Chapter 17.48
DENSITY BONUS
Sections:
17.48.020 Responsibility for review and approval of density bonuses.
17.48.050 Incentives and parking ratios.
17.48.060 Waivers or reductions.
17.48.070 General requirements.
17.48.080 Requirements for rental housing projects.
17.48.090 Requirements for owner-occupied housing.
17.48.100 Resale restrictions.
17.48.110 Application procedure.
17.48.140 Conflict with Government Code Section 65915.
17.48.010 Purpose.
The housing element of the city general plan includes goals towards meeting existing and projected housing needs for all economic segments of the community. The density bonus ordinance is intended to implement these goals by complying with the State Density Bonus Law, Government Code Section 65915 et seq. This law provides that a local government shall grant a density bonus and additional incentives, or financially equivalent incentive(s), to a developer of a housing development agreeing to construct a specified percentage of housing for lower income households, very low-income households, moderate income households or senior citizens. It is the intent of this chapter that the density bonus or other incentives offered by the city pursuant to this chapter shall contribute significantly to the economic feasibility of lower income housing in proposed housing developments. It is also the purpose of this chapter to implement those programs and policies with the purpose of accomplishing the identified goals, including the requirement for inclusionary housing units under this title. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.020 Responsibility for review and approval of density bonuses.
An application for a density bonus shall be reviewed and acted upon by the city council for the project for which the density bonus is being requested, and in accordance with the standards and procedures set out in this chapter and Government Code Section 65915. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.030 Definitions.
As used in this chapter, the following terms shall have the following meanings unless otherwise indicated from the context:
A. “Below market rate units” or “BMR units” means units to be sold or rented at below market rate prices.
B. “Density bonus,” as defined in Government Code Section 65915, means an increase in the number of dwelling units authorized for a particular parcel of land beyond the maximum allowable residential density specified on the land use map of the city general plan.
C. “Density bonus units” means those residential units granted pursuant to the provisions of this chapter which exceed the maximum allowable residential density for the development site.
D. “Development standard” includes site or construction conditions that apply to a residential development pursuant to any ordinance, general plan element, specific plan or other city condition, law, policy, resolution or regulation.
E. “Household type” means the population group identified by Government Code Section 65915 to qualify for a density bonus.
F. “Incentive” or “concession” means any of the following:
1. A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required that results in identifiable, financially sufficient, and actual cost reductions.
2. Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial or other land uses will reduce the cost of the housing development and if the commercial, office, industrial or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located.
3. Other regulatory incentives or concessions proposed by the developer or the city that result in identifiable, financially sufficient and actual cost reductions.
G. “Lower income household” means a household whose gross income is as established by Health and Safety Code Section 50079.5 as amended.
H. “Maximum allowable residential density” means the density allowed under this title, or if a range of density is permitted, means the maximum allowable density for the specific zoning range applicable to the project.
I. “Resale controls” means a resale restriction placed on BMR units by which the price of such units and income of the purchaser will be restricted in order to ensure the affordability and occupancy by lower, very low or moderate income households or senior citizens.
J. “Senior citizen” means a person 62 years of age or older, or 55 years of age or older in a senior citizen housing development.
K. “Senior citizen unit” means a unit in which one of the household members is a senior citizen.
L. “Senior citizen housing development” means a residential development that is restricted to occupancy by senior citizens, as defined in Sections 51.3 and 51.12 of the Civil Code, or a 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.
M. “Very low-income household” means a household whose gross income is as established by Health and Safety Code Section 50105 as amended. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.040 Applicability.
A. All housing developments containing five or more units (excluding density bonus units) are eligible for a density bonus of up to 35 percent, and one or more additional incentives upon the developers agreeing to construct the percentage of dwelling units or donate land as specified in Government Code Section 65915 as amended.
B. Projects which meet the requirements set forth in this chapter shall qualify for a density bonus and an applicable number of concessions or incentives unless the city council adopts 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, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in Government Code Section 65915, subdivision (c).
2. The concession or incentive would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Government 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 low- and moderate-income households.
