Chapter 17.70
AFFORDABLE HOUSING1
Sections:
17.70.020 Affordable housing required – For-sale residential projects.
17.70.025 Affordable housing required – Rental residential projects.
17.70.030 Alternatives for provision of affordable units.
17.70.035 Affordable housing design and standards.
17.70.040 Affordable housing plan and affordable housing agreement.
17.70.050 Affordable housing impact fees.
17.70.055 Waivers of affordable housing requirements.
17.70.060 Development impact fee reductions for affordable accessory dwelling units.
17.70.010 Purpose.
A. This chapter is adopted to establish regulations and standards regarding the provision of affordable housing. The council hereby determines that this chapter is necessary to assist in meeting the city’s share of the regional housing needs, to implement the city’s general plan and housing element relative to the provision of housing units for all economic sectors of its population, including households with very low and low incomes, and to require affordable housing in both rental and for-sale housing, consistent with the provisions of Government Code Sections 65850(q) and 65850.01.
B. New housing contributes to the demand for goods and services in the city, increasing local employment at wage levels which often do not permit employees to afford housing in the city. Further, new housing construction which does not include affordable units aggravates the existing shortage of affordable housing by absorbing the supply of available residential land. Providing affordable units or impact fees as required by this chapter will ensure that part of the city’s remaining developable land is used to provide affordable housing. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.015 Definitions.
Whenever the following terms are used in this chapter, they shall have the meaning established by this section:
A. “Condominium conversion” means conversion of rental multifamily dwellings or apartments to common-interest subdivisions such as condominiums, community apartments, stock cooperatives or planned developments.
B. “For-sale residential project” means a residential project, or portion thereof, that includes the creation of one or more dwelling units that may be sold individually, including condominiums, community apartments, stock cooperatives, planned developments, and individual lots and dwellings. A for-sale residential project also includes a condominium conversion.
C. “Rental residential project” means a residential project, or portion thereof, that creates dwelling units that cannot be sold individually.
D. “Residential project” means the construction, rehabilitation, remodeling, adaptive reuse, or replacement of structures to create one or more dwelling units. For the purposes of this chapter, a residential project includes a condominium conversion. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.020 Affordable housing required – For-sale residential projects.
A. Affordable Units Required. Developers of for-sale residential projects providing five or more dwelling units, or five or more lots for sale for residential purposes, shall construct and set aside 15 percent of all units or lots for sale to very low or low income households (as defined by Health and Safety Code Sections 50105 and 50079.5, respectively) at sales prices affordable to such persons or households. For the purposes of this chapter, a unit is affordable if it meets the requirements for affordable housing costs for very low or low income households established by Health and Safety Code Section 50052.5 and regulations adopted by the California Department of Housing and Community Development (California Code of Regulations Title 25, Sections 6910 through 6924) determining affordability of residential housing units based upon household size and income levels.
B. Term of Affordability. The required affordable units shall remain affordable for 99 years from the date of final inspection, as shown on the inspection record card for the affordable unit.
C. Applicability to Alternatives. If the developer of a residential project proposes to provide for-sale affordable units as part of an alternative permitted by SBMC 17.70.030, the number and affordability of the for-sale affordable units shall be consistent with subsection A of this section, and the term of affordability shall be consistent with subsection B of this section.
D. Relation to Density Bonuses and Other Incentives. If a for-sale residential project receives a density bonus or other incentives pursuant to Section 65915 of the Government Code and the density bonus ordinance (SBMC 17.20.050), then the provisions of this chapter shall not apply to density bonus units as defined in the density bonus ordinance (SBMC 17.20.050), as required by Section 65915 of the Government Code. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.025 Affordable housing required – Rental residential projects.
A. Affordable Units Required. Developers of rental residential projects providing five or more dwelling units shall construct and set aside 15 percent of all units for rent to very low or low income households (as defined by Health and Safety Code Sections 50105 and 50079.5, respectively) at rents affordable to such persons or households. For the purposes of this chapter, a unit is affordable if it meets the requirements for affordable rent for very low or low income households established by Health and Safety Code Section 50053 and regulations adopted by the California Department of Housing and Community Development (California Code of Regulations Title 25, Sections 6910 through 6924) determining affordability of residential housing units based upon household size and income levels.
B. Term of Affordability. The required rental affordable units shall remain affordable for 99 years from the date of final inspection, as shown on the inspection record card for the affordable unit.
C. Applicability to Alternatives. If the developer of a residential project proposes to provide rental affordable units as part of an alternative permitted by SBMC 17.70.030, the number and affordability of the rental affordable units shall be consistent with subsection A of this section, and the term of affordability shall be consistent with subsection B of this section.
