Chapter 18.31
Density Bonuses and Affordable Housing Incentives


18.31.010    Purpose

18.31.020    Definitions

18.31.030    Density Bonus and Incentives Eligibility

18.31.040    Types of Density Bonuses

18.31.045    Incentives and Waivers/Modifications of Development Standards

18.31.050    Density Bonus and Incentive Procedures

18.31.060    Affordable Housing Regulatory Agreement

18.31.010 - Purpose

A.    This Chapter is intended to implement the requirements of State law (Government Code Section 65915 et seq.) and the Housing Element of the General Plan, by offering a density bonus and other incentives for the development of housing that is affordable to the types of households and qualifying residents identified in § 18.31.030 (Density Bonus and Incentives Eligibility), and for development of senior housing, all as further provided for in Government Code Section 65915.

B.    This chapter also sets forth density bonus and housing incentives in addition to State law which encourage the development of housing that is affordable to a range of households with varying income levels.

(Ord. 930, § 2, passed 06-12-2017)

18.31.020 - Definitions

The specialized and technical terms and phrases used in this Chapter are defined in Article 10 (Definitions), under “Affordable and Inclusionary Housing Requirements.”

(Ord. 930, § 2, passed 06-12-2017)

18.31.030 - Density Bonus and Incentives Eligibility

In order to be eligible for a density bonus and/or other incentives as provided by this Chapter, a proposed housing development shall comply with the following requirements, and satisfy all other applicable provisions of this Development Code and State law, except as provided by § 18.31.040 (Types of Density Bonuses):

A.    Housing development. In order to qualify for a density bonus and incentives, the housing development shall meet Government Code Section 65915(b) requirements with regard to affordability, household income levels, and senior housing.

B.    Minimum project size to qualify for density bonus. The density bonus shall be available only to a housing development that provides affordable housing in compliance with Chapter 18.32 (Inclusionary Housing Requirements), or in compliance with State law.

C.    Condominium conversion projects. A condominium conversion project is eligible for a density bonus or incentives, if it complies with the eligibility and other requirements in State law (Government Code Section 65915.5).

D.    “Sweat equity” developments. A “sweat equity” housing development is eligible for incentives in compliance with § 18.31.045(B)(5) (Incentives for affordable housing projects – Incentives for “sweat equity” developments).

E.    Donations of land. The donation of land makes a project eligible for a density bonus if it satisfies all of the requirements of Government Code Section 65915(g).

(Ord. 930, § 2, passed 06-12-2017)

18.31.040 - Types of Density Bonuses

The amount of a density bonus and the extent of other incentives allowed for a proposed housing development shall be determined by the review authority in compliance with State law and this Section.

A.    Amount of density bonus. The amount of density bonus provided by the City of Fort Bragg shall comply with State law, Government Code Section 65915(f).

B.    Additional density bonus. Housing developments that qualify for a density bonus under State law may be eligible for an additional density bonus by the review authority, as outlined below:

1.    Bonus for preferred design and/or green design. An additional 5% density bonus may be granted to developments with preferred design features and/or green/environmentally sustainable design features as determined by the Planning Commission and defined in the General Plan and the Citywide Design Guidelines.

2.    Relation to maximum statutory bonus density. Bonus densities under State law are limited to an aggregate amount of 35%. The above local density bonus shall be in addition to and does not count towards calculating the aggregate statutory density bonus.

3.    Bonus or incentives allowed for housing development with child care facility. A housing development that complies with the resident requirements of State law and also includes a child care facility on the premises shall be eligible for an additional bonus or incentives, subject to compliance with the requirements as stipulated by Government Code Section 65915(h).

(Ord. 930, § 2, passed 06-12-2017)

18.31.045 - Incentives and Waivers/Modifications of Development Standards

A.    Waivers/modifications of development standards. If a density bonus and/or other incentives cannot be accommodated on a site due to strict compliance with the development standards of this Development Code, the applicant may request and the Council shall modify or waive such development standards as necessary to accommodate all bonus units and other incentives to which the development is entitled, unless the waiver or modification would have an adverse impact as further defined in Government Code Section 65915(e)(1).

B.    Incentives for affordable housing projects.

1.    Available concessions or incentives. A housing development qualifying for a density bonus under Government Code Section 65915(b) shall be entitled to concessions or incentives identified by Government Code Section 65915(k), with the number of incentives as established in Government Code Section 65915(d).

2.    Preferred or pre-approved Council incentives. The City has established a set of preferred incentives by resolution from which developers may select an incentive with certainty of approval by the Council.

3.    Applicant specified concessions or incentives. An applicant may submit to the City a request for specific concessions or incentives in compliance with this Section and State law.

4.    Required findings to reject concession or incentive. The City shall grant the concession or incentive requested by the applicant unless the Council makes a written finding, based upon substantial evidence, of any of the following:

a.    The concession or incentive is not required in order 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 affordable to very low, low, or median or moderate income households as required; or

b.    The concession or incentive would have a specific adverse impact, as defined by 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; or

c.    The concession or incentive would be contrary to State or Federal law.

5.    Incentives for “sweat equity” developments. A sweat equity development in compliance with § 18.31.030(D) (Density Bonus Eligibility and Incentives, “Sweat equity” developments) may be granted incentives only as follows:

a.    One incentive will be granted to a development where 100% of the units are provided to low income households; or

b.    Two incentives may be granted to a development where 100% of the units are provided to very low income households.

(Ord. 930, § 2, passed 06-12-2017)

18.31.050 - Density Bonus and Incentive Procedures

A.    Processing requirements. A request for a density bonus and/or incentives shall be evaluated and decided concurrently with the related housing development project and in compliance with Government Code Section 65915.

