Chapter 9.26
AFFORDABLE HOUSING INCENTIVES: DENSITY BONUS
Sections:
9.26.020 Eligibility for bonus, incentives, or concessions.
9.26.030 Allowed density bonuses.
9.26.040 Allowed incentives or concessions.
9.26.050 Parking requirements in density bonus projects.
9.26.060 Bonus and incentives for developments with child care facilities.
9.26.070 Continued availability.
9.26.080 Location and type of designated units.
9.26.090 Processing of bonus requests.
9.26.100 Density bonus agreement.
9.26.010 Purpose of chapter.
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 9.26.020 (Eligibility for bonus, incentives, or concessions). This chapter is intended to implement the requirements of Government Code Section 65915 et seq., and the Housing Element of the General Plan. As used in this chapter and when otherwise required by Government Code Section 65915 et seq., “housing development” means a development project for five (5) or more residential units, including a mixed-use development, that meets the requirements of Government Code Section 65915(i). (§ 2, Ord. 14-13, eff. October 8, 2014; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.020 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 shall satisfy all other applicable provisions of this Development Code, except as provided by Section 9.26.040 (Allowed incentives or concessions).
A. Resident requirements. A housing development proposed to qualify for a density bonus shall be designed and constructed so that it includes at least one of the following:
1. Ten percent (10%) of the total number of proposed predensity bonus, base units are for lower-income households, as defined in Health and Safety Code Section 50079.5;
2. Five percent (5%) of the total number of proposed predensity bonus, base units are for very low-income households, as defined in Health and Safety Code Section 50105;
3. The project is a senior citizen housing development as defined in Civil Code Sections 51.3 and 51.12, or is a mobile home park that limits residency based on age requirements for housing older persons in compliance with Civil Code Sections 798.76 and 799.5;
4. Ten percent (10%) of the total number of proposed predensity bonus, base units in a common interest development as defined in Civil Code Section 4100 are for persons and families of moderate income, as defined in Health and Safety Code Section 50093; provided, that all units in the development are offered to the public for purchase;
5. Ten percent (10%) of the total number of proposed predensity bonus, base units of housing for transitional foster youth, as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in Section 18541 of the Government Code, or homeless persons, as defined in the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Section 11301 et seq.), where such units are subject to a recorded affordability restriction of fifty-five (55) years and provided at the same affordability level as very low income units;
6. Twenty percent (20%) of the total number of proposed predensity bonus, base units are for lower income students and made available at an affordable rent in an exclusively student housing development, as specified in Government Code Section 65915(b)(1)(F), where such units are subject to a recorded affordability restriction of fifty-five (55) years and priority is given to students experiencing homelessness; or
7. One hundred percent (100%) of all units in the development, including total units and density bonus units, but exclusive of a manager’s unit or units, are for lower income households, as defined by Health and Safety Code Section 50079.5, except that up to twenty percent (20%) of the units in the development, including total units and density bonus units, may be for moderate-income households, as defined in Health and Safety Code Section 50053.
B. Applicant selection of basis for bonus. For purposes of calculating the amount of the density bonus in compliance with Section 9.26.030 (Allowed density bonuses), the applicant who requests a density bonus shall elect whether the bonus shall be awarded on the basis of subsection (A)(1), (2), (3), (4), (5), (6), or (7) of this section. A preliminary application submitted pursuant to Section 9.50.055, or a final application if no preliminary application is submitted, shall include the number of bonus units requested pursuant to this section.
C. Bonus units not included in calculation. Except as provided in subsection (A)(7) of this section, a density bonus granted in compliance with Section 9.26.030 (Allowed density bonuses) shall not be included when determining the number of housing units that is equal to the percentages required by subsection A of this section.
D. 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 (5) or more dwelling units.
E. 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.
F. Existing Units; Replacement. When a proposed project affects existing units and/or any other circumstances identified in Government Code Section 65915(c)(3) apply, a proposed development must replace the affected units and comply with all other requirements of Government Code Section 65915(c)(3), as specified, in order to be eligible for a density bonus or other incentives or concessions. (§ 2, Ord. 14-13, eff. October 8, 2014; § 2 (Att. C), Ord. 19-05, eff. May 8, 2019; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.030 Allowed density bonuses.
