Chapter 17.90
HOUSING
Sections:
17.90.020 Accessory dwelling units and junior accessory dwelling units.
17.90.030 Affordable housing density bonus.
17.90.050 Inclusionary housing.
17.90.070 Objective design standards.
17.90.080 Community benefits program.
17.90.100 Condominium conversions.
17.90.110 Mobile home conversions.
17.90.120 Reasonable accommodations.
17.90.130 Small lot subdivisions and development.
17.90.140 Rebuilding multifamily dwellings.
17.90.150 Multi-unit development in the RS district.
17.90.160 Housing for religious and community institutional uses.
17.90.010 Chapter purpose.
This chapter contains provisions to implement state housing laws and facilitate housing production in Benicia consistent with the city’s general plan. (Ord 25-12 § 3).
17.90.020 Accessory dwelling units and junior accessory dwelling units.
A. Purpose. This section is intended to achieve the goals of the city’s housing element and of the California Government Code by permitting accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs), thereby increasing housing opportunities for the community through use of existing housing resources and infrastructure.
B. Where Allowed.
1. An ADU is permitted:
a. In any district where single-family or multifamily dwellings are a permitted use; and
b. On any lot with an existing or proposed single-family or multifamily dwelling.
2. A JADU is permitted:
a. In any district where single-family dwellings are a permitted use; and
b. On a lot with an existing or proposed single-family dwelling.
C. Permitting Process.
1. When Consistent With Standards.
a. An ADU or JADU that complies with applicable standards in this section shall be approved ministerially upon issuance of a building permit. No other permit, discretionary review, or public hearing is required.
b. The city shall determine whether an application to create an ADU or JADU is complete and provide written notice of this determination to the applicant not later than 15 working days after receiving the application.
c. If the city determines an application is incomplete, the city shall provide the applicant with a list of incomplete items and a description of how the application can be made complete. The list and description shall be provided with the written notice required by subsection (C)(1)(b) of this section.
d. After receiving a notice that the application was incomplete, an applicant may submit to the city additional application materials to cure and address the items that are deemed to be incomplete by the city.
e. In the review of additional application materials submitted pursuant to subsection (C)(1)(d) of this section, the city shall not require the application to include an item that was not included in the list required by subsection (C)(1)(b) of this section.
f. If an applicant submits additional application materials pursuant to subsection (C)(1)(d) of this section, the city shall determine whether the additional materials remedied all incomplete items listed in the determination issued pursuant to subsection (C)(1)(b) of this section. The city shall provide written notice of this determination to the applicant not later than 15 working days after receiving the additional materials.
g. If the city does not make a timely determination as required by this subsection, the application shall be deemed to be complete.
h. If an existing single-family or multifamily dwelling exists on the lot upon which an ADU or JADU is proposed, the city shall approve or deny the application to create the ADU or JADU within 60 days from the date the city receives a completed application. If the applicant requests a delay in writing, the 60-day time period shall be tolled for the period of the delay.
i. If the city denies the application for an ADU or JADU, the city shall provide written comments to the applicant that list the items that are defective or deficient and describe how the application can be remedied by the applicant. Written comments shall be provided to the applicant not later than 15 working days after the city denies the application.
j. If the city determines an application is incomplete under subsection (C)(1)(b) of this section or denies the application under subsection (C)(1)(i) of this section, the applicant may appeal the decision to the planning commission. The applicant may appeal the planning commission decision to the city council. The city shall make a final decision on the appeal not later than 60 working days after receiving the applicant’s written appeal.
2. When Deviating from Standards.
a. A proposed ADU that deviates from the standards in subsection (J) of this section, Objective Design Standards, shall be reviewed and may be approved or denied subject to the design review procedures in Chapter 17.108 BMC, Design Review.
b. A proposed ADU that deviates from standards in subsection (I) of this section, Development Standards, or any other applicable physical standard of this section, shall be reviewed and may be approved or denied subject to the variance procedures in Chapter 17.104 BMC, Use Permits and Variances.
3. When Dependent on Separate Construction.
a. When a proposed attached or detached ADU is dependent on the construction of a new building or new portion of a building that is not a part of the ADU (“separate construction”), the city shall either:
i. Accept and begin processing the ADU application only after acting on an application for the proposed separate construction; or
ii. Upon written request from the applicant, review and act on the ADU together with the separate construction as part of a single application. In this case, the ADU is subject to the same review procedures and requirements as the separate construction, which may include design review.
b. New construction of a carriage unit shall not be considered dependent on separate construction if the footprint of the structure is the minimum size necessary to accommodate a garage up to 500 square feet and an interior stairwell provides direct access to the ADU in compliance with the requirements of the California Building Code.
4. Unpermitted ADUs and JADUs. The following provisions apply to a building permit application for a previously unpermitted ADU or JADU that was constructed before January 1, 2020:
a. The city shall not deny a building permit due to the ADU’s or JADU’s violation of building standards or its noncompliance with this section unless the building official or their designee deems the ADU or JADU substandard pursuant to Section 11720.3 of the Health and Safety Code.
b. The city shall provide the applicant a checklist of the conditions specified in Section 17920.3 of the Health and Safety Code that would deem the ADU or JADU substandard.
c. Prior to submission of a building permit application, the city shall inform the homeowner that they may obtain a confidential third-party code inspection from a licensed contractor to determine the ADU or JADU’s existing condition or potential scope of building improvements before submitting a permit application.
d. A homeowner applying for a building permit is not required to pay impact fees or connection or capacity charges except when utility infrastructure is required to comply with Section 17920.3 of the Health and Safety Code.
e. Upon receiving a building permit application, the building inspector may inspect the unit for compliance with health and safety standards and provide recommendations to comply with the standards necessary to obtain a building permit. If the building inspector finds noncompliance with health and safety standards, the city shall not penalize the applicant and shall approve necessary permits to correct noncompliance with health and safety standards.
D. Junior Accessory Dwelling Units.
1. Number. No more than one JADU is allowed per residential lot within an existing or proposed single-family dwelling.
2. Separate Entrance. The JADU shall have a separate entrance from the primary dwelling unit.
3. Sanitation Facilities.
a. A JADU may include sanitation facilities or may share sanitation facilities with the existing structure.
b. A JADU that shares sanitation facilities with the existing structure shall include an interior entry to the main living area of the existing structure.
4. Kitchen. A JADU must include, at a minimum:
a. A cooking facility with appliances; and
b. At least three linear feet of food preparation counter space and three linear feet of cabinet space.
5. Owner-Occupancy. If the JADU has shared sanitation facilities with the existing structure, one of the dwelling units on the site (either the primary unit or the JADU) shall be owner-occupied. Owner occupancy shall not be required if the JADU does not share sanitation facilities with the existing structure, or if the owner of the JADU is another governmental agency, land trust, or housing organization.
6. Term of Rental. A rented JADU shall not be leased for any period less than 30 days.
7. Deed Restriction. The JADU owner must record a deed restriction which shall run with the land and shall include both of the following:
a. A prohibition on the sale of the JADU separate from the sale of the single-family residence, including a statement that the deed restriction may be enforced against future purchasers.
b. A restriction on the size and attributes of the JADU that conforms with this section and Government Code Section 66333.
E. Maximum Number Per Lot. Not more than one ADU is allowed per lot except as allowed by subsection (G) of this section, Units Subject to Limited Standards.
F. Accessory Use. An ADU that conforms to this section:
1. Is considered an accessory use or accessory structure;
2. Is not considered to exceed the allowable density for the lot upon which it is located; and
3. Is considered a residential use consistent with the general plan and zoning designation for the lot.
G. Units Subject to Limited Standards. The city shall ministerially approve an application for a building permit within a residential or mixed-use district to create the following types of ADUs and JADUs, which may be combined as allowed by the site and lot conditions. For each type of ADU, the city shall require compliance only with the development standards in this subsection. Standards in subsections (I), Development Standards, and (J) of this section, Objective Design Standards, do not apply to these types of ADUs.
1. Internal ADUs. One ADU and one JADU per lot with a proposed or existing single-family dwelling if all of the following apply:
a. The ADU or JADU is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress.
b. The space has exterior access from the proposed or existing single-family dwelling.
c. The side and rear setbacks are sufficient for fire and safety.
d. The JADU complies with the requirements of California Government Code Section 66333 et seq.
2. Detached ADUs. One detached, new construction, ADU for a lot with a proposed or existing single-family dwelling. The ADU must comply with the following:
a. Maximum floor area: 800 square feet of livable space.
b. Maximum Height.
i. Sixteen feet for a detached ADU on a lot with an existing or proposed single-family unit.
ii. Eighteen feet for a detached ADU on a lot with an existing or proposed single-family or multifamily dwelling unit that is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. An additional two feet in height is allowed to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit.
c. Minimum rear and side setbacks: four feet.
3. Nonlivable Multifamily Space. Multiple ADUs within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, subject to the following:
a. At least one ADU is allowed within an existing multifamily dwelling up to maximum of 25 percent of the existing multifamily dwelling units; and
b. Each ADU shall comply with building code standards for dwellings.
4. Detached ADUs on Multifamily Lots. ADUs that are located on a lot that has an existing or proposed multifamily dwelling, but are detached from that multifamily dwelling, are subject to the following:
a. Maximum Number.
i. On a lot with an existing multifamily dwelling, not more than eight detached ADUs. However, the number of ADUs allowable pursuant to this clause shall not exceed the number of existing units on the lot.
ii. On a lot with a proposed multifamily dwelling, not more than two detached ADUs.
b. Maximum Height.
i. A height of 16 feet for a detached ADU on a lot with an existing or proposed multifamily dwelling unit.
ii. A height of 18 feet on a lot within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. An additional two feet in height shall be allowed to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit.
iii. A height of 18 feet for a detached ADU on a lot with an existing or proposed multifamily, multistory dwelling.
c. Setbacks.
i. Minimum rear and side setbacks: four feet.
ii. If the existing multifamily dwelling has a rear or side setback of less than four feet, the city shall not require any modification of the existing multifamily dwelling as a condition of approving the application to construct an ADU that satisfies the requirements of this subsection.
H. General Standards. An ADU shall comply with the following general standards:
1. Rental and Sale.
a. An ADU may be rented but shall not be sold or otherwise conveyed separately from the primary dwelling unless the provisions in California Government Code Section 66341.26(a) are met.
b. The rented unit shall not be leased for any period less than 30 days.
2. Primary and Accessory Designations. An existing primary dwelling unit may be designated as an ADU if:
a. The existing primary dwelling unit complies with the standards in this section; and
b. The new primary dwelling unit is built in compliance with applicable standards and requirements of this title that apply to primary dwellings.
3. Nonconforming Conditions. The city shall not require, as a condition for approval of a permit application for an ADU or JADU, the correction of nonconforming zoning conditions or unpermitted structures that do not present a threat to public health and safety, as determined by the building official, and are not affected by the construction of the ADU or JADU.
I. Development Standards. Except as provided in subsection (G) of this section, Units Subject to Limited Standards, an ADU shall comply with the following development standards:
1. Floor Area. The floor area of an ADU shall not exceed the maximums shown in Table 17.90-1.
|
ADU Type |
Maximum ADU Floor Area |
|---|---|
|
Attached |
|
|
One bedroom or less |
50 percent of the existing primary dwelling or 850 sq. ft. of interior livable space, whichever is greater |
|
More than one bedroom |
50 percent of the existing primary dwelling or 1,000 sq. ft. of interior livable space, whichever is greater |
|
Detached |
1,200 sq. ft. |
|
Internal |
50 percent of the existing primary dwelling |
|
Junior |
500 sq. ft. |
2. Bulk Standards.
a. An ADU shall conform to the applicable floor area ratio and site landscaping standards of the district in which it is located, except when otherwise allowed by subsection (I)(3) of this section, Guaranteed Allowance.
b. An ADU is exempt from maximum lot coverage standards.
3. Guaranteed Allowance. Maximum floor area, floor area ratio, minimum site area, minimum site area per unit, open space, and front yard standards shall not prohibit an ADU with at least an 800 square feet of interior livable space and four-foot side and rear yard setbacks, provided the ADU complies with all other applicable standards.
4. Property Line Setbacks.
a. All ADUs. Except as otherwise provided in this section, an ADU shall be set back from property lines as required by Table 17.90-2.
b. Detached ADUs. Except as otherwise provided in this section, a detached ADU shall not occupy a required court or front yard, nor project beyond the front building line of the principal structure on the site. In an H overlay district (Chapter 17.54 BMC), the detached ADU shall not project beyond the street-facing building wall.
|
Property Line |
ADU Type |
|||
|---|---|---|---|---|
|
Attached |
Detached |
Internal |
Junior |
|
|
Front |
Same as primary dwelling [1] |
None required |
||
|
Side |
4 ft. |
4 ft. |
||
|
Rear |
4 ft. |
4 ft. |
||
Note:
[1] For detached ADUs, see alsosubsection (I)(4)(b) of this section (Detached ADUs). For detached accessory structures in an H overlay district, see also subsection (J)(6) of this section.
5. Building Separation. A minimum five-foot distance shall be maintained between a detached ADU and the primary building on the site. A detached accessory structure shall be set back from other structures on the site as required by the building code.
6. Converting and Replacing Existing Structures.
a. An internal ADU may be constructed regardless of whether it conforms to the current zoning requirement for building separation or setbacks.
b. If an internal ADU is proposed to be constructed within an existing accessory structure, the city shall ministerially permit an expansion of the existing accessory structure by up to 150 square feet for the purpose of accommodating ingress and egress.
c. If an existing structure is demolished and replaced with an ADU, an ADU may be constructed in the same location and to the same dimensions as the demolished structure.
7. Height.
a. H Overlay Districts. The height of an ADU in an H overlay district shall not exceed the maximums shown in Table 17.90-3.
|
ADU Type |
Maximum ADU Height [1] |
|---|---|
|
Attached |
Same as required for primary dwelling |
|
Detached |
|
|
Exterior building wall [2] |
14 ft. |
|
Roof peak (based on roof pitch) |
|
|
Below 4:12 |
16 ft. [3] |
|
4:12 to less than 6:12 |
18 ft. [3] |
|
6:12 or greater |
20 ft. |
|
Internal |
Not applicable |
|
Junior |
Not applicable |
Notes:
[1] For detached accessory structures in an H overlay district, see also subsection (J)(6) of this section.