C. In addition to projects that may receive a density bonus, incentives, and/or concessions pursuant to Government Code Section 65915, as amended, the following types of projects are also eligible for up to two incentives, subject to the findings identified in subsection B of this section and the finding that incentive(s) will not result in an adverse impact on the character of the surrounding neighborhood.
1. A multifamily project of 15 or more units that requests consolidation of two or more small, contiguous lots. For the purposes of this chapter, a “small lot” is considered a lot of two acres or less and the request may include consolidation of a minimum of two small lots with a larger lot.
2. A housing project of 10 or more units restricted to occupancy by persons with a disability and their caretaker(s).
3. A multifamily housing project of 15 or more units that provides a minimum of 20 percent of the units as large units with three or more bedrooms. (Ord. 557 § 1 (Att. A), 2016; Ord. 527 § 9, 2010)
17.48.050 Incentives and parking ratios.
Any incentives or concessions available under Section 65915 of the Government Code may be selected from the following list under subsections A and B of this section:
A. A reduction in site development standards or a modification of the requirements of this title. Permissible incentives include, but are not limited to:
1. Reduction of parking requirements;
2. Reduction of open space requirements;
3. Reduction of setback requirements.
B. Other regulatory incentive(s) or concession(s) proposed by the developer or the city, which result in identifiable cost reductions. Permissible incentives include, but are not limited to:
1. Reduction of park dedication fees;
2. Reduction of application or construction permit fees;
3. Provision of tax-exempt financing or other financial assistance as approved by the city council or redevelopment agency board should one be formed;
4. Assistance in applying for state, federal, or local funds (HOME, CDBG, CalHOME, BEGIN, etc.). This shall be limited to staff assistance in answering application questions related to the city’s requirements for development that are associated with the proposed project.
C. Incentives or concessions must directly affect the financial feasibility of including the BMR units in the project without adversely affecting the health, safety and welfare of city residents.
D. A developer may request a reduction in parking ratios for individual units or for an entire project consistent with the ratios identified under Section 65915(p) of the Government Code. (Ord. 580 § 1 (Exh. A), 2019; Ord. 557 § 1 (Att. A), 2016; Ord. 527 § 9, 2010)
17.48.060 Waivers or reductions.
A. An applicant may submit to the city council a proposal for the waiver or reduction of development standards and may request a meeting with the city council. The applicant shall show that the waiver or modification is necessary to make the housing units economically feasible.
B. The waiver or reduction will be granted unless the city council adopts a written finding, based on substantial evidence, of either of the following:
1. The waiver or reduction of development standards would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Government Code Section 65589.5, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact; or
2. The waiver or reduction of development standards would have an adverse impact on any real property that is listed in the California Register of Historical Resources. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.070 General requirements.
A. BMR units shall remain affordable for at least 55 years.
B. A master regulatory agreement shall be made between the developer and the city which indicates the household type, number, type, location, size and construction scheduling of all BMR units and such information as shall be required by the city for the purpose of determining the developer’s compliance with this chapter. The master regulatory agreement will be required in a form acceptable to the city.
C. BMR units in a project and phases of a project shall be constructed concurrently with or prior to the construction of non-BMR units.
D. The developer shall submit a project financial report (pro forma) to allow the city to evaluate the financial need for the state-mandated additional incentives. The city may retain a consultant to review the financial report. The cost of the consultant shall be borne by the developer with the following exceptions:
1. If the applicant is a nonprofit organization, the cost of the consultant may be paid in whole or in part by the city upon approval of the city council.
2. If the proposal is in a redevelopment area, the redevelopment agency may pay in whole or in part the cost of the consultant, at the discretion of the agency director or the board. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.080 Requirements for rental housing projects.
A. All BMR units shall be occupied by the household type specified in the master regulatory agreement required under EMC 17.48.070(B). The developer’s obligation to maintain BMR units as affordable housing shall be evidenced by the master regulatory agreement that shall be recorded as a deed restriction running with the land.
B. Rents for the very low and lower income BMR units shall be set at an affordable rent as defined in Section 50053 of the Health and Safety Code.
