Chapter 17.45
AFFORDABLE HOUSING

Sections:

17.45.010    Purpose and intent.

17.45.020    Definitions.

17.45.030    Inclusionary housing.

17.45.040    Density bonus.

17.45.050    Types of incentives and concessions allowed.

17.45.060    Affordable housing standards.

17.45.070    Affordable housing plan.

17.45.080    Affordable housing agreement.

17.45.090    Affordable housing trust fund.

17.45.100    Administration fees.

17.45.110    Enforcement and monitoring.

17.45.120    Waivers of inclusionary housing requirement.

17.45.010 Purpose and intent.

It is the intent of the city of Marina to attain a jobs-housing balance through economic development that generates a substantial number of high-quality jobs and through the construction of a diverse mix of housing types to accommodate a broad range of life styles and income levels, especially with respect to matching the needs of the city’s current and projected workforce. This Chapter 17.45 of the zoning ordinance is intended to facilitate the development of housing affordable to all income segments of the community through discretionary policies and regulatory incentives. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.020 Definitions.

Whenever the following terms are used in this chapter, they shall have the meaning established in this section:

“Adjusted for household size appropriate for the unit” means a household of one person in the case of a studio unit, two persons in the case of a one-bedroom unit, three persons in the case of a two-bedroom unit, four persons in the case of a three-bedroom unit, five persons in the case of a four-bedroom unit and six persons in a six-bedroom unit.

“Affordable housing agreement” means a legally binding, written agreement between the city and a developer, in form and substance satisfactory to the city attorney and approval body, ensuring the compliance of the requirements of this chapter, whether through the provision of inclusionary units, density bonus target units, or through an alternative method.

“Affordable housing plan” means the plan referenced in Section 17.45.070, which sets forth the manner in which the requirements of this chapter will be implemented for a particular residential development.

“Approval body” means the person, board, commission, or council given the final authority to review and approve or disapprove a development or building permit application.

“Childcare facility” means a child day care facility other than a family day care home, including, but not limited to, infant center, preschool, extended day care facility, and school-age child care center.

“Common interest development” means any of the following as defined in Section 1351 of the California Civil Code:

1.    A community apartment project;

2.    A condominium project;

3.    A planned development;

4.    A stock cooperative.

“Density bonus” means a density increase over the otherwise maximum allowable residential density as specified by this chapter.

“Density bonus target units” means, in exchange for a density bonus, the housing units within a residential development that are required to be reserved for sale or rent to, and made available at affordable housing costs to very low, low, or moderate income households, or is a unit in a senior housing development.

“Density bonus units” means the residential units granted pursuant to the provisions of this chapter, which exceed the maximum residential density for the development site.

“Developer” means any person, firm, partnership, association, joint venture, corporation, or any entity or combination of entities, which seeks city approvals for all or part of a residential development. The term “developer” also means the owner for any such property for which such approvals are sought.

“Director” means the community development director of the city of Marina or his/her designee.

“Discretionary approval” means any entitlement or approval pursuant to this chapter and the subdivision ordinance, including but not limited to general plan amendments, zoning ordinance amendments, specific plans, use permit, variance, design review, and subdivision map and other legislative approvals.

“Inclusionary units” means housing units developed pursuant to an affordable housing agreement that will be offered for rent or sale to very low, low, moderate, and middle income households, at an affordable housing cost, pursuant to this chapter.

“Low income households” means households whose income does not exceed the lower income limits applicable to Monterey County, as published and periodically updated by the California Department of Housing and Community Development pursuant to Section 50079.5 of the California Health and Safety Code.

“Low income units” means housing units restricted to occupancy by low income households at affordable housing cost.

“Lower income households” means the inclusion of both low income and very low income households.

“Market-rate units” means housing units where the rental rates or sales prices are not restricted either by this chapter or by requirements imposed through other local, state, or federal affordable housing programs.

“Maximum residential density” means the maximum number of residential units permitted by the Marina General Plan, applicable to the subject property at the time an application for the construction of a residential development or redevelopment is deemed complete by the city, excluding the density bonus units permitted by this chapter.

“Median income” means the median family income of the county of Monterey, as annually estimated by the United States Department of Housing and Urban Development pursuant to Section 8 of the United States Housing Act of 1937. Median income limits, as adjusted for household size, are revised annually and published by the State Department of Housing and Community Development.

“Middle income households” means households whose gross household income is between one hundred twenty-one and one hundred fifty percent of the median income for Monterey County, adjusted for household size. Housing affordable to middle income households created as a result of provisions in this chapter is intended to address the workforce housing needs in Marina.

“Middle income units” means housing units restricted to occupancy by middle income households at affordable housing cost.

“Moderate income households” means households whose income does not exceed the moderate income limits applicable to Monterey County, as published and periodically updated by the California Department of Housing and Community Development pursuant to Section 50079.5 of the California Health and Safety Code.

“Moderate income units” means housing units restricted to occupancy by moderate income households at affordable housing cost.

“Monterey County area median income” means the annual median income for Monterey County, adjusted for household size, as published in the California Code of Regulations, Title 25, Section 6932, or its successor provision.

