Chapter 17.32
DENSITY BONUSES
Sections:
17.32.020 Eligibility for bonus, incentives or concessions.
17.32.030 Allowed density bonuses.
17.32.040 Allowed incentives or concessions.
17.32.050 Parking requirements in density bonus projects.
17.32.060 Bonus and incentives for housing with childcare facilities.
17.32.070 Continued availability.
17.32.080 Location and type of designated units.
17.32.090 Processing of bonus requests.
17.32.100 Density bonus agreement.
17.32.120 Judicial relief, waiver of standards.
17.32.010 Purpose.
State density bonus law (SDBL) and the city of Cotati density bonus ordinance (DBO) allow developers to build more residential units than the maximum allowable density in order to incentivize the construction of housing affordable to very low income, low income, moderate income, senior, and other qualifying households. As required by California Government Code Section 65915 et seq., 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 therein. This chapter is intended to implement the requirements of California Government Code Section 65915 et seq. (including as modified from time to time), and the housing element of the Cotati general plan, with regards to density bonus requirements. (Ord. 928 § 5, 2024; Ord. 766 § 2 Exh. A (part), 2004).
17.32.020 Eligibility for bonus, incentives or concessions.
SDBL requires that “concessions, incentives and waivers” be granted to qualifying projects in addition to a density bonus. The city shall grant one density bonus, as specified in California Government Code Section 65915 et seq., the amount of which shall be based on the proposed number and affordability levels of the base units. If requested by the applicant and consistent with the applicable requirements, incentives, concessions, waivers, reductions of development standards, and parking ratios or other modification to city development criteria necessary to facilitate the construction of the affordable housing units shall be granted to density bonus projects, as required.
A. Resident Requirements. The housing development shall be designed and constructed so that specific percentages of deed-restricted affordable housing units are incorporated into the design and construction of the project.
B. Density bonus units granted in compliance with this chapter shall not be included when determining the number of housing units that is equal to the percentages of below market rate units required.
C. 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.
D. Condominium Conversion Projects. A condominium conversion project for which a density bonus is requested shall comply with the eligibility and other requirements identified in California Government Code.
E. The units described in this section are subject to a recorded affordability restriction of fifty-five years. (Ord. 928 § 5, 2024; Ord. 854 § 2 (part), 2015; Ord. 766 § 2 Exh. A (part), 2004).
17.32.030 Allowed density bonuses.
The amount of a density bonus allowed in a housing development shall be determined by state density bonus and other applicable housing law.
A. Density Bonus. A housing project that complies with the eligibility requirements identified in California Government Code shall be entitled to density bonuses as identified therein.
B. Bonus for Condominium. A density bonus for a condominium project that complies with the eligibility requirements of California Government Code and of this chapter shall be eligible for density bonus in keeping with the requirements and criteria therein.
C. Senior Housing Density Bonus. For housing developments meeting the criteria of state density bonus law specific to senior housing developments, the city shall grant a density bonus increasing the number of senior housing units as required therein.
D. Mixed Use Density Bonus. For mixed use projects meeting the mixed use development criteria and objective design standards (ODS) adopted by the city, the city council, at its sole discretion, may grant up to one hundred percent residential density bonus to facilitate and support the development of commercial elements within a mixed use or commercial zoning district.
E. Greater or Lesser Bonuses. The city may choose to grant a density bonus greater than provided by this section and state density bonus law 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 and/or the requirements and allowances of state density bonus law.
1. When an applicant for approval of a commercial development has entered into an agreement for partnered housing to contribute affordable housing through a joint project or two separate projects encompassing affordable housing, the city shall grant to the commercial developer a development bonus as prescribed in state Government Code governing allowed incentives or concessions.
F. Density Bonus Calculations. The calculation of a density bonus 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.
G. 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 change, or other discretionary approval.
H. 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, in keeping with the requirements and allowances of state density bonus law. (Ord. 928 § 5, 2024; Ord. 918 § 7, 2023; Ord. 854 § 2 (part), 2015; Ord. 766 § 2 Exh. A (part), 2004).