C. Prior to the rental of any BMR unit, the city or its designee shall verify the eligibility of the prospective tenant. The owner shall obtain and maintain on file certifications by each household. Certification shall be obtained immediately prior to initial occupancy by each household and annually thereafter, in the form titled “Household Certification” provided by the city. The owner shall obtain updated forms for each household on request by the city, but in no event less frequently than once a year. The owner shall maintain complete, accurate and current records pertaining to the property and will permit any duly authorized representative of the city to inspect the records pertaining to the BMR units and occupants of said units.
D. The city may establish fees associated with the setting up and monitoring of BMR units.
E. The owner shall submit a quarterly report to the city, on a form provided by the city. The report shall include for each BMR unit the rent, income and family size of the household occupying the unit.
F. The owner shall provide to the city any additional information required by the city to ensure the long-term affordability of the BMR units by eligible households. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.090 Requirements for owner-occupied housing.
A. All purchasers of BMR units shall be senior citizens or very low, low, or moderate income households required in the master regulatory agreement specified in EMC 17.48.070.
B. Purchasers shall be required to occupy the unit except with approval from the city. Evidence must be presented to the city that the owner is unable to occupy the unit due to illness or incapacity. In such cases, the unit shall be rented at an affordable rent pursuant to EMC 17.48.080 to the same household type as the owner.
C. For-sale BMR units shall be offered at an affordable housing cost, as that cost is defined in Section 50052.5 of the Health and Safety Code. (Ord. 557 § 1 (Att. A), 2016; Ord. 530 Att. A, 2011; Ord. 495 § 1, 2005)
17.48.100 Resale restrictions.
To ensure the continued affordability of BMR units, a regulatory agreement shall be recorded against all units, shall run with the land and shall be binding on future owners and/or renters of the BMR units. This agreement and required deed restrictions shall be recorded at the time of a final map for subdivision projects, or prior to issuance of the first building permit for nonsubdivision projects. The agreement shall include restrictions on the resale of BMR units that require equity sharing provisions consistent with Government Code Section 65915(c)(2). (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.110 Application procedure.
A. A developer of a development project with a minimum of five dwelling units desiring to participate in the program established by this chapter shall, prior to or at the time of submittal of any formal requests for general plan amendment, zoning amendment or subdivision map approval, submit a proposal for such participation.
B. The formal application shall provide the following information:
1. A written statement specifying the desired density increase, incentive(s) and/or waiver(s) requested and the number, type, location, size and construction scheduling of all dwelling units.
2. A project financial report (pro forma), as required.
3. Any other information requested by the city planner to assist in the evaluation of the project.
C. Within 90 days of receipt of a preliminary proposal, the city shall provide the housing developer written comments and a preliminary evaluation of the project and notify the developer that either:
1. The proposal fails to qualify for the program and the reasons for such determinations; or
2. The proposal qualifies, and that as a part of any project approval, the city will grant a density bonus, incentives and/or waivers, as required. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.120 Action.
The city may grant, modify or deny the requested density bonus, incentives and/or waivers in accordance with the provisions of this chapter and Government Code Section 65915. Any approval must be consistent with the city’s general plan and any applicable zoning, subdivision or other development regulations. A master regulatory agreement shall be entered into to reflect such approval under this chapter. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.130 Hold harmless.
The developer of a qualifying project shall defend, indemnify and hold harmless the city, its elected officials, officers, and employees from any and all claims of damages or injuries arising from developer’s obtaining entitlements and permits, developer’s construction, maintenance, operation, use or sale of the project, or any act or omission of developer, its officers, employees or agents, and from any and all expenses, liabilities, costs and reasonable attorneys’ fees incurred on account of any claims, actions or proceeding brought against the city, its elected officials, officers, and employees in connection with the project. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)
17.48.140 Conflict with Government Code Section 65915.
In the event any provision of this chapter conflicts with Government Code Section 65915 or any other state law, state law shall control. (Ord. 557 § 1 (Att. A), 2016; Ord. 495 § 1, 2005)