D. Relation to Density Bonuses and Other Incentives. If a rental residential project receives a density bonus or other incentives pursuant to Section 65915 of the Government Code and the density bonus ordinance (SBMC 17.20.050), then the provisions of this chapter shall not apply to density bonus units as defined in the density bonus ordinance (SBMC 17.20.050), as required by Section 65915 of the Government Code. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.027 Fractional units.
When the calculation of the number of affordable units required for a residential project results in a fraction of one-half or more, one additional affordable unit shall be provided. When the calculation results in a fraction of less than one-half, the developer shall either provide an additional affordable unit or pay an affordable housing impact fee calculated by multiplying the area (in square feet) of the average market-rate unit in the project by the fraction, and multiplying that number by the impact fee per square foot. (Example: if the average market-rate unit has 2,500 square feet, and there is a fraction of 0.2, the impact fee would total 500 multiplied by the impact fee per square foot.) (Ord. 500 § 5, 2019)
17.70.030 Alternatives for provision of affordable units.
A. Rental Units in a For-Sale Residential Project.
1. As permitted by Government Code Section 65589.8, a developer of a for-sale residential project may propose to provide rental affordable units rather than for-sale affordable units. The term and affordability of the rental affordable units and the affordable housing agreement and rent regulatory agreement shall conform with the provisions of SBMC 17.70.025(B).
2. If the developer elects to provide rental affordable units, at least 15 percent of the units in the residential project shall be rented to very low or low income households at affordable rents.
3. The rent regulatory agreement shall include provisions for sale of the affordable units and relocation benefits for tenants of the rental affordable units if the owner of the residential project later determines to offer any rental affordable units in the residential project for sale. The owner shall provide all notices to prospective tenants of the residential project required by state law and shall additionally, at the time sale of the units is proposed, provide all tenants of the rental affordable units with the same notices, rights, and relocation benefits as provided by state law and the municipal code for tenants in condominium conversions. The owner shall provide written notice to the city at least 90 days before offering any rental affordable unit for sale. The owner shall provide as many for-sale affordable units at affordable housing cost as are required by SBMC 17.70.020(A). At the time of sale, documents acceptable to the community development director, all consistent with the requirements of this chapter, shall be recorded against the for-sale affordable units for a term of 99 years from the date of sale.
B. Construction of Off-Site Affordable Housing.
1. As an alternative to the construction of affordable units on-site, a developer may propose to construct an affordable housing development on other property within the city. If the units will be for-sale affordable units, the number, affordability, and term of affordability of the affordable units shall conform with the provisions of SBMC 17.70.020(B). If the units will be rental affordable units, the number, affordability, and term of affordability of the affordable units shall conform with the provisions of SBMC 17.70.025(B).
2. The affordable housing plan required by SBMC 17.70.040(A) shall provide evidence of the following, in addition to the requirements of SBMC 17.70.040(A):
a. Financing or a viable financing plan, which may include public funding, shall be in place for the off-site affordable units.
b. The off-site location must be suitable for the proposed affordable housing, consistent with any adopted affordable housing guidelines and the housing element, will not tend to cause residential segregation, and be located within the city of Solana Beach boundaries with appropriate infrastructure and services. Any off-site alternative must comply with the density, intensity and development standards that are permitted under the zone for the site.
3. The affordable housing agreement required by SBMC 17.70.040(B) shall contain the following, in addition to the requirements of SBMC 17.70.040(C):
a. Prior to issuance of a building permit for any unit in the residential development, the off-site development shall have all discretionary permits and approvals necessary for the construction of the affordable housing, and the developer approved by the city shall have purchased the site for the off-site affordable housing.
b. Prior to occupancy of any unit in the residential development, occupancy shall have been authorized for all units in the affordable housing development.
C. Preservation or Conversion of Existing Units. As an alternative to the construction of affordable units on-site, a developer may propose to preserve existing affordable units at risk of loss or convert market-rate units to affordable units, if the preservation or conversion of these units is consistent with Government Code Section 65583.1 and allows the city to substitute the preservation or conversion of these units for the obligation to identify sites.
D. Legalization of Existing Unpermitted Dwelling Units. As an alternative to the construction of affordable units on-site, a developer may acquire and place deed restrictions upon existing housing units within the city constructed without building permits, for occupancy by very low or low income households at prices or rents affordable to such households subject to the following standards and conditions:
1. The developer must demonstrate ownership of the unpermitted dwelling units or an executed agreement with the owner(s) of the dwelling units agreeing to record an affordable housing agreement against the property and to grant the developer access to perform any required rehabilitation or improvements.
2. The existing unpermitted housing units must not have a separate address that was included in the most recent United States Census.
3. The unit(s) shall be ready for occupancy by an eligible household prior to final inspection, as shown on the inspection record card, for any market-rate units in the residential project.
