Chapter 9.31
Density Bonuses
Sections:
9.31.020 Eligibility for Bonus, Incentives or Concessions
9.31.030 Allowed Density Bonuses
9.31.040 Allowed Incentives or Concessions
9.31.060 Bonus and Incentives for Housing with Child Care Facilities
9.31.070 Continued Availability
9.31.080 Location and Type of Designated Units
9.31.090 Processing of Bonus Requests
9.31.110 Judicial Relief, Waiver of Standards
9.31.010 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 9.31.020. This Chapter is intended to implement the requirements of Government Code Section 65915, et seq., and the Housing Element of the City’s General Plan to assist with the development of housing above the maximum allowable residential density.
9.31.020 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 9.31.040 (Allowed Incentives or Concessions).
A. Resident requirements. The housing development shall be designed and constructed so that:
1. At least 10 percent of the total number of proposed units are for lower income households, as defined in Health and Safety Code Section 50079.5; or
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; or
3. At least 10 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; or
4. The project is a senior citizen housing development as defined by Civil Code Sections 51.3 and 51.12.
A density bonus granted in compliance with Section 9.31.030 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.
D. Minimum Density. The project must develop housing units over the maximum density otherwise allowed by the applicable General Plan designation and zoning district.
9.31.030 Allowed Density Bonuses
The amount of a density bonus allowed a housing development shall be determined by the City in compliance with this Section.
A. Density bonus. A housing project that complies with the eligibility requirements in Subsections 9.31.020.A.1, A.2, or A.3 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 20 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 10 percent in the percentage of units affordable to lower income households, the density bonus shall be increased by 1.5 percent up to a maximum of 35 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 2.5 percent, up to a maximum of 35 percent.
2. Bonus for condominium or planned development project. A density bonus for a condominium project that complies with the eligibility requirements in Subsection 9.31.020.C 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 10 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 35 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 a density bonus for the entire development, only if the project proposes to develop housing units over the maximum density otherwise allowed by the applicable General Plan designation and zoning district, 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 15 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 10 percent land donation described in Subsection 9.31.030.c.(2), the density bonus shall be increased by one percent, up to a maximum of 35 percent. This increase shall be in addition to any increase in density required by Subsections 9.31.030.A.1 and 9.31.030.A.2, up to a maximum combined mandated density increase of 35 percent.
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.
(1) 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.
(2) 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 10 percent of the number of residential units of the proposed development.
(3) The transferred land is at least one acre, or of sufficient size to permit development of at least 40 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(I) if the design is not reviewed by the City prior to the time of transfer.
(4) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with Section 9.31.070 (Continued Availability), which shall be recorded on the property at the time of dedication.
(5) 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.
(6) 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.
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, Local Coastal 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.
9.31.040 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 9.31.040.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 9.31.020; 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 10 percent of the total units for lower income households, at least five percent for very low income households, or at least 10 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 20 percent of the total units for lower income households, at least 10 percent for very low income households, or at least 20 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 30 percent of the total units for lower income households, at least 15 percent for very low income households, or at least 30 percent for persons and families of moderate income in a condominium or planned development.
C. Type of incentives. The City may, at its sole discretion, grant a density bonus exceeding the state minimum requirements where the applicant agrees to construct a greater number of affordable housing units than required pursuant to Section 9.31.020 and necessary to qualify for the density bonus under this section. If such additional density bonus is granted by the City and accepted by the applicant, the additional density bonus shall be considered an additional concession or incentive for purposes of Section 65915. For purposes of this Section, a concession or incentive shall mean any reduction in site development standards or any modification of zoning or architectural design requirements necessary pursuant to California Government Code Sections 65915(d)(3) or 65915(e) to facilitate the construction of the residential development project at the densities provided for in Section 65915. Concessions or incentives shall also include, but not be limited to, the following categories:
1. Concessions Not Requiring Financial Pro Forma from Applicant. The following concessions and incentives shall be available to the applicant without any requirement that the applicant demonstrate to the City that the requested concession or incentive results in identifiable, financially sufficient, and actual cost reductions to the project pursuant to California Government Code Section 65915(l):
a. Parking Concessions. The following maximum parking standards, inclusive of handicapped and guest parking, shall apply to the entire project: 0-1 bedroom dwelling unit: 1 onsite parking space; 2-3 bedroom dwelling unit: 2 onsite parking spaces; 4 or more bedroom dwelling unit: 2.5 parking spaces;
b. Approval of mixed-use (housing and non-residential) development on a site designated for non-residential development by its zoning or General Plan land use designation provided that the residential dwelling units are on the upper floors or rear of commercially or industrially zoned properties where uninterrupted commercial or industrial uses are maintained at the street level and any residential units shall not be more than 25% of the first floor area.
c. Approval of the Density Bonus Standard as outlined in Section 9.24.050.
