Chapter 17.32
DENSITY BONUSES

Sections:

17.32.010    Purpose.

17.32.020    Eligibility for bonus, incentives or concessions.

17.32.030    Allowed density bonuses.

17.32.040    Allowed incentives or concessions.

17.32.050    Parking requirements in density bonus projects.

17.32.060    Bonus and incentives for housing with child care facilities.

17.32.070    Continued availability.

17.32.080    Location and type of designated units.

17.32.090    Processing of bonus requests.

17.32.100    Density bonus agreement.

17.32.110    Control of resale.

17.32.120    Judicial relief, waiver of standards.

17.32.010 Purpose.

As required by Government Code Section 65915, this chapter offers density bonuses, and incentives or concessions for the development of housing that is affordable to the types of households and qualifying residents identified in Section 17.32.020 of this chapter. This chapter is intended to implement the requirements of Government Code Section 65915 et seq., and the housing element of the general plan. (Ord. 766 § 2 Exh. A (part), 2004).

17.32.020 Eligibility for bonus, incentives or concessions.

In order to be eligible for a density bonus and other incentives or concessions as provided by this chapter, a proposed housing development shall comply with the following requirements, and satisfy all other applicable provisions of this land use code, except as provided by Section 17.32.030 (Allowed density bonuses) of this chapter:

A. Resident Requirements. The housing development shall be designed and constructed so that:

1. At least ten percent of the total number of proposed units are for lower income households, as defined in Health and Safety Code Section 50079.5;

2. At least five percent of the total number of proposed units are for very low-income households, as defined in Health and Safety Code Section 50105;

3. At least ten percent of the total dwelling units in a condominium project as defined in Civil Code Section 1351(f), or in a planned development as defined in Civil Code Section 1351(k), for persons and families of moderate income, as defined in Health and Safety Code Section 50093; provided, that all units in the development are offered to the public for purchase; or

4. The project is a senior citizen housing development as defined by Civil Code Sections 51.3 and 51.12, or mobilehome park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code.

A density bonus granted in compliance with Section 17.32.030 of this chapter shall not be included when determining the number of housing units that is equal to the percentages required above.

B. Minimum Project Size to Qualify for Density Bonus. The density bonus provided by this chapter shall be available only to a housing development of five or more dwelling units.

C. Condominium Conversion Projects. A condominium conversion project for which a density bonus is requested shall comply with the eligibility and other requirements in Government Code Section 65915.5. (Ord. 854 § 2 (part), 2015; Ord. 766 § 2 Exh. A (part), 2004).

17.32.030 Allowed density bonuses.

The amount of a density bonus allowed in a housing development shall be determined by the council in compliance with this section.

A. Density Bonus. A housing project that complies with the eligibility requirements in Section 17.32.020(A)(1), (A)(2), (A)(3), or (A)(4) shall be entitled to density bonuses as follows, unless a lesser percentage is elected by the applicant:

1. General Density Bonus. The city shall grant at least a twenty-percent increase in the number of dwelling units normally allowed by the applicable general plan designation and zoning, except that:

a. For each one percent increase above ten percent in the percentage of units affordable to lower income households, the density bonus shall be increased by one and one-half percent up to a maximum of thirty-five percent; and

b. For each one percent increase above five percent in the percentage of units affordable to very low-income households, the density bonus shall be increased by two and one-half percent, up to a maximum of thirty-five percent.

2. Bonus for Condominium or Planned Development Project. A density bonus for a condominium project that complies with the eligibility requirements in Section 17.32.020(A)(3) of this chapter shall consist of at least a five percent increase in the number of dwelling units normally allowed by the applicable general plan designation and zoning district, except that for each one percent increase above ten percent of the percentage of units affordable to moderate-income households, the density bonus shall be increased by one percent up to a maximum of thirty-five percent.