“Redevelopment agency” means the redevelopment agency of the city of Marina.

“Regulatory agreement” means one or more legally binding written agreements to ensure continued affordability of the unit to a very low, low, moderate or middle income household, in form and substance satisfactory to the city attorney and approval body, executed and recorded against the residential development at the time of the final map recordation pursuant to the terms of this chapter and may include a deed restriction, resale restriction or regulatory agreement.

“Residential development” means one or more groups of projects for residential units constructed in the city. Residential development also includes 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 project, where the result of the rehabilitation would be a net increase in available units. For purposes of this chapter, residential development shall not include a residential care facility as that term is defined in the zoning ordinance.

“Senior housing” means a residential development that has been “designed to meet the physical and social needs of senior citizens,” and which otherwise qualifies as “housing for older persons,” as that phrase is used in the Federal Fair Housing Amendments Act of 1988 and its implementing regulations, and as that phrase is used in California Civil Code Section 51.3 and the California Fair Employment and Housing Act.

“Substantial rehabilitation” or “substantially rehabilitated” means the rehabilitation of a dwelling unit that has substantial building and other code violations, such that the unit is returned to the city’s housing supply as decent and safe housing, and the cost of such work exceeds twenty-five percent of the after rehabilitation value or thirty thousand dollars, whichever is less.

“Total housing costs” means the total monthly or annual recurring expenses required of a household to obtain shelter. For a rental unit, total housing costs include the monthly rent payment and reasonable utilities and all mandatory fees charged for use of the property. For an ownership unit, total housing costs include the mortgage payment (principal and interest), utilities, homeowner’s association dues, homeowner’s insurance, property taxes and assessments, maintenance costs, mortgage insurance and any other related assessments.

“Very low income households” means households whose income does not exceed the very low income limits applicable to Monterey County, as published and periodically updated by the State Department of Housing and Community Development pursuant to Section 50105 of the California Health and Safety Code.

“Very low income units” means housing units restricted to occupancy by very low income households at affordable housing cost. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.030 Inclusionary housing.

A.    Purpose and Intent. It is the intent of this Section 17.45.030 to establish standards and procedures that facilitate the development of housing affordable to a range of households with varying income levels as mandated by State Law California Government Code Section 65580. The purpose of this section is to encourage the development and availability of such housing by ensuring that the addition of affordable housing units to the city’s housing stock is in proportion with the overall increase in housing units.

B.    Applicability and Exemptions.

1.    Applicability.

a.    All residential developments of twenty or more units;

b.    Existing occupied housing in Marina’s former Fort Ord.

2.    Exemptions.

a.    Residential developments proposed to contain fewer than twenty units;

b.    Market-rate units produced as a density bonus pursuant to Section 17.45.040 of this chapter;

c.    Any housing unit or residential development which is damaged or destroyed by fire, natural catastrophes, or act of public enemy, subject to the following conditions:

i.    The unit or development is damaged or destroyed to the extent to not more than seventy-five percent of the assessed value thereof, as shown on the latest Monterey County assessment roll, prior to such destruction,

ii.    The use of the reconstructed building and number of housing units remain the same as prior to the damage or destruction,

iii.    The square footage of the reconstructed building is not increased or reduced by more than ten percent,

iv.    The unit or development is reconstructed within four years of the damage or destruction, and

v.    Should the reconstructed development result in an increased number of housing units, only the net increase in units shall incur an inclusionary housing requirement.

C.    Inclusionary Housing Requirement.

1.    All new residential development of twenty or more units and all existing occupied housing in Marina’s former Fort Ord shall be required to provide at minimum a specified percentage of housing units affordable to specific income groups according to the affordability distribution set forth in Table 17.45.030-1.

2.    Provision of affordable for-sale housing for middle income households is voluntary and incentive-based. The developer must submit a request for incentives as part of the affordable housing plan for review by the director.

Table 17.45.030-1

Inclusionary Housing Requirements

Planning Area

Percentage of Required Affordable Housing by Income

Total Affordable Requirement (Percentage of Total Units)

Very Low

Low

Moderate

Middle

Citywide For-Sale or Rental Housing: New Construction or Substantially Rehabilitated

6 Percent

7 Percent

7 Percent

10 Percent — Voluntary and Incentive-Based

20+ percent

Former Fort Ord: Existing Occupied Housing

15 Percent

15 Percent

10 Percent

0 Percent

40 Percent1

1    Inclusionary housing requirement for existing occupied housing on the former Fort Ord can be fulfilled by providing fewer moderate income housing units than required above if a greater percentage of very low and low income housing units are provided and the total number of very low, low and moderate income units is not less than forty percent.