The Director shall determine the amount of a density bonus allowed in a housing development in compliance with this section. For the purposes of this chapter, “density bonus” means a density increase over the otherwise maximum allowable residential density under the applicable Land Use Plan designation and zoning district as of the date of preliminary or final application by the applicant to the City.
A. Density bonus. A housing development that complies with the eligibility requirements in Section 9.26.020(A)(1), (2), (3), (4), (5), (6), or (7) shall be entitled to density bonuses as follows, unless a lesser percentage is proposed by the applicant:
1. Bonus for units for lower-income households. A housing development that is eligible for a bonus in compliance with the criteria in Section 9.26.020(A)(1) (ten percent (10%) of units for lower-income households) shall be entitled to a density bonus calculated as follows:
|
Percentage of Low-Income Units Proposed |
Percentage of 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 |
|
21 |
38.75 |
|
22 |
42.5 |
|
23 |
46.25 |
|
24 |
50 |
2. Bonus for units for very low-income households. A housing development that is eligible for a bonus in compliance with the criteria in Section 9.26.020(A)(2) (five percent (5%) of units for very low-income households) shall be entitled to a density bonus calculated as follows:
|
Percentage of Very Low-Income Units Proposed |
Percentage of Density Bonus |
|---|---|
|
5 |
20 |
|
6 |
22.5 |
|
7 |
25 |
|
8 |
27.5 |
|
9 |
30 |
|
10 |
32.5 |
|
11 |
35 |
|
12 |
38.75 |
|
13 |
42.5 |
|
14 |
46.25 |
|
15 |
50 |
3. Bonus for senior citizen development. A housing development that is eligible for a bonus in compliance with the criteria in Section 9.26.020(A)(3) (senior citizen development or mobile home park) shall be entitled to a density bonus of twenty percent (20%) of the number of senior housing units.
4. Bonus for moderate-income units in common interest development. A housing development that is eligible for a bonus in compliance with the criteria in Section 9.26.020(A)(4) (ten percent (10%) of units in a common interest development for persons and families of moderate income) shall be entitled to a density bonus calculated as follows:
|
Percentage of Moderate-Income Units Proposed |
Percentage of |
|---|---|
|
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 |
|
41 |
38.75 |
|
42 |
42.5 |
|
43 |
46.25 |
|
44 |
50 |
5. Bonus for transitional foster youth, disabled veterans, or homeless persons development. A housing development that is eligible for a bonus in compliance with the criteria in Section 9.26.020(A)(5) (transitional foster youth, disabled veterans, or homeless persons) shall be entitled to a density bonus of twenty percent (20%) of the units of the type giving rise to a density bonus.
6. Bonus for lower income students in a student housing development. A housing development that is eligible for a bonus in compliance with the criteria in Section 9.26.020(A)(6) (lower income students in student housing) shall be entitled to a density bonus of thirty-five percent (35%) of the student housing units.
7. Bonus for units for lower-income and moderate-income households. A housing development that is eligible for a bonus in compliance with the criteria in Section 9.26.020(A)(7) (lower-income and moderate-income households) shall be entitled to a density bonus of eighty percent (80%) of the number of units of lower income households.
a. If the housing development described in this subsection (A)(7) is located within one-half (1/2) mile of a major transit stop, there shall be no maximum controls on density. “Major transit stop” means a site containing an existing rail or bus rapid transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two (2) or more major bus routes with a frequency of service interval of fifteen (15) minutes or less during the morning and afternoon peak commute periods, and also includes major transit stops that are included in the applicable regional transportation plan.
b. A housing development that receives a waiver from maximum controls on density shall only be eligible for a waiver or reduction of a height increase of up to three (3) additional stories, or thirty-three feet (33'), as expressly provided in Section 9.26.040(C)(4).