[2] Measured to the top plate.
[3] A height of 18 feet is permitted on a lot within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code, and on a lot with an existing or proposed multifamily, multistory dwelling. An additional two feet in height is permitted to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit. In no case shall the height of a detached ADU in the H overlay district exceed 20 feet.
b. Outside H Overlay Districts. The roof peak of a detached ADU outside of an H overlay district shall not exceed the maximums shown in Table 17.90-4. The maximum allowed height for attached ADUs is the same as required for the primary dwelling. Height standards do not apply to internal and junior ADUs.
|
Maximum Roof Peak Height Based on Roof Pitch |
Exterior Building Wall Distance from Rear or Side Property Line |
||
|---|---|---|---|
|
4 ft. to less than 5 ft. |
5 ft. to less than 7 ft. |
7 ft. or more |
|
|
Below 4:12 |
16 ft. [1] |
18 ft. [1] |
20 ft. |
|
4:12 to less than 6:12 |
18 ft. [1] |
20 ft. |
22 ft. |
|
6:12 or greater |
20 ft. |
22 ft. |
24 ft. |
Note:
[1] A height of 18 feet is permitted on a lot within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code, and on a lot with an existing or proposed multifamily, multistory dwelling. An additional two feet in height is permitted to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit.
8. Foundation. An ADU shall be constructed on a permanent foundation.
J. Objective Design Standards. Except as provided in subsection (G) of this section, Units Subject to Limited Standards, an ADU shall comply with the following design standards:
1. Second Story Decks and Balconies. Second story decks and balconies shall be set back a minimum of 10 feet from a side or rear property line adjoining a lot occupied by a single-family or two-family dwelling, except in cases where this standard would prohibit an ADU with at least 800 square feet of floor area and four-foot side and rear yard setbacks.
2. Outdoor Stairs. Outdoor stairs providing access to a second story ADU shall adjoin an exterior wall that faces the interior of the lot, rather than an exterior wall nearest a side or rear property line, except in cases where this standard would prohibit an ADU with at least 800 square feet of floor area and four-foot side and rear yard setbacks.
3. Dormers. The side wall of a dormer shall be set back a minimum of two feet from the parallel side wall below. The cumulative width of a dormer or dormers on any side of an ADU shall not occupy more than 66 percent of the building face below.
4. Gables. If a gable roof or turned gable roof is present, the gable ridge shall be oriented in a direction parallel to the side property line in order to minimize shadow effects on the adjoining lot.
5. Roof Pitch. The roof pitch for an ADU shall be 4:12 or greater. However, if the primary residence has a roof pitch shallower than 4:12, a similar pitch may be employed on the accessory dwelling.
6. H Overlay District Standards. In an H overlay district, an ADU shall conform to the following additional requirements:
a. Except as provided in subsection (I)(6) or (H)(3) of this section, a detached ADU shall be set back from the street-facing facade and/or front property line such that the entirety of the ADU is behind the rear wall of the principal structure on the lot.
b. The elevation of the highest point of a detached accessory dwelling shall not exceed the elevation of the highest point of the primary dwelling, except that in all cases a detached ADU at least 16 feet in height, or as permitted by Government Code Section 66321(b)(4), is allowed.
c. An attached ADU shall not result in a rooftop addition or any alteration to the existing roofline of a designated resource.
d. An ADU shall not result in any increase in building height for a designated resource, except that in all cases an attached ADU at least 16 feet in height, or as permitted by Government Code Section 66321(b)(4), is allowed.
e. An ADU shall not result in any exterior alteration to the street-facing facade nor the existing wall or facade of a designated resource where such wall or facade is parallel to a public street.
f. A building addition to a designated resource to accommodate an attached ADU shall be inset or separated by a connector that is offset at least 18 inches from the parallel side or rear building wall to distinguish it from the primary dwelling. Such building addition shall not extend beyond the side wall of the primary dwelling.
g. For an attached ADU, the exterior building and trim materials shall be wood or smooth fiber cement siding or shingles. However, if Portland cement plaster (stucco) is the predominant finish for the primary residence, then stucco may also be applied to the accessory dwelling. Synthetic stucco (e.g., EIFS or DryVit) and faux wood grains are prohibited.
h. For a detached ADU, the following exterior building materials are prohibited: pressed board, vinyl, synthetic stucco and any composite or fiber cement material with a faux wood grain.
i. The exterior walls of an ADU shall utilize the same base and trim colors as the primary residence.
j. The roof shall utilize the same material and color as the primary residence and shall match the primary residence in overall appearance.
k. Windows shall be taller than they are wide or shall match the proportions of the primary dwelling’s windows. Windows in bathrooms, basements and crawlspaces, kitchens and laundry rooms may be horizontally oriented.
l. Window pane divisions shall be true or simulated divided lites (i.e., individual panes set within muntins or muntins applied to both the interior and exterior of the glass).
m. Window frames shall be painted or factory-finished. No metallic finishes such as silver or bronze anodized aluminum are permitted.
n. For designated resources, vinyl windows are not permitted on an attached ADU.
K. Parking.
1. No additional off-street parking stalls are required for an ADU or JADU.
2. When a garage, carport, covered parking structure, or uncovered parking space is demolished in conjunction with the construction of an ADU or converted to an ADU, replacement parking stalls are not required for the demolished parking structure.
3. If a detached garage is demolished and replaced with an ADU, the demolition permit for the detached garage shall be reviewed with the application for the ADU and issued at the same time. (Ord 25-12 §§ 3, 12).
17.90.030 Affordable housing density bonus.
A. Purpose.
1. In accordance with California Government Code Section 65915 et seq., this section specifies how compliance with state density bonus law will be implemented.
2. Specifically, the purpose of this section is to provide density bonuses, incentives, concessions, and waivers of development standards for the production of housing for very low-, low-, and moderate-income households, senior households, provision of daycare facilities, student housing, and donations of land, and for other housing types as provided by state law.
3. In enacting this section, it is also the intent of the city to implement the goals, objectives, and policies of the city’s general plan.
B. Definitions. The definitions found in “state density bonus law,” Government Code Sections 65915 through 65918 or successor provisions, shall apply to the terms contained in this section. “Incentives” include “concessions” as defined in state density bonus law.
C. Application Requirements.
1. An applicant for a “housing development” as defined in state density bonus law shall be eligible for a density bonus and other regulatory benefits that are provided by state density bonus law when the applicant seeks and agrees to provide housing as specified in Government Code Sections 65915(b), (c), (f), (g), (h) and (v), or in Section 65195.5, or successor provisions. The density bonus calculations shall be made in accordance with state density bonus law.
2. The granting of a density bonus, incentive, or concession, pursuant to this section, shall not be interpreted, in and of itself, to require a general plan amendment, development code amendment, zone change, other discretionary approval, or the waiver of a city ordinance or provisions of a city ordinance unrelated to development standards.
3. All requests for density bonuses, incentives, parking reductions, and waivers for a housing development shall be filed with and on a form provided by the community development director, or their designee, concurrently with the filing of the planning application for the first discretionary or ministerial permit required for the housing development, whichever permit is earliest. The applicant shall be informed whether the application is complete consistent with Government Code Section 65943.
4. The application shall include the required fee and the following minimum information:
a. For a Requested Density Bonus.
i. Summary table showing the maximum number of dwelling units permitted by the zoning and general plan excluding any density bonus units, proposed affordable units by income level, proposed bonus percentage, number of density bonus units proposed, total number of dwelling units proposed on the site, and resulting density in units per acre.
ii. Subparagraph of Government Code Section 65915(b)(1) under which the housing development qualifies for a density bonus and reasonable documentation demonstrating that the housing development is eligible for a bonus under that subparagraph.
iii. Where the housing development is seeking an additional bonus, the subparagraph of Government Code Section 65915(v)(1) under which the housing development qualifies for an additional density bonus and reasonable documentation demonstrating that the housing development is eligible for the additional bonus under that subparagraph.
iv. A tentative map or preliminary site plan, drawn to scale, showing the number and location of all proposed units, designating the location of proposed affordable units and density bonus units.
v. The zoning and general plan designations and assessor’s parcel number(s) of the housing development site.
vi. A description of all dwelling units existing on the site in the five-year period preceding the date of submittal of the application and identification of any units rented in the five-year period; subject to any form of rent control through a public entity’s valid exercise of its police power; or subject to a recorded covenant ordinance, or law restricting rents to levels affordable to households of lower or very low income.
vii. If dwelling units on the site are currently rented, income and household size of all residents of currently occupied units, if known. If any dwelling units on the site were rented in the five-year period but are not currently rented, the income and household size of residents occupying the dwelling units when the site contained the maximum number of dwelling units, if known.
viii. The phasing of the construction of the affordable housing units in relation to the nonrestricted units in the housing development.
ix. A density bonus is requested for a land donation, the location of the land to be dedicated, proof of site control, and reasonable documentation that each of the requirements included in Government Code Section 65915(g) can be met.
b. Requested Incentives. Incentives are those defined by state density bonus law. The number of incentives that may be requested shall be based upon the number the applicant is entitled to pursuant to state density bonus law. The application shall include the following minimum information for each incentive requested, shown on a site plan (if appropriate):
i. The city’s usual regulation and the requested regulatory incentive or concession.
ii. Except where mixed-use zoning is proposed as a concession or incentive, reasonable documentation to show that any requested incentive will result in identifiable and actual cost reductions to provide for affordable housing costs or rents.
iii. If approval of mixed-use zoning is proposed, reasonable documentation that nonresidential land uses will reduce the costs of the housing development, that the nonresidential land uses are compatible with the housing development and the existing or planned development in the area where the proposed housing development will be located, and that mixed-use zoning will provide for affordable housing costs and rents.
c. Requested Waivers. For each waiver requested, the applicant shall include, shown on a site plan, and shown for each existing or proposed parcel the city’s required development standard and the requested development standard.
d. Parking Reductions. If a housing development is eligible for a density bonus pursuant to state density bonus law, the applicant may request an on-site vehicular parking ratio specified in Government Code Section 65915(p). An applicant may request this parking reduction in addition to the incentives and waivers permitted by subsections (C)(2) and (C)(3) of this section. The application shall include a table showing parking required by the zoning regulations, parking proposed under state density bonus law, paragraph under Government Code Section 65915(p) (or other statute) under which the project qualifies for the parking reduction, and reasonable documentation that the project is eligible for the requested parking reduction.
e. Density Bonus or Incentive for a Child Care Facility in a Housing Development. The application shall include reasonable documentation that all of the requirements included in Government Code Section 65915(h) can be met.
f. Density Bonus or Incentive for a Condominium Conversion. The application shall include reasonable documentation that all of the requirements included in Government Code Section 65915.5 can be met.
D. Application Review Process.
1. All requests under state density bonus law shall be part of the planning application and shall be applied for, reviewed, and acted upon concurrently with the planning application by the approval body with authority to approve the development (“review authority”), within the timelines prescribed by Government Code Section 65950 et seq. or other statute. Appeals of the planning application in accordance with the requirements of Chapter 1.44 BMC (Appeals) shall include all requests under state density bonus law if appeals are authorized for the discretionary or ministerial permit applied for.
2. The review authority shall grant an incentive requested by the applicant unless it makes a written finding, based upon substantial evidence, of any of the following:
a. The proposed incentive does not result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in Health and Safety Code Section 50052.5; or for affordable rents, as defined in Health and Safety Code Section 50053; or
b. The proposed incentive would be contrary to state or federal law; or
c. The proposed incentive would have a specific, adverse impact upon the public health or safety 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 housing 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 for the housing development was deemed complete as defined in Government Code Section 65589.5.
3. The review authority shall grant the waiver of development standards requested by the applicant unless it makes a written finding, based upon substantial evidence, of any of the following:
a. The proposed waiver would be contrary to state or federal law; or
b. The proposed waiver would have an adverse impact on any real property listed in the California Register of Historical Resources; or
c. The proposed waiver would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the housing 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 for the housing development was deemed complete as defined in Government Code Section 65589.5.
4. If a child care center complies with the requirements of Government Code Section 65915(h), the review authority may deny a density bonus or incentive that is based on the provision of child care facilities only if it makes a written finding, based on substantial evidence, that the city already has adequate child care facilities.
E. Density Bonus Housing Agreement.
1. If a density bonus, incentive, parking reduction, or waiver is approved pursuant to this section, the applicant shall enter into a binding affordable housing agreement or restrictive covenant, as described below, with the city, which sets forth the conditions and guidelines to be met in the implementation of state density bonus law and that ensures compliance with all of the provisions of this section. The agreement will also establish specific compliance standards and remedies available to the city upon failure by the applicant to comply with state density bonus law, this section, or the affordable housing agreement.
2. For rental projects, the applicant shall enter into an affordable housing agreement with the city, running with the land, in a form approved by the city attorney, to be executed by the city manager, or their designee. The agreement shall require the continued affordability of all rental units that qualified the applicant for the receipt of the density bonus, incentive, waiver, or parking reduction for a minimum of 55 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program; shall identify the type, size and location of each affordable unit; shall specify the eligible occupants; shall specify phasing of the affordable units in relation to the market-rate units; and shall contain other relevant provisions approved by the city attorney. Rents for the lower income density bonus units shall be set at an affordable rent as defined in state density bonus law.
3. For for-sale projects, the applicant shall enter into an affordable housing agreement with the city, running with the land, in a form approved by the city attorney, to be executed by the city manager, or their designee. The affordable housing agreement shall require that the initial purchasers of those for-sale units that qualified the applicant for the receipt of the density bonus, incentive, waiver, or parking reduction are persons and families of lower or moderate income, as applicable, or if any for-sale unit is not purchased by an income-qualified household within 180 days after the issuance of the certificate of occupancy, then the unit(s) must be sold pursuant to a contract that satisfies the requirements of Revenue and Taxation Code Section 402.1(a)(10) to a qualified nonprofit housing corporation as defined in state density bonus law and that the units are offered at an affordable housing cost, as that cost is defined in Health and Safety Code Section 50052.5; and shall contain other relevant provisions approved by the city attorney. The city shall enforce an equity sharing agreement consistent with state density bonus law unless it is in conflict with the requirements of another public funding source or law. The affordable housing agreement shall require the continued affordability of the for-sale units for a minimum of 55 years from the recordation of each affordable housing agreement, as the case may be.