4. A building permit shall be obtained for each unpermitted dwelling unit. Any substandard unit shall be rehabilitated in conformance with applicable local ordinances and state statutes.
5. If the units will be for-sale affordable units, the number, affordability, and term of affordability of the affordable units shall conform with the provisions of SBMC 17.70.020(B). If the units will be rental affordable units, the number, affordability, and term of affordability of the affordable units shall conform with the provisions of SBMC 17.70.025(B).
E. Payment of Affordable Housing Impact Fees. As an alternative to the construction of affordable units on-site, a developer may propose to pay affordable housing impact fees adopted by city council resolution to mitigate the residential project’s impact on the need for affordable housing in the city, if the city council makes both of the following findings:
1. The affordable housing impact fees will be used to provide financial assistance to an identified city or city-sponsored affordable housing project that: (a) is proposed by an affordable housing developer; (b) has received all discretionary approvals from the city and the Coastal Commission; and (c) requires additional funds to commence construction.
2. Provision of the affordable housing impact fee will create more affordable units than would be created by on-site provision of the affordable units.
Any approved affordable housing impact fees shall be paid prior to the first issuance of a building permit for the residential development. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.035 Affordable housing design and standards.
A. When an affordable unit is required pursuant to this chapter, such unit may be constructed as a separate single-family dwelling unit or may be combined with other dwelling units. Affordable units shall be designed to be integrated into the residential style of the residential project, and shall have the same general bulk, scale, average square footage, same mix, and height as market-rate units in the development. Subject to approval of the community development director or designee, affordable units may have different interior finishes and features than market-rate units in the same residential development project, so long as the finishes and features are durable, of good quality and consistent with contemporary standards for new housing.
B. Affordable units shall be comparable to market-rate units in overall number of bedrooms and the proportion of units in each bedroom category. For multifamily residential projects, the affordable units shall be integrated into the project and located so as not to create a geographic concentration of affordable units within the residential project, unless required to provide housing for senior citizens or to obtain financial assistance from state or federal agencies.
C. All affordable units shall be constructed and occupied concurrently with or prior to the construction and final inspection of market-rate units. In phased residential projects, affordable units shall be constructed and occupied in proportion to the number of units in each phase of the residential project. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.040 Affordable housing plan and affordable housing agreement.
A. Affordable Housing Plan. An affordable housing plan shall be submitted as part of the first approval of any residential project subject to this chapter and shall be processed, reviewed, and approved, conditionally approved, or denied concurrently with all other applications required for the residential project. The affordable housing plan may indicate that the developer intends to pay affordable housing impact fees. However, if affordable units are proposed to be provided, the affordable housing plan shall include the following, as applicable:
1. Number, affordability level, unit type, tenure (for-sale or for-rent), number of bedrooms, location, unit size (square feet), and design of all affordable units.
2. Construction schedule and phasing of affordable units in relation to market-rate units.
3. Any requested alternative pursuant to SBMC 17.70.030, including information as required by SBMC 17.70.030 and reasonably required by the community development director to demonstrate compliance with SBMC 17.70.030 regarding the requirements for that alternative.
4. Such additional information as may be required by the community development director to ensure conformance of the project with this chapter or the general plan or any specific plan.
B. Affordable Housing Agreement – Timing.
1. Prior to final or parcel map approval for the residential project, or, if a tentative or parcel map is not requested for the residential development, prior to issuance of any building permit within the residential development, an affordable housing agreement between the developer and the city shall be recorded against the property included in the residential project. The affordable housing agreement shall be binding on all future owners and successors in interest.
2. The affordable housing agreement and other required agreements shall be prepared by the city at the developer’s expense. After approval of the affordable housing plan, the city manager is authorized to approve the affordable housing agreement and any additional documents necessary to implement this section.
C. Affordable Housing Agreement – Contents. The affordable housing agreement shall be consistent with the affordable housing plan and shall include, but not be limited to, the following:
1. Number, affordability level, unit type, tenure (for-sale or for-rent), number of bedrooms, location, unit size (square feet), and design of all affordable units.
2. A description of the household income group(s) to be accommodated by the housing development, and the standards for determining the corresponding affordable rent or affordable sales price and housing cost.
3. Description of provisions for income certification and screening of potential purchasers or renters of affordable units, resale control mechanisms (in for-sale units), and ongoing monitoring and administration.
4. Term of affordability.
5. A schedule for completion of affordable units and phasing of development in relation to construction of market-rate units.
6. A description of remedies for breach of the agreement by either party.
7. For for-sale affordable units, conditions governing the initial sale and resale of affordable units to eligible households to ensure continued compliance with the restrictions of this chapter; and a condition requiring disclosure by the developer to the buyer of affordable units of the existence of the deed restrictions affecting the resale of the property.
