Chapter 8.52
DENSITY BONUS REGULATIONS

8.52.010 Purpose.

The purpose of this Chapter is to:

A.    Provide for the preservation and maintenance of the City’s affordable housing supply through the state-mandated density bonus program, including incentives for the development of housing that is affordable to the types of households and qualifying residents identified in Section 8.52.030.

B.    Encourage developers to include very low, lower and moderate income housing units in their proposed housing developments, as well as housing for seniors and child care facilities.

C.    Implement the requirements of state law (Government Code section 65915 et seq.) and the goals and policies of the City’s housing element. Ord. 3-07 (March 2007)

8.52.020 Definitions.

As used in this Chapter, each of the following terms shall be defined as follows:

A.    “Affordable Housing Cost” means the annual housing cost, including principal and interest on a mortgage loan, including any rehabilitation loans, and any loan insurance fees associated therewith; property taxes and assessments; fire and casualty insurance covering replacement value of property improvements; property maintenance and repairs; a reasonable utilities allowance including garbage collection, sewer, water, electricity, gas, and other heating, cooking, and refrigeration fuels, but not including telephone service, with such utilities allowance taking into consideration the cost of an adequate level of service; homeowner association fees; and space rent if the house is situated on rented land, which shall not exceed:

1.    For Very Low Income Households the product of 30 percent times 50 percent of the Area Median Income adjusted for family size appropriate for the unit.

2.    For Lower Income Households the product of 30 percent times 70 percent of the Area Median Income adjusted for family size appropriate for the unit.

3.    For Persons and Families of Moderate Income the product of 35 percent times 110 percent of the Area Median Income adjusted for family size appropriate for the unit, and shall not be less than 28 percent times the gross income of the household.

B.    “Affordable Rent” means the annual rent, including a reasonable utility allowance, which shall not exceed:

1.    For Very Low Income Households the product of 30 percent times 50 percent of the Area Median Income adjusted for family size appropriate for the unit.

2.    For Lower Income Households the product of 30 percent times 60 percent of the Area Median Income adjusted for family size appropriate for the unit.

3.    For Persons and Families of Moderate Income the product of 30 percent times 110 percent of the Area Median Income adjusted for family size appropriate for the unit.

C.    “Applicant” means any person, firm, partnership, association, joint venture, corporation, or any entity or combination of entities that seeks city real property development permits or approvals.

D.    “Area Median Income” is the median income level for Alameda County, as published by the California Department of Housing and Community Development in the California Code of Regulations.

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

F.    “Common Interest Development” shall have the meaning given that term by Civil Code Section 1351.

G.    “Concessions or Incentives” means those concessions and incentives set out in Section 8.52.050.B.

H.    “Density Bonus” means a density increase over the otherwise maximum allowable residential density under the Zoning Ordinance and General Plan as of the date of application.

1.    EXAMPLE: Thus, for illustrative purposes, a twenty percent (20%) Density Bonus on a one acre parcel with a general plan land use designation and zoning permitting a maximum of 20 units per acre would allow 24 units rather than the 20 units that would be permitted without the Density Bonus.

I.    “Development Standard” includes site or construction conditions that apply to a residential development pursuant to any ordinance, general plan element, specific plan, charter amendment, or other local condition, law, policy, resolution, or regulation.

J.    “Housing Development” shall have the meaning given that term by subdivision (j) of Government Code Section 65915.

K.    “Lower Income Household” means persons and families whose gross incomes are more than 50% of the median income but do not exceed 80% of the Area Median Income, adjusted for family size.

L.    “Persons and Families of Moderate Income” means persons and families whose gross incomes are more than 80% of the Area Median Income but do not exceed 120% of the median income, adjusted for family size.

M.    “Restricted Mobilehome Park” means a mobilehome park that limits residency based on age requirements for housing for older persons pursuant to Civil Code Section 798.76 or 799.5.