B.    Application Procedures. The project applicant shall submit the following to the review authority so that the review authority can determine if the project is eligible for a density bonus and/or incentives:

1.    A written request specifying how the proposed housing development or senior housing qualifies for a density bonus under Government Code Section 65915(b);

2.    A written proposal for specific incentives or concessions under Government Code Section 65915(d);

3.    A written request for waiver or modification of incentives under Government Code Section 65915(e);

4.    A draft affordable housing agreement consistent with Subsection (C) of this Section and Government Code Section 65915(c); and

5.    A project pro forma.

C.    Affordable housing regulatory agreement. An affordable housing regulatory agreement shall be recorded against the relevant property consistent with the requirements of Government Code Section 65915(c). An applicant requesting a density bonus and/or incentives under this Chapter or under State law shall draft, and agree to enter into, an affordable housing regulatory agreement with the City (“agreement”). The agreement shall include the contents and provisions as described in § 18.32.085 as applicable. The terms of the draft agreement shall be reviewed as appropriate by the City Manager and/or the City Attorney.

D.    Control of affordable unit resale. In order to maintain the availability of the for-sale affordable units constructed in compliance with this Chapter, the resale conditions established in § 18.32.060(D) shall apply. Any abuse in the resale provisions shall be referred to the City Attorney for appropriate action.

(Ord. 930, § 2, passed 06-12-2017)

18.31.060 - Affordable Housing Regulatory Agreement

A.    Affordable housing regulatory agreement. The applicant shall execute and cause to be recorded a density bonus regulatory agreement (“agreement”) between the City and the developer. The agreement shall be executed by the City Manager, and shall be recorded against the property receiving the density bonus.

1.    Agreement contents. The agreement shall include at least the following information:

a.    Number of dwelling units. The total number of dwelling units approved for the housing development project, including the number of density bonus units;

b.    Description and location of units. The location, unit sizes (in square feet), and number of bedrooms of the dwelling units;

c.    Use of property. A description of the use of the property stating that the units shall be used to provide housing to qualifying households under the provisions of this Chapter and Government Code Section 65915(f);

d.    Description of targeted income group. A description of the household income group to be accommodated by the housing development project, and the standards and methodology for determining the corresponding affordability consistent with this Chapter and State law;

e.    Nondiscrimination clause. The clause shall state that there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, marital status, sexual orientation, national origin or ancestry in the sale, transfer, use, occupancy, or enjoyment of an affordable unit, or any part thereof. Nor shall any developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, use, or occupancy of purchasers or occupants of the affordable units, or parts thereof;

f.    Length of affordability. Description of the affordability restrictions for the affordable dwelling units in compliance with Government Code Section 65915(c), requiring 15 years of continuing affordability;

g.    Description of concessions and/or incentives. A description of the additional concessions and/or incentives sought of the City;

h.    Remedies for breach of the agreement. A description of the remedies for breach of the affordable housing regulatory agreement by the owners, developers, and/or successors-in-interest of the development project;

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

2.    Agreement provisions. The agreement shall include at least the following provisions:

a.    Continuing right-of-first-refusal. The developer shall give the City the continuing right-of-first-refusal to purchase any or all of the affordable dwelling units at a sales price for the affordable dwelling unit consistent with the limits established for low, very low, or moderate income households, as published by HUD;

b.    Written approval of City required prior to transfer of unit. The deeds to the affordable dwelling units shall contain a covenant stating that the developer or successors-in-interest shall not assign, sell or otherwise transfer any interests for the affordable dwelling units without the prior written approval of the City;

c.    Confirmation of price by City. When providing the written approval, the City shall confirm that the sales price of the affordable dwelling unit is consistent with the limits established in § 18.32.060(D)(1);

d.    Occupied by eligible households. The City shall have the authority to enter into other agreements with the developer, or purchasers of the affordable dwelling units, to ensure that the required dwelling units are occupied by eligible households for the minimum time of continued affordability as described in Subsection (A)(1)(f) of this Section;

e.    Enforcement of compliance. Applicable deed restrictions, in a form satisfactory to the City Attorney, shall contain provisions for the enforcement of owner or developer compliance;

f.    Failure to comply. Any default or failure to comply may result in daily penalties, liens, foreclosure, specific performance, or withdrawal of the certificates of occupancy;

g.    Recovery of all City-related costs. 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;

h.    Eligible and qualified residents. The affordable dwelling units shall be owner-occupied by eligible moderate or median income households, or by qualified residents in the case of senior housing;

i.    Mandatory contents of instrument or agreement. The initial purchaser of each affordable 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 affordability restriction period. If the unit is sold, the City shall be entitled to receive the amount of the sales price which exceeds the maximum sales price (as defined in § 18.32.060(D)(1)) less reasonable costs of the sale plus the value of substantial structural or permanent fixed improvements;

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(s) containing the affordable dwelling unit(s); and

j.    Affordability restriction period. The applicable affordability restriction period shall be in compliance with Government Code Section 65915(c), requiring 15 years of continuing affordability for for-sale units and 25 years of continuing affordability for rental units.

3.    Execution of agreement.

a.    Timing of approval and recordation. The approval and recordation of the agreement shall take place at the same time as the final or parcel map or, where a map is not being processed, before issuance of certificates of occupancy for the inclusionary dwelling units.

b.    Binding on all parties. The agreement shall be binding on all future owners, developers, and/or successors-in-interest.

B.    Effect of plan and agreement. After the approval of the density bonus and the recording of an affordable housing regulatory agreement, each affordable housing unit shall be constructed as required, and shall be sold and maintained as an affordable unit, in compliance with the plan and agreement.

(Ord. 930, § 2, passed 06-12-2017)