4. Where a density bonus, waiver or parking reduction is provided for a market-rate senior housing development, the applicant shall enter into a restrictive covenant with the city, running with the land, in a form approved by the city attorney, to be executed by the city manager, or their designee, to require the housing development to be operated as “housing for older persons” consistent with state and federal fair housing laws.
5. The executed affordable housing agreement shall be recorded against the housing development prior to final or parcel map approval, or, where a map is not being processed, prior to issuance of building permits for the housing development, whichever is earliest. The affordable housing agreement shall be binding on all future owners and successors in interest.
F. Density Bonus Calculations.
1. In determining the total number of units to be granted, each component of any density calculation, including base density and bonus density, resulting in fractional units shall be separately rounded up to the next whole number.
2. When calculating the number of affordable units needed to qualify for a given density bonus, any fractions of affordable dwelling units shall be rounded up to the next whole number.
3. Except where a housing development is eligible for an additional bonus pursuant to Government Code Section 65915(v), each housing development is entitled to only one density bonus. If a housing development qualifies for a density bonus under more than one category, the applicant shall identify the category under which the density bonus is requested to be granted.
4. In determining the number of affordable units required to qualify a housing development for a density bonus pursuant to state density bonus law, units added by a density bonus are not included in the calculations. Any on-site units that satisfy the city’s inclusionary housing requirements in BMC 17.90.050 (Inclusionary housing) and are required to be constructed concurrently with the housing development may qualify the housing development for a density bonus if those units meet the requirements of state density bonus law.
5. The applicant may elect to accept a lesser percentage of density bonus than the housing development is entitled to, or no density bonus, but no reduction will be permitted in the percentages of affordable units required by state density bonus law. Regardless of the number of affordable units, no housing development shall be entitled to a density bonus greater than what is authorized under state density bonus law.
6. Nothing in this section requires the provision of direct financial incentives from the city for the housing development, including, but not limited to, the provision of financial subsidies, publicly owned land, fee waivers, or waiver of dedication requirements. The city, at its sole discretion, may choose to provide such direct financial incentives.
G. Development Standards.
1. Building permits and final inspections or certificates of occupancy shall be issued concurrently for the market rate units and for any affordable units that qualified the project for a density bonus, incentive, waiver, or parking reduction, so that the affordable units comprise the required percentage of total units.
2. Affordable units shall be comparable in exterior appearance and overall quality of construction to market rate units in the same housing development and shall meet the design and amenity standards set forth in BMC 17.90.050(C)(5) (Design and Amenity Standards).
3. To comply with fair housing laws, the affordable units shall contain the same proportional mix of bedroom sizes as the market-rate units. In mixed-income buildings, the occupants of the affordable units shall have the same access to the common entrances and to the common areas, parking, and amenities of the project as the occupants of the market-rate housing units, and the affordable units shall be located throughout the building and not isolated on one floor or to an area on a specific floor.
H. Density Bonus for Commercial Development. A commercial development may request and receive a development bonus pursuant to the provisions of Government Code Section 65915.7.
I. Interpretation. If any portion of this section conflicts with state density bonus law or other applicable state law, state law shall supersede this section. Any ambiguities in this section shall be interpreted to be consistent with state density bonus law. Statutory references in this section include successor provisions. (Ord 25-12 §§ 3, 12).
17.90.040 Manufactured homes.
A. Purpose. Manufactured homes are part of the housing stock of the city of Benicia. It is the intent of the city to provide opportunities for the placement of manufactured homes as residential uses and in manufactured home parks, and to ensure that such manufactured homes are designed and located so as to be harmonious within the context of the surrounding houses and neighborhood. No provision contained herein shall be applied in contradiction to state law.
B. General Requirements. Manufactured homes may be used for residential purposes as follows:
1. If such manufactured homes are located in an approved manufactured home park in conformity with the conditions imposed upon development and use of the manufactured home park; or
2. If such manufactured homes are located in a district that permits single-family dwellings; or
3. If such manufactured homes have been approved by the community development director for a location in an OS district or an I district as caretaker housing.
4. All manufactured home parks shall have a minimum lot area of four acres and may be allowed only through approval of a PD district under the provisions of Chapter 17.44 BMC. Manufactured homes also may be used for temporary uses, subject to the requirements of a temporary use permit issued under Chapter 17.104 BMC.
C. Design Criteria. A manufactured home shall be compatible in design and appearance with structures in the vicinity and shall meet the following standards:
1. It must be built on a permanent foundation approved by the building official;
2. It must have been constructed in compliance with all city of Benicia permit requirements, subject to permitting by the California Department of Housing and Community Development;
3. The unit’s skirting must extend to the finished grade;
4. The exterior materials of a manufactured home shall be compatible with existing development in the immediate neighborhood by using building materials, window styles, roof slopes, colors, and exterior finishes that are the same or visually similar to those on the primary dwelling unit. Reflective metal finishes are prohibited;
5. The roof must be of concrete or asphalt tile, shakes or shingles, or nonreflective standing seam metal complying with the most recent editions of the California Building Code fire rating approved in the city of Benicia;
6. The roof must have a minimum 2:12 pitch and eaves or overhangs of not less than one foot;
7. Required covered parking shall be compatible with the manufactured home design and with other buildings in the area.
D. Cancellation of State Registration. Whenever a manufactured home is installed on a permanent foundation, any registration of said manufactured home with the state of California shall be canceled, pursuant to state laws and regulations. Before any occupancy certificate may be issued for use of such a manufactured home, the owner shall provide to the building official satisfactory evidence showing that the state registration of the manufactured home has been or will, with certainty, be canceled. If the home is new and has never been registered with the state, the owner shall provide the building official with a statement to that effect from the dealer selling the home. (Ord 25-12 § 3).
17.90.050 Inclusionary housing.
A. Purpose.
1. The purpose of this section is to enhance the public welfare and assure that new housing development contributes to the attainment of the city’s housing goals by promoting and increasing, through actual construction and/or alternative equivalent actions as provided for in this section, the production of rental and ownership units available and affordable to qualified households.
2. It is city’s intent that the requirements for inclusionary units affordable to qualified households shall not be contingent on the availability of government programs, subsidies, or regulatory assistance. This is not to preclude the use of such programs, subsidies, or regulatory assistance. To the extent a government subsidy, affordable housing program, or regulatory assistance has requirements that conflict with this section, the community development director may modify or waive such conflicting requirement(s) of this section in order to facilitate the development of inclusionary units. This section is also not intended to be an undue burden on the developers of residential projects.
B. Applicability.
1. Any residential development of 10 or more units shall comply with the requirements of this section to provide inclusionary units within the development as units affordable to, and occupied by, qualified households, for a minimum of 55 years from the recordation of each resale control agreement or affordable restriction agreement, as the case may be, for the units.
2. For rental development, 10 percent of the total number of market-rate units in the development shall be provided as inclusionary units.
3. For for-sale development of less than 100 units, 10 percent of the total number of market-rate units in the development shall be provided as inclusionary units.
4. For for-sale development of 100 or more units, 15 percent of the total number of market-rate units in the development shall be provided as inclusionary units.
5. In applying the percent or percentages referred to in this section, any decimal fraction less than 0.50 may be disregarded and any decimal fraction greater than or equal to 0.50 shall be rounded up to the next whole number.
6. Inclusionary units shall be constructed on site unless otherwise approved pursuant to subsection (F) of this section, Alternative Means of Compliance.
C. General Requirements.
1. Affordability. One-half of the total number of inclusionary units within the residential development shall be designated as units affordable to, and occupied by, low-income households. One-half of the total number of inclusionary units within the development shall be designated as units affordable to, and occupied by, moderate-income households.
a. Any inclusionary unit may be offered at a level affordable to, and occupied by, acutely low-income, extremely low-income, very low-income or low-income households subject to compliance with all other requirements of this section. The provision of such units at alternate affordability levels shall not modify the total number of required inclusionary units.
b. When the number of required inclusionary units is an odd number (e.g., 10 percent of 10 units is one), the odd-numbered unit shall be provided at a level affordable to a low-income household.
2. Affordable Restriction Agreement. An affordable restriction agreement shall be required for any residential development subject to this section. The affordable restriction agreement shall be fully executed by the city and developer prior to issuance of any building permit for the residential development. The affordable restriction agreement, inclusive of resale control agreement(s) or affordable rental agreement(s) as applicable, shall be recorded as a deed restriction upon the property prior to issuance of a certificate of temporary or permanent occupancy for any market-rate unit within the residential development. The agreement shall ensure compliance with the requirements of this section, including all of the following:
a. The timing of the construction of the inclusionary units and/or the provision of an alternative means of compliance as set forth in subsection (F) of this section, Alternative Means of Compliance;
b. The number of inclusionary units at appropriate sales price or rent levels equivalent to or more affordable than 50 percent low-income units and 50 percent moderate-income units;
c. The term of affordable restriction agreement;
d. The location of inclusionary units, identified by assessor’s parcel number and address or unit number, and depicted on the approved site plan;
e. Provision(s) regarding income certification and screening of prospective buyers and/or renters of inclusionary units;
f. A standard resale control agreement for all for-sale units and/or affordable rental restriction agreement for all rental units, as applicable; and
g. The method of cost recovery for initial and ongoing income certification for inclusionary units.
3. Rents and Sales Prices. Affordable rent and sales prices shall be determined at a rent or price that is affordable for a qualified household according to the Official State Income Limits Table.
4. Concurrent Construction.
a. All inclusionary units in a residential development and/or phases of a development shall be constructed concurrently with or prior to the construction of market-rate units.
b. Except as provided in subsection (C)(4)(c) of this section, each phase of a residential development shall include the same or greater proportion of inclusionary units as are required for the total development, which shall be verified and approved in the construction phasing plan at the time of building permit application.
c. For discretionary permits, the review authority may authorize an alternative phasing schedule to facilitate affordable housing development and if the affordable restriction agreement sets forth terms for timely satisfaction of the inclusionary housing requirements.
5. Design and Amenity Standards. Inclusionary units shall meet the following standards. Documentation of compliance with the design and amenity standards shall be submitted at the time of the development application (e.g., parcel map, tentative map or design review).
a. Distribution. Inclusionary units shall be interspersed among market-rate units within the same residential development as demonstrated on a site plan and/or floor plan that clearly indicates the location of such units.
i. No more than 50 percent of the proposed affordable housing units are consolidated into one structure in developments with more than one multi-unit structure;
ii. No more than 20 percent of affordable housing units in a single multi-unit structure may be located adjacent to each other or stacked on consecutive floors unless it is unavoidable due to the required unit mix and distribution;
iii. No more than 20 percent of the affordable housing units may be located adjacent to each other within single-family residential subdivisions;
iv. The distribution requirements of this subsection shall not be applicable if the affordable units are financed with low-income tax credits or consist of affordable senior housing.
b. Comparable Units. Inclusionary units must be comparable to market-rate units. “Comparable” means that the inclusionary units shall be offered in a bedroom and bathroom mix that is proportionate to that of market-rate units; that units shall measure no less than 90 percent of the average square footage of market-rate units with the same number of bedrooms; and that the units are offered with the same standard mechanical systems as market-rate units.
c. Comparable Design. Inclusionary units shall be designed in a manner that is consistent with the exterior design of market-rate units in the same development. “Consistent” means that inclusionary units are offered the same standard building elevations, standard exterior materials (i.e., walls, roofing, windows, and trim), and standard landscaping as market-rate units. “Standard” refers to components of the dwelling unit that are offered in the base purchase price or rent.
d. Comparable Amenities. Residents of inclusionary units shall have access to and enjoyment of all on-site amenities that are available to market-rate units. Owners or occupants of inclusionary units shall not be charged any fee or rent for access to amenities such as recreational facilities, parking, cable TV, vehicle charging and interior appliances such as dishwashers and microwave ovens, unless such fee or rent is charged to market-rate tenants. Optional services for all residents must be the same. Tenants of inclusionary units cannot be required to purchase additional services.
e. Common Access. Residential buildings that have a common, shared entrance or entrances shall not have separate entrances for market-rate and inclusionary units.
f. For discretionary permits, the review authority shall have the authority to approve one or more deviations from these standards when the review authority determines that such deviation is necessary due to factors such as site or design constraints, public funding source restrictions pertinent to lower-income units, or to comply with all applicable city ordinances. In making its decision, the review authority shall find that the project will fulfill the purposes of this section and the affordable housing needs and policies of the city as reflected in the housing element.
D. Requirements for Rental Units.
1. Tenant Screening.
a. All prospective tenants for inclusionary rental units shall be screened and certified for their income eligibility prior to execution of a lease agreement, according to the procedure and terms of the affordable restriction agreement and affordable rental agreement, as applicable.
b. The same rental terms and conditions shall be applied to tenants of inclusionary units as are applied to market-rate units, except as to rent levels, income requirements, or other requirements of state or federal subsidy programs.
c. Notwithstanding any other provision of this subsection, in the screening and selection process for the inclusionary rental units, the city, developer, and/or their designee(s) shall comply with all applicable state and federal fair housing laws. Discrimination based on any subsidies (e.g., housing choice vouchers) received by the prospective tenant is expressly prohibited.
2. Annual Compliance Reporting.
a. Commencing with issuance of each certificate of occupancy and continuing until expiration of the affordable restriction agreement, the developer or its designee(s) shall provide an annual report to the city by January 31st of each year that includes all of the following information:
i. The address, including apartment or unit number, each inclusionary unit;
ii. The number of bedrooms in the inclusionary unit;
iii. The initial and current rent level of the household;
iv. The current income level of the household and the number of persons in the household;
v. The term of the affordability restrictions pursuant to this section or the requirements of any funding source, whichever is more restrictive;
vi. The name and address of the owner and manager (if applicable).
b. The city or its designee(s) shall monitor compliance with the rent level requirements of this section.