3.    Existing Housing on Former Fort Ord.

a.    The inclusionary housing requirement shall apply to all existing, occupied housing transitioning from the Army, Fort Ord Reuse Authority (FORA), or other entity to the city of Marina or the redevelopment agency of the city of Marina or some other entity (including Abrams B and Preston Park housing), except that existing occupants of such housing, shall be “grandfathered” in and shall not be displaced as a result of enactment of this inclusionary housing provision.

b.    Timing for Implementation.

i.    Within the later of six months of adoption of this chapter or six months of transfer of existing occupied housing at Fort Ord from FORA, property owners of existing residential development subject to this subsection C shall submit, for review by the director and approval by the city council, an affordable housing plan detailing compliance with this subsection. Contents of the affordable housing plan shall adhere to requirements set forth in Section 17.45.070.

ii.    Within one year of adoption of this chapter, property owners of existing residential development subject to this subsection C shall execute and record an affordable housing agreement with the city of Marina pursuant to Section 17.45.080 and begin implementation of the agreement.

c.    Inclusionary housing requirements for existing occupied housing on the former Fort Ord can be fulfilled with fewer moderate income housing units than specified in Table 17.45.030-1 if a greater percentage of very low and low income housing units are provided and the total number of very low, low and moderate income units is not less than forty percent, and the allocation of the inclusionary units is approved as part of the affordable housing agreement. The trading of units is one-way only from moderate income to low and very low income, or from low income to very low income.

4.    Calculation of Inclusionary Units.

a.    In calculating the required number of inclusionary units, fractional units of 0.50 or above shall be rounded up to a whole unit.

b.    The number of inclusionary units required for a particular project will be determined at the time of an application for discretionary approval is filed by the developer for a residential development or redevelopment with the city’s community development department.

c.    Second units included as part of a residential development or redevelopment project are not included in the base for calculating the number of inclusionary units required and cannot be used to fulfill the inclusionary housing requirements.

d.    For purposes of calculating the number of inclusionary units required by this section, any additional units authorized as a density bonus under Section 17.45.040 of this chapter and California Government Code Section 65915(b)(1) or (b)(2) will not be counted in determining the required number of inclusionary units.

D.    Alternatives Allowed with Findings.

1.    The city council may approve alternatives, as outlined in subsection (D)(2) of this section or other alternatives, to the construction of inclusionary units on-site where the proposed alternative supports specific housing element policies and goals and assists the city in meeting its state housing requirements and the city council finds that the alternative proposed will provide more affordable units or units that provide a greater level of affordability than compliance with subsection C. In order to approve alternatives to the construction of inclusionary units on-site, the city council shall make findings that new construction would be infeasible or present unreasonable hardship in light of such factors as project size, site constraints, market competition, price and product type disparity, developer capability, and financial subsidies available and shall be based upon an economic analysis prepared by the developer and accepted by the director supporting the findings.

2.    Alternatives for Meeting the Inclusionary Housing Requirement.

a.    Land Dedication. Dedicate without cost to the city, a lot or lots within or contiguous to the residential development, sufficient to accommodate at least the required inclusionary units for the residential development. An election to dedicate land in lieu of compliance with other provisions of this chapter shall be allowed only if:

i.    The value of the lot or lots to be dedicated is sufficient to make development of the otherwise required inclusionary units economically feasible, and financing or a viable financing plan is in place for at least the required number of inclusionary units,

ii.    The lot or lots are suitable for construction of affordable housing at a feasible cost, appropriately zoned, served by utilities, streets and other infrastructure and there are no hazardous material or other material constraints on development of affordable housing on the lot or lots, including liens or other encumbrances that would prevent the development of affordable housing on the lot or lots, and

iii.    All city approvals necessary for construction of inclusionary units on the lots or lots to be dedicated have been obtained prior to dedication;

b.    Acquisition and rehabilitation of affordable units at the same level of affordability as required for the inclusionary units. Any such units acquired and rehabilitated must be subject to a regulatory agreement ensuring the long-term affordability of the inclusionary units, and must not currently be subject to a regulatory agreement requiring long-term affordability;

c.    Preservation of publicly assisted rental units at risk of converting to market-rate housing;

d.    Conversion of a sufficient number of existing market-rate units to inclusionary units to provide the same number of affordable units as would be required on-site;

e.    Construction of special needs housing (shelters, transitional housing, etc.) meeting the housing needs for special needs groups as identified in the housing element;

f.    Acquisition/rehabilitation of affordable housing, preservation of at-risk housing, and conversion of market-rate units to affordable units shall comply with the requirements of Section 65583.1 of the California Government Code in addition to the standards and affordability controls specified in this chapter;

g.    For residential developments with five hundred or more dwelling units developed pursuant to a specific plan or development agreement, the city council may approve an affordable housing program consistent with the housing element of the general plan that is tailored to the development and may differ from the provisions set forth in this chapter;

h.    Such other alternative as may be approved by the city council subject to the required findings set forth in subsection (D)(1) of this section.

E.    Procedures.

1.    At the times and in accordance with the standards and procedures set forth in Section 17.45.070, a developer shall:

a.    Submit an affordable housing plan for review by the director, setting forth in detail the manner in which the provisions of this section will be implemented for the proposed residential development;

b.    Execute and record an affordable housing agreement with the city of Marina;

c.    Execute and record a regulatory agreement against each inclusionary unit.

2.    No discretionary approval (or building permit, if discretionary approval is not required) shall be issued for all or any portion of a residential development or redevelopment subject to this section until the developer has submitted an affordable housing plan. If discretionary approval is not required, an affordable housing plan shall be submitted at the time of building permit application.