8. For rental affordable units, conditions establishing rules and procedures for qualifying tenants, setting rental rates, filling vacancies, operating and maintaining rental affordable units, and annually monitoring affordable units. A rent regulatory agreement acceptable to the city shall be recorded against the residential project prior to issuance of a building permit for any dwelling unit in the residential project. The rent regulatory agreement shall include the developer’s agreement to the limitations on rents required by SBMC 17.70.025(A).
9. If an alternative is approved pursuant to SBMC 17.70.030, provisions to ensure that the affordable housing is provided and that the requirements applied to the alternative have been complied with. Where off-site property is proposed for affordable housing, additional restrictions or agreements may be required to be recorded against the off-site property.
10. Other provisions needed to ensure implementation and compliance with this chapter, to ensure continued affordability of the units, or to comply with state or federal law. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.045 Incentives.
Certain types of affordable housing are relatively more desirable in satisfying the city’s affordable housing goals and housing element goals. Although nothing in this chapter establishes a right to receive any additional incentive from the city or any other party or agency to enable the developer to meet the obligations of this chapter, the city council at its sole discretion may discount city fees, expedite the application process, or provide other assistance when it finds that provision of such assistance is needed to meet housing needs identified in the housing element which otherwise would not be met through the implementation of this chapter. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.050 Affordable housing impact fees.
A. Any affordable housing impact fees shall be set by city fee resolution or other action of the city council. Fees may be based on a fee per dwelling unit, fee per square foot, or any other reasonable basis. The city council may review the fees from time to time at its sole discretion and may, based on that review, adjust the fee amount. Affordable housing impact fees shall not exceed the cost of mitigating the impact of residential projects on the need for affordable housing in the city.
B. All affordable housing impact fees shall be deposited into a separate account to be designated the city of Solana Beach housing fund. The fees collected and all earnings from investment of the fees shall be expended exclusively to provide or assure continued provision of affordable housing in the city through acquisition, construction, development assistance, rehabilitation, financing, rent or other subsidies, provision of supportive services, or other methods, and for costs of administering programs which serve those ends. The housing assisted shall be of a type, or made affordable at a cost or rent, for which there is a need in the city and which is not adequately supplied in the city by private housing development in the absence of public assistance and to the extent feasible shall be utilized to provide for low and very low income housing. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.055 Waivers of affordable housing requirements.
A. As part of an application for the first approval of a residential project, a developer may request that the requirements of this chapter be waived or modified, based upon a showing that applying the requirements of this chapter would result in an unconstitutional taking of property or would result in any other unconstitutional result. Any request for a waiver or modification shall be submitted concurrently with the project application. The developer shall set forth in detail the factual and legal basis for the claim, including all supporting technical documentation, and shall bear the burden of presenting the requisite evidence to demonstrate the alleged unconstitutional result. Any request for a waiver or modification based on this section shall be reviewed and considered at the same time as the project application. In deciding whether to grant the waiver or modification, the city council shall assume each of the following when it is applicable to the project:
1. The developer will provide the most economical inclusionary units feasible in terms of construction, design, location and tenure (for-sale or for-rent).
2. The developer is likely to obtain housing subsidies when such funds are reasonably available.
B. The waiver or modification may be approved only to the extent necessary to avoid an unconstitutional result, based upon legal advice provided by or at the behest of the city attorney, after adoption of written findings, based on legal analysis and the evidence. If a waiver or modification is granted, any change in the project shall invalidate the waiver or modification, and a new application shall be required for a waiver or modification pursuant to this section. (Ord. 500 § 5, 2019; Ord. 427 § 3, 2011)
17.70.060 Development impact fee reductions for affordable accessory dwelling units.
The city manager is authorized to reduce city development impact fees by 75 percent for accessory dwelling units (ADU) processed consistent with SBMC 17.20.040(D), provided that a deed restriction for state law affordability provisions is recorded for the term of 99 years. (Ord. 500 § 5, 2019)
17.70.065 Enforcement.
A. The city attorney shall be authorized to enforce the provisions of this chapter and all affordable housing agreements, regulatory agreements, and all other covenants or restrictions placed on affordable units, by civil action and any other proceeding or method permitted by law.
B. Failure of any official or agency to fulfill the requirements of this chapter shall not excuse any applicant or owner from the requirements of this chapter. No permit, license, map, or other approval or entitlement for a residential development shall be issued, including without limitation a final inspection or certificate of occupancy, until all applicable requirements of this chapter have been satisfied.
C. The remedies provided for herein shall be cumulative and not exclusive and shall not preclude the city from any other remedy or relief to which it otherwise would be entitled under law or equity. (Ord. 500 § 5, 2019)
Prior legislation: Ords. 200, 214, 236 and 284.