8. 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 to a density bonus for the entire development, 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 fifteen percent (15%) increase above the otherwise maximum allowable residential density under the applicable Land Use Plan designation and zoning district for the entire development, and an additional increase as follows:
|
Percentage of Very Low-Income Units Proposed |
Percentage of Density Bonus |
|---|---|
|
10 |
15 |
|
11 |
16 |
|
12 |
17 |
|
13 |
18 |
|
14 |
19 |
|
15 |
20 |
|
16 |
21 |
|
17 |
22 |
|
18 |
23 |
|
19 |
24 |
|
20 |
25 |
|
21 |
26 |
|
22 |
27 |
|
23 |
28 |
|
24 |
29 |
|
25 |
30 |
|
26 |
31 |
|
27 |
32 |
|
28 |
33 |
|
29 |
34 |
|
30 |
35 |
b. Increased bonus. The increase identified in the table above shall be in addition to any increase in density required by subsections (A)(1) through (7) of this section up to a maximum combined mandated density increase of thirty-five percent (35%) if an applicant seeks both the increase required in compliance with this subsection (A)(8), as well as the bonuses provided by subsections (A)(1) through (7) of this section.
c. Eligibility for increased 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 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 ten percent (10%) of the number of residential units of the proposed development.
(3) The transferred land is at least one acre in size, or of sufficient size to permit development of at least forty (40) units; has the appropriate Land Use 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.
(4) No later than the date of approval of the final 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 City 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 before the time of transfer.
(5) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with Section 9.26.070 (Continued availability), which shall be recorded on the property at the time of dedication.
(6) 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 approved housing developer.
(7) The transferred land shall be within the boundary of the proposed development or, if the City agrees, within one-quarter (1/4) 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 fully comply with the requirements of this section. The applicant may elect a lesser percentage of density increase than what is provided in this section.
C. Density bonus calculations. The calculation of a density bonus in compliance with this section 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, Zoning Map amendment, or other discretionary approval.
E. Location of bonus units. The developer may locate density bonus units in the housing project in other than the areas where the units for the lower-income households are located. (§ 2, Ord. 14-13, eff. October 8, 2014; § 2 (Att. C), Ord. 19-05, eff. May 8, 2019; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.040 Allowed incentives or concessions.
A. Applicant request and City approval.
1. An applicant for a density bonus in compliance with this chapter may submit to the City a proposal for the specific incentives or concessions listed in subsection D of this section (Type of incentives) that the applicant requests in compliance with this section, and may request a meeting with the Director. The applicant may file a request either before filing a final application for City approval of a proposed project or concurrently with a final application for project approval. A preliminary application submitted pursuant to Section 9.50.060, or a final application if a preliminary application is not submitted, shall include any incentives, concessions, waivers, or parking reductions requested pursuant to this section.
2. The Director shall grant an incentive or concession request that complies with this section unless the Director makes either of the following findings in writing, based upon substantial evidence:
a. 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 9.26.070(B) (Unit cost requirements); or
b. 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. 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 physically precluding the construction of a development meeting the criteria of Section 9.26.020(A) (Resident requirements), at the densities or with the concessions or incentives allowed by this chapter.
2. An applicant may submit to the City a proposal for the waiver or reduction of development and zoning standards that will have the effect of physically precluding the construction of a development meeting the criteria of Section 9.26.020(A) (Resident requirements), at the densities or with the concessions or incentives allowed by this chapter on a specific site, including minimum parcel size, side setbacks, and placement of public works improvements. The proposal must identify the specific waiver(s), concession(s), or incentive(s) sought and demonstrate that the request satisfies the requirements of Government Code Section 65915(e).
3. Nothing in this subsection shall be interpreted to require the City to waive or reduce development standards that would have an adverse impact upon health, safety, or the physical environment, for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, or upon any real property that is listed in the California Register of Historical Resources, or to grant any waiver or reduction that would be contrary to state or federal law.
C. Number of incentives. The applicant shall receive the following number of incentives or concessions:
1. One incentive or concession. One incentive or concession for a project that includes at least ten percent (10%) of the total units for lower-income households, at least five percent (5%) for very low-income households, or at least ten percent (10%) for persons and families of moderate income in a common interest development.
2. Two (2) incentives or concessions. Two (2) incentives or concessions for a project that includes at least seventeen percent (17%) of the total units for lower-income households, at least ten percent (10%) for very low-income households, or at least twenty percent (20%) for persons and families of moderate income in a common interest development.
3. Three (3) incentives or concessions. Three (3) incentives or concessions for a project that includes at least twenty-four percent (24%) of the total units for lower-income households, at least fifteen percent (15%) for very low-income households, or at least thirty percent (30%) for persons and families of moderate income in a common interest development.