3.    No building permit or final or parcel map shall be issued for the residential development, or any portion thereof, subject to this section unless the approval body has approved the affordable housing plan and the affordable housing agreement, if required, is recorded.

4.    No final inspection shall be conducted for the residential development, or any portion thereof, subject to this section unless the approved affordable housing plan and/or regulatory agreement, has been fully implemented. The time requirements set forth in this subsection for final inspection for nonrestricted units may be modified to accommodate phasing schedules, model variations, or other factors in a residential project, if the city determines that this will provide greater public benefit and an affordable housing agreement acceptable to the approval body so provides. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.040 Density bonus.

A.    Intent and Purpose. The purpose of this Section 17.45.040 is to provide incentives for the production of housing for very low income, lower income, moderate income, and senior households in accordance with Government Code Sections 65915 through 65918. In enacting this section, it is the intent of the city of Marina to facilitate the development of affordable housing and to implement the goals, objectives and policies of the housing element of the city’s general plan.

B.    Applicability. This section applies to any residential development of five or more units when the written request of an applicant proposes density beyond the maximum residential density in exchange for an agreement that a portion of the total housing units in the proposed development is reserved for very low income or low income households, seniors, or moderate income households in a common interest development.

C.    Density Bonus Requirements. The city shall grant a density bonus and additional incentives to a developer of a residential development who agrees to provide one of the following:

1.    Very Low Income Units. Designate at least five percent of the total units of a residential development as density bonus target units affordable to very low income households;

2.    Lower Income Units. Designate at least ten percent of the total units of a residential development as density bonus target units affordable to lower income households; or

3.    Moderate Income Units in a Common Interest Development. Designate at least ten percent of the total units of a common interest development as density bonus target units affordable to moderate income households, provided that all units in the development are offered to the public for purchase;

4.    Any senior housing development;

5.    Donation of land pursuant to Government Code Section 65915(h).

D.    Calculation of Density Bonus. In determining the number of density bonus units to be granted pursuant to this section, the maximum residential density for the site shall be computed as follows and summarized in Table 17.45.040-1:

1.    Very Low Income Households. The maximum allowable residential density for the site shall be increased by twenty percent provided, however, that for each additional one percent increase above the minimum five percent of units affordable to very low income households, the density bonus shall be increased by 2.5 percent up to a maximum of thirty-five percent.

2.    Lower Income Households. The maximum allowable residential density for the site shall be increased by twenty percent provided, however, that for each additional one percent increase above the minimum ten percent of units affordable to lower income households, the density bonus shall be increased by 1.5 percent up to a maximum of thirty-five percent.

3.    Moderate Income Common Interest Development. The maximum allowable residential density for the site shall be increased by five percent provided, however, that for each additional one percent increase above the minimum ten percent of units affordable to moderate income households, the density bonus shall be increased by one percent up to a maximum of thirty-five percent.

4.    Senior Housing Development. The maximum allowable residential density for the site shall be increased by twenty percent.

Table 17.45.040-1

Summary of Density Bonus

Target Group

Minimum % Target Units

Bonus Granted

Additional Bonus for Each 1% Increase in Target Units

% Target Units Required for Maximum 35% Bonus

Very Low Income

5%

20%

2.5%

11%

Lower Income

10%

20%

1.5%

20%

Moderate Income (Common Interest Development Only)

10%

5%

1%

40%

Senior Citizen Housing Development

100%

20%

5.    In calculating the required number of density bonus target units, fractional units of 0.50 or above will be rounded up to a whole unit. When calculating the number of permitted density bonus units, any calculations resulting in fractional units shall be rounded to the next larger integer. The density bonus shall not be included when determining the percentage of density bonus target units.

6.    The developer can request a lesser density bonus than the project is entitled to, but no reduction shall be permitted in the number of required density bonus target units pursuant to subsection C.

7.    Each residential development is entitled to only one density bonus, which may be selected based on the percentage of either very low income density bonus target units, lower income density bonus target units, or moderate income density bonus target units, or the project’s status as a senior housing development. Density bonuses from more than one category may not be combined.

8.    In accordance with state law, neither the granting of a concession or incentive nor the granting of a density bonus shall be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval.

9.    Example. The following example in Table 17.45.040-2 illustrates the calculation of density bonus in conjunction with the inclusionary housing requirements pursuant to subsection C.

Table 17.45.040-2

Calculation of Density Bonus

For Sale

Initial Project Size Proposed

100 units

Inclusionary Housing Requirements

6% very low

7% low

7% moderate

Maximum Density Bonus Qualified

For providing 6% very low income units:

20% + 1*2.5% = 22.5% density bonus

(5% very low income units qualify for 20% density bonus; each additional 1% very low income units is eligible for 2.5% density bonus)

Total Project Units

123 units

Income Distribution of Project Units

6 very low

7 low

7 moderate

103 market-rate

E.    Incentives or Concessions. When a developer seeks a density bonus, the city shall grant incentives or concessions listed as follows and summarized in Table 17.45.040-3:

1.    One incentive or concession for projects that include at least five percent of the total units for very low income households, at least ten percent for lower income households, or at least ten percent for moderate income households in a common interest development;

