Chapter 19.27 — DENSITY BONUS

This chapter is intended to implement the requirements of Government Code Section 65915 et seq., and the housing element of the general plan.

For purposes of this chapter, the following definitions apply:

"Affordable housing cost" has the definition set forth in California Health and Safety Code Section 50052.5 .

"Affordable rent" has the definition set forth in California Health and Safety Code Section 50053 .

"Child care facility" means a facility other than a family day care home, including, but not limited to, infant centers, preschools, extended day care facilities, and school age childcare centers.

"Common interest development" has the definition set forth in California Civil Code Section 4100 .

"Concession" or "incentive" means any of the following:

1. A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission, as provided in Part 2.5 (the State Building Code commencing with Health and Safety Code Section 18901 ) of Division 13 of the California Health and Safety Code , including, but not limited to, a reduction in setback and square footage requirements, and in the ratio of vehicular parking spaces that would otherwise be required, that results in identifiable and actual cost reductions.

2. Approval of mixed use zoning in conjunction with a housing project, if commercial, office, industrial or other land uses will reduce the cost of a housing development, and if the commercial, office, industrial or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located.

3. Other regulatory incentives or concessions proposed by the applicant or the city and approved by the city that result in identifiable and actual cost reductions.

This definition does not limit or require the provision of direct financial incentives for a housing development, including the provision of publicly owned land, by the city or the waiver of fees or dedication requirements.

"Density bonus" means a density increase over the otherwise maximum allowable residential density under the applicable zoning code provisions and the land use element of the general plan as of the date of application by the applicant to the city.

"Development standard" means the site or construction conditions that apply to a residential development pursuant to any ordinance, general plan element, specific plan, or other city condition, law, policy, resolution or regulation.

"Director" means the director of community development or the director's designee.

"Disabled veteran" has the definition set forth in California Government Code Section 18541 .

"Equivalent size" means that the replacement dwelling units contain at least the same total number of bedrooms as the units being replaced.

"Homeless person" has the definition set forth in 42 U.S.C. Section 11301 et seq.

"Housing development" means a development project for five or more residential units, including mixed-use developments. "Housing development" also includes a subdivision or common interest development, or the substantial rehabilitation of an existing multifamily dwelling where the result of the rehabilitation would be a net increase in the number of residential units.

"Lower income households" has the definition set forth in California Health and Safety Code Section 50079.5 .

"Major transit stop" has the definition set forth in Public Resources Code Section 21155 .

"Maximum allowable residential density" means the density allowed under the zoning code, or if a range of density is permitted, the maximum allowable density for the specific zoning range applicable to the project.

"Moderate income households" has the definition for "persons or families of moderate income" set forth in California Health and Safety Code Section 50093(b) .

"Multifamily dwelling" has the definition set forth in California Government Code Section 65863.4(d) .

"Property containing existing affordable housing" means any property that includes any parcel on which rental dwelling units are or have been: (1) subject to any other form of rent or price control through a public entity's valid exercise of its police power; (2) occupied by lower or very low income households; or (3) subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and households of lower or very low income. Such rental dwelling units include rental dwelling units that have been vacated or demolished in the five-year period preceding the application seeking the density bonus.

"Replace" has the definition set forth in California Government Code Section 65915(c)(3)(B) .

"Senior citizen housing development" has the definition set forth in California Civil Code Section 51.3 .

"Special needs housing development" has the definition set forth in California Health and Safety Code Section 51312 .

"Specific, adverse impact" has the definition set forth in California Government Code Section 6559.5(d)(2) .

"Transitional foster youth" has the definition set forth in California Education Code Section 66025.9 .

"Unobstructed access" means access where a resident is able to travel without encountering natural or constructed impediments, as outlined in California Government Code Section 65915(p)(2) .

"Very low income households" has the definition set forth in California Health and Safety Code Section 50105 .

(Ord. 2019-01 § 1, 2019.)

(A) Application. Any person that desires a density bonus shall make an application on a form approved by the director at the time of submitting an entitlement application for the housing development for which a density bonus is requested. The density bonus provided by this chapter only applies to housing developments consisting of five or more dwelling units.

(B) Incentives and Concessions. When an applicant seeks a density bonus for a housing development or for the donation of land for housing within the city, the city shall provide the applicant incentives or concessions for the production of housing units and childcare facilities as provided in this chapter.

(C) Available Density Bonus Options. The planning commission or city council shall grant one density bonus, the amount of which shall be as specified in Section 19.27.030, and incentives or concessions as described in Section 19.27.020, when 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 this chapter, that shall contain at least one of the following:

(1) Ten percent of the total units of a housing development for lower income households.

(2) Five percent of the total units of a housing development for very low-income households.

(3) A senior citizen housing development.