4. Four (4) incentives or concessions. Four (4) incentives or concessions for projects where one hundred percent (100%) of all units in the development, including total units and density bonus units, but exclusive of a manager’s unit or units, are for lower income households, as defined by Health and Safety Code Section 50079.5, except that up to twenty percent (20%) of all units in the development, including total units and density bonus units, but exclusive of a manager’s unit or units, may be for moderate-income households, as defined in Health and Safety Code Section 50053.
a. If the housing development described in this subsection (C)(4) is located within one-half (1/2) mile of a major transit stop, the applicant shall also receive a height increase of up to three (3) additional stories, or thirty-three feet (33'). “Major transit stop” means a site containing an existing rail or bus rapid transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two (2) or more major bus routes with a frequency of service interval of fifteen (15) minutes or less during the morning and afternoon peak commute periods, and also includes major transit stops that are included in the applicable regional transportation plan.
D. Type of incentives. For the purposes of this chapter, concession or incentive means any of the following:
1. A reduction in the site development standards of this Development Code (e.g., site coverage limitations, setbacks, reduced parcel sizes, and/or parking requirements (see also Section 9.26.050 (Parking requirements in density bonus projects)), or a modification of architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission in compliance with Health and Safety Code Section 18901 et seq., that would otherwise be required, that results in identifiable, financially sufficient, and actual cost reductions to provide for affordable housing costs and/or rents;
2. Approval of mixed use land uses not otherwise allowed by this Development Code in conjunction with the housing development, if nonresidential land uses will reduce the cost of the housing development, and the nonresidential land uses are compatible with the housing project and the existing or planned development in the area where the project will be located;
3. Other regulatory incentives proposed by the applicant or the City that will result in identifiable, financially sufficient, and actual cost reductions to provide for affordable housing costs and/or rents; and/or
4. In its sole and absolute discretion, a direct financial contribution granted by the Council, including writing down land costs, subsidizing the cost of construction, or participating in the cost of infrastructure.
E. 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 Map amendment, or other discretionary approval.
F. Exceptions. Notwithstanding the provisions of this chapter, 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.
2. Grant a density bonus, incentive, or concession, or waive or reduce development standards, if the bonus, incentive, concession, waiver, or reduction would have an adverse impact on any real property that is listed in the California Register of Historical Resources.
3. Grant a density bonus, incentive, or concession, or waive or reduce development standards, if the bonus, incentive, concession, waiver, or reduction would be contrary to state or federal law. (§ 2, Ord. 14-13, eff. October 8, 2014; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.050 Parking requirements in density bonus projects.
A. Applicability. This section applies to a development that meets the requirements of Section 9.26.020 (Eligibility for bonus, incentives, or concessions) but only at the request of the applicant. An applicant may request additional parking incentives or concessions beyond those provided in this section in compliance with Section 9.26.040 (Allowed incentives or concessions).
B. Number of parking spaces required.
1. At the request of the applicant, the City shall require the following vehicular parking ratios for a project that complies with the requirements of Section 9.26.020 (Eligibility for bonus, incentives, or concessions), inclusive of handicapped and guest parking:
a. Zero (0) to one bedroom: One on-site parking space.
b. Two (2) to three (3) bedrooms: One and one-half (1 1/2) on-site parking spaces.
c. Four (4) and more bedrooms: Two and one-half (2 1/2) on-site parking spaces.
2. If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number.
C. Adjustments to parking requirements.
1. If the development includes at least twenty percent (20%) low-income units or at least eleven percent (11%) very low-income units, and the development is located within one-half (1/2) mile of a major transit stop, as defined in Section 21155 of the Public Resources Code, and there is unobstructed access to the major transit stop from the development, the parking ratio, inclusive of handicapped and guest parking, shall not exceed one-half (1/2) spaces per unit.