3. Density Bonus for Land Donation. When an applicant for a tentative map, parcel map, or other residential development approval donates land to the city in compliance with this subsection, the applicant shall be entitled to a density bonus for the entire development, as follows; provided that nothing in this subsection shall be construed to affect the authority of the city to require a developer to donate land as a condition of development.

a. Basic Bonus. The applicant shall be entitled to a fifteen percent increase above the otherwise maximum allowable residential density under the applicable general plan designation and zoning.

b. Additional Bonus. For each one percent increase above the minimum ten percent land donation described in subsection (A)(3)(c)(ii) of this section, the density bonus shall be increased by one percent, up to a maximum of thirty-five percent. This increase shall be in addition to any increase in density required by subsections (A)(1) and (A)(2) of this section, up to a maximum combined mandated density increase of thirty-five percent if an applicant seeks both the increase required in compliance with subsections (A)(1) through (A)(3) of this section.

c. Eligibility for Bonus. An applicant shall be eligible for the increased density bonus provided by this subsection if all of the following conditions are met:

i. The applicant donates and transfers the land no later than the date of approval of the final subdivision map, parcel map, or residential development application;

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

iii. The transferred land is at least one acre, or of sufficient size to permit development of at least forty units, has the appropriate general plan designation, is appropriately zoned for development as affordable housing, and is or will be served by adequate public facilities and infrastructure. The land shall have appropriate zoning and development standards to make the development of the affordable units feasible. No later than the date of approval of the final subdivision map, parcel map, or of the residential development, the transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of the very low-income housing units on the transferred land, except that the local government may subject the proposed development to subsequent design review to the extent authorized by Government Code Section 65583.2(l) if the design is not reviewed by the city prior to the time of transfer;

iv. The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with Section 17.32.070 (Continued affordability) of this chapter, which shall be recorded on the property at the time of dedication;

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

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

4. Senior Housing Density Bonus. For housing developments meeting the criteria of Section 17.32.020(A)(4), the city shall grant a density bonus that is twenty percent of the number of senior housing units.

B. Greater or Lesser Bonuses. The city may choose to grant a density bonus greater than provided by this section for a development that meets the requirements of this section, or grant a proportionately lower density bonus than required by this section for a development that does not comply with the requirements of this section.

C. Density Bonus Calculations. The calculation of a density bonus in compliance with this subsection that results in fractional units shall be rounded up to the next whole number, as required by state law. For the purpose of calculating a density bonus, the residential units do not have to be based upon individual subdivision maps or parcels.

D. Requirements for Amendments or Discretionary Approval. The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval.

E. Location of Bonus Units. The developer may locate density bonus units in geographic areas of the housing development other than the areas where the units for the lower income households are located. (Ord. 854 § 2 (part), 2015; Ord. 766 § 2 Exh. A (part), 2004).

17.32.040 Allowed incentives or concessions.

A. Applicant Request and City Approval. An applicant may submit to the city a proposal for the specific incentives or concessions listed in subsection C that the applicant requests in compliance with this section, and may request a meeting with the director. The council shall grant an incentive or concession request that complies with this section unless the council makes either of the following findings in writing, based upon substantial evidence:

1. The incentive or concession is not required to provide for affordable housing costs, as defined in Health and Safety Code Section 50052.5, or for rents for the targeted units to be set as specified in Section 17.32.070(B) of this chapter; or

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

B. Number of Incentives. The applicant shall receive the following number of incentives or concessions:

1. One incentive or concession for a project that includes at least ten percent of the total units for lower income households, at least five percent for very low-income households, or at least ten percent for persons and families of moderate income in a condominium or planned development;

2. Two incentives or concessions for a project that includes at least twenty percent of the total units for lower income households, at least ten percent for very low-income households, or at least twenty percent for persons and families of moderate income in a condominium or planned development;

3. Three incentives or concessions for a project that includes at least thirty percent of the total units for lower income households, at least fifteen percent for very low-income households, or at least thirty percent for persons and families of moderate income in a condominium or planned development.

4. One additional incentive or concession for a project that provides fifteen percent or more units for extremely low-income households, as defined in Sections 50105(b) and 50106 of the Health and Safety Code.

5. One additional incentive or concession for projects that provide twenty-five percent or more extremely low- or very low-income units targeted to households with special needs, including four- bedroom units for large households, accessible units for households with a disabled member, and housing units for the developmentally disabled.