3. Substitution of Unit. A market-rate unit may be substituted for an inclusionary unit according to the procedures and requirements of this section.
a. If the tenant of an inclusionary unit experiences an increase in household income that exceeds the income limits for a qualified household according to the Official State Income Limits Table and the affordable restriction agreement, the owner or their designee may adjust the rent of such unit to market-rate and allow continued occupancy of the unit; provided, that the next available equivalent market-rate unit shall be leased to a qualified household that meets the income limits set forth in the affordable restriction agreement (“substitution of unit”).
b. The substitution of the units shall be documented in the annual compliance report to demonstrate that the appropriate number and affordability levels of inclusionary units are being maintained pursuant to the affordable restriction agreement.
4. Transfers and Sales of Inclusionary Units. The owner of any inclusionary rental unit shall attach and legally reference in the grant deed conveying title of any such inclusionary unit a declaration of restrictions stating the restrictions imposed pursuant to subsection (C)(2) of this section (Affordable Restriction Agreement). The city may provide a form declaration of restrictions, but failure to provide the form does not abrogate the owner’s obligation to record the declaration. The declaration of restrictions shall include all applicable occupancy restrictions, prohibitions, and terms of the affordable rental restriction agreement as required by this section.
E. Requirements for For-Sale Units.
1. Marketing and Buyer Selection Plan. As part of the application for for-sale unit development, the developer shall submit a marketing and buyer selection plan for city. Approval of the plan shall be required prior to execution of the affordable restriction agreement.
a. The marketing section will set forth available financing and/or lending resources for lower-income households and the methods of identifying and conducting outreach to potential buyers.
b. The buyer selection portion of the plan will specify the income eligibility standards and necessary documentation to comply with the process and requirements of this subsection.
c. The plan shall state that no inclusionary unit may be sold to an immediate family member nor employee of the developer(s) or owner(s).
2. Notice of Availability. The developer or their designee(s) shall notify the city of the availability of for-sale inclusionary units when the units are initially offered for sale.
a. Notice of availability shall be made in writing and provided in accordance with the terms of the affordable restriction agreement. Notice may precede the listing of units by up to 30 days but shall be received no later than one day after the units are listed or advertised for sale.
b. The developer or their designee(s) shall be responsible for the marketing of inclusionary units. The city or its designee(s) may, in their discretion, also advertise the availability of the inclusionary units to the general public and eligible parties known to the city of Benicia and county of Solano.
c. Discrimination based on any protected characteristic, including discrimination based on any subsidies received by a qualified household, is expressly prohibited.
3. Buyer Screening.
a. For-sale inclusionary units shall only be offered to, sold to, and sold at prices affordable to qualified households who meet the income limits at the time of sale.
b. Maximum sales price for inclusionary units shall be determined at price that is affordable for a qualified household according to the income limits of the Official State Income Limits Table and set forth in the affordable restriction agreement for the development.
c. Every purchaser of an inclusionary unit shall certify that the unit is being purchased for the purchaser’s primary place of residence.
4. Escrow Reporting.
a. At least 10 working days prior to close of escrow for each inclusionary unit, the developer or their designee(s) shall submit a pre-closing report to the city which includes all of the following information:
i. The address of the unit and lot number (as applicable);
ii. The affordability designation of the unit pursuant to the affordable restriction agreement;
iii. The sales price;
iv. The household income of the prospective purchaser, including associated documentation as detailed in the affordable restriction agreement;
v. The number of persons in the prospective purchaser’s household; and
vi. The term of the affordability restrictions pursuant to this section or the requirements of any intended funding source, whichever is more restrictive.
b. The city shall review the preclosing report and either (i) notify the developer or their designee(s) of any deficiencies in the completeness of the report; or (ii) issue a certification that the prospective purchaser’s household income complies with the income limit for the designated inclusionary unit pursuant to the requirements of this section; or (iii) decline to certify that the prospective purchaser meets the income requirements pursuant to the affordable restriction agreement and this section.
c. No inclusionary unit may close escrow unless the income certification has been issued to the developer or their designee(s).
d. Within 10 working days after close of escrow for each inclusionary unit, the developer or their designee(s) shall provide a post-closing report to the city or its designee which includes all of the following information:
i. A copy of the recorded affordable restriction agreement and resale control agreement for the unit;
ii. The name of the owner(s) of the inclusionary unit;
iii. The date of actual or expected occupancy.
e. Escrow reporting shall be provided for each inclusionary unit until all units have been sold.
f. The city or its designee(s) shall at least annually monitor purchase prices, number of units at the required affordability levels, owner-occupancy, and the expiration of the terms of affordability.
5. Homeowners’ Dues and Assessments. Owners of for-sale inclusionary units may be obligated to pay homeowners’ dues and/or assessments; provided, that the assessment charged to any low-income inclusionary unit shall not exceed 75 percent of the dues and/or assessments owed by market-rate unit owners.
6. Control of Resale. In order to maintain the availability of the for-sale inclusionary units pursuant to the requirements of this section, the city shall impose resale conditions for a period of 55 years from recordation of each resale control agreement, which 55-year period shall start over with each resale.
a. Resale Control Agreement. As set forth in subsection (C)(2) of this section (Affordable Restriction Agreement) and further described herein, a resale control agreement setting forth the applicable terms of this section shall be recorded with the Solano County recorder’s office for each for-sale inclusionary unit.
b. Resale Price. The price received by the seller of an inclusionary unit shall not exceed the affordable cost, as determined by the income limits set forth in the Official State Income Limits Table for the affordability category assigned to the unit at time of development approval.
c. Fees. The seller shall not levy or charge any additional fees nor shall any “finder’s fee” or other monetary consideration be allowed other than customary real estate commissions and closing costs.
d. Notice of Availability. When an inclusionary unit is listed for resale, notice of availability shall be made in writing and provided to the city in accordance with the terms of the resale control agreement. Notice may precede the listing of the unit by up to 30 days but shall be received no later than one day after the unit is listed for sale.
i. Within 10 days of receiving notice of availability, the city may provide the owner or their designee a list of any qualified and eligible potential purchasers known to the city.
ii. The owner or their agent must make a good faith effort to notify each listed person or their designee of unit availability within seven days of receipt of the list.
e. Qualified Buyer. The owner or their designee will be responsible for the marketing of the unit to qualified buyers and certification of the buyer’s income. Buyer screening shall be conducted in accordance with the requirements of subsection (E)(3) of this section (Buyer Screening). An inclusionary unit may be resold only to a qualified household.
f. Escrow Reporting. Prior to closing escrow, the owner or their designee shall comply with the reporting requirements of subsection (E)(4) of this section (Escrow Reporting).
g. City Option to Purchase. If the owner or their designee is unable to find a qualified buyer after 120 days of marketing the unit, the city may exercise its option to purchase the property at a price that is affordable to qualified households on the basis of the Official State Income Limits Table or appraised fair market value, whichever is less.
i. The city shall initiate its option to purchase the inclusionary unit by notifying the owner or their designee in writing that the option is under consideration. The city may not issue this notification until the unit has been marketed for at least 120 days.
ii. Unless extended through a written agreement by the city and the owner, the city shall issue a decision on its option to purchase within 90 days.
iii. Nothing in this subsection shall preclude the owner from selling the property to a qualified household during the period in which the city is considering its option to purchase.
h. Rental of For-Sale Inclusionary Unit. If a for-sale inclusionary unit is no longer owner-occupied, the unit shall be occupied by and provided at a rent that is affordable to a qualified household in the income category for which the unit was designated in accordance with subsection (D) of this section (Requirements for Rental Units), inclusive of an annual compliance report.
i. Resale in Violation of Income Limits. Resale of an inclusionary unit to a household that is not qualified under the provisions of this section shall result in enforcement actions as provided in subsection (H) of this section (Enforcement). In addition, the city may opt to pursue necessary legal action demanding performance under the terms of this section and the affordable restriction agreement.
j. Transfers of Title.
i. The following transfers of title are exempt from the provisions concerning control of resale and do not reset the 55-year term of affordability:
(A) Transfer by devise or inheritance to the owner’s spouse, child or other family member;
(B) Transfer of title by an owner’s death to a surviving joint tenant, tenant in common, or a surviving spouse of community property (that is, another owner already on title);
(C) Transfer of title to a spouse as part of divorce or dissolution proceedings; or
(D) Transfer of title or an interest in the property to the spouse in conjunction with marriage.
ii. Upon transfer, the owner may occupy the inclusionary unit if they comply with the income limits and buyer screening provisions of this section and the applicable affordable restriction agreement. If the owner does not qualify, the inclusionary unit may be sold or rented to a qualified household in accordance with the provisions of this subsection.
F. Alternative Means of Compliance.
1. The preferred and most efficient method of compliance with this section is the creation of inclusionary units within the same market-rate development (“on-site”). Alternative methods of compliance will be approved if the developer submits an analysis, prepared by a qualified professional land economist, demonstrating that the development of on-site inclusionary units is not feasible and further ensuring that the alternative means of compliance will satisfy the inclusionary requirements of this section in an economically feasible manner consistent with the purposes of this section and the policies of the housing element. For the purposes of this analysis, feasibility for rental development is defined as five percent yield-on-cost and feasibility for for-sale units is defined as 15 percent margin on costs.
2. The developer shall satisfy all alternative means of compliance concurrent with or prior to occupancy of the market-rate development.
3. Except where specifically provided herein, alternative means of compliance shall require approval by the review authority and shall be provided in accordance with all applicable requirements of this section.
4. The alternative means of compliance include and are limited to those listed in this subsection.
5. Off-Site Construction. The developer may propose to fulfill the requirements of this section by the construction off-site inclusionary units, i.e., the construction of inclusionary units that would be required as part of the residential development at another location in the city at an equivalent number, affordability level, and with comparable unit and design as required per subsections (C)(5)(b) (Comparable Units) and (C)(5)(c) of this section (Comparable Design). Such units shall be provided within the same census tract as the market-rate units. Where market-rate units are located in two or more census tracts, off-site units shall be provided in the census tract containing the greatest number of market-rate units. Off-site inclusionary units must be constructed and approved through final inspection prior to issuance of a certificate of occupancy for any units in the market-rate development project.
6. Rental Units Within For-Sale Unit Developments. The developer may propose to offer inclusionary units as rental units within a for-sale development. Such inclusionary rental units shall be subject to subsection (D) of this section (Requirements for Rental Units).
7. Extension of Existing Affordable Rent Restrictions in Off-Site Properties.
a. The developer may propose to partner with an existing affordable housing provider that manages residential housing within the city limits of the city of Benicia to rehabilitate and extend the affordability of existing off-site housing units at an economic value equal to or greater than the subsidy cost for the required on-site inclusionary housing units, as demonstrated by the analysis of a qualified land economist and providing the following:
i. Rehabilitation of existing affordable housing units and/or facilities in a manner that will extend the life of such structure(s) and grounds; and
ii. Secure at least 55 years additional of restricted affordability for housing unit(s). The inclusionary units to be extended must be affordable to low- and moderate-income residents (or lower levels of affordability) as set forth in the affordable restriction agreement, and the terms of affordability must meet the general requirements section regarding term, levels of affordability and reporting requirements.
b. A proposal for rehabilitation and extension of existing affordable rent restrictions in off-site properties shall be presented at the time of development application submittal and shall be accompanied by a memorandum of understanding or partnership agreement with the affordable housing provider; a schedule of units and/or facilities to be rehabilitated with construction cost estimates; a draft instrument extending the duration of affordability; and financing documentation as necessary to demonstrate feasibility.
8. Rehabilitation of Existing Units. The developer may propose to satisfy the inclusionary housing requirement by purchasing and rehabilitating off-site units in an equivalent quantity and affordability to what would be required for on-site inclusionary units, and to a level that complies with the comparable unit and design standards of subsections (C)(5)(b) (Comparable Units) and (C)(5)(c) of this section (Comparable Design). A proposal for acquisition of existing units, inclusive of unit location, size and type, shall be provided at the same time as the development application and shall be accompanied by evidence of ownership or contingent ownership for each unit proposed as an alternative means of compliance. Existing units that are rehabilitated as an alternative means of satisfying the inclusionary requirements shall require execution of an affordable restriction agreement and shall be acquired, deed restricted, rehabilitated and approved through final inspection prior to issuance of an occupancy permit for the market-rate development. The units purchased must be within the city limits of the city of Benicia.
G. Use of Development Incentives – Density Bonus.
1. To avoid an undue economic burden or cost to the developer providing inclusionary units or alternatives required by the provisions of this section, the city shall favorably consider the applicability of a density bonus for a proposed residential project or land subdivision, as provided by state and local law; provided, that a density bonus does not conflict with the goals of the city’s general plan or result in significant environmental impacts.
2. Granting of a density bonus shall be considered on a project-by-project basis. Developments seeking a density bonus must comply with BMC 17.90.030 (Density bonus), and the state density bonus law. The affordable housing density bonus agreement (AHDBA) required by BMC 17.90.030(B)(3) shall serve as the affordable restriction agreement required for inclusionary units.
3. Concerning for-sale units, the AHDBA will set forth the restricted resale price that is affordable for a qualified household pursuant to income limits of the Official State Income Limits Table, and the equity sharing provisions of Government Code Section 65915, as a disclosure in the marketing of the affordable for-sale units to initial buyers and subsequent buyers on resale.
H. Enforcement.
1. The provisions of this section shall apply to all agents, successors and assignees of a developer for development of the site. No discretionary permit or building permit shall be issued after the effective date of the ordinance codified in this section for any project which does not meet the requirements of this section.
2. In addition to, or in lieu of, the provisions of subsection (H)(1) of this section, the city council may institute appropriate legal actions or proceedings including, but not limited to, equitable relief for the enforcement of this section. Nothing in this section shall be construed to restrict the rights of the third-party beneficiaries of this section to enforce its provisions.
3. Any person, firm or corporation, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this section, shall be guilty of a misdemeanor, and upon conviction thereof shall be punishable for each offense by a fine of not more than $5,000, or by imprisonment in the county jail for a term not exceeding six months, or by both fine and imprisonment. Such person, firm, or corporation shall be deemed to be guilty of a separate offense for each and every day during any portion of which any violation of this section is commenced, continued, or permitted by such person, firm, or corporation, and shall be punishable as provided herein.
I. Performance. Failure of any city official or agency to fulfill the requirements of this section shall not excuse any developer from the requirements and obligations of this section and any associated affordable restriction agreement. (Ord 25-12 §§ 3, 12).