2. At the request of the applicant, if the development consists solely of rental units, exclusive of a manager’s unit or units, with an affordable housing cost to lower income families, as provided in Section 50052.5 of the Health and Safety Code, no vehicular parking standards will apply:
a. If the development is located within one-half (1/2) mile of a major transit stop, as defined in Section 21155 of the Public Resources Code, and there is unobstructed access to the major transit stop from the development.
b. If the development is a for-rent housing development for individuals who are sixty-two (62) years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code and the development has either paratransit service or unobstructed access, within one-half (1/2) mile, to fixed bus route service that operates at least eight (8) times per day.
c. If the development is either a special needs housing development, as defined in Health and Safety Code Section 51312, or a supportive housing development, as defined in Health and Safety Code Section 50675.14, and the development has either paratransit service or unobstructed access, within one-half (1/2) mile, to fixed bus route service that operates at least eight (8) times per day.
D. Location of parking. For purposes of this section, a development may provide on-site parking through uncovered parking, but not through on-street parking.
E. Religious Institution Affiliated Housing Development Projects. The requirements of Government Code Section 65913.6 shall apply to any “religious institution affiliated housing development project,” as defined, that proposes to eliminate parking as part of the housing development project. Except as specifically required by Government Code Section 65913.6, all other applicable provisions of this section and this chapter shall apply to the proposed housing development project. (§ 2, Ord. 14-13, eff. October 8, 2014; § 2 (Att. C), Ord. 19-05, eff. May 8, 2019; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.060 Bonus and incentives for developments with child care facilities.
A. Housing developments. A housing development that complies with the resident and project size requirements of Sections 9.26.020(A) and (D), and also includes as part of that development a 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.
1. 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:
a. 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
b. An additional incentive that contributes significantly to the economic feasibility of the construction of the child care facility.
2. Requirements to qualify for additional bonus and incentives.
a. 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 9.26.070 (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 9.26.020(A) (Resident requirements).
b. 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.
B. Commercial and industrial developments. A developer of a commercial or industrial development project, containing at least fifty thousand (50,000) square feet of floor area, may be granted a density bonus when that developer agrees to set aside at least two thousand (2,000) square feet of interior floor area and three thousand (3,000) outdoor square footage to be used for a child care facility, other than a large or small family day care home, in compliance with Government Code Section 65917.5 (Commercial density bonus).
1. Allowable density bonuses. The allowable density bonus may be one of the following:
a. A maximum of five (5) square feet of floor area for each one square foot of floor area contained in the child care facility located in an existing child care facility; or
b. A maximum of ten (10) square feet of floor area for each one square foot of floor area contained in the child care facility located in a new child care facility.
2. Requirements to qualify for the additional density bonus shall include all of the following:
a. For purposes of calculating the allowable density bonus under this subsection, both the total area contained within the exterior walls of the child care facility and all outdoor areas devoted to the use of the facility in compliance with applicable State child care licensing requirements shall be considered.
b. The child care facility shall be of a sufficient size to comply with all applicable State licensing requirements in order to accommodate at least forty (40) children.
c. This facility may be located either on the project site or may be located off site as agreed upon by the developer and the City.
d. If the child care facility is not located on the site of the development project, the City shall determine whether the location of the child care facility is appropriate and whether it complies with the purpose and intent of this section.
e. The granting of a density bonus shall not preclude the City from imposing necessary conditions on the development project or on the additional square footage in compliance with Government Code Section 65917.5 (Commercial density bonus). (§ 2, Ord. 14-13, eff. October 8, 2014; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.070 Continued availability.
The units that qualified the housing development for a density bonus and other incentives and concessions shall continue to be available as affordable units in compliance with the following requirements, as required by Government Code Section 65915(c). See also Section 9.26.110 (Control of resale).
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. Low- and very low-income units. The continued affordability of all low- and very low-income qualifying units shall be maintained for fifty-five (55) years, or a longer time if required by the construction or mortgage financing assistance program, mortgage insurance program, rental subsidy program, or by City policy or ordinance.
2. Moderate-income units in common interest development. The continued availability of moderate-income units in a common interest development shall be maintained for a minimum of ten (10) years, or a longer time if required by City policy or ordinance.