(4) Ten percent of the total dwelling units in a common interest development for moderate-income households, provided that all units in the housing development are offered to the public for purchase.

(5) Ten percent of the total units of a housing development for transitional foster youth, disabled veterans, or homeless persons to be provided at the same affordability level as very low-income units subject to a recorded affordability

restriction of fifty-five years. As used in this subsection, "total units" or "total dwelling units" does not include units permitted by a density bonus awarded pursuant to this chapter.

(D) Applicant's Election of Basis for Bonus. For purposes of calculating the amount of the density bonus pursuant to Section 19.27.030, the applicant who requests a density bonus pursuant to this section must elect whether the bonus shall be awarded on the basis of paragraph (1), (2), (3), (4) or (5) of subsection C of this section.

(E) Continued Affordability.

(1) Qualified Households. An applicant shall agree that the occupants of the low, very low, and moderate income units that are directly related to the receipt of the density bonus in a housing development or common interest development shall be low, very low, or moderate income households, as applicable.

(2) Term.

(a) An applicant shall agree to set rents at affordable rent levels and to the continued affordability of all rental units that qualified the applicant for the award of the density bonus for a period of fifty-five years or a longer period of time if required by any applicable construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.

(b) All for-sale units shall initially be sold at an affordable housing cost and shall remain subject to a resale affordable housing cost restriction for a period of fifty-five years or a longer period of time if required by any applicable construction or mortgage financing assistance program, mortgage insurance program, or other subsidy program. The applicable resale affordable housing cost restriction period shall reset upon each sale of an affordable unit.

(3) Equity Sharing. The city shall require an equity-sharing agreement for all for-sale units, unless such an agreement would be in conflict with the requirements of another public funding source or law.

(F) Housing Development Involving Property Containing Existing Affordable Housing. An applicant shall be ineligible for a density bonus or any other incentives or concessions under this chapter if the housing development is proposed on any parcel or parcels on which rental dwelling units that:

(1) Have been vacated or demolished in the five-year period preceding the application;

(2) Have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very low income;

(3) Subject to any other form of rent or price control through a public entity's valid exercise of its police power; or

(4) Occupied by lower or very low income households, for a proposed housing development involving a property containing existing affordable housing, unless:

(a) The proposed housing development replaces the existing affordable housing units. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least fifty-five years. If

the proposed development is for-sale units, the units replaced shall be affordable as defined in Section 50052.5 of the Health and Safety Code , and

(b) Either:

(i) The proposed housing development, inclusive of the units replaced, contains affordable units at the percentages set forth in subsection C of this section, or

(ii) Each unit in the development, exclusive of a manager's unit or units, is affordable to, and occupied by, either a lower or very low-income household.

(Ord. 2019-01 § 1, 2019.)

Cross References Section 19.27.020(A)

Section 19.27.020(C)(1)

Section 19.27.025(A) Section 19.27.030(A) Section 19.27.030(B) Section 19.27.030(C) Section 19.27.030(D) Section 19.27.030(E) Section 19.27.035(B) Section 19.27.035(C)(4)

Section 19.27.040(A) Section 19.27.040(B)(1) Section 19.27.040(B)(2) Section 19.27.050(A) Section 19.27.050(B)

Section 19.27.050(F)

The following provisions shall be included in any equity-sharing agreement required under this chapter:

(A) Upon resale, the seller of the unit may retain the value of any improvements, the down payment, and the seller's proportionate share of appreciation. The city shall recapture any initial subsidy and its proportionate share of appreciation, which amount shall be used within five years for any of the purposes that promote home ownership, as described in California Health and Safety Code Section 33334.2(e) .

(B) For purposes of this section, the city's initial subsidy shall be equal to the fair market value of the home at the time of initial sale, minus the initial sale price to the moderate-income household, as applicable, plus the amount of any down payment assistance or mortgage assistance. If upon resale the market value is lower than the initial market value, the value at the time of the resale shall be used as the initial market value.

(C) For purposes of this section, the city's proportionate share of appreciation shall be equal to the ratio of the initial subsidy to the fair market value of the unit at the time of initial sale.

(Ord. 2019-01 § 1, 2019.)

(A) An applicant for a density bonus pursuant to Section 19.27.010 may submit a proposal for the specific incentives or concessions that the applicant requests pursuant to this chapter, and may request a meeting with the director.

(B) Subject to subsection C below, the applicant shall receive the following number of incentives or concessions:

(1) One incentive or concession for projects that include at least ten percent of the total units for lower income households, at least five percent for very low income households, or at least ten percent for moderate income households in a common interest development.

(2) Two incentives or concessions for projects that include at least twenty percent of the total units for lower income households, at least ten percent for very low income households, or at least twenty percent for moderate income households in a common development.

(3) Three incentives or concessions for projects that include at least thirty percent of the total units for lower income households, at least fifteen percent for very low income households, or at least thirty percent for moderate income households in a common interest development.