17.90.060 Emergency shelters.
A. Purpose. This section is intended to implement California Government Code Section 65583 by establishing standards to permit emergency shelter facilities for homeless persons or families.
B. Zoning. An emergency shelter is a permitted use in the following areas and districts, except as provided in subsection (C) of this section:
1. Within one-quarter mile of East Military Street and West Military Street, between West K Street and East 7th Street, excluding the RS single-family residential district, the OS open space district, and lands within the Downtown Mixed Use Master Plan zoning districts; and
2. Within one-quarter mile of Adams Street, excluding all districts except CO office commercial and CG general commercial districts.
C. Use Permit. Once the city’s local need for emergency shelter is provided through capacity in existing local facilities and/or multi-jurisdictional agreements in accordance with Government Code Section 65583, any additional beds or emergency shelters will be permitted only on approval of a use permit. The local need for emergency shelters shall be determined based upon the most recently adopted Housing Element or in accordance with Government Code Section 65583.
D. Design Review. Emergency shelters permitted in accordance with subsection (B) of this section are exempt from the design review requirements as provided in Chapter 17.108 BMC, if such facilities are not located or proposed within an historic overlay district. However, once the city’s local need for emergency shelter is provided through capacity in existing local facilities and/or multi-jurisdictional agreements in accordance with Government Code Section 65583, the design review exemption provided in BMC 17.108.020(B) is no longer applicable.
E. Administrative Review. Except as provided in subsections (C) and (D) of this section, emergency shelters shall be reviewed by the community development director or designee as follows:
1. An emergency shelter shall be approved upon finding that the proposed project conforms to the requirements of this title, including design review as required by Chapter 17.108 BMC, as well as the standards of subsection (F) of this section.
2. Approval or denial of an emergency shelter shall be noticed to the applicant in a “letter of action.” If the application is denied, the letter shall state wherein the project did not meet the standards of this section.
3. Approval of an emergency shelter shall expire two years from the date of approval unless made valid by construction or occupancy of the facility. The director may grant a maximum one-year extension of the two-year approval period.
F. Standards.
1. Proximity to Other Emergency Shelters. Emergency shelters shall be located at least 300 feet apart as measured from closest property lines.
2. Site Improvements. Site landscaping, exterior lighting and parking facilities shall comply with the provisions of Chapters 17.70 and 17.74 BMC.
3. Outdoor Facilities. Outdoor recreational facilities shall be enclosed by a fence or a natural barrier (e.g., hedge). If smoking is allowed on site, there shall be a designated outside smoking area and the facility shall conform to the provisions of Chapter 9.06 BMC. Outdoor telephone facilities are not permitted.
4. Length of Stay. The length of stay per individual shall not exceed six months.
5. Shelter Capacity. The maximum permitted capacity of an emergency shelter shall be equivalent to the homeless census identified in the most recent adopted housing element, less any emergency shelter capacity currently provided within the city. However, the community development director may increase the permitted capacity to serve homeless individuals based upon updated data that is compiled or verified by a qualified individual or community organization, if the data demonstrates an increase in the city’s homeless population. Any proposed shelter that exceeds the permitted capacity shall require a use permit in accordance with subsection (C) of this section.
6. On-Site Waiting and Intake Areas. Client waiting and intake areas shall be screened or enclosed, and clients shall not be allowed to form a queue outside the facility. Hours of client intake shall be posted.
7. Support Facilities. The following facilities shall be provided for the exclusive use of residents and staff:
a. Shower and restroom facilities.
b. Food preparation and/or dining.
c. Laundry.
d. Secure storage for personal belongings.
e. The facility may also provide recreation, computer, counseling, child day care or other support facilities as appropriate based upon the demonstrated need of the client population. (Ord 25-12 § 3).
17.90.070 Objective design standards.
A. All new housing development projects that meet any of the below criteria shall comply with the objective planning and design standards for mixed use residential and multifamily development, which are adopted by city council resolution and may be amended from time to time:
1. Buildings that contain two or more dwelling units.
2. Groups of two or more attached townhomes (row houses), regardless of whether multiple townhomes occupy the same lot or each townhome occupies a separate lot.
3. Mixed use buildings that include at least two-thirds of the square footage designated for residential use.
4. Transitional housing or supportive housing.
B. Where there is a conflict between standards of the zoning ordinance and the objective planning and design standards, the objective planning and design standards shall prevail.
C. Development on a parcel in the Housing Element Sites Inventory (Housing Element Appendix D, Table A) that complies with the view protection standard in BMC 17.70.360(D) shall be deemed consistent with the design review finding that the project does not block city-designated scenic views and vistas as set forth in Chapter 17.108 BMC. (Ord 25-12 §§ 3, 11).
17.90.080 Community benefits program.
A. Purpose. The community benefits program allows applicants to incorporate community benefits into proposed development projects in exchange for increased development potential. This program is intended to facilitate the production of new multifamily and mixed use residential development with amenities that benefit the general public.
B. Relationship to State Density Bonus Law. If an applicant requests a density bonus pursuant to Section 65915 of the California Government Code, the proposed project may not also utilize incentives provided in this section.
C. Eligibility.
1. MU-I District. Multifamily and mixed use residential projects in the MU-I district are eligible for participation in the community benefits program.
2. Residential Floor Area in Mixed Use Residential Projects. To be eligible for incentives, at least two-thirds of the total floor area of a mixed use residential project must be occupied by a residential use.
3. Incentive Tiers. The community benefits program allows developers to propose a development project which is entitled to “incentives” in exchange for the provision of certain community benefits.
a. Tier 1 and Tier 2 incentives are available to all properties in the MU-I district.
b. Tier 3 incentives are available only to parcels in the MU-I district abutting the I-780 right-of-way. If a parcel abutting the I-780 right-of-way is enlarged with a parcel merger or lot line adjustment, the entire resulting parcel area is eligible for Tier 3 incentives.
D. Incentives.
1. Table 17.90-5 identifies the available incentives for each tier, the required community benefit, and the required approvals.
2. The city may grant incentives only when the community benefits or amenities offered are not otherwise required by the zoning ordinance or any other provision of local, state, or federal law.
|
|
Tier 1 |
Tier 2 |
Tier 3 |
|---|---|---|---|
|
Required Benefit |
2 community benefits |
3 community benefits |
4 community benefits |
|
Incentives |
|||
|
Site Area per Unit, Min. |
No min. |
No min. |
No min. |
|
Lot Coverage, Max. |
75% |
80% |
85% |
|
Building Height, Max. |
40 ft. and 3 stories |
45 ft. and 4 stories |
60 ft. and 5 stories |
|
Required Approvals |
|||
|
Approval Type |
Design Review |
Use Permit [1] |
Development Agreement [1] |
|
Review Authority |
Community Development Director |
Planning Commission |
City Council |
Notes:
[1] For Tier 2 projects, the planning commission conducts design review as part of the use permit process. For Tier 3 projects, the planning commission and city council conduct design review as part of the development agreement review process. See Chapter 17.108 BMC (Design Review).
E. Benefits.
1. All Projects. Development may choose from community benefits in Table 17.90-6 to satisfy the required benefit contribution set forth in Table 17.90-6. A project may use each benefit only once to satisfy the contribution requirement.
2. Tier 3 Projects.
a. As one of the required benefits, a Tier 3 project must exceed the inclusionary housing requirement in BMC 17.90.050 (Inclusionary housing) by 10 percent. Additional affordable units shall comply with all requirements of BMC 17.90.050.
b. All other required community benefits for a Tier 3 project may be selected from Table 17.90-6.
3. Affordable Projects. A project that is 100 percent affordable, as defined in BMC 17.90.050, is entitled to Tier 1, 2, and 3 incentives, subject to the specified approval, without providing additional community benefits.
4. Timing. Unless an alternative timing is provided for in a development agreement, community benefits must be provided:
a. Prior to issuance of building permit for the payment of fees; and
b. Prior to final inspection for the construction of improvements.
|
Community Benefit |
Description |
|---|---|
|
On-Site Affordable Units |
The project provides on-site affordable units in compliance with BMC 17.90.050 (Inclusionary housing). Units must remain affordable for the minimum duration required by BMC 17.90.050. |
|
Additional On-Site Affordable Units |
The project exceeds inclusionary housing requirement in BMC 17.90.050 (Inclusionary housing) by 10 percent. [1] |
|
Older-Adult Housing |
All units are age-restricted for persons 55 and older. Units must remain age-restricted for a period of not less than 30 years. The project must include an elevator. |
|
Housing for Artists |
At least 20 percent of units contain working space for artists, artisans, and similarly situated individuals. For units with working space, the working space must constitute 50 percent of the floor area of the unit, must be a clearly defined area within the unit, and must be reserved for and regularly used as artistic working space by the resident. Retail studio space open to the general public is allowed but not required. |
|
Public Parking |
Parking spaces available to the general public equal to 10% of the required number of on-site parking spaces. Parking spaces must be in addition to spaces required for the use. |
|
Public Open Space |
On-site public open space with an improvement cost equal to or exceeding 1.5% of total project construction costs. Includes public plazas, courtyards, and other public gathering places that provide opportunities for people to informally meet and gather. Applicant shall grant an easement or other property interest for the perpetual benefit of the public for said open space. Open space must be accessible to the general public. Provisions must be made for ongoing operation and maintenance in perpetuity. [2] |
|
Additional Park Fee |
Pay additional park fee equal to 1.5% of total project construction costs. Fee collected must be used for physical park and open space improvements located within one-third mile of the project site. [2] |
|
Public Infrastructure |
Public infrastructure improvements equal to 1.5% of total project construction costs. Includes improvements to streets, sidewalks, bicycle facilities, curbs, gutters, sanitary and storm sewers, street trees, lighting, and other public infrastructure beyond the minimum required by the city or other public agency. Improvement may be located on or off site. If improvement is outside of the project site, the improvement must be located within one-third mile of the project site and must be identified in a specific plan, equivalent infrastructure plan, or the city's capital improvement plan (CIP). [2] |
|
Public Infrastructure In-Lieu Fee |
Payment of in-lieu fee for public infrastructure improvements equal to 1.5% of total project construction costs. This benefit is available only if the city has adopted a specific plan or equivalent infrastructure plan for the area containing the project site, or if fee collected will be used for a specific physical infrastructure improvement identified in the city's capital improvement plan (CIP). Fee collected must be used for improvements located within one-third mile of the project site. [2] |
|
Neighborhood-Serving Commercial Use |
Minimum 1,500 sq. ft. of on-site space for one or more of the following commercial uses: eating and drinking establishment, food and beverage sales, personal services, retail sales. |
|
Public Art |
The project includes a public art component equal to 1.5% of total project construction costs. Public art must be permanent, subject to approval through the public art process, and placed in a prominent and publicly accessible location. [2] |
|
Public Art Fund |
Pay into city public art fund equal to 1.5% of total project construction costs. Fee collected must be used for artwork located within one-third mile of the project site. [2] |
|
Other Community Benefits [1] |
Other community benefits not listed above as proposed by the applicant that are significant and substantially beyond normal requirements as determined by the review authority through the permit approval process. |
Notes:
[1] Available only for Tier 2 and 3 projects.
[2] Total project construction costs shall be estimated at time of building permit issuance and shall not be less than the building cost index for Solano County.
F. Required Approvals.
1. Tier 1. Projects requesting Tier 1 incentives require design review conducted by the community development director consistent with Chapter 17.108 BMC (Design Review).
2. Tier 2. Projects requesting Tier 2 incentives require planning commission approval of use permit. As provided in Chapter 17.108 BMC (Design Review), the planning commission conducts design review as part of the use permit process.
3. Tier 3. Projects requesting Tier 3 incentives require city council approval of a development agreement at a noticed public hearing. The development agreement shall be prepared and approved consistent with Chapter 17.116 BMC (Development Agreements) and Government Code Sections 65864 through 65869.5. The planning commission must make a recommendation to the city council on the development agreement at a noticed public hearing. The planning commission and city council conduct design review as part of the development agreement review process. (Ord 25-12 §§ 3, 12).
17.90.090 Employee housing.
A. Purpose. This section establishes regulations for employee housing for farmworkers when accessory to a permitted agricultural use.
B. Standards for Employee Housing for Farmworkers.
1. Six or Fewer Employees. Employee housing providing accommodations for six or fewer employees shall be deemed to be a single-unit structure with a residential land use, and shall be treated the same as a single-unit dwelling of the same type in the same zoning district.
2. Districts Where Agriculture Uses Are Allowed. The permitted occupancy in employee housing in a zone allowing agricultural uses shall include agricultural employees who do not work on the property where the employee housing is located, and may consist of no more than 36 beds in a group quarters or 12 units or spaces designed for use by a single family or household on land zoned for agricultural uses. Such employee housing shall be considered to be an activity that in no way differs from an agricultural use. (Ord 25-12 § 3).
17.90.100 Condominium conversions.
A. Section Purpose and Objectives.
1. Specific Purposes.
a. The conversion of residential structures from one individual ownership to condominiums or any other form of multiple ownership interests creates special community problems, both social and economic.
b. Conversions may significantly affect the balance between rental and ownership housing within the city, and thereby reduce the variety of individual choices of tenure, type, price, and location of housing; increase overall rents; decrease the supply of rental housing for all income groups; displace individuals and families; and disregard the needs of the prevailing consumer market.
c. The purpose of this section is to provide guidelines to evaluate those problems, including the impact any conversion application may have on the community, and to establish requirements which shall be included in any conversion approval.
2. Objectives. This section is enacted for the following reasons:
a. To establish procedures and standards for the conversion of existing multiple-family rental housing to condominiums;
b. To reduce the impact of such conversions on tenants, who may be required to relocate due to the conversion of apartments to condominiums, by providing for procedures for notification and adequate time and assistance for relocation to comparable rental housing and rates;
c. To ensure that purchasers of converted housing have been properly informed as to the physical condition of the structure which is offered for purchase;
d. To ensure that converted housing achieves a high standard of appearance, quality, and safety and is in good condition without hidden needs for maintenance and repair;
e. To provide the opportunity for low- and moderate-income persons to participate in the ownership process, as well as to maintain a supply of rental housing for low- and moderate-income persons; and
f. To ensure that adequate rental housing is available in the community.
B. Requirements.
1. In addition to the applicable requirements and procedures set forth in BMC Title 16, Subdivisions, conversions of existing rental housing to condominiums, community apartments, stock cooperatives and any other subdivision which is a conversion of existing rental housing shall be subject to the additional requirements of this section.
2. Such conversions must obtain a use permit pursuant to Chapter 17.104 BMC.
C. Required Reports and Information.
1. General.
a. After preliminary applications are accepted for further discretionary review, the applicant shall submit all the information required for a use permit application and a tentative map pursuant to this code. In addition, the applicant shall submit information documenting that the project as a whole will be in good repair on the interior and the exterior when offered for sale. As part of the material necessary for the city to determine this to be the case, and to aid the review of the proposal, the reports and/or information required by this section shall be submitted. The cost of all reports shall be paid by the applicant, and the persons preparing the reports shall be approved by the city. The reports shall include information on what improvements, if any, shall be accomplished by the developer and at what point in the conversion proceedings such improvements shall be completed. All improvements cited in the reports, whether required or voluntary, shall be considered conditions of approval.
b. The applicant shall be responsible for the remedy of physical conditions within individual units or common areas, noted by a prospective purchaser and/or tenant, which have been missed by inspections or which occur subsequent to the inspections but prior to the close of escrow. In case of disagreement between the applicant and the prospective purchaser as to the actual condition, remedy or cause of deterioration, the burden of proof shall be that of the applicant.
2. Physical Elements Report. A report on the physical elements of all structures and facilities shall be submitted, containing the following:
a. A report by a California-licensed structural or civil engineer detailing the structural condition, useful life, and any apparent deferred maintenance of all elements of the property, including, but not limited to, foundations, electricity, plumbing, utilities, walls, ceilings, windows, frames, recreational facilities, sound transmissions of each building, mechanical equipment, parking facilities, and drainage facilities. Such report also shall describe the condition of refuse disposal facilities; swimming pools, saunas, and fountains; stone and brickwork; fireplaces; and exterior lighting.
b. A report by a California-licensed appliance repair contractor detailing the age, condition, expected size, and the cost of replacement for each appliance and mechanical equipment for heating and cooling. The report shall identify any defective or unsafe appliances and set forth the proposed corrective measures to be employed.
c. A report by a California-licensed structural termite and pest control specialist certifying whether or not all attached or detached structures are free of infestation and structural damage caused by pests and dry rot. The report shall describe what procedures would be necessary to eliminate infestation or damage, if present. Such report shall be updated within six months after the close of escrow, and any infestation shall be remedied prior to sale.
d. Existing soils reports shall be submitted for review with a statement regarding any known evidence of soils problems relating to the structures. As required by the city engineer, a new or revised report shall be prepared by a California-licensed soil engineer on soil or geological conditions on-site or off-site which could adversely affect the project site or structures.
e. A report by a California-licensed painting contractor verifying the condition of the painting throughout the project, including building interior and exterior surfaces and an estimate of the remaining physical life of the paint. A statement that new paint will be applied on all building interior and exterior surfaces may take the place of such report. Such statement shall include the brand name of the paint and the exterior colors to be used.
f. A report by a California-licensed roofing contractor verifying the condition of the roofs of all structures and an estimate of the remaining physical life of the roofs and the cost of replacement. A statement that new roof material will be applied may take the place of such report. Such statement shall include the type, grade, and color of the proposed roofing material.
g. A declaration of the covenants, conditions, restrictions, and rules and regulations which would be applied on behalf of any and all owners of condominium units within the project. The declaration shall include, but not be limited to: the conveyance of units; the assignment of parking and storage areas; and an agreement for common area maintenance, together with an estimate of any initial assessment fees anticipated for such maintenance, and an indication of appropriate responsibilities for the maintenance of all utility lines and services for each unit. Such documents shall be approved by the city attorney and recorded in the office of the county recorder.
h. Specific information concerning the demographic and financial characteristics of the project, including, but not limited to, the following:
i. The square footage and number of rooms in each unit;
ii. The rental rate history for each type of unit for the previous three years;
iii. The monthly vacancy rate for each month during the preceding three years;
iv. A complete list of the number of tenants and tenant households in the project, including the following information:
(A) Households with persons 62 years or older;
(B) The family size of households, including a breakdown of households with children five years and younger; and between five and 18 years;
(C) Households with handicapped persons;
(D) The length of residence;
(E) The age of tenants, and
(F) The designation of low- and moderate-income households and whether receiving federal or state rent subsidies. When the subdivider can demonstrate that demographic information is not available, this requirement may be modified by the community development director.
v. The proposed price of each of the units;
vi. The proposed homeowners’ association budget, detailed to include fixed costs, operating costs, reserves, administration, and contingencies; and
vii. A statement of intent as to the types of financing programs to be made available, including any incentive programs for existing residents.
i. Signed copies from each tenant of the notice of intent to convert, as specified in this section. The applicant shall submit evidence that a certified letter of notification was sent to each tenant for whom a signed copy of such notice is not submitted.
3. Acceptance of Reports. The final form of the physical elements report and other documents shall be approved by the planning commission. The reports in their acceptable form shall remain on file with the department for review by any interested person.
4. Copies to Purchasers. Prior to any purchaser executing any purchase agreement or other contract to purchase a unit in the project, the subdivider shall provide each purchaser with a copy of all reports in their final form as accepted by the planning commission, except that the demographic information required by subsection (A)(8) of this section and copies of the notice to each tenant concerning conversion do not need to be distributed. The developer shall give the purchaser at least five days to review such reports. Copies of the reports shall be made available at all times at the sales office and shall be posted at various locations, as approved by the city.
D. Condominium Conversion Standards.
1. Maximum Number. Each calendar year the number of condominium conversions approved by the city may not exceed 150 units.
2. Inclusionary Housing. A project that converts 10 or more units shall comply with BMC 17.90.050 (Inclusionary housing).
3. Compliance With Zoning, Building, Housing, Mechanical, and Fire Codes. All units, as well as the common ownership facilities, shall be brought into compliance with all applicable state and local zoning, building, housing, mechanical, and fire codes adopted for use by the city unless, upon approval of the community development director and prior to recordation of the final map or parcel map, funds have been adequately escrowed to assure completion of such corrective work prior to the closing of escrow of any unit in the project.
4. Parking Requirements. The project shall conform to all applicable parking requirements of Chapter 17.74 BMC.
5. Sound Transmission Characteristics and Energy Conservation. The following methods shall be used to regulate noise transmission:
a. Shock Mounting of Mechanical Equipment. All permanent mechanical equipment, such as motors, compressors, pumps, and compactors, which are determined by the building official to be a source of structural vibration or structure-borne noise, shall be shock-mounted in inertia blocks or bases and/or vibration isolators in a manner approved by the building official.
b. Noise Mitigation and Energy Conservation. Energy conservation insulation shall be installed in all heated or cooled buildings, including common ownership structures used for assembly purposes, in accordance with Title 24 of the California Administrative Code, as amended, and in effect on the date building permits are issued for condominium conversion rework. Common walls and common floor/ceiling between units shall be constructed to meet a sound transmission coefficient (STC) rating of 50 or higher.
6. Fire Protection.
a. Smoke Detectors. Every dwelling unit shall be provided with an AC-powered smoke detector approved by the State Fire Marshal. Installations shall comply with Uniform Building Code Section 1210(a).
b. Sprinkler and Other Systems. A sprinkler system, fire alarm, and other fire protection devices shall be installed as required by this code.
7. Utilities – Location and Metering.
a. Location. Each dwelling unit shall be served by gas and electric services completely within the lot lines or ownership space of each separate unit. No common gas or electrical connection or service shall be allowed. Easements for gas and electric lines shall be provided in the common ownership area where lateral service connections shall take place.
b. Undergrounding. All new utilities, both on-site and off-site, across property frontage shall be underground.
c. Metering. Each dwelling unit shall be separately metered for gas and electricity. Individual panel boards for electrical current shall be provided for each unit. A plan for the equitable sharing of communal water metering and other shared utilities shall be included in the covenants, conditions, and restrictions.
8. Laundry Facilities. A laundry area shall be provided in each unit, or, if common laundry areas are provided, such facilities shall consist of not less than one automatic washer and dryer for each five units or fraction thereof.
9. Condition of Equipment and Appliances. At such time as the homeowners’ association takes over the management of the condominium project, the applicant shall provide a one-year warranty to the association that any pool and/or spa and pool and/or spa equipment (filter, pumps, and chlorinator) and any appliances and mechanical equipment to be owned in common by the association is in operable working condition. The plumbing and electrical systems in both the dwellings and the common ownership areas shall also be covered by a one-year warranty for proper and safe operation and installation in a safe and workmanlike manner. Such warranty shall be offered by an independent homeowner’s warranty service licensed by the California Insurance Commission.
10. Refurbishing and Restoration. All main buildings, structures, fences, patio enclosures, carports, accessory buildings, sidewalks, driveways, landscaped areas, and additional elements as required by the planning commission shall be refurbished and restored as necessary to achieve a high standard of appearance, quality, and safety.
11. Contingency Fees. The intent of the city in requiring the creation of a contingency or reserve fund for condominium conversions is to provide a surety for unexpected or emergency repairs to common areas in the interest of the economic, aesthetic, and environmental maintenance of the community, as well as to protect the general welfare, public health, and safety of the community. Upon the close of escrow for each unit, the applicant shall convey to the homeowners’ association’s contingency fund a minimum of $200.00 per dwelling unit. When 50 percent or more of the total units in the project have been sold, the applicant, within 30 days, shall convey such fee for each of the unsold units. Such funds shall be used solely and exclusively as a contingency fund for emergencies which may arise relating to open space areas, exterior portions of dwelling units, and such other restoration or repairs as may be assumed by the homeowners’ association.
E. Tenant Benefits and Notifications. Applications for condominium conversions shall include the following procedures as they relate to tenant notification:
1. Notices of Intent. A notice of intent to convert shall be delivered to each tenant at least 60 days prior to filing the application for a use permit and a tentative map. Evidence of the receipt of such notice shall be submitted with the application for conversion. The form of the notice shall be in the form outlined by Section 664552.9 of the California Government Code, and shall contain not less than the following:
a. The name and address of the current owner.
b. The name and address of the proposed subdivider.
c. The approximate date on which the application and tentative map are proposed to be filed.
d. The approximate date on which the final map or parcel map is to be filed.
e. The approximate date on which the unit is to be vacated by non-purchasing tenants.
f. The tenant’s rights of:
i. Purchase;
ii. Notification to vacate; and
iii. Termination of the lease.
g. A statement of no rent increase.
h. Provisions for special cases.
i. The provision of moving expenses and the tenant’s right to claim any penalty imposed if timely payment is not made.
j. The anticipated price range of the units.
k. The proposed homeowners’ association fees.
l. A statement of the types of financing programs to be made available, including any incentive programs for existing residents.
m. A copy of the city’s condominium conversion regulations.
2. Notification to Tenants.
a. Two separate stamped, preaddressed envelopes for each resident of each unit shall be furnished to the department by the applicant at the time the subdivider submits an application for a use permit for a conversion. The department shall use one envelope to notify the residents by mailing a copy of the planning commission public hearing notice to tenants not less than 10 days prior to the proposed hearing date on the application. The notice shall include notification of the tenant’s right to appear and be heard. The second envelope shall be used by the department to notify the residents of the results of the public hearing by mailing notification of the decision of the planning commission not more than seven days following the planning commission action. Failure of the department to mail such notice shall not invalidate any proceeding or action taken by the city in considering a conversion. The list of names and addresses of the residents of each unit in the conversion project shall be current as of the day of submittal and shall be certified as such by the applicant.
b. Notices to Prospective Tenants. Commencing 60 days prior to the submittal of the application, any prospective tenants shall be notified in writing by the subdivider of the intent to convert prior to leasing or renting any unit pursuant to Section 66452.8 of the California Government Code.
c. Posting Notices. The notice of intent shall be posted on-site in at least one location readily visible to tenants.
3. Tenants’ Discounts. Any present tenant of any unit at the time of an application for conversion shall be given a nontransferable right of first refusal to purchase the unit occupied at a discount of the price offered to the general public. The amount of the discount shall be based on the longevity of each tenant, and shall be ratified by the applicant at the time of conversion.
4. Vacation of Units. Each non-purchasing tenant, not in default under the obligations of the rental agreement or lease under which the subject unit is occupied, shall have not less than 120 days after the date of the tentative map approval by the city or until the expiration of the tenant’s lease to find substitute housing and to relocate. Tenants shall be permitted to terminate leases or tenancy with one month’s notice at any time after a conversion application.
5. No Increase in Rent. A tenant’s rent shall not be increased within two months prior to a project application, nor shall the rent be increased for two years from the time of the filing of the project application or until relocation takes place.
6. Special Cases.
a. All nonpurchasing tenants 62 years old or older and all non-purchasing medically proven permanently disabled tenants shall receive lifetime lease. Rents for such tenants shall not be increased for two years after the filing of the project application.
b. The following non-purchasing tenants shall receive a minimum of 12 months’ relocation time, measured from the tentative map approval, to find replacement housing:
i. Tenants with low or moderate incomes; and
ii. Tenants with minor children in school.
7. Moving Expenses. The subdivider shall provide moving expenses equal to three times the monthly rent to any tenant, in compliance with all the terms of the subject lease and/or financing, who relocates from the building to be converted after city approval of the use permit authorizing conversion of the units. When the tenant has given notice of his intent to move prior to city approval of the use permit, eligibility to receive moving expenses shall be forfeited.
8. Relocation Assistance. Relocation assistance shall be provided by the subdivider to nonpurchasing tenants for a minimum period of four months following the tentative map approval. Information on available rental units in the same general area with costs comparable to the preconverted apartments shall be provided by the subdivider on a calendar quarterly basis. Copies of the list shall be posted on-site, dated, and provided to the department.
9. Discrimination. No discrimination in the sale of any unit shall be based on race, color, creed, national origin, sex, sexual orientation, or age, and a statement to this effect shall be included in the covenants, conditions, and restrictions. Projects created exclusively for the purpose of providing senior citizen housing shall be exempted from this requirement.