N.    “Restricted Unit” means a unit that is counted toward qualifying the applicant for a Density Bonus pursuant to this Chapter.

O.    “Restriction Term” means a period of 30 years or such longer period if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. With respect to rental units, the Restriction Term shall commence from the date the release of occupancy is issued. With respect to owner-occupied units, the Restriction Term shall commence from the initial date of sale.

P.    “Senior Citizen Housing Development” shall have the meaning given that term by Civil Code Sections 51.3 and 51.12.

Q.    “Unit” means a dwelling designed and intended for occupancy by one household.

R.    “Very Low Income Household” means persons and families whose gross incomes are 50% or less of the Area Median Income, adjusted for family size. Ord. 3-07 (March 2007)

8.52.030 Eligibility for Bonus.

A.    Any Affordable Unit(s) required or otherwise proposed to be constructed pursuant to an Applicant’s obligations under Chapter 8.68 of the Dublin Municipal Code (Inclusionary Zoning Regulations), including any Affordable Unit(s) for which an Applicant receives a credit pursuant to Section 8.68.060, shall not be counted towards the eligibility of a proposed Housing Development for a Density Bonus or Concession or Incentive.

B.    Any Housing Development that qualifies for a Density Bonus pursuant to Section 8.52.030.C, including all Restricted Units and Density Bonus units, shall not be exempt from: 1) the payment of development impact fees; and 2) compliance with the California Environmental Quality Act.

C.    In order to qualify for a Density Bonus and other Concessions or Incentives as provided by this Chapter, a proposed Housing Development shall:

1.    Consist of five or more units; and

2.    Propose to include at least one of the following within the Housing Development:

a.    Ten percent (10%) of the total units of a Housing Development for Lower Income Households; or

b.    Five percent (5%) of the total units of a Housing Development for Very Low Income Households; or

c.    A Senior Citizen Housing Development or Restricted Mobilehome Park; or

d.    Ten percent (10%) of the total units in a common interest development for Persons and Families of Moderate Income, provided that all units in the development are offered to the public for purchase.

D.    For the purposes of calculating the Density Bonus pursuant to Section 8.52.040, the applicant shall elect upon which basis set forth in Section 8.52.030.C.2 the Density Bonus shall be awarded.

E.    Any Density Bonus awarded pursuant to Section 8.52.040 and/or Concession or Incentive awarded pursuant to Section 8.52.050 shall apply only to the Housing Development for which the Density Bonus and/or Concession or Incentive is awarded. In no event may an Applicant transfer, credit or apply any Density Bonus or Concession or Incentive to a Housing Development other than the Housing Development for which the Density Bonus or Concession or Incentive is awarded. Ord. 3-07 (March 2007)

8.52.040 Density Bonus Calculation.

A.    The amount of the Density Bonus for Housing Developments meeting the criteria set forth in Section 8.52.030 shall be calculated as set forth in this Section.

1.    For Housing Developments meeting the criteria set forth in Section 8.52.030.C.2.a, the Density Bonus shall be calculated as follows:

Lower-Income Units %

Density Bonus %

10

20

11

21.5

12

23

13

24.5

14

26

15

27.5

16

29

17

30.5

18

32

19

33.5

20

35

2.    For Housing Developments meeting the criteria set forth in Section 8.52.030.C.2.b, the Density Bonus shall be calculated as follows:

Very Low-Income Units %

Density Bonus %

5

20

6

22.5

7

25

8

27.5

9

30

10

32.5

11

35

3.    For Housing Developments meeting the criteria set forth in Section 8.52.030.C.2.c, the Density Bonus shall be 20 percent (20%).