(C) The planning commission or city council shall grant the concession or incentive requested by the applicant, unless it makes a written finding, based upon substantial evidence, that:

(1) The concession or incentive does not result in identifiable and actual affordable housing cost reductions, or rents for the targeted units will not be set as specified in Section 19.27.010(E);

(2) The concession or incentive would have a specific, adverse impact upon public health and safety, or the physical environment, or on any real property listed in the California Register of Historical Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low and moderate income households; or

(3) The concession or improvement would be contrary to state or federal law.

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(Ord. 2019-01 § 1, 2019.)
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Cross References
Section 19.27.010(C)
Section 19.27.025(A)
Section 19.27.030(H)
Section 19.27.050(F)
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(A) An applicant may submit a proposal to the city and request a meeting with the director to waive or reduce development standards that the applicant believes will physically preclude housing construction that satisfies Section 19.27.010(C) criteria at the densities or with the concessions or incentives permitted by this chapter. Such proposal may not increase the number of incentives or concessions that the applicant is entitled to under Section 19.27.020.

(B) The planning commission or city council shall waive or reduce an applicant's development standard request, unless it makes a written finding, based upon substantial evidence, that:

(1) The waiver or reduction would have a specific, adverse impact upon public health and safety, or the physical environment, or on any real property listed in the California Register of Historical Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact; or

(2) The waiver or reduction would be contrary to state or federal law.

(Ord. 2019-01 § 1, 2019.)

Cross References

Section 19.27.030(H)

(A) The applicant is entitled to a density bonus that varies according to the percentage of affordable housing units that exceed the percentage established in Section 19.27.010(B).

(B) For housing developments meeting the lower income household criteria of Section 19.27.010(C)(1), the density bonus shall be calculated as follows:

Table 19.27.030(B)

Density Bonus for Lower Income Units

(C) For housing developments meeting the very low income criteria of Section 19.27.010(C)(2), the density bonus shall be calculated as follows:

Table 19.27.030(C)

Density Bonus for Very Low Income Units

(D) For housing developments meeting the criteria of Sections 19.27.010(C)(3), and 19.27.010(C)(5), (senior citizen and transitional foster youth, disabled veterans, or homeless persons), the density bonus shall be twenty percent.

(E) For housing developments meeting the common interest development criteria of Section 19.27.010(C)(4), the density bonus shall be calculated as follows:

Table 19.27.030(E)

Density Bonus for Common Interest Development Units

(F) All density calculations resulting in fractional units shall be rounded up to the next whole number.

(G) A density bonus shall not require a general plan amendment, zoning change, other discretionary approval, or study other than those provided under California Government Code Section 65915(j)(1) .

(H) A density bonus shall not require the city to waive any unrelated development standard ordinance, except as provided for in Sections 19.27.020 and 19.27.025.

(Ord. 2019-01 § 1, 2019.)

Cross References

Section 19.27.010(C)

Section 19.27.010(D)

(A) When an applicant for a tentative subdivision map, parcel map, or other residential development donates land to the city, as provided for in this section, the applicant shall be entitled to a fifteen percent increase above the maximum residential density under the applicable zoning and the land use element of the general plan for the entire development, as follows:

Table 19.27.035

Affordable Housing Land Donation

(B) The land dedication density bonus shall be in addition to any increase in density mandated by Section 19.27.010(C), up to a maximum combined density increase of thirty-five percent, if an applicant seeks increases required pursuant to both this section and Section 19.27.010(C).

(1) All density calculations resulting in fractional units shall be rounded up to the next whole number.

(2) Nothing in this section shall be construed to enlarge or diminish the authority of the city to require a developer to

donate land as a condition of development.

(C) An applicant shall be eligible for an increased density bonus described in this section if all of the following conditions are met:

(1) The applicant donates and transfers land no later than the date of approval of the final subdivision map or parcel map or residential development application.

(2) The developable acreage and zoning classification of the transferred land will provide at least ten percent of the residential units in the proposed development to be affordable to very low-income households.

(3) The transferred land is at least one acre or of sufficient size to permit development of at least forty 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.

(a) The land must have appropriate zoning and development standards to make the development of the affordable units feasible.

(b) No later than the final subdivision map, parcel map, or of the residential development approval date, the transferred land must 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 permit, to the extent authorized by California 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 19.27.010(E)(1) and (2), which restriction shall be recorded on the property at the time of the transfer.

(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 such housing developer.

(6) The transferred land must be within the boundary of the proposed development or, if the city agrees, within onequarter mile of the boundary of the proposed development.

(7) A proposed very low-income unit funding source shall be identified no later than the final subdivision map, parcel map, or residential development application approval date.

(Ord. 2019-01 § 1, 2019.)