C. Type of Incentives. For the purposes of this chapter, concession or incentive means any of the following:

1. A reduction in the site development standards of this land use code (e.g., site coverage limitations, setbacks, reduced parcel sizes, and/or parking requirements (see also Section 17.32.050, Parking requirements in density bonus projects), or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission in compliance with Health and Safety Code Section 18901 et seq., that would otherwise be required, that results in identifiable, financially sufficient, and actual cost reductions;

2. Approval of mixed-use zoning not otherwise allowed by this land use code in conjunction with the housing development, if nonresidential land uses will reduce the cost of the housing development, and the nonresidential land uses are compatible with the housing project and the existing or planned development in the area where the project will be located;

3. Other regulatory incentives proposed by the developer or the city that will result in identifiable, financially sufficient, and actual cost reductions; and/or

4. In its sole and absolute discretion, a direct financial contribution granted by the council, including writing-down land costs, subsidizing the cost of construction, or participating in the cost of infrastructure.

D. Effect of Incentive or Concession. The granting of a concession or incentive shall not be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval. (Ord. 854 § 2 (part), 2015; Ord. 766 § 2 Exh. A (part), 2004).

17.32.050 Parking requirements in density bonus projects.

A. Applicability. This section subdivision applies to a development that meets the requirements of Section 17.32.020 (Eligibility for bonus, incentives or concessions) of this chapter, but only at the request of the applicant. An applicant may request additional parking incentives or concessions beyond those provided in this section in compliance with Section 17.32.040 (Allowed incentives or concessions) of this chapter.

B. Number of Parking Spaces Required. At the request of the developer, the city will require the following vehicular parking ratios for a project that complies with the requirements of Section 17.32.020 (Eligibility for bonus, incentives or concessions) of this chapter, inclusive of handicapped and guest parking:

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

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

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

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

C. Location of Parking. For purposes of this section, a development may provide on-site parking through tandem parking or uncovered parking, but not through on-street parking. (Ord. 766 § 2 Exh. A (part), 2004).

17.32.060 Bonus and incentives for housing with child care facilities.

A housing development that complies with the resident and project size requirements of Sections 17.32.020(A) and (B) of this chapter, and also includes as part of that development a child care facility other than a large or small family day care home, that will be located on the site of, as part of, or adjacent to the development, shall be subject to the following additional bonus, incentives, and requirements:

A. Additional Bonus and Incentives. The city shall grant a housing development that includes a child care facility in compliance with this section either of the following:

1. An additional density bonus that is an amount of floor area in square feet of residential space that is equal to or greater than the floor area of the child care facility; or

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

B. Requirements to Qualify for Additional Bonus and Incentives. The city shall require, as a condition of approving the housing development, that:

1. The child care facility shall remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable in compliance with Section 17.32.070 (Continued availability) of this chapter; and

2. Of the children who attend the child care facility, the children of very low-income households, lower-income households, or families of moderate income shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very low-income households, lower-income households, or families of moderate income in compliance with Section 17.32.020(A) of this chapter.

The city shall not be required to provide a density bonus for a child care facility in compliance with this section if it finds, based upon substantial evidence, that the community has adequate child care facilities. (Ord. 766 § 2 Exh. A (part), 2004).

17.32.070 Continued availability.

A. Duration of Affordability. The applicant shall agree to, and the city shall ensure the continued availability of the units that qualified the housing development for a density bonus and other incentives and concessions, as follows:

1. Lower-, Low-, and Moderate-Income Units. The continued availability of lower, low, and moderate income qualifying units shall be maintained for thirty years, or a longer time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.

2. Moderate-Income Units in Condominium. The continued availability of moderate income units in a condominium project shall be maintained for a minimum of ten years.

B. Rent Cost Requirements. The rents charged for the housing units in the development that qualify the project for a density bonus and other incentives and concessions, shall not exceed the following amounts during the period of continued availability required by this section:

1. Lower Income Units. Thirty percent of sixty percent of the area median income, for units targeted for lower-income households, as defined in Health and Safety Code Section 50079.5; and

2. Very Low-Income Units. Thirty percent of fifty percent of the area median income, for units targeted for very low-income households, as defined in Health and Safety Code Section 50105.

C. Occupancy and Resale of Moderate Income Condominium or PD Units. An applicant shall agree to, and the city shall ensure that the initial occupant of moderate-income units that are directly related to the receipt of the density bonus in a condominium project or planned unit development, are persons and families of moderate income, as defined in Health and Safety Code Section 50093.

1. Upon resale, the seller of the unit shall retain the value of any improvements, the downpayment, and the seller’s proportionate share of appreciation.

2. The city shall recapture its proportionate share of appreciation, which shall then be used within three years for any of the purposes described in Health and Safety Code Section 33334.2(e) that promote home ownership. For purposes of this section, the city’s proportionate share of appreciation shall be equal to the percentage by which the initial sale price to the moderate-income household was less than the fair market value of the home at the time of initial sale. (Ord. 766 § 2 Exh. A (part), 2004).

17.32.080 Location and type of designated units.

A. Location/Dispersal of Units. As required by the council in compliance with Section 17.32.090 (Processing of bonus requests) of this chapter, designated units shall be reasonably dispersed throughout the project where feasible, shall contain on average the same number of bedrooms as the nondesignated units in the project, and shall be compatible with the design or use of remaining units in terms of appearance, materials, and finished quality.

B. Phasing. If a project is to be phased, the density bonus units shall be phased in the same proportion as the nondensity bonus units, or phased in another sequence acceptable to the city. (Ord. 766 § 2 Exh. A (part), 2004).

17.32.090 Processing of bonus requests.

A. Permit Requirement. A request for a density bonus and other incentives shall be evaluated and decided through use permit approval in compliance with Section 17.62.050 (Use permit and minor use permit) of this title; provided, that the decision of the commission on a use permit application shall be a recommendation to the council, and the density bonus and other incentives shall be approved by the council.

B. Findings for Approval. In addition to the findings required by Section 17.62.050 of this title for the approval of a use permit, the approval of a density bonus shall require that the review authority first make all of the following additional findings:

1. The residential development will be consistent with the general plan, except as provided by this chapter for density bonuses, and other incentives and concessions;

2. The approved number of dwellings can be accommodated by existing and planned infrastructure capacities;

3. Adequate evidence exists to indicate that the project will provide affordable housing in a manner consistent with the purpose and intent of this chapter; and

4. There are sufficient provisions to guarantee that the units will remain affordable for the required time period. (Ord. 766 § 2 Exh. A (part), 2004).

17.32.100 Density bonus agreement.

A. Agreement Required. An applicant requesting a density bonus shall agree to enter into a density bonus agreement (“agreement”) with the city in the city’s standard form of agreement.

B. Agreement Provisions.

1. Project Information. The density bonus agreement shall include at least the following information about the project:

a. The total number of units approved for the housing development, including the number of designated dwelling units;

b. A description of the household income group to be accommodated by the housing development, and the standards and methodology for determining the corresponding affordable rent or affordable sales price and housing cost consistent with HUD guidelines;

c. The marketing plan for the affordable units;

d. The location, unit sizes (square feet), and number of bedrooms of the designated dwelling units;

e. Tenure of the use restrictions for designated dwelling units of the time periods required by Section 17.32.070 (Continued availability) of this chapter;

f. A schedule for completion and occupancy of the designated dwelling units;

g. A description of the additional incentives being provided by the city;

h. A description of the remedies for breach of the density bonus agreement by the owners, developers, and/or successors-in-interest of the project; and

i. Other provisions to ensure successful implementation and compliance with this chapter.

2. Minimum Requirements. The density bonus agreement shall provide, at minimum, that:

a. The developer shall give the city the continuing right-of-first-refusal to lease or purchase any or all of the designated dwelling units at the appraised value;

b. The deeds to the designated dwelling units shall contain a covenant stating that the developer or successors-in-interest shall not assign, lease, rent, sell, sublet, or otherwise transfer any interests for designated units without the written approval of the city;

c. When providing the written approval, the city shall confirm that the price (rent or sale) of the designated dwelling unit is consistent with the limits established for low- and very low-income households, as published by HUD;

d. The city shall have the authority to enter into other agreements with the developer, or purchasers of the designated dwelling units, to ensure that the required dwelling units are continuously occupied by eligible households;

e. Applicable deed restrictions, in a form satisfactory to the city attorney, shall contain provisions for the enforcement of owner or developer compliance. Any default or failure to comply may result in foreclosure, specific performance, or withdrawal of the certificate of occupancy;

f. In any action taken to enforce compliance with deed restrictions, the city attorney shall, if compliance is ordered by a court of competent jurisdiction, take all action that may be allowed by law to recover all of the city’s costs of action including legal services; and

g. Compliance with the agreement will be monitored and enforced according to measures included in the agreement.

3. For-Sale Housing Conditions. In the case of for-sale housing developments, the density bonus agreement shall provide for the following conditions governing the initial sale and use of designated dwelling units during the applicable restriction period:

a. Designated dwelling units shall be owner-occupied by eligible households, or by qualified residents in the case of senior housing; and

b. The initial purchaser of each designated dwelling unit shall execute an instrument or agreement approved by the city which:

i. Restricts the sale of the unit in compliance with this chapter during the applicable use restriction period,

ii. Contains provisions as the city may require to ensure continued compliance with this chapter and state law, and

iii. Shall be recorded against the parcel containing the designated dwelling unit.

4. Rental Housing Conditions. In the case of a rental housing development, the density bonus agreement shall provide for the following conditions governing the use of designated dwelling units during the use restriction period:

a. The rules and procedures for qualifying tenants, establishing affordable rent, filling vacancies, and maintaining the designated dwelling units for qualified tenants;

b. Provisions requiring owners to annually verify tenant incomes and maintain books and records to demonstrate compliance with this chapter;

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

d. The applicable use restriction period shall comply with the time limits for continued availability in Section 17.32.070 (Continued availability) of this chapter.

C. Execution of Agreement.

1. Following council approval of the density bonus agreement, and execution of the agreement by all parties, the city shall record the completed agreement on the parcels designated for the construction of designated dwelling units, at the county recorder’s office.

2. The approval and recordation shall take place at the same time as the final map or, where a map is not being processed, before issuance of building permits for the units.

3. The agreement shall be binding to all future owners, developers, and/or successors-in-interest. (Ord. 766 § 2 Exh. A (part), 2004).

17.32.110 Control of resale.

In order to maintain the availability of for-sale affordable housing units constructed in compliance with this chapter, the following resale conditions shall apply:

A. The price received by the seller of an affordable unit shall be limited to the purchase price plus an increase based on the Santa Rosa metropolitan area consumer price index, an amount consistent with the increase in the median income since the date of purchase, or the fair market value, whichever is less. Prior to offering an affordable housing unit for sale, the seller shall provide written notice to the city of their intent to sell. The notice shall be provided by certified mail to the director.

B. Home ownership affordable units constructed, offered for sale, or sold under the requirements of this section shall be offered to the city or its assignee for a period of at least ninety days from the date of the notice of intent to sell is delivered to the city by the first purchaser or subsequent purchasers. Home ownership affordable units shall be sold and resold from the date of the original sale only to households as determined to be eligible for affordable units by the city according to the requirements of this section. 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.

C. The owners of any affordable unit shall attach and legally reference in the grant deed conveying title of the affordable ownership unit a declaration of restrictions provided by the city, stating the restrictions imposed in compliance with this section. The grant deed shall afford the grantor and the city the right to enforce the declaration of restrictions. The declaration of restrictions shall include all applicable resale controls, occupancy restrictions, and prohibitions required by this section.

D. The city shall monitor the resale of ownership affordable units. The city or its designee shall have a ninety-day option to commence purchase of ownership affordable units after the owner gives notification of intent to sell. Any abuse in the resale provisions shall be referred to the city for appropriate action. (Ord. 766 § 2 Exh. A (part), 2004).

17.32.120 Judicial relief, waiver of standards.

A. Judicial Relief. The applicant may initiate judicial proceedings if the city refuses to grant a requested density bonus, incentive, or concession.

B. Waiver of Standards Preventing the Use of Bonuses, Incentives, or Concessions.

1. As required by Government Code Section 65915(e), the city will not apply a development standard that will have the effect of precluding the construction of a development meeting the criteria of Section 17.32.020(A) at the densities or with the concessions or incentives permitted by this chapter.

2. An applicant may submit to the city a proposal for the waiver or reduction of development and zoning standards that would otherwise inhibit the utilization of a density bonus on a specific site, including minimum lot size, side yard setbacks, and placement of public works improvements.

3. The applicant shall show that the waiver or modification is necessary to make the housing units economically feasible.

C. City Exemption. Notwithstanding the provisions of subsections A and B of this section, nothing in this section shall be interpreted to require the city to:

1. Grant a density bonus, incentive, or concession, or waive or reduce development standards, if the bonus, incentive, concession, waiver, or reduction, would have a specific, adverse impact, as defined in Government Code Section 65589.5(d)(2), upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact; or

2. Grant a density bonus, incentive or concession, or waive or reduce development standards, that would have an adverse impact on any real property that is listed in the California Register of Historical Resources. (Ord. 766 § 2 Exh. A (part), 2004).