4.    For Housing Developments meeting the criteria set forth in Section 8.52.030.C.2.d, the Density Bonus shall be calculated as follows:

Moderate-Income Units %

Density Bonus %

10

5

11

6

12

7

13

8

14

9

15

10

16

11

17

12

18

13

19

14

20

15

21

16

22

17

23

18

24

19

25

20

26

21

27

22

28

23

29

24

30

25

31

26

32

27

33

28

34

29

35

30

36

31

37

32

38

33

39

34

40

35

B.    In determining the percentage of total units in a project for Lower Income Households, units for Very Low Income Households, or units in a common interest development for Persons and Families of Moderate Income, no rounding shall be employed.

1.    EXAMPLE: If a 200 unit project contains 21 lower income units (or 10.5% lower income), the Density Bonus would be calculated based on 10% lower income units and not 11% lower income units. Therefore, the Density Bonus is 20%.

C.    Where density calculations result in fractional units, the fractional unit shall be treated as a unit.

1.    EXAMPLE: Thus, for illustrative purposes, the number of additional units authorized by virtue of a Density Bonus in a 201-unit project containing 22 lower income units (or 11%) would be calculated as follows. The Density Bonus for a project with 11% lower income units is 21.5%. The number of additional units to which the Applicant is entitled by virtue of the Density Bonus would be calculated by multiplying 201 by 0.215 for a product of 43.215. After rounding up pursuant to this subsection C, the Applicant would be allowed an additional 44 units for a total of 245 units. Ord. 3-07 (March 2007)

8.52.050 Concessions or Incentives.

A.    An Applicant for a Housing Development that meets the criteria set forth in Section 8.52.030, upon specific application, shall be entitled to the number of Concessions or Incentives set forth in Section 8.52.050.D, unless the City makes a written finding, based upon substantial evidence, of either of the following:

1.    The Concession or Incentive is not required in order to provide for Affordable Housing Costs or for Affordable Rent for the Restricted Units.

2.    The Concession or Incentive would have a specific adverse impact, as defined in Health & Safety Code Section 65589.5, upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to very low‑, lower- and moderate-income households.

B.    A Concession or Incentive granted pursuant to this Section may be any one of the following:

1.    A reduction in the site Development Standards that exceed the minimum building standards approved by the California Building Standards Commission that results in identifiable, financially sufficient, and actual cost reductions (e.g., coverage, setback, zero lot line and/or reduced parcel sizes, and/or parking requirements); or

2.    Approval of mixed-use zoning in conjunction with the housing project if nonresidential land uses would reduce the cost of the housing project, and the nonresidential land uses would be compatible with the housing project and existing or planned development in the area where the proposed Housing Development is located. If approval of mixed-use zoning requires an amendment to the General Plan and/or to a specific plan, the Applicant shall apply for such amendment(s) separately and in compliance with Chapter 8.120, and shall pay all processing and preparation costs associated with such amendment(s); or

3.    Other regulatory Concessions or Incentives proposed by the Applicant or the City that would result in identifiable, financially sufficient, and actual cost reductions.

C.    A project which provides Restricted Units may be entitled to priority processing. Upon certifying that the application is complete and eligible for priority processing, a project would be immediately assigned to planning staff. The project would be processed by City staff in advance of all non-priority items.

D.    The number of Concessions or Incentives to which a Housing Development that meets the criteria set forth in Section 8.52.030 shall be as follows:

1.    One Concession or Incentive for Housing Developments that include:

a.    At least 10 percent of the total units for Lower Income Households; or

b.    At least 5 percent for Very Low Income Households; or

c.    At least 10 percent for Persons and Families of Moderate Income in a common interest development.

2.    Two Concessions or Incentives for projects that include:

a.    At least 20 percent of the total units for Lower Income Households; or

b.    At least 10 percent for Very Low Income Households; or

c.    At least 20 percent for Persons and Families of Moderate Income in a common interest development.

3.    Three Concessions or Incentives for projects that include:

a.    At least 30 percent of the total units for Lower Income Households; or

b.    At least 15 percent for Very Low Income Households; or

c.    At least 30 percent for Persons and Families of Moderate Income in a common interest development.

E.    The Applicant shall submit a project financial report (pro forma) along with the application for the project to allow the City to evaluate: 1) whether the Concessions or Incentives sought pursuant to Sections 8.52.050.B.1 and 8.52.050.B.3 would result in identifiable, financially sufficient, and actual cost reductions; or 2) whether the Concessions or Incentives sought pursuant to Section 8.52.050.B.2 would reduce the cost of the housing project. The City may retain a consultant to review the financial report (pro forma). The cost of the consultant shall be borne by the Applicant with the following exception: If the Applicant is a non profit organization, the cost of the consultant may be paid by the City upon prior approval of the City Council. Ord. 3-07 (March 2007)

8.52.060 General Requirements for Implementing Density Bonus Regulations.

A.    Prior to the award of a Density Bonus, the Applicant shall enter into an agreement with the City, which may be executed by the City Manager, by which the City has ensured that:

1.    For projects pursuant to Sections 8.52.030.C.2.a and 8.52.030.C.2.b, the continued affordability of all Restricted Units constructed in the project for the Restriction Term.

a.    For Restricted Units that are rental units, the agreement shall ensure that the rents will be set at an Affordable Rent. The agreement shall further preclude tenants from subletting or subleasing the unit. The agreement shall also require the owner of the Restricted Unit or Restricted Units to submit an annual report to the City Manager, in a format approved by the City, which report shall include, but not be limited to the following information: an identification of the Restricted Units within the project; the monthly rents charged and proposed to be charged; vacancy information for the prior year; and the monthly income for tenants of each Restricted Unit throughout the prior year.

b.    For owner-occupied units, the agreement shall ensure that the initial sale of each Restricted Unit shall be at a sales price that results in an Affordable Housing Cost and shall also require that the initial purchaser of each Restricted Unit enter into a Resale Restriction and Option to Purchase Agreement, in substantially the form required by the City for Inclusionary Units under Chapter 8.68, which shall prohibit the unit from being resold during the Restriction Term at a price that is higher than the Affordable Housing Cost.

2.    For projects pursuant to Section 8.52.030.C.2.c, the property will be developed and operated as a Senior Citizen Housing Development or as a Restricted Mobilehome Park.

3.    For projects pursuant to Section 8.52.030.C.2.d, the initial occupant of the moderate-income units that are directly related to the receipt of the Density Bonus are Persons and Families of Moderate Income and that those initial occupants will be required to enter into an equity sharing agreement with the City in accordance with subdivision (c)(2) of Government Code section 65915.

4.    The agreements shall run with the land and be recorded as a deed restriction prior to issuance of any project building permits.

B.    The agreements required by Sections 8.52.060.A.1 and 8.52.060.A.3 shall:

1.    Specify, as to the Restricted Units, the household-income classification, number, location, size and construction scheduling of all Restricted Units and shall require Restricted Units in a project and phases of a project to be constructed concurrently with the construction of non-Restricted Units;

2.    Require the Restricted Units to be dispersed throughout the project; and

3.    Require the Restricted Units to include unit types identical to and in the same proportion as the project as a whole.

C.    The City Council, by resolution, may establish the amount of fees to be charged to applicants and/or developers for administration of this Chapter. Ord. 3-07 (March 2007)

8.52.070 Certification of Initial Occupants of Restricted Units.

No household shall be permitted to occupy a Restricted Unit unless the City or the City’s designee has approved the household’s eligibility. Potential occupants of Restricted Units will be qualified on the basis of household income, as Lower Income Households, Very Low Income Households, or Persons and Families of Moderate Income, or as persons eligible to occupy a Senior Citizen Housing Development or Restricted Mobilehome Park. The Applicant shall use an equitable selection method established in conformance with the terms of this Chapter. The selection criteria may not distinguish between adults and children. Ord. 3-07 (March 2007)

8.52.080 Child Care Facilities.

A.    When an Applicant proposes to construct a Housing Development that conforms to the requirements of Section 8.52.030 and includes a Child Care Facility that will be located on the premises of, as part of, or adjacent to, the development, the City shall grant either one of the following:

1.    An additional Density Bonus that is an amount of square feet of residential space that is equal to or greater than the amount of square feet in the Child Care Facility. The Applicant shall use any Density Bonus granted pursuant to this section to construct additional unit(s) of a size that is not less than the average size of the units within the Housing Development. In the event that a Density Bonus, or any portion thereof, granted pursuant to this section is insufficient to construct an additional unit of a size that is not less that the average size of the units within the Housing Development, the Applicant shall propose an alternative use for the Density Bonus, subject to the approval of the Community Development Director.

2.    An additional Concession or Incentive, as set forth in Section 8.52.050, that contributes significantly to the economic feasibility of the construction of the Child Care Facility.

B.    The City shall impose the following condition on approval of any Housing Development that includes a Child Care Facility: 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 pursuant to Section 8.52.060.A. This condition shall run with the land and be recorded as a deed restriction prior to issuance of any project building permits.

C.    In order to qualify for a Density Bonus as provided by this Section, the Applicant shall submit the following to the Community Development Director:

1.    A financial report (pro forma) for the proposed Child Care Facility, subject to approval of the Community Development Director.

2.    Security as required by the Community Development Director, such as a cash deposit, performance bond, or letter of credit, to ensure that the childcare facility remains operational for the period of time described in subsection B.1 of this section.

D.    Notwithstanding subsections A and B above, the City shall not be required to provide a Density Bonus or Concession or Incentive for a Child Care Facility if it finds, based upon substantial evidence, that the community has adequate Child Care Facilities.

E.    Any Child Care Facility constructed pursuant to this section shall not count towards the Applicant’s obligations, if any, to provide Semi-Public Facilities. Ord. 3-07 (March 2007)

8.52.090 Application Procedure.

A.    An Applicant may submit to the Community Development Director a preliminary proposal for the development of housing pursuant to this Chapter prior to the submittal of any formal project application. The City shall, within 90 days of receipt of a preliminary proposal, provide the Applicant in writing, comments and preliminary evaluation of the project. The preliminary proposal is not an application for purposes of the Permit Streamlining Act deadlines, and any comments or preliminary evaluations do not bind future City actions.

B.    Formal application for a Density Bonus and any Concessions or Incentives shall be made in conjunction with the application for development. The application shall comply with the review process stated in the Dublin Municipal Code or Dublin Zoning Ordinance for the development application being filed. The application shall provide the following additional information:

1.    A written statement specifying the desired density increase, Concession or Incentive requested and the number, type, location, size and construction scheduling of all units.

2.    A project financial report (pro forma), if required pursuant to Section 8.52.050.E or Section 8.52.080.C.1.

3.    Any other information requested by the Community Development Director to implement this Chapter. Ord. 3-07 (March 2007)

8.52.100 Enforcement.

A.    The City Manager shall enforce this Chapter, and its provisions shall be binding on all agents, successors, and assigns of the Applicant. The City Manager may suspend or revoke any building permit or approval upon finding a violation of any provision of this Chapter. No land-use approval, building permit, or certificate of occupancy shall be issued for any development unless exempt from or in compliance with this Chapter. The City may institute any appropriate legal actions or proceedings necessary to ensure compliance herewith, including, but not limited to, actions to revoke, deny, or suspend any permit or development approval.

B.    If the City Manager determines that rents or housing costs in excess of those allowed by operation of this Chapter have been charged to a tenant residing in a Restricted Unit, the City may take appropriate legal action to recover the excess rent, and the developer shall be obligated to pay to the tenant, or to the City in the event the tenant cannot be located, any excess rents charged. Ord. 3-07 (March 2007)

8.52.110 Appeals.

Decisions of the City Manager under this Chapter may be appealed as provided in Chapter 8.136. Ord. 3-07 (March 2007)