§ 17.22

This chapter shall assist implementation of the goals and policies of the housing element of the General Plan and state statutes promoting the provision of affordable housing, including Chapter 4.3 of Division 1 of Title 7 of the Government Code. This chapter implements the foregoing by: (i) offering density bonuses and other incentives to residential projects that incorporate housing that is affordable to very low, low and/or moderate income households, senior citizens and their family members, and transitional foster youth, disabled veterans, and homeless persons; (ii) requiring an in-lieu fee for

nonresidential projects that create excessive demands for new housing, and (iii) requiring an in-lieu fee for residential projects that do not incorporate housing for very low, low and/or moderate income households and/or senior citizens and their family members.

(Ord. No. 2010-265, § 3, 1-27-2010; Ord. No. 2017-346, § 3, 2-8-2017)

17.22.020 - Affordable housing requirements; eligibility for bonus and incentives.

A.

Affordable Housing Requirement. All residential or mