

“Persons or families of moderate income” shall be as defined in Health and Safety Code Section 50093.

“Senior citizen housing development” shall be as defined in Sections 51.3 and 51.12 of the Civil Code, or a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Civil Code Section 798.76 or 799.5.

“Specific adverse impact” shall mean a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete; inconsistency with the zoning ordinance or general plan land use designation does not meet this definition.

“Transitional foster youth” shall be as defined in Education Code Section 66025.9.

“Unobstructed access to a major transit stop” means that a resident is able to access such stop without encountering natural or constructed impediments.

“Very low income households” shall be as defined in Health and Safety Code Section 50105. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.030 General provisions.

A. The city shall grant one density bonus as specified in this chapter, and, if requested by the applicant and consistent with the applicable requirements of this chapter and state law, incentives or concessions, waivers or modifications of development standards and parking ratios, when an applicant seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this chapter, that will contain at least any one of the following:

1. Ten percent of the total units for lower income households;

2. Five percent of the total units for very low income households;

3. A senior citizen housing development;

4. Ten percent of the total dwelling units in a common interest development for persons and families of moderate income; provided, that all units in the housing development are offered to the public for purchase; or

5. Ten percent of the total units of a housing development for transitional foster youth, disabled veterans, or homeless persons, when such units are subject to a recorded affordability restriction of fifty-five years and are provided at the same affordability level as very low income units.

B. The request for a density bonus and proposals for incentives or concessions, or waivers or modifications of development standards and parking ratios, including relaxed development standards, shall be made in writing at the time of filing the housing development application and shall be processed in conjunction with the underlying application. The request shall identify the specific density bonus, incentives or concessions requested, and any development standards, including parking ratios, to be waived or reduced. Approval of this request shall be processed in conjunction with and pursuant to the same procedure as the underlying applications.

1. If the request includes a waiver or modification of development standards beyond the incentives or concessions required to be provided by the city by Section 18.43.050, the applicant shall include reasonable documentation to demonstrate that the incentive/concession meets the definition set forth above.

2. The request shall be accompanied by a fee in an amount set by resolution of the city council.

C. The density bonus units shall not be included in determining the percentage of units for subsection A of this section.

D. The granting of a density bonus, or incentive/concession as provided for in this chapter, shall not be interpreted, in and of itself, to require a general plan amendment, zone change, study, or other discretionary approval.

E. Nothing herein prevents the city from granting a greater density bonus and additional incentives/concessions or waivers/modifications than that provided for herein, or from providing a lesser density bonus and fewer incentives/concessions and waivers/modifications than that provided for herein, when the housing development does not meet the minimum thresholds.

F. If the applicant requests a meeting, including a preapplication meeting, with the city to discuss the proposal, the director shall meet with the applicant within twenty-one working days. The meeting shall be for informational purposes only and the proposal shall still be acted upon in conjunction with the underlying housing development application.

G. When multiple projects are being considered together for a density bonus, the projects shall be submitted as one application.

H. An applicant shall not be eligible for a density bonus or any other incentive/concession under this chapter if the housing development is on property which was subject to a rent restriction as specified in Government Code Section 65915(c)(3) unless the proposed housing development replaces those units as specified therein.

I. This chapter is to be interpreted in conjunction with Government Code Section 65915 and terms defined therein shall have the same meaning for this chapter.

J. Any reference to a state law code section includes any amendments thereto. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.040 Density bonus.

A. An applicant shall be entitled to a density bonus as set forth below. For purposes of calculating the amount of the density bonus to be awarded, if an applicant qualifies for more than one category, the applicant shall elect which category the density bonus shall be awarded under.

TYPE OF HOUSING UNITS

AMOUNT OF HOUSING REQUIRED FOR DENSITY BONUS

DENSITY BONUS PROVIDED TO DEVELOPER

ADDITIONAL DENSITY BONUS UNITS THAT MAY BE AVAILABLE TO DEVELOPER

Lower income

10%

20%

1.5% for every 1% above threshold – up to a maximum of 35%

Very low income

5%

20%

2.5% for every 1% above threshold – up to a maximum of 35%

Senior housing development or mobile homes

Housing development must be at least 35 units to qualify

20%

No additional units – 20% max.

Transitional foster youth, disabled veterans, homeless persons

10%

20% of the number of the type of units giving rise to the density bonus

No additional units – 20% max.

Common interest development

10% of units reserved for persons and families of moderate income

5%

1% for every 1% above threshold – up to a maximum of 35%

B. If an applicant for a tentative subdivision map, parcel map, or other residential development donates land to the city in accordance with Section 18.43.070, the applicant shall be entitled to a density bonus as set forth below. The increase allowed by this subsection may be combined with an increase allowed under subsection A of this section up to a total of thirty-five percent.

TYPE OF HOUSING UNITS

AMOUNT OF LAND REQUIRED FOR DENSITY BONUS

DENSITY BONUS PROVIDED TO DEVELOPER

ADDITIONAL DENSITY BONUS UNITS THAT MAY BE AVAILABLE TO DEVELOPER

Land donation

Sufficient land to allow construction of units in an amount of 10% of the number of residential units of the proposed development

15%

1% for each 1% increase above the threshold percentage when requirements are met – up to a maximum of 35%

C. If an applicant for a housing development that satisfies one of the criteria of subsection A of this section also proposes to construct a child care facility in accordance with Section 18.43.080, the applicant shall be entitled to a density bonus as follows, unless the applicant chooses to receive an additional incentive/concession:

TYPE OF HOUSING UNITS

AMOUNT OF HOUSING REQUIRED FOR DENSITY BONUS

DENSITY BONUS PROVIDED TO DEVELOPER

ADDITIONAL DENSITY BONUS UNITS THAT MAY BE AVAILABLE TO DEVELOPER

One of above from subsection A of this section plus child care facility

Must meet requirement from above for type of housing

Amount proportionate to square footage of child care facility (or additional concession/incentive)

N/A

D. All density calculations resulting in fractional units shall be separately rounded up to the next whole number.

E. The density bonus units shall be permitted in geographic areas of the housing development other than the areas where the units for the lower income households are located.

F. Siting for the affordable units within a housing development shall be as approved by the approving body of the underlying application.

G. Affordable units developed in conjunction with a market rate development shall be of equal design and quality as the market rate units. Exteriors, including architecture and elevations, and floor plans of the affordable units shall be similar to the market rate units. Interior finishes and amenities may differ from those provided in the market rate units, but neither the workmanship nor the products may be of substandard or inferior quality as determined by the building official. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.045 Affordability.1

A. An applicant shall enter into an affordable housing agreement to be recorded against the property with the city to ensure continued affordability of all low and very low income rental units that qualified the applicant for the award of the density bonus for at least fifty-five years, or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.

B. Rents for lower income density bonus units shall be set at an affordable rent.

C. An applicant shall enter into an affordable housing agreement to be recorded against the property with the city to ensure that the initial occupant of all for-sale density bonus units are persons and families of very low, low, or moderate income, as required, and that the units are made available at an affordable housing cost.

D. The city shall require an equity sharing agreement for all for-sale density bonus units, unless it is in conflict with the requirements of another public funding source or law. The following provisions shall be required in an equity sharing agreement, unless in conflict with the requirements of another public funding source or law:

1. Upon resale, the seller of the unit shall retain the value of any improvements, the down payment, and the seller’s proportionate share of appreciation. The city shall recapture any initial subsidy and its proportionate share of appreciation, which amount shall be used within five years for any of the purposes described in Health and Safety Code Section 33334.2 that promote home ownership.

2. The city’s initial subsidy shall be equal to the fair market value of the home at the time of initial sale, minus the initial sale price to the moderate income household, plus the amount of any down payment assistance or mortgage assistance. If the market value is lower than the initial market value upon resale, then the value at the time of resale shall be used as the initial market value.

3. The city’s proportionate share of appreciation shall be equal to the ratio of the city’s initial subsidy to the fair market value of the home at the time of initial sale. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.050 Concessions/incentives.