17.32.040 Allowed incentives or concessions.
A. If requested by the applicant and consistent with the applicable requirements, the city shall grant incentives or concessions, waivers or reductions of development standards, and parking ratios if an applicant for a housing development seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded, pursuant to state Government Code and based on the proposed affordability levels and percentage of project units. The council shall not be required to grant an incentive or concession request if 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 state Health and Safety Code, or for rents for the targeted units to be set as specified in affordability categories as defined in state housing law; or
2. The incentive or concession would have a specific adverse impact, as defined in Government Code, 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 number of incentives or concessions as required under state density bonus law.
C. 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 land use code (e.g., site coverage limitations, setbacks, reduced parcel sizes, and/or parking requirements, or 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 result in identifiable, financially sufficient, and actual cost reductions;
2. Approval of mixed use zoning not otherwise allowed by this land use 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 developer or the city that will result in identifiable, financially sufficient, and actual cost reductions; 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.
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. (Ord. 928 § 5, 2024; Ord. 854 § 2 (part), 2015; Ord. 766 § 2 Exh. A (part), 2004).
17.32.050 Parking requirements in density bonus projects.
A. Applicability. This section applies to a development that meets the requirements of state density bonus law, but only at the request of the applicant. An applicant may request additional parking incentives or concessions beyond those provided in state density bonus law in compliance with the allowed incentives or concessions of this chapter and applicable state legislation.
B. 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. Location of Parking. For purposes of this section, a development may provide on-site parking through tandem parking or uncovered parking, but not through on-street parking. (Ord. 928 § 5, 2024; Ord. 918 § 11, 2023; Ord. 766 § 2 Exh. A (part), 2004).
17.32.060 Bonus and incentives for housing with childcare facilities.
A housing development that complies with the resident and project size requirements of this chapter, and also includes as part of that development a childcare 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 childcare 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 childcare facility; or
2. An additional incentive that contributes significantly to the economic feasibility of the construction of the childcare 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 childcare 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 17.32.070 (Continued availability); and
2. Of the children who attend the childcare facility, the parents of very low income households, lower income households, or families of moderate income shall be offered a discount equal to the percentage of reduced rent offered to them as residents of affordable housing units that are required for very low income households, lower income households, or families of moderate income in compliance with this chapter.
The city shall not be required to provide a density bonus for a childcare facility in compliance with this section if it finds, based upon substantial evidence, that the community has adequate childcare facilities. (Ord. 928 § 5, 2024; Ord. 766 § 2 Exh. A (part), 2004).
17.32.070 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, Low, and Moderate Income Units. The continued availability of lower, low, and moderate income qualifying units shall be maintained for fifty-five years, or a longer time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.
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. Thirty percent of eighty percent of the area median income, for units targeted for lower income households, as defined in Health and Safety Code; and
2. Very Low Income Units. Thirty percent of fifty percent of the area median income, for units targeted for very low income households, as defined in state Health and Safety Code; and
3. Moderate Income Units. Thirty percent of one hundred and twenty percent of the area median income for units targeted for moderate income households, as defined in state Health and Safety Code. (Ord. 928 § 5, 2024; Ord. 766 § 2 Exh. A (part), 2004).
17.32.080 Location and type of designated units.
A. Location/Dispersal of Units. As required by the council in compliance with this chapter, 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 finished quality.
B. Phasing. If a project is to be phased, the density bonus units shall be phased in the same proportion as the non-density bonus units or phased in another sequence acceptable to the city. (Ord. 928 § 5, 2024; Ord. 766 § 2 Exh. A (part), 2004).
17.32.090 Processing of bonus requests.
A. Permit Requirement. A request for a density bonus and other incentives shall be evaluated and decided in compliance with this title and state density bonus law.
B. Findings for Approval. In addition to the findings required by state density bonus law, the city shall make all of the following additional findings:
1. The residential development will be consistent with the general plan, except as provided by density bonus law, 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 state density bonus law; and
4. There are sufficient provisions to guarantee that the units will remain affordable for the required fifty-five-year time period. (Ord. 928 § 5, 2024; Ord. 766 § 2 Exh. A (part), 2004).
17.32.100 Density bonus agreement.
A. Agreement Required. An applicant requesting a density bonus shall agree to enter into a density bonus and affordability agreement (“agreement”) with the city in the city’s standard form of agreement.