B. Unit cost requirements. The rents and owner-occupied costs 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. Rental units. Rents for the lower-income density bonus units shall be set at an affordable rent as defined in Health and Safety Code Section 50053.
a. For housing developments specified in Section 9.26.020(A)(7), rents for all units in the development, including both base density and density bonus units, shall be as follows:
i. The rent for at least twenty percent (20%) of the units in the development shall be set at an affordable rent, as defined in Health and Safety Code Section 50053.
ii. The rent for the remaining units in the development shall be set at an amount consistent with the maximum rent levels for a housing development that receives an allocation of state or federal low-income housing tax credits from the California Tax Credit Allocation Committee.
2. Owner-occupied units. Owner-occupied units shall be available at an affordable housing cost as defined in Health and Safety Code Section 50052.5. (§ 2, Ord. 14-13, eff. October 8, 2014; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.080 Location and type of designated units.
A. Location/dispersal of units. As required by the Director in compliance with Section 9.26.090 (Processing of bonus requests), designated units shall be reasonably dispersed throughout the project where feasible, shall contain on average the same number of bedrooms as the nondesignated units in the project, and shall be compatible with the design or use of remaining units in terms of appearance, materials, and finish quality.
B. Phasing. If a project is to be phased, the density bonus units shall be phased in the same proportion as the nondensity bonus units, or phased in another sequence acceptable to the City. (§ 2, Ord. 14-13, eff. October 8, 2014; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.090 Processing of bonus requests.
A. Permit requirement. A request for a density bonus and other incentives and concessions shall be evaluated and decided through the density bonus request processing procedures. In addition to the requirements of the density bonus request processing procedures, the following procedures shall also apply for the processing of applications requesting a density bonus to determine eligibility:
1. Density bonus eligibility. Once a final application has been deemed complete, the applicant shall be informed in writing of the amount of density bonus allowed as calculated by Section 9.26.030;
2. Density bonus parking ratio. If a modified parking ratio is requested by the applicant pursuant to Government Code Section 65915 as part of the density bonus, the applicant shall be notified of the applicable parking ratio(s) as required by Section 9.26.050; and
3. Incentives, concessions, or waivers eligibility. If incentives, concessions, and/or waivers are requested by the applicant pursuant to Government Code Section 65915, and outlined in Section 9.26.040, the applicant shall be notified of whether the application contains the adequate information necessary for the Department to make a determination as to those incentives, concessions, or waivers or reductions of development standards.
B. Findings for approval. In addition to the density bonus request processing procedures, the approval of a density bonus and other incentives and concessions shall require that the review authority first make all of the following additional findings:
1. The residential development will be consistent with the General Plan and any applicable specific plan, except as provided by this chapter for density bonuses, and other incentives and concessions;
2. The approved number of dwellings can be accommodated by existing and planned infrastructure capacities;
3. Adequate evidence exists to indicate that the project will provide affordable housing in a manner consistent with the purpose and intent of this chapter; and
4. There are sufficient provisions to guarantee that the units will remain affordable for the required time period. (§ 2, Ord. 14-13, eff. October 8, 2014; § 2 (Att. C), Ord. 19-05, eff. May 8, 2019; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.100 Density bonus agreement.
A. Agreement required. An applicant requesting a density bonus shall agree to enter into a density bonus agreement (referred to as the “agreement”) with the City in the City’s standard form of agreement.
B. Agreement provisions.
1. Project information. The agreement shall include at least the following information about the project:
a. The total number of units approved for the housing development, including the number of designated dwelling units;
b. A description of the household income group to be accommodated by the housing development;
c. Duration of the use restrictions for designated dwelling units of the time periods required by Section 9.26.070 (Continued availability);
d. A schedule for completion and occupancy of the designated dwelling units;
e. A description of the additional incentives and concessions being provided by the City;
f. A description of the remedies for breach of the agreement by the owners, developers, and/or successors-in-interest of the project; and
g. Other provisions to ensure successful implementation and compliance with this chapter.
2. Minimum requirements. The agreement shall provide, at minimum, that:
a. The developer shall give the City the continuing right-of-first-refusal to lease or purchase any or all of the designated dwelling units at the appraised value;
b. The deeds to the designated dwelling units shall contain a covenant stating that the developer or successors-in-interest shall not assign, lease, rent, sell, sublet, or otherwise transfer any interests for designated units without written notice to the City;
c. The City shall have the authority to enter into other agreements with the developer, or purchasers of the designated dwelling units, to ensure that the required dwelling units are continuously occupied by eligible households;
d. Applicable deed restrictions, in a form satisfactory to the City Attorney, shall contain provisions for the enforcement of owner or developer compliance. Any default or failure to comply may result in foreclosure, specific performance, or withdrawal of the certificate of occupancy;
e. In any action taken to enforce compliance with the 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; and
f. Compliance with the agreement will be monitored and enforced in compliance with the measures included in the agreement.