A. The application shall receive the following number of concessions/incentives:

TYPE OF HOUSING UNITS

AMOUNT OF HOUSING REQUIRED FOR CONCESSION/INCENTIVE

NUMBER OF CONCESSIONS/INCENTIVES AVAILABLE TO DEVELOPER

Lower income

10%

1

20%

2

30%

3

Very low income

5%

1

10%

2

15%

3

Moderate income common interest development

10%

1

20%

2

30%

3

One of above plus child care facility

No threshold

1 additional concession (or additional square footage)

B. The city shall grant the concessions/incentives requested by the applicant unless the city makes a written finding, based on substantial evidence, that:

1. The incentive/concession does not result in identifiable and actual cost reductions to provide for affordable housing costs or for rents for the targeted units.

2. The incentive/concession would have a specific adverse impact 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 specific adverse impact without rendering the development unaffordable to low and moderate income households.

3. The incentive/concession would be contrary to state or federal law.

C. This section does not limit or require the provision of direct financial incentives for the housing development, including the provision of city-owned land, or the waiver of fees or dedication requirements. However, if the city does provide a direct financial contribution through participation in cost of infrastructure, write-down of land costs, or subsidizing the cost of construction, the applicant shall be required to enter into an affordable housing agreement for thirty years. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.060 Waiver/modification of development standards.

A. In addition to the concessions/incentives required pursuant to Section 18.43.050, the city shall not apply any development standard that will have the effect of physically precluding the construction of a housing development that satisfies one of the criteria of Section 18.43.030A at the densities or with the concessions/incentives set forth in this chapter.

B. The city is not required to grant the waiver/modification of the development standard if it makes a written finding, based on substantial evidence, that:

1. The waiver/modification would have a specific, adverse impact upon the health, safety or the physical environment, or on any real property that is listed in the California Register of Historical Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

2. The waiver/modification would be contrary to state or federal law.

3. A proposal for waiver or modification under this section shall not change the number of incentives/concessions to which an applicant is entitled pursuant to Section 18.43.050. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.070 Land donation.

In order to receive a density bonus as provided for in Section 18.43.040B, the applicant shall comply with all of the following:

A. The land must be donated and transferred no later than the date of approval of the final subdivision map, parcel map, or residential development application.

B. The developable acreage and zoning classification of the land being transferred are sufficient to permit construction of units affordable to very low income households in an amount not less than ten percent of the number of residential units of the proposed development.

C. The transferred land is at least one acre in size or of sufficient size to permit development of at least forty units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at the density described in Government Code Section 65583.2(c), and is or will be served by adequate public facilities and infrastructure.

D. The transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units on the transferred land not later than the date of approval of the final subdivision map, parcel map, or residential development application, except that the city may subject the proposed development to subsequent design review to the extent authorized by Government Code Section 65583.2(i) if the design is not reviewed by the city prior to the time of transfer.

E. The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with Section 18.43.045.

F. The land is transferred to the city or to a housing developer approved by the city. The city may require the applicant to identify and transfer the land to the housing developer.

G. The transferred land shall be within the boundary of the proposed development, or, if the city agrees, within one-quarter mile of the boundary of the proposed development.

H. A proposed source of funding for the very low income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.080 Child care facility.

In order to receive a density bonus as provided for in Section 18.43.040C, the applicant shall comply with all of the following:

A. The child care facility will be located on the same premises of, as part of, or adjacent to the housing development.

B. The applicant shall be entitled to an additional density bonus or an additional incentive/concession, but not both.

C. The child care facility shall be required to remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable.

D. The children of very low income households, lower income households, or families of moderate income households shall equal a percentage of children attending the child care facility that is equal to or greater than the percentage of dwelling units that are required for such households.

E. Notwithstanding any other provision of this chapter, the city is not required to provide a density bonus or incentive/concession if it finds, based upon substantial evidence, that the community has adequate child care facilities.

F. Nothing herein requires the city to allow a child care facility in a zone where it would not otherwise be allowed. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.090 Parking standards.

A. Upon request of an applicant, the city shall not require a vehicular parking ratio, inclusive of accessible and guest parking, of a development meeting one of the criteria of Section 18.43.030A which exceeds the following:

1. Zero to one bedroom: one on-site parking space;

2. Two to three bedrooms: two on-site parking spaces;

3. Four and more bedrooms: two and one-half parking spaces.

B. Notwithstanding the above, upon the request of the applicant, the city may not impose a vehicular parking ratio, inclusive of accessible and guest parking, that exceeds the standards set forth below when the specified conditions are met:

1. Exceeds one-half space per bedroom when the development includes the maximum percentage of low (twenty percent) or very low (eleven percent) income units and has unobstructed access to a major transit stop located within one-half mile of the development; or

2. Exceeds one-half space per unit when the development consists solely of rental units, exclusive of a manager’s unit(s), with an affordable housing cost to lower income families and has unobstructed access to a major transit stop located within one-half mile of the development; or

3. Exceeds one-half space per unit when the development consists solely of rental units, exclusive of a manager’s unit(s), where the development is a housing development for individuals who are sixty-two years of age or older that complies with Civil Code Sections 51.2 and 51.3 and the development has paratransit service or has unobstructed access to a fixed bus route service that operates at least eight times per day located within one-half mile of the development; or

4. Exceeds three-tenths space per unit when the development is a special needs housing development as defined in Health and Safety Code Section 51312 and the development has paratransit service or has unobstructed access to a fixed bus route service that operates at least eight times per day located within one-half mile of the development.

C. The parking ratios set forth in subsection B of this section may be increased to no more than the ratios set forth in subsection A of this section if the city or an independent consultant has conducted a parking study that meets the requirements of Government Code Section 65915(p)(5) and the city makes findings based on such parking study supporting the need for a higher parking ratio.

D. If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number.

E. A development may provide on-site parking through tandem parking or uncovered parking, but not through on-street parking.

F. The applicant may request additional parking concessions/incentives beyond that provided herein in accordance with Section 18.43.030. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.100 Condominium conversions.

A. When an applicant for a conversion of apartments to a condominium project agrees to provide at least thirty-three percent of the total units of the proposed condominium project to persons or families of low or moderate income or fifteen percent of the total units of the proposed condominium project to lower income households, the city shall provide either a density bonus or other concessions/incentives of equal financial value.

1. The city shall require an affordable housing agreement for a minimum of thirty years. The agreement shall assure the continued affordability of units to subsequent purchasers.

2. In order to be entitled to the density bonus or concessions/incentives, the applicant shall agree to pay for the reasonably necessary administrative costs of the city for the life of the affordable housing agreement.

3. The city may impose such other reasonable conditions which it finds appropriate.

B. The applicant shall include a written proposal for the density bonus or concessions/incentives with the application for the condominium conversion and map.

1. The applicant may submit a preliminary proposal and request a preapplication meeting with the city.

2. The city shall hold a preapplication meeting and notify the applicant in writing how it will comply with this section within ninety days of receipt of the written proposal.

3. The formal proposal shall be accompanied by a fee in an amount set by resolution of the city council.

C. For purposes of this section, “density bonus” means an increase in units of twenty-five percent over the number of apartments to be provided within the existing structure or structures provided for conversion.

D. Nothing herein requires the city to approve a condominium conversion.

E. An applicant shall not be eligible for a density bonus or other incentives/concessions under this section if the apartments proposed for conversion constitute a housing development for which a density bonus or other concessions/incentives were provided for pursuant to other provisions of this chapter.

F. An applicant shall not be eligible for a density bonus or other incentives/concessions if the condominium project is proposed on any property that includes rental units that have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very low income; subject to any other form of rent or price control through the city’s valid exercise of its police power; or occupied by lower or very low income households.

1. For purposes of this section, this subsection also applies to a project that meets the above, but the dwelling units were vacated or demolished in the five-year period preceding the application.

2. This subsection shall not apply where the proposed condominium project replaces the above-described units in accordance with the provisions of Government Code Section 65915.5. (Ord. 1776 § 1 (part), 2017: Ord. 1739 § 2 (part), 2012)

18.43.110 Development bonus for commercial developers.

A. An applicant for a commercial development shall be entitled to incentives mutually agreed upon by the applicant and the city when such developer has entered into an agreement for partnered housing to contribute affordable housing in accordance with the provisions of Government Code Section 65915.7 for as long as such section remains in effect.

B. If the developer of the affordable units does not start construction in accordance with the timelines set forth in the agreement required by Government Code Section 65915.7, the city shall withhold certificates of occupancy for the commercial development until the affordable units are completed. (Ord. 1776 § 1 (part), 2017)


1

Editor’s note: Ord. 1739 added this chapter with two sections numbered 18.43.040. This section has been editorially renumbered to avoid duplication.