10. Certificates of Occupancy. A certificate of occupancy shall be approved by the community development director and issued by the building official prior to the occupancy of units after sales.
F. Effect on Housing Supply. In reviewing requests for the conversion of existing apartments to condominiums, the planning commission shall consider the following:
1. Whether or not the amount and impact of the displacement of tenants, if the conversion is approved, would be detrimental to the health, safety, or general welfare of the community;
2. The role the apartment structure plays in the existing housing rental market. Particular emphasis will be placed on the evaluation of rental structures to determine if the existing apartment complex is serving low-income and moderate-income households;
3. The need and demand for lower-cost home ownership opportunities which are increased by the conversion of apartments to condominiums.
G. Density Bonus for Lower-Income Housing. An applicant may request a density bonus and other incentives for a condominium conversion with units to be made affordable to lower-income households. The city shall review and act on such applications consistent with BMC 17.90.030 and Government Code Section 65915.5.
H. Findings. The planning commission may approve an application for a condominium conversion if it finds that the proposed conversion meets the following requirements, in addition to the requirements of BMC 17.104.060:
1. All the provisions of the Subdivision Map Act, this section, and other applicable provisions of this code are met.
2. The proposed conversion is consistent with the general plan, the adopted housing element and any applicable specific plan.
3. The proposed conversion will conform to the provisions of this code in effect at the time of the project approval, except as otherwise provided in this section.
4. The overall design and physical condition of the condominium conversion achieves a high standard of appearance, quality, and safety.
5. The proposed conversion will not displace a significant percentage of low-income or moderate-income, permanently or totally disabled, or senior citizen tenants or delete a significant number of low-income and moderate-income rental units from the city’s housing stock at the time when no equivalent housing is readily available in the Benicia area.
6. The dwelling units to be converted have been constructed and used as rental units for at least three years prior to the application for conversion.
I. Appeals. The decision of the planning commission shall be final on the tenth working day following its action, unless appealed in accordance with Chapter 1.44 BMC. (Ord 25-12 § 3).
17.90.110 Mobile home conversions.
A. Purpose. The purpose of the mobile home park conversion procedure is to ensure that any conversion of these parks to other uses is preceded by adequate notice, and that relocation and other assistance is provided park residents consistent with the provisions of the California Government Code, Section 65863.7.
B. Permit Required.
1. The conversion of an existing mobile home park to another use shall require a use permit issued in accord with Chapter 17.104 BMC.
2. An application for such permit shall include a description of the proposed new use site and a disposition/relocation plan for existing tenants of the mobile home park.
3. Upon filing an application for conversion, the community development director shall inform the applicant of the requirements of Civil Code Section 798.56 and Government Code Section 65863.8 regarding notification of the mobile home park residents concerning the conversion proposal.
C. Relocation Plan.
1. General.
a. The relocation plan for tenants of a mobile home park shall be submitted to the planning commission for approval as part of the application for conversion of a mobile home park to another use. The plan shall provide specifically for relocation assistance to full-time, low-income and moderate-income residents of the park for a minimum period of 12 months following approval of a use permit for the conversion. Information on sites available in mobile home parks in the city and adjacent communities shall be provided to all tenants.
b. A relocation plan shall include, but not be limited to, consideration of the availability of medical and dental services and shopping facilities, the age of the mobile home park and the mobile homes, and the economic impact on the relocated tenants.
2. Special Cases. The relocation plan shall specifically provide guarantees that all tenants 62 years old or older and all tenants who are medically proven to be permanently disabled shall not have to pay an increase in rent over the amount currently paid for a period of two years following relocation.
3. Moving Expenses.
a. The relocation plan shall provide for moving expenses, which are equal to the actual cost of relocating a tenant a maximum of 10 miles from the park, to any tenant who relocates from the park after city approval of the use permit authorizing conversion of the park.
b. When the tenant has given notice of his intent to move prior to city approval of the use permit, eligibility to receive moving expenses shall be forfeited.
4. No Increase in Rent. A tenant’s rent shall not be increased within two months prior to filing an application for conversion of a mobile home park, nor shall the rent be increased for two years from the date of filing of the conversion application or until relocation takes place.
D. Findings for Conversion. The planning commission may approve a permit for a mobile home park conversion if it finds that the proposed conversion meets the following requirements in addition to the requirements of BMC 17.104.060:
1. That the proposed use of the property is consistent with the general plan and all applicable provisions of this code are met;
2. That there exists land zoned for replacement housing or adequate space in other mobile home parks for the residents who will be displaced;
3. That the relocation plan mitigates the impacts of the displacement of low- and moderate-income individuals or households for a reasonable transition period and mitigates the impacts of any long-term displacement.
E. Conditions of Approval.
1. Consistent with BMC 17.104.070, the planning commission shall impose a relocation plan as a condition of approval of a permit for a mobile home park conversion.
2. In addition, the planning commission may establish the date on which the permit for conversion will become effective. Such date shall not be more than three years from the decision of the planning commission; provided, that conversion at an earlier date may be approved if the applicant has complied with all the provisions of an approved relocation plan and submitted evidence of such compliance to the community development director.
F. Appeals. The decision of the planning commission shall be final on the tenth working day following its action, unless appealed in accordance with Chapter 1.44 BMC. (Ord 25-12 § 3).
17.90.120 Reasonable accommodations.
A. Purpose and Intent.
1. The purpose of this section is to provide a process for individuals with disabilities to make requests for reasonable accommodation in zoning and other land use regulations or rules, policies, practices, and/or procedures of the city.
2. It is the intent of the city, pursuant to the Federal Fair Housing Act of 1988 and the California Fair Employment and Housing Act, to provide people with disabilities reasonable accommodation in rules, policies, practices and procedures to ensure equal access to housing and facilitate the development of housing for individuals with disabilities.
B. Applicability.
1. Reasonable accommodation in the land use and zoning context means providing individuals with disabilities or developers of housing for people with disabilities flexibility in the application of land use and zoning and building regulations, policies, practices and procedures, or even waiving certain requirements, when it is necessary to eliminate barriers to housing opportunities.
In order to make specific housing available to an individual with a disability, any person may request a modification or exception to the rules, standards and practices for the siting, development and use of housing or housing-related facilities that would eliminate regulatory barriers and provide a person with a disability equal opportunity to housing of their choice.
2. The provisions of this section apply to all zoning districts including overlay districts and all adopted local area and specific plans, and to BMC Title 15, Building and Construction, regulations.
3. A person with a disability is a person who has a physical or mental impairment that limits or substantially limits one or more major life activities, anyone who is regarded as having such impairment or anyone that has a record of such impairment. This section applies only to those persons who are disabled as defined herein.
C. Definitions. The following words and phrases, whenever used in this section, shall be construed as hereafter set out, unless it shall be apparent from the context that they have a different meaning:
1. “Act” means the Fair Housing Amendments Act of 1988.
2. “Applicant” means an individual making a request for reasonable accommodation pursuant to this section.
3. “Disability” means, with respect to an individual, a medical, physical or mental impairment that limits one or more major life activities, as those terms are defined in California Government Code Section 12926; anyone who is regarded as having such a condition; or anyone who has a record of having such a condition. The term “disabled person” does not include a person who is currently using illegal substances, unless he or she has a separate disability.
D. Requesting Reasonable Accommodation.
1. In order to make specific housing available to an individual with a disability, the applicant may request reasonable accommodation relating to the various land use, zoning, or rules, policies, practices, and/or procedures of the city. Such a request may include a modification or exception to the requirements for the siting, development and use of housing or housing-related facilities that would eliminate regulatory barriers. A reasonable accommodation cannot waive a requirement for a use permit when otherwise required or result in approval of uses otherwise prohibited by the city’s land use and zoning regulations.
2. If the applicant needs assistance in making the request for reasonable accommodation or appealing a determination regarding reasonable accommodation, the community development director will provide the assistance necessary to ensure that the process is accessible to the applicant.
3. A request for reasonable accommodation in laws, rules, policies, practices and/or procedures may be filed on an application form provided by the department at any time that the accommodation may be necessary to ensure equal access to housing.
4. A reasonable accommodation does not affect an applicant’s obligation to comply with other applicable regulations not at issue in the requested reasonable accommodation.
5. If the project for which the reasonable accommodation is being requested also requires some other discretionary approval (such as conditional use permit, architectural review, general plan amendment, zoning amendment, subdivision map), then the applicant shall submit the reasonable accommodation application first for a determination by the community development director, before proceeding with the other applications.
E. Required Information.
1. The applicant shall submit a request for reasonable accommodation on a form provided by the planning division. The application shall include the following information:
a. The applicant’s name, address, telephone number, and email address, if available.
b. Address of the property for which the request is being made.
c. The name and address of the property owner, and the owner’s written consent to the application.
d. The current and proposed use of the property.
e. The basis for the claim under the Act, that the fair housing laws apply to the individual(s) with a disability and evidence supporting the claim, including the effects on the person’s limitations as it relates to the request, which may be in the form of a letter from a medical doctor or other licensed healthcare professional, handicapped license, or other appropriate evidence.
f. Description of the requested accommodation, and the rule, policy, practice and/or procedure of the city for which the request for accommodation is being made.
g. Copies of memoranda, correspondence, pictures, site plans, floor plans, or background information reasonably necessary to reach a decision regarding the need for the accommodation.
h. Such other relevant information as may be requested by the community development director as determined necessary to makes the findings required by BMC 17.90.120, so long as any request for information regarding the disability of the individuals benefited complies with the Act and the privacy rights of the individual(s) affected.
2. Any information identified by the applicant as confidential shall be retained by the city in a manner that respects the privacy rights of the individual with a disability and shall not be made available for public inspection.
F. Reviewing Authority – Decision.
1. Requests for reasonable accommodation shall be reviewed by the community development director or their designee.
2. The community development director or their designee shall issue a written decision on a request for reasonable accommodation and may either grant, grant with modification, or deny a request for reasonable accommodation in accordance with the required findings set forth in BMC 17.90.120.
G. Required Findings for Reasonable Accommodation. In making a determination regarding the reasonableness of a requested reasonable accommodation, the approving authority shall make the following findings:
1. The housing which is the subject of the request for reasonable accommodation will be used for an individual(s) with a disability protected under the Act.
2. The request for reasonable accommodation is necessary to make specific housing available to an individual(s) with a disability protected under the Act.
3. The requested reasonable accommodation does not impose an undue financial or administrative burden on the city.
4. The requested accommodation will not require a fundamental alteration of the zoning and building laws, policies and/or procedures of the city.
H. Effective Date – Appeals.
1. All written decisions shall give notice of the applicant’s right to appeal and to request reasonable accommodation in the appeals process as set forth in Chapter 1.44 BMC.
2. If an individual(s) needs assistance in filing an appeal on an adverse decision, the city will provide assistance to ensure that the appeals process is accessible.
3. The written decision of the community development director or their designee shall be final unless appealed.
4. While a request for reasonable accommodation is pending, all laws and regulations otherwise applicable to the property that is the subject of the request shall remain in full force and effect.
I. Fee. There shall be no fee imposed in connection with a request for reasonable accommodation under the provisions of this section. (Ord 25-12 § 3).
17.90.130 Small lot subdivisions and development.
A. Purpose and Intent.
1. This section establishes requirements for the ministerial approval of subdivisions creating 10 or fewer parcels and dwelling units (“small lot subdivision”) pursuant to Government Code Sections 65852.28, 65913.4.5, and 66499.41.
2. Small lot subdivision requirements are intended to facilitate new residential development
3. Consistent with the general plan, promote orderly growth and development, and to protect the public health, safety and general welfare.
B. Eligibility. The city shall accept an application for a small lot subdivision only if the application complies with all of the following requirements:
1. Zoning. The lot is zoned one of the following:
a. A residential district (RS, RM, RH, HZ).
b. A mixed use district (MU-I, MU-L).
c. Waterfront commercial (CW).
d. Town core-open (TC-O).
e. Neighborhood general (NG).
f. Neighborhood general-open (NG-O).
2. Existing Parcel Size.
a. In the RS zoning district, the area of a lot is no larger than one and one-half acres.
b. In all other zoning districts, the area of the lot is not larger than five acres.
3. Existing Use – RS District. A lot zoned RS must be vacant. As used in this section, “vacant” means having no permanent structure, unless the permanent structure is abandoned and uninhabitable. All of the following types of housing are not defined as “vacant”:
a. Housing that is subject to a recorded covenant, ordinance, or law that restricts rent or sales price to levels affordable to persons and families of low, very low, or extremely low income.
b. Housing that is subject to any form of rent or sales price control through the city’s valid exercise of its police power.
c. Housing occupied by tenants within the five years preceding the date of the application, including housing that has been demolished or that tenants have vacated prior to the submission of the application for a development permit.
4. Surrounding Uses. The lot is substantially surrounded by qualified urban uses as currently defined in Sections 21072 and 21159.25 of the Public Resources Code.
a. “Qualified urban use” means any residential, commercial, public institutional, transit or transportation passenger facility, or retail use, or any combination of those uses.
b. “Substantially surrounded” means at least 75 percent of the perimeter of the project site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses. The remainder of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that have been designated for qualified urban uses in a zoning, community plan, or general plan for which an environmental impact report was certified.
5. Lot Establishment. The lot was not established pursuant to BMC 16.32.120 (Urban lot splits) or this section (Small lot subdivisions).
6. Affordable and Rental Housing. The application would not require demolition or alteration of any of the types of housing identified in Government Code Section 66499.41(a)(8).
7. Environmental Resources and Hazards. The lot satisfies the requirements of Government Code Section 66499.41(a)(9), which prohibits development on sites subject to specified environmental resources and hazards.
C. Subdivision Maps.
1. Ministerial Approval. A small lot subdivision that complies with all standards in this section shall be approved ministerially with either a parcel map or a tentative map and final map consistent with BMC 16.08.060 (Objective subdivision review). No other permit, discretionary review, or public hearing is required.