3. For-sale housing conditions. In the case of a for-sale housing development, the agreement shall provide for the following conditions governing the initial sale and use of designated dwelling units during the applicable restriction period:
a. Designated dwelling units shall be owner-occupied by eligible households, or by qualified residents; and
b. The initial purchaser of each designated dwelling unit shall execute an instrument or agreement which:
(1) Restricts the sale of the unit in compliance with this chapter, or other applicable City policy or ordinance, during the applicable use restriction period;
(2) Contains provisions as the City may require to ensure continued compliance with this chapter and State law; and
(3) Shall be recorded against the parcel containing the designated dwelling unit.
c. The agreement shall include an equity sharing provision, as required by Government Code Section 65915(c).
4. Rental housing conditions. In the case of a rental housing development, the agreement shall provide for the following conditions governing the use of designated dwelling units during the applicable restriction period:
a. The tenant qualifications, affordable rent category(ies), and designating dwelling units for qualified tenants;
b. Provisions requiring owners to maintain books and records to demonstrate compliance with this chapter;
c. Provisions requiring owners to submit an annual report to the City demonstrating compliance with this chapter; and
d. The applicable use restriction period shall comply with the time limits for continued availability in Section 9.26.070 (Continued availability).
C. Execution of agreement.
1. Following approval of the agreement, and execution of the agreement by all parties, the City shall record the completed agreement on the parcels designated for the construction of designated dwelling units, at the County Recorder’s Office.
2. The approval and recordation shall take place at the same time as the final map or, where a map is not being processed, before issuance of building permits for the designated dwelling units.
3. The agreement shall be binding on all future owners, developers, and/or successors-in-interest. (§ 2, Ord. 14-13, eff. October 8, 2014; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.110 Control of resale.
In order to maintain the availability of for-sale affordable housing units constructed in compliance with this chapter, the following resale conditions shall apply.
A. Limits on resale price. The price received by the seller of an affordable unit shall be limited to the purchase price plus an increase based on the local consumer price index, an amount consistent with the increase in the median income since the date of purchase, or the fair market value, whichever is less. Before offering an affordable housing unit for sale, the seller shall provide written notice to the City of their intent to sell. The notice shall be provided by certified mail to the Director.
B. Units to be offered to the City. Home ownership affordable units constructed, offered for sale, or sold under the requirements of this section shall be offered to the City or its assignee for a period of at least ninety (90) days from the date the notice of intent to sell is delivered to the City by the first purchaser or subsequent purchasers. Home ownership affordable units shall be sold and resold from the date of the original sale only to households determined to be eligible for affordable units in compliance with this section. The seller shall not levy or charge any additional fees nor shall any “finder’s fee” or other monetary consideration be allowed other than customary real estate commissions and closing costs.
C. Declaration of restrictions. The owners of any affordable unit shall attach and legally reference in the grant deed conveying title of the affordable ownership unit a declaration of restrictions stating the restrictions imposed in compliance with this section. The grant deed shall afford the grantor and the City the right to enforce the declaration of restrictions. The declaration of restrictions shall include all applicable resale controls, occupancy restrictions, and prohibitions required by this section.
D. City to monitor resale of units. The City may monitor the resale of ownership affordable units. The City or its designee shall have a ninety (90) day option to commence purchase of ownership affordable units after the owner gives notification of intent to sell. Any abuse in the resale provisions shall be referred to the City for appropriate action. (§ 2, Ord. 14-13, eff. October 8, 2014; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)
9.26.120 Judicial relief.
A. Judicial relief. As provided by Government Code Section 65915(d)(3), the applicant may initiate judicial proceedings if the City refuses to grant a requested density bonus, incentive, or concession. (§ 2, Ord. 14-13, eff. October 8, 2014; § 1 (Att. A), Ord. 21-06, eff. December 1, 2021)