19.27.040 Additional density bonus or concession or incentive through provision of housing with a child care facility.

(A) When an applicant proposes to construct a housing development that conforms to the requirements of Section

19.27.010(C) and includes a childcare facility located on the premises of, as part of, or adjacent to, the project, the planning commission or city council shall grant either of the following:

(1) An additional residential square footage density bonus equal to or greater than the child care facility square footage; or

(2) An additional concession or incentive that contributes significantly to the economic feasibility of the childcare facility construction.

(B) The planning commission or city council shall require, as a condition of approving the housing development, that the following occur:

(1) The child care facility must remain in operation as long as or longer than the density bonus units affordable term pursuant to Section 19.27.010(E).

(2) Of the children who attend the child care facility, the children of very low income households, lower income households, or moderate income households must 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 moderate income households pursuant to Section 19.27.010(C).

(C) Notwithstanding any requirement of this section, the planning commission or city council is not required to provide a density bonus or concession for a childcare facility if it finds, based upon substantial evidence, that the community has adequate childcare facilities.

(D) Density bonus units do not have to be located in the same geographic area of the housing development.

(E) Granting a concession or incentive shall not in and of itself, require a general plan amendment, zoning change, or other discretionary approval.

(F) Section 9.27.040 does not limit or require the city to provide direct financial incentives for housing development, including the provision of publicly owned land, by the city, county, or city and county, or the waiver of fees or dedication requirements.

Nothing in this chapter shall be construed to prohibit the planning commission or city council from granting a greater density bonus than what is described in this chapter, or from granting a proportionately lower density bonus for developments that do not meet the requirements of this chapter.

(Ord. 2019-01 § 1, 2019.)

(A) An applicant of a development meeting the criteria of Section 19.27.010(C) may request the city not require a vehicular parking ratio, inclusive of handicapped and guest parking, that exceeds the following ratios:

(1) Zero to one bedroom: one on-site parking space.

• (2) Two to three bedrooms: two on-site parking spaces.

• (3) Four and more bedrooms: two and one-half parking spaces.

(B) An applicant of a development project meeting the criteria of Section 19.27.010(C), that is located within one-half mile of a major transit stop, and has unobstructed access to the major transit stop may apply for a vehicular parking ratio, inclusive of handicapped and guest parking, that does not exceed one-half on-site parking space per bedroom.

(C) An applicant of a development project that consists solely of rental units affordable lower income households (exclusive of a manager's unit) may apply for a vehicular parking ratio, inclusive of handicapped and guest parking, that does not exceed one-half on-site parking space per unit, and is either:

(1) Located within one-half mile of a major transit stop, and has unobstructed access to the major transit stop; or

(2) A for-rent housing development for individuals who are sixty-two years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code , and has either paratransit service, or unobstructed access to a fixed bus route service that is within one-half mile and operates at least eight times per day.

(D) An applicant of a special needs rental housing development project affordable to lower income households (exclusive of a manager's unit), may apply for a vehicular parking ratio, inclusive of handicapped and guest parking, that does not exceed one-third on-site parking space per unit, when the development has either paratransit service, or unobstructed access to a fixed bus route service that is within one-half mile and operates at least eight times per day.

(E) 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. For purposes of this section, a development may provide "on-site parking" through tandem parking or uncovered parking, but not through on-street parking.

(F) An applicant that meets the requirements of Section 19.27.010(C) may request additional parking incentives or concessions beyond those provided in this chapter, subject to Section 19.27.020.

(G) Notwithstanding subsections B and C, the city may impose a higher vehicular parking ratio, not to exceed the ratio described in subsection A, based upon substantial evidence found in a parking study prepared at city expense by the city or an independent consultant in the last seven years that includes:

(1) An analysis of parking availability;

• (2) Differing levels of transit access;

(3) Walkability access to transit services;

• (4) The potential for shared parking;

• (5) The effect of parking requirements on the cost of market-rate and subsidized developments; and

(6) The lower rates of car ownership for low- and very low-income individuals, including seniors and special needs individuals.

The city may make findings, based on a parking study completed in conformity with this section, supporting the need for the higher parking ratio.

(Ord. 2019-01 § 1, 2019.)

(A) The applicant may initiate judicial proceedings if the city refuses to grant a requested density bonus, incentive, or concession. If a court finds that the refusal to grant a requested density bonus, incentive, or concession is in violation of this section, the court shall award the plaintiff reasonable attorney's fees and costs of suit. Nothing in this subsection shall be interpreted to require a local government to grant an incentive or concession that has a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5 of the Government Code , upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this subsection shall be interpreted to require a local government to grant an incentive or concession that would have an adverse impact on any real property that is listed in the California Register of Historical Resources.

(B) The city shall bear the burden of proof for the denial of a requested concession or incentive.

(Ord. 2019-01 § 1, 2019.)