2.    Two incentives or concessions for projects that include at least ten percent for very low income households, at least twenty percent of the total units for lower income households, or at least twenty percent for moderate income households in a common interest development;

3.    Three incentives or concessions for projects that include at least fifteen percent for very low income households, at least thirty percent of the total units for lower income households, or at least thirty percent for moderate income households in a common interest development;

4.    Refer to Section 17.45.050 for types of incentives and concessions that may be considered by the city.

Table 17.45.040-3

Number of Incentives and Concessions

Target Group

Target Units

Very Low Income

5%

10%

15

Lower Income

10%

20%

30%

Moderate Income (Condo or PD only)

10%

20%

30%

Maximum Incentives/Concessions

1

2

3

5.    Application Requirements for Incentives, Concessions, Waivers, Modifications.

a.    Economic Feasibility. Any development incentive granted shall be needed to make the project economically feasible and shall result in identifiable, financially sufficient and actual cost reductions.

b.    Rate of Return Analysis. A developer seeking an incentive, concession, waiver or modification of development or zoning standards shall demonstrate in a financial analysis that the incentive, concession, waiver or modification is necessary to make the residential development economically feasible assuming a reasonable rate of return (e.g., at a minimum, an application shall include itemized accounting of projected costs and revenues of the development).

c.    Revenue. Project revenues shall include moneys from the sale or rental of all units, including the density bonus units.

d.    Costs. Projected costs:

i.    Shall not include the “lost opportunity” cost of the density bonus target units (e.g., the amount that would have been generated had the density bonus target units been rented or sold at market rate);

ii.    May include items that are required solely because of the inclusion of the density bonus units and would not have been required without the density bonus target units.

e.    Developers proposing waivers and modifications shall also show that the development standard being waived would otherwise preclude development at the densities or with the incentives and concessions permitted.

F.    Land Donation.

1.    When a developer of a residential development donates land to the city as provided for in this section, the developer shall be entitled to a fifteen-percent increase above the otherwise maximum allowable residential density under the land use element of the general plan for the entire development. For each one percent increase above the minimum ten percent land donation, the density bonus shall be increased by one percent, up to a maximum of thirty-five percent. This increase shall be in addition to any increase in density allowed by subsection D, up to a maximum combined density bonus of thirty-five percent if a developer seeks both the increase required pursuant to this subsection and subsection D. When calculating the number of permitted density bonus units, any calculations resulting in fractional units shall be rounded to the next larger integer.

2.    A residential development shall be eligible for the density bonus described in this section if the city makes all of the following findings:

a.    The developer will donate and transfer the land no later than the date of approval of the final subdivision map, parcel map, or development application for the residential development.

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, or will permit construction of a greater percentage of units if proposed by the developer.

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 for development as very low income housing, and is now or at the time of construction will be served by adequate public facilities and infrastructure. No later than the date of approval of the final subdivision map, parcel map, or development application for the residential development, the transferred land will 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.

d.    The transferred land and the very low income units constructed on the land will be subject to a deed restriction ensuring continued affordability of the units consistent with this section, which restriction will be recorded on the property at the time of dedication.

e.    The land will be transferred to the city of Marina redevelopment agency or to a housing developer approved by the city. The city reserves the right to require the developer to identify a developer of the very low income units and to require that the land be transferred to that developer.

f.    The transferred land is within the boundary of the proposed residential development. The transferred land may be located within one-quarter mile of the boundary of the proposed housing development if the city so approves.

G.    Child Care Facilities.

1.    When a developer proposes to construct a residential development that includes density bonus target units as specified in subsection D and includes a child care facility that will be located on the premises of, as part of, or adjacent to the residential development, the city shall grant either of the following if requested by the developer:

a.    An additional density bonus for residential space that is equivalent or greater than the amount of square feet in the child care facility;

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

2.    A residential development shall be eligible for the density bonus or concession described in this subsection if the city makes all of the following findings:

a.    The child care facility will 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 target units are required to remain affordable pursuant to Section 17.45.060.

b.    Of the children who attend the child care facility, the percentage of children of very low income households, lower income households, or moderate income households shall be equal to or greater than the percentage of dwelling units that are proposed to be affordable to very low income, low income, or moderate income households.

3.    Notwithstanding any requirement of this section, 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 already has adequate child care facilities.

H.    Condominium Conversions.

1.    The city shall grant either a density bonus or other incentives of equivalent financial value if the applicant for a conversion of existing rental apartments to condominiums agrees to provide thirty-three percent of the total units of the proposed condominium project as density bonus target units affordable to low or moderate income households, or to provide fifteen percent of the total units in the condominium conversion project as density bonus target units affordable to lower income households. All such target units shall remain affordable for the period specified in Section 17.45.060.

2.    For purposes of this specific subsection, a “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 proposed for conversion.

3.    No condominium conversion shall be eligible for a density bonus if the apartments proposed for conversion constitute a residential development for which a density bonus or other incentives were previously provided pursuant to this section.