2. Concessions Requiring Financial Pro Forma from Applicant. The following concessions and incentives, when requested by the applicant, shall require the applicant to demonstrate to and receive approval from the City Council that the requested concession or incentive results in identifiable, financially sufficient, and actual cost reductions to the project pursuant to California Government Code Section 65915(l):
a. A reduction of the standards beyond the incentives outlined in Section 9.24.050.
b. A reduction of the energy efficiency and conservation measures as outlined in Policy RC-8b of the General Plan;
c. Reduction in the minimum requirements of any of the following: private space; landscape requirements, including for parking lots; and architectural design requirements that exceed the minimum building standards established by local or state building code standards.
d. Reduction in the parking space dimensions, driveway width, parking aisle width, garage and carport dimensions; number of tandem parking spaces; and reduced bicycle parking requirements.
e. Modification of the criteria utilized to calculate the net area used for calculating density.
f. Any other reduction or waiver in site development standards or modification of zoning or architectural design requirements necessary pursuant to California Government Code Sections 65915(d)(3) or 65915(e), or any other proposed concession or incentive not identified in Section 9.31.040.
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.
9.31.060 Bonus and Incentives for Housing with Child Care Facilities
A housing development that complies with the resident and project size requirements of Section 9.32.020, and also includes as part of that development a licensed 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 9.31.070 (Continued Availability); 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 9.31.020.
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.
9.31.070 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 income units. The continued availability of lower income units shall be maintained for 30 years, or a longer time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.
2. Low and moderate income units - Development with public funding. A housing development that receives a direct financial contribution as an additional incentive through participation in the cost of infrastructure, write-down of land costs, or subsidizing the cost of construction, shall maintain the availability of low- and moderate-income units for a minimum of 30 years, as required by Government Code Section 65916.
3. Moderate income units in condominium. The continued availability of moderate income units in a condominium project shall be maintained for a minimum of 10 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. 30 percent of 65 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. 30 percent of 50 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, be 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 down payment, 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.
9.31.080 Location and Type of Designated Units
The location, timing of construction, unit size, unit type, exterior appearance and development standards shall be as required by Section 9.32.40 of this Code. The Term of Affordability for Rental Inclusionary Units shall be as required in Section 9.32.080 of this Code. The Term of Affordability and Resale of For-sale Units shall be as required in Section 9.32.090 of this Code.
9.31.090 Processing of Bonus Requests
Requests for a density bonus and other incentives shall be evaluated and decided as required by Section 9.32.110 (Administration of Inclusionary Units) of this Code. In addition, an application for a density bonus, incentive, concession, waiver, modification, or revised parking standard pursuant to this Section shall be submitted in conjunction with the project application and shall be processed concurrently with all other applications required for the project in the manner provided for in the City’s code. The cost of reviewing any required pro forma data submitted as part of the application in support of a request for a concession or incentive, including but not limited to the cost to the City of hiring a consultant to review said pro forma, shall be borne by the applicant. The application shall be submitted on a form provided by the City and shall include, at a minimum, the following information:
A. A site plan showing the total number of units, the number and location of the units dedicated pursuant to California Government Code Section 65915(b), and the number and location of the proposed density bonus units;
B. The level of affordability of the dedicated units;
C. A description of any requested incentives, concessions, waivers or modifications of development standards, or modified parking standards. If the applicant is requesting concessions or incentives identified in Subsection 9.31.040.C.2 the application shall also include pro forma information demonstrating to the City that the requested concession or incentive results in an identifiable, financially sufficient, and actual cost reduction. Where the applicant is requesting the modification or waiver of a development standard or a zoning or architectural design requirement, the applicant shall submit evidence demonstrating that the application of the subject standard or requirement would preclude construction of the project at the densities provided for in California Government Code Section 65915 and that the waiver or modification is necessary to make development of the project financially feasible.
D. If a density bonus is requested for a land donation pursuant to California Government Code Section 65915(h), the application shall show the location of the land to be dedicated and provide evidence that the requirements of Section 65915(h) have been met, thus entitling the project to the requested density bonus.
E. If a density bonus is requested for construction of a child care facility pursuant to California Government Code Section 65915(I), the application shall show the location and square footage of the proposed facility and provide evidence that the requirements of Section 65915(I) have been met, thus entitling the project to the requested density bonus.
9.31.100 Control of Resale
In order to maintain the availability of for-sale affordable housing units constructed in compliance with this Chapter, the requirements of Subsections 9.32.090.B and Section 9.32.090.C shall apply.
9.31.110 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 Subsection 9.31.020.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 9.31.110.A and 9.31.110.B, 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.