B. Agreement Provisions.
1. Project Information. The density bonus 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 groups to be accommodated by the housing development, and the standards and methodology for determining the corresponding affordable rent or affordable sales price and housing cost consistent with HUD guidelines, as required;
c. The marketing plan for the affordable units, using the city’s preferred entity and/or land trust nonprofit entity for for-sale units;
d. The location, approximate unit sizes (square feet), and number of bedrooms of the designated dwelling units;
e. Tenure of the cost restrictions for designated dwelling units of the time periods required by Section 17.32.070 (Continued availability);
f. A schedule for completion and occupancy of the designated dwelling units;
g. A description of any additional incentives being provided by the city;
h. A description of the remedies for breach of the density bonus agreement by the owners, developers, and/or successors-in-interest of the project; and
i. Other provisions to ensure successful implementation and compliance with this chapter.
2. Minimum Requirements. The density bonus 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 the written approval of the city;
c. When providing the written approval, the city shall confirm that the price (rent or sale) of the designated dwelling unit is consistent with the limits established for moderate, low and very low income households, as applicable and published by HUD (where required);
d. 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;
e. 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;
f. In any action taken to enforce compliance with deed restrictions, the city attorney shall, if compliance is ordered by a court of competent jurisdiction, take all action that may be allowed by law to recover all of the city’s costs of action including legal services; and
g. Compliance with the agreement will be monitored and enforced according to measures included in the agreement.
3. For-Sale Housing Conditions. In the case of for-sale housing developments, the density bonus and/or affordability 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, and/or by qualified residents in the case of senior housing; and
b. That the city’s preferred method of managing and administering for-sale affordable housing units is via the use of a land-trust based not for profit organization who takes primary responsibility for administering the marketing, management, sale and future transfer of below-market rate units within the city;
c. The initial purchaser of each designated dwelling unit shall execute an instrument or agreement approved by the city which:
i. Restricts the sale of the unit in compliance with this chapter during the applicable use restriction period,
ii. Contains provisions as the city may require to ensure continued compliance with this chapter and state law, and
iii. Shall be recorded against the parcel containing the designated dwelling unit.
4. Rental Housing Conditions. In the case of a rental housing development, the density bonus agreement shall provide for the following conditions governing the use of designated dwelling units during the use restriction period:
a. The rules and procedures for qualifying tenants, establishing affordable rent, filling vacancies, and maintaining the designated dwelling units for qualified tenants;
b. Provisions requiring owners to annually verify tenant incomes and maintain books and records to demonstrate compliance with this chapter;
c. Provisions requiring owners to submit an annual report to the city, which includes the name, address, and income of each person occupying the designated dwelling units, and which identifies the bedroom count and monthly rent or cost of each unit; and
d. The applicable use restriction period shall comply with the time limits for continued availability in Section 17.32.070 (Continued availability).
C. Execution of Agreement.
1. Following council approval of the density bonus 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 or prior to the final map or, where a map is not being processed, before issuance of building permits for the units.
3. The agreement shall be binding to all future owners, developers, and/or successors-in-interest. (Ord. 928 § 5, 2024; Ord. 766 § 2 Exh. A (part), 2004).
17.32.110 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. The price received by the seller of an affordable unit shall be limited to an amount consistent with an increase in the purchase price based on the percentage of the appreciation in the Area Median Income for Sonoma County as published by the California Department of Housing and Community Development (HCD) for the applicable affordability level since the date of purchase, or the fair market value, whichever is less. Prior to 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 of the community development department.
B. 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 days from the date of the notice of intent to sell is delivered to the city by the first purchaser or subsequent purchasers (unless reduced by the city). 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 by the city according to the requirements of 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. 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 provided by the city, stating the restrictions imposed in compliance with this section. The grant deed shall afford the grantor and the city (or its designee) 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. The city shall monitor the resale of ownership affordable units. The city or its designee shall have a ninety-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. (Ord. 928 § 5, 2024; Ord. 766 § 2 Exh. A (part), 2004).
17.32.120 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, the city will not apply a development standard that will have the effect of precluding the construction of a development meeting the criteria of Section 17.32.020(A) at the densities or with the concessions or incentives permitted by this chapter and/or state density bonus law.
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, placement of public works improvements, or other standards allowed under state density bonus law.
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 A and B of this section, 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 applicable Government Code sections, 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. (Ord. 928 § 5, 2024; Ord. 766 § 2 Exh. A (part), 2004).