2. Permitting Process.
a. Time Period for City Action.
i. The city shall approve or deny the application within 60 days from the date the city receives a completed application. If the applicant requests a delay in writing, the 60-day time period shall be tolled for the period of the delay.
ii. If the city does not approve or deny the completed application within 60 days, the application shall be deemed approved.
iii. If the city denies the application, the city shall, within 60 days from the date the city receives the completed application, provide written comments to the applicant that:
(A) List the items that are defective or deficient; and
(B) Describe how the application can be remedied by the applicant.
b. Basis for Denial. The city may deny the application if either of the following apply:
i. The application fails to comply with any requirement in this section. Any such requirement that is the basis for denial shall be specified by the city in writing.
ii. The city makes a written finding, based upon a preponderance of the evidence, that the proposed subdivision would have a specific, adverse impact, as defined and determined in Government Code Section 65589.5(d)(2), upon public health and safety and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.
3. General Requirements. A small lot subdivision shall comply with all of the following requirements:
a. Number of New Parcels and Units.
i. The subdivision may create no more than 10 parcels and may contain no more than 10 residential units.
ii. Each newly created lot may contain no more than one residential unit.
iii. The subdivision may designate a remainder parcel, as defined in Government Code Section 66424.6, and the remainder parcel shall not be counted against the 10 parcel maximum.
b. Development on Each Parcel.
i. Except as set forth in subsection (C)(3)(b)(ii) of this section, at least one dwelling must be developed on each newly created parcel that does not already contain an existing legally permitted residential structure or is reserved for internal circulation, open space, or common area.
ii. A remainder parcel, as defined in Government Code Section 66424.6, may be designated that retains existing land uses or structures, does not contain any new residential units, and is not exclusively dedicated to serving the housing development project.
c. Accessory Dwelling Units. An accessory dwelling unit (ADU) or junior accessory dwelling (JADU) unit is not permitted on a newly created parcel.
d. Minimum Parcel Size.
i. In the RS zoning district, newly created parcels shall be no smaller than 1,200 square feet.
ii. In all other zoning districts, newly created parcels shall be no smaller than 600 square feet.
e. Form of Ownership. Dwelling units on the newly created parcels shall be one of the following:
i. Constructed on fee simple ownership lots.
ii. Part of a common interest development.
iii. Part of a housing cooperative, as defined in Civil Code Section 817.
iv. Constructed on land owned by a community land trust as defined in and meeting the requirements of Government Code Section 66499.41.
v. Part of a tenancy in common, as described in Section 685 of the Civil Code.
f. Minimum Density. The subdivision must meet one of the following:
i. If the existing parcel is identified in the housing element for the current planning period, the subdivision must result in at least as many units as projected for the parcel in the housing element.
ii. If the existing parcel is not identified in the housing element for the current planning period, the subdivision must result in at least 66 percent of the maximum density allowed in the applicable zoning district or 13.2 units per acre, whichever is greater. For parcels in a zoning district without a maximum density, the subdivision must result in at least 13.2 units per acre.
g. Unit Affordability. The subdivision shall comply with both of the following:
i. The subdivision shall comply with BMC 17.90.050 (Inclusionary housing).
ii. If the parcel is identified in the housing element for the current planning period to accommodate low- or very low-income households, the subdivision must result in at least as many low- or very low-income units as projected in the housing element. Such units shall be subject to a recorded affordability restriction of at least 45 years.
h. Maximum Floor Area.
i. The average total area of floor space of the dwelling units shall not exceed 1,750 net habitable square feet.
ii. For purposes of this subsection, “net habitable square feet” means the finished and heated floor area fully enclosed by the inside surface of walls, windows, doors, and partitions, and having a headroom of at least six and one-half feet, including working, living, eating, cooking, sleeping, stair, hall, service, and storage areas, but excluding garages, carports, parking spaces, cellars, half-stories, and unfinished attics and basements.
i. Map Act Compliance. The subdivision shall conform to all applicable objective requirements of the Subdivision Map Act (commencing with Government Code Section 66410), except as otherwise expressly provided in this section and Government Code Section 66499.41.
j. Compliance with Dwelling Unit Standards. The subdivision shall comply with all applicable standards in subsection (D) of this section (Unit Development) and Government Code Section 65852.28.
k. Utilities. The newly created parcels shall be served by a public water system and a municipal sewer system.
l. Existing Dwelling Units. The proposed subdivision shall not result in any existing dwelling unit being alienable separate from the title to any other existing dwelling unit on the lot.
m. Objective Standards. The proposed subdivision shall comply with all applicable objective zoning standards, objective subdivision standards, and objective design review standards that are not inconsistent with this section or Government Code Sections 65852.28 and 66499.41.
n. Homeowners’ Association. The city shall not require the proposed development to form a homeowners’ association, except as required by the Davis-Stirling Common Interest Development Act (Part 5 (commencing with Section 4000) of Division 4 of the Civil Code).
o. Urban Lot Splits. A newly created parcel may not be further subdivided with an urban lot split as provided in Government Code Section 66411.7.
D. Unit Development. The following requirements apply to a proposed dwelling unit on a lot created through a small lot subdivision:
1. Ministerial Approval. A dwelling unit that complies with all standards in this section shall be approved ministerially upon issuance of a building permit. No other permit, discretionary review, or public hearing is required.
2. Building Permits.
a. General. The city shall issue a building permit for a dwelling unit on a lot created through a small lot subdivision if both of the following conditions are met:
i. The city has approved a tentative map or parcel map for the subdivision; and
ii. The city has deemed the building permit application complete and in compliance with all applicable standards.
b. Application Information and Materials.
i. The city shall provide the applicant with one or more lists that specify in detail the information required for the building permit application. The city shall post such list or lists to the city’s website.
ii. The city shall direct the applicant to an example of a complete, approved building permit application for either:
(A) A small lot subdivision project; or
(B) Another type of housing development project as specified in Government Code Section 65913.3(a)(2) if the city has not approved a building permit for a small lot subdivision.
c. Completeness Review.
i. The city shall determine if the application the building permit application is complete and provide written notice of this determination to the applicant not later than 15 working days after the city receives the application.
ii. If the city determines that the application is incomplete, the city shall provide the applicant with a list of incomplete items and a description of how the application can be made complete. The city may require only the items that are included in the posted list.
iii. If the city determines that the building permit application is complete the city shall immediately notify the applicant of the determination via email.
d. Conditions and Guarantees.
i. The city may condition issuance of the building permit on recordation of a covenant and agreement that a certificate of occupancy will not be issued until the final map has been recorded.
ii. Any dedication, improvement, and sewer requirements in the approved tentative or parcel map (or conditions of approval) must be guaranteed at the time of building permit issuance, and the city may require security up to 300 percent of the cost of the improvement/work to be performed.
3. Standards.
a. General.
i. Dwelling units shall comply with all applicable objective zoning, subdivision, and design review standards related to the housing development or to the design or improvement of a parcel.
ii. Notwithstanding subsection (D)(3)(a)(i) of this section , the city shall not impose any standard that:
(A) Conflicts with a standard in this section or Government Code Sections 65852.28 and 66499.41; or
(B) Physically precludes the development of a project built to the minimum allowed densities specified in subsection (C)(3)(f) of this section (Minimum Density).
b. Setbacks.
i. No required yard between dwelling units is established, though building separation may be required by the California Building Code (Title 24 of the California Code of Regulations).
ii. Required rear and side yards adjoining an existing lot line are four feet, except that no yard is required for an existing legally created structure or a structure constructed in the same location and to the same dimensions as an existing legally created structure.
(iii) A minimum front yard adjoining an existing lot line is as required in the applicable zoning district.
c. Parking.
i. A minimum of one off-street parking space is required per dwelling unit except as provided in subsection (D)(3)(c)(ii) of this section. Required parking spaces may be unenclosed and uncovered.
ii. No off-street parking is required in the following cases:
(A) The newly created parcel is located within one-half mile walking distance of either a high- quality transit corridor, as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop, as defined in Section 21064.3 of the Public Resources Code.
(B) There is a car share vehicle located within one block of the newly created parcel. A car share vehicle means a motor vehicle that is operated as part of a regional fleet by a public or private car sharing company or organization that meet all the following criteria:
(1) Provides hourly or daily service;
(2) Vehicle reservations are processed and paid for using an on-line system;
(3) Vehicles can be accessed where they are parked without having to go to a different physical location to execute a contract and/or pick up the keys; and
(4) Fleet has more than five cars in Benicia and more than 20 cars in Solano County.
d. Floor Area Ratio. Any floor area ratio standard established in the zoning ordinance does not apply to a dwelling unit on a lot created through a small lot subdivision. (Ord 25-12 § 3).
17.90.140 Rebuilding multifamily dwellings.
The city shall allow for the reconstruction, restoration, or rebuilding of a multifamily dwelling that is involuntarily damaged or destroyed as provided in Government Code Section 65852.25. (Ord 25-12 § 3).
17.90.150 Multi-unit development in the RS district.
A. Purpose.
1. The purpose of this section is to advance the goals of the housing element by encouraging multi-unit SB 9 development in specified locations in the RS zoning district.
2. As used in this section, the term “SB 9 units” means dwelling units proposed pursuant to Government Code Sections 66411.7 and 65852.21.
B. Applicability. This section applies to sites located adjacent to minor arterial roadways in Census Tracts 2521.4, 2521.5, 2521.6, and 2521.7 (Rose Drive, Cambridge Drive, Hastings Drive, Panorama Drive, Chelsea Hills Drive). See Figure 17.90-1.
Figure 17.90-1: Parcels Adjacent to Minor Arterials in Census Tracts
2521.4, 2521.5, 2521.6, 2521.7
C. Standards. Proposed SB 9 units on sites identified in Figure 17.90-1 are subject to the following standards:
1. General. Except as modified below, the SB 9 units shall comply with all applicable standards in Government Code Sections 66411.7 and 65852.21.
2. Maximum Height and Floor Area.
a. For SB 9 units that comply with the minimum yard requirements of the RS district, the maximum building height is 25 feet and the maximum unit size is 1,250 square feet.
b. For SB 9 units that do not comply with the minimum yard requirements of the RS district, the maximum building height is 16 feet and the maximum unit size is 800 square feet.
3. Coverage. The maximum lot coverage is 50 percent.
4. Exceptions to Standards.
a. For SB 9 units that comply with the minimum yard requirements of the RS district, the city shall not impose any objective zoning code standards that would physically preclude units with a height of up to 25 feet and a unit size of up to 1,250 square feet.
b. For example, if the minimum site landscaping standard in the R-S district (minimum 35 percent) would physically preclude proposed SB 9 units of up to 1,250 square feet, the city shall grant an exception to the site landscaping standard for the proposed SB 9 units.
c. The development services director shall grant an exception to the applicable standard to the minimum extent necessary to comply with this section. (Ord 25-12 § 3).
17.90.160 Housing for religious and community institutional uses.
A. Purpose and Intent. This section is supplementary to California Government Code Section 65913.16, and establishes regulations to permit housing development, inclusive of affordable housing, on properties owned, operated, and developed by religious and certain community institutional uses, in order to expand upon the provisions of California Government Code Section 65913.16 by:
1. Accommodating housing consistent with 2023-2031 Housing Element, and any amendments thereto;
2. Expanding opportunities for housing, including affordable housing, in association with religious and community institutions;
3. Enabling efficient use and development of land resources;
4. Providing appropriate standards and criteria for reviewing proposals for new construction and other development subject to the provisions of this section; and
5. California Government Code Section 65913.16 regulations shall apply to the use classifications outlined in this section.
B. Applicability.
1. This section permits multifamily and accessory dwelling units (ADUs) in association with religious and community institutional uses, where such uses exist as of January 1, 2024, and are permitted or conditionally permitted in the following districts or zones:
a. Residential (R) Districts. Single-family residential (RS), medium-density residential (RM), and high-density residential (RH).
b. Commercial (C) Districts. Community commercial (CC), office commercial (CO), and general commercial (CG).
c. Public and semipublic (PS) district.
d. Downtown Mixed Use Master Plan (DMUMP). Neighborhood general-open (NG-O) and town core-open (TC-O).
2. For the purposes of this section, religious and community institutional uses include the following use classifications only:
a. Religious assembly uses;
b. Convalescent facilities; and
c. Emergency shelters.
3. Accessory Use. Housing units permitted pursuant to this section shall be considered accessory to the main use of the site and shall not be considered to exceed the allowable density for the lot or parcel upon which they are located.
a. Limited Application. This section shall apply only to a religious and a community institution use for the purposes specified in subsection (B)(2) of this section.
b. This section shall be applied in combination with the requirements of Government Code Section 65913.16 as they currently exist or may hereinafter be amended.
C. Use Regulations.
1. ADUs. Up to four accessory dwelling units (ADUs) and up to four junior accessory dwelling units (JADUs) shall be permitted if compliant with the provisions of this section, qualifies and meets criteria of Government Code Section 65913.16 and in accordance with the procedures and standards of BMC 17.90.020 when affordable housing development may not be feasible.
2. Multifamily. Up to four multifamily units shall be permitted, when compliant with the provisions of this section, as well as qualifies and meets criteria of Government Code Section 65913.16.
3. Notwithstanding subsections (C)(1) and (C)(2) of this section, up to a total of eight dwelling units (inclusive of ADUs and multifamily units) may be permitted on an eligible site.
D. Parking. Parking shall be required for residential uses pursuant to Chapter 17.74 BMC; except as otherwise provided in Government Code Section 65913.16.
E. Design Standards.
1. ADUs and JADUs shall comply with all standards of BMC 17.70.060.
2. Multifamily units shall comply with the objective planning and design standards pursuant to BMC 17.90.070. In addition, the following standards shall be applicable in a R, C or PS district:
a. Upper Story Massing. A third story must be stepped back from the primary street at least 10 feet for a minimum of 35 percent of the facade length. Recessed area may be used as a balcony, terrace, or other usable open space.
b. Balconies. A balcony above the ground floor shall not project more than three feet from any exterior building wall that faces the side yard of an adjacent residential use.
F. Development Plan Review.
1. ADUs and JADUs provided pursuant to this section are exempt from design review pursuant to BMC 17.108.020. Development plans shall be reviewed in accordance with the permitting process identified in BMC 17.90.020.
2. Multifamily housing provided pursuant to this section shall be reviewed in accordance with BMC 17.108.020(C)(1), Objective Ministerial Review – Use by Right. (Ord 25-12 §§ 3, 12).