I.    Parking Standards.

1.    Upon request of the applicant for any residential development qualifying for a density bonus under subsections (C)(1), (2) and (3), the following maximum parking standards shall apply, inclusive of handicapped and guest parking, for the entire residential development:

a.    One on-site parking space per dwelling unit that has up to one bedroom;

b.    Two on-site parking spaces per dwelling unit that has up to three bedrooms;

c.    Two and one-half parking spaces per dwelling unit that has more than three bedrooms.

2.    All parking calculations for the development resulting in a fraction shall be rounded up to the next whole number.

3.    Parking may be provided by tandem parking and need not be covered or garaged, but may not be on-street parking.

J.    Procedures.

1.    An affordable housing plan serving as an application for a density bonus, incentive, concession, waiver, modification, or revised parking standard pursuant to this section shall be submitted with the first application for approval of a residential development and processed concurrently with all other applications required for the residential development.

2.    Before approving an application for a density bonus, incentive, concession, waiver, or modification, the approval body shall make the following findings:

a.    If the density bonus is based all or in part on donation of land, the findings included in subsection F;

b.    If the density bonus, incentive, or concession is based all or in part on the inclusion of a child care facility, the findings included in subsection G;

c.    If the incentive or concession includes mixed use development, the finding included in subsection (E)(3);

d.    If an incentive or concession is requested, the developer has shown that it results in identifiable, financially sufficient and actual cost reductions;

e.    If a waiver or modification is requested, the developer has shown that the waiver or modification is necessary to make the housing units economically feasible and that the development standard being waived would otherwise preclude development at the densities or with the incentives and concessions permitted.

3.    If a request for a concession or incentive is not otherwise consistent with this section, the approval body may deny a concession or incentive if it makes a written finding, based upon substantial evidence, of either of the following:

a.    The concession or incentive is not required to provide for affordable rents or affordable ownership costs.

b.    The concession or incentive would have a specific adverse impact upon public health or 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 without rendering the development unaffordable to low and moderate income households. For the purpose of this subsection, “specific adverse impact” means 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 that the application was deemed complete.

4.    If a request for a waiver or modification is not otherwise consistent with this section, the approval body may deny a waiver or modification only if it makes a written finding, based upon substantial evidence, of either of the following:

a.    The waiver or modification would have a specific adverse impact upon health, safety, or the physical environment, and 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. For the purpose of this subsection, “specific adverse impact” means 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 that the application was deemed complete.

b.    The waiver or modification would have an adverse impact on any real property that is listed in the California Register of Historical Resources. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.050 Types of incentives and concessions allowed.

The allocation of incentives in exchange of inclusionary for-sale housing for middle income households or a density bonus shall be determined on a case-by-case basis by the director or the approval body in approving the affordable housing plan. The incentives include one of the following:

A.    Additional density provided the density bonus received for the entire residential development does not exceed thirty-five percent;

B.    A reduction in site development standards or a modification of the requirements of this chapter, which exceed the minimum building standards provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code. The incentives include one or more of the following:

1.    Reduced minimum lot sizes and/or dimensions,

2.    Reduced minimum lot setbacks,

3.    Reduced minimum outdoor and/or private outdoor open space,

4.    Increased maximum lot coverage,

5.    Increased maximum building height,

6.    Reduced on-site parking standards,

7.    Reduced minimum building separation requirements,

8.    Other site or construction conditions applicable to a residential development;

C.    Mixed use zoning to allow the residential development to include nonresidential uses and/or allow the residential development within a nonresidential zone, if other land uses will reduce the cost of the residential development, and the other land uses are compatible with the residential development and the existing or planned development in the area;

D.    A developer may seek a waiver or modification of development standards that will have the effect of precluding the construction of a residential development meeting the criteria of subsection D at the densities or with the concessions or incentives permitted by this subsection. The developer shall show that the waiver or modification is necessary to make the housing units economically feasible, and that the standards would preclude development with the densities, concessions and incentives proposed. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.060 Affordable housing standards.

A.    Affordable Housing Costs. The total housing costs paid by a qualifying household, which shall not exceed a specified fraction of their gross income, adjusted for household size appropriate for the unit, as follows:

1.    Very low income households, rental units: thirty percent of fifty percent of the Monterey County median income;

2.    Very low income households, for-sale units: thirty percent of fifty percent of the Monterey County median income;

3.    Low income households, rental units: thirty percent of sixty percent of the Monterey County median income;

4.    Low income households, for-sale units: thirty percent of seventy percent of the Monterey County median income;

5.    Moderate income households, rental units: thirty percent of one hundred ten percent of the Monterey County median income;

6.    Moderate income households, for-sale units: thirty-five percent of one hundred ten percent of the Monterey County median income;

7.    Middle income households, for-sale units: thirty-five percent of one hundred thirty-five percent of the Monterey County median income.

B.    Development Standards.

1.    All inclusionary units and density bonus target units shall be reasonably dispersed throughout the residential development; and shall be comparable with the market-rate units in terms of the design, infrastructure (including sewer, water and utilities), construction quality, exterior appearance, exterior materials and finished quality.

2.    The bedroom mix of the inclusionary and density bonus target units shall be equivalent to the bedroom mix of the market-rate units of the residential development, except that the developer may include a higher proportion of inclusionary and density bonus target units with more bedrooms, unless both the approval body and developer agree within the affordable housing agreement to an alternative bedroom mix for the inclusionary and density bonus target units.

3.    All inclusionary units and density bonus target units in a residential development shall be constructed concurrently with or prior to the construction of the market-rate units, unless both the approval body and developer agree within the affordable housing agreement to an alternative schedule for construction.

C.    Length of Affordability.

1.    Inclusionary Units.

a.    Inclusionary units shall be reserved for very low, low, and moderate income households at the ratios established in Table 17.45.030-1, and shall be provided at the applicable affordable housing cost.

b.    All affordable units provided through the inclusionary requirement shall be retained in perpetuity if permitted by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program applicable to the residential development. If not permitted by the affordable housing funding programs, then affordable rental units shall be reserved for income-eligible households for a minimum of fifty-five years, while affordable owner-occupied units shall be reserved for income-eligible households for a minimum of forty-five years, with the forty-five year time restriction beginning again at the time of resale.

c.    Notwithstanding anything to the contrary in this subsection, no inclusionary rental unit shall be rented for an amount which exceeds ninety percent of the actual rent charged for a comparable market unit in the same development, if any.

d.    After the initial sale of the inclusionary for-sale units at a price affordable to the required income level group, inclusionary for-sale units shall remain affordable to subsequent income-eligible buyers pursuant to a resale restriction with a term of forty-five years.

2.    Density Bonus Target Units.

a.    Density bonus target units used to also fulfill the city’s inclusionary housing requirements shall adhere to the affordability requirements of the inclusionary housing provisions as set forth in subsection (C)(1) and the duration requirements for affordability set forth in this subsection (C)(2).

b.    Density target units provided above and beyond the inclusionary requirements shall adhere to the following affordability requirements:

i.    Density bonus target units offered for rent to low income and very low income households shall remain restricted and affordable to the designated income group for a minimum period of thirty years.

ii.    Density bonus target units offered for sale to very low, low, or moderate income households shall be sold at an affordable sales price and reserved for income-eligible households for a minimum of thirty years, with the thirty-year time restriction beginning again at the time of resale.

iii.    A longer affordability period may be specified if required by any construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program applicable to the residential development.

c.    Notwithstanding anything to the contrary in this subsection, no density bonus target unit designated as a rental unit shall be rented for an amount which exceeds ninety percent of the actual rent charged for a comparable market unit in the same development, if any. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.070 Affordable housing plan.

A.    Concurrent with the developer’s first application for a discretionary approval (or building permit, when discretionary approval is not required) for a residential development or redevelopment, the developer shall submit to the director an affordable housing plan for review. The affordable housing plan shall be accompanied by a processing fee in an amount prescribed by resolution of the city council. No discretionary approval (or building permit) shall be granted without submission of the affordable housing plan.

B.    The affordable housing plan shall contain the following information:

1.    A brief description of the residential development, including the number of market-rate units, inclusionary units, and density bonus target units proposed, and the basis for the calculation of the number of inclusionary and density bonus target units;

2.    The unit mix, location, structure type (attached or detached), size of the market-rate, inclusionary, and density bonus target units, and a statement as to whether the residential development is an ownership or rental project. A site plan or floor plan depicting the location of the inclusionary and target units shall be provided;

3.    The income levels of the inclusionary and density bonus target units and an acknowledgment that city will verify tenant and homebuyer incomes to maintain the affordability of the inclusionary and target units;

4.    In the event the developer proposes a phased project, a phasing plan that provides for the timely development of the inclusionary and density bonus target units as the residential development is built out shall be required. The phasing plan shall provide for development of the inclusionary and density bonus target units prior to or concurrently with the market-rate units;

5.    A description of the specific incentives, concessions, waivers or modifications being requested of the city for provision of inclusionary units for middle income households or in conjunction of a density bonus, if any.

a.    If a density bonus or concession is requested for a land donation, the affordable housing plan shall show the location of the land to be dedicated and provide evidence that each of the findings included in Section 17.45.040(F) can be made.

b.    If a density bonus or concession is requested for a child care facility, the affordable housing plan shall show the location and square footage of the child care facilities and provide evidence that each of the findings included in Section 17.45.040(G) can be made.

6.    Any other information reasonably requested by the director and the approval body to assist with the evaluation of the affordable housing plan.

C.    Review and Approval of Affordable Housing Plan.

1.    The director shall review the affordable housing plan for completeness within forty-five days from the date the application for the discretionary approval is deemed complete. If the affordable housing plan is rejected for incompleteness or if the director requires further information, the affordable housing plan shall be returned to the developer along with a list of the deficiencies or additional information required.

2.    In the case of substantial rehabilitation where discretionary approval is not required, the director shall approve, conditionally approve or reject the affordable housing plan within forty-five days from the date the application for the building permit is submitted.

3.    For residential development requiring discretionary action, the approval body shall approve, conditionally approve, or reject affordable housing plan as part of the development review process. At any time during the review process, the approval body may require additional information from the developer.

4.    Approval of the affordable housing plan by the approval body in accordance with this section shall be a condition of approval of any discretionary approval or building permit for the residential development. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.080 Affordable housing agreement.

A.    General Provisions.

1.    Developers subject to this chapter shall demonstrate compliance with this chapter by executing an affordable housing agreement prepared by the city attorney and approved by the approval body.

2.    Following the approval and execution by all parties, the affordable housing agreement with approved entitlement shall be recorded against the entire residential development, including market-rate units and the relevant terms and conditions filed and subsequently recorded as a separate deed restriction or regulatory agreement on the individual inclusionary or density bonus target units.

3.    The approval and execution of the affordable housing agreement shall take place prior to final map approval and shall be recorded upon final map recordation or, where a map is not being processed, prior to the issuance of building permits. The affordable housing agreement shall bind all future owners and successors in interest for the term of years specified therein.

4.    An affordable housing agreement shall establish, but not be limited to, the following:

a.    The number of inclusionary and density bonus target units proposed;

b.    The unit size and number of bedrooms of the inclusionary and density bonus target units;

c.    The proposed location of the inclusionary and density bonus target units;

d.    Level and tenure of affordability for the inclusionary and density bonus target units;

e.    Schedule for production of the inclusionary and density bonus target units;

f.    Approved incentives, if any, provided by the city;

g.    Where applicable, requirements for other documents to be approved by the city, such as marketing, leasing and management plans; financial assistance/loan documents; resale agreements; and monitoring and compliance plans. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.090 Affordable housing trust fund.

A.    There is established a separate fund of the city, to be known as the affordable housing trust fund. All moneys collected in compliance with Section 17.45.110 (Enforcement and monitoring), shall be deposited in the affordable housing trust fund.

B.    Moneys recovered pursuant to Section 17.45.110 (Enforcement and monitoring) shall be distributed to the affected tenants or buyers, to the extent the tenants or buyers are very low, low, or moderate income households eligible to occupy the inclusionary and density bonus target units and made payments in excess of the applicable affordable housing cost or sales price. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.100 Administration fees.

The city council may by resolution establish reasonable fees and deposits for the administration of this chapter. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.110 Enforcement and monitoring.

A.    The provisions of this chapter shall apply to all developers and their agents, successors and assigns proposing a residential development governed by this chapter. No building permit or occupancy permit shall be issued, nor any entitlement granted, for a project which is not exempt and does not meet the requirements of this chapter. This chapter shall be administered in accordance with administrative policies and procedures adopted by the city council and amended from time to time. The administrative policies and procedures may address policies and procedures such as the process for random drawings and waiting lists to select renters and homebuyers, documentation of employment and residence eligibility, annual certification and monitoring, refinancing and resale procedures, and ongoing homeowner educations requirements.

B.    All inclusionary units and density bonus target units shall be rented or owned in accordance with this chapter.

C.    The city attorney shall be authorized to enforce the provisions of this chapter and all affordable housing agreements, regulatory agreements, covenants, resale restrictions, promissory notes, deeds of trust and other requirements placed on inclusionary units and density bonus target units by civil action and any other proceeding or method permitted by law. The city may, at its discretion, take such enforcement action as is authorized under the Marina Municipal Code and/or any other action authorized by law or by any regulatory document, restriction or agreement executed under this chapter. The city shall be entitled to all attorneys’ fees arising out of any action or proceeding to ensure compliance.

D.    Any individual who sells or rents an inclusionary or density bonus target unit in violation of the provisions of this chapter shall be required to forfeit all monetary amounts so obtained. Any individual who violated the terms of this chapter or any regulatory agreement may be forced to vacate or sell the unit to an eligible participant.

E.    The remedies provided for herein shall be cumulative and not exclusive and shall not preclude the city from any other remedy or relief to which it otherwise would be entitled under law or equity. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)

17.45.120 Waivers of inclusionary housing requirement.

A.    Notwithstanding any other provision of this chapter, the inclusionary housing requirements of Section 17.45.030 of this chapter may be waived, adjusted, or reduced if an applicant shows, based on substantial evidence, that there is not reasonable relationship between the impact of a proposed residential development and the requirements of this section or that applying the requirements of this chapter would take property in violation of the United States or California Constitution.

B.    Any request for a wavier, adjustment, or reduction under this section shall be submitted concurrently with the affordable housing plan required by Section 17.45.070. The request for a waiver, reduction, or adjustment shall set forth in detail the factual and legal basis for the claim.

C.    The request for a waiver, adjustment, or reduction shall be revised and considered in the same manner and at the same time as the affordable housing plan. In making a determination on an application for waiver, adjustment or reduction, the applicant shall bear the burden of presenting substantial evidence to support the claim. The city may assume each of the following when applicable:

1.    That the applicant will provide the most economically inclusionary units feasible meeting the requirements of this chapter;

2.    That the applicant is likely to obtain housing subsidies when such funds are reasonably available;

3.    The extent to which the applicant will benefit from inclusionary incentives under Section 17.45.050.

D.    The waiver, adjustment, or reduction may be approved only to the extent necessary to avoid an unconstitutional result, after adoption of written findings, based on substantial evidence, supporting the determinations required by this section. (Ord. 2006-14 § 2 (Exh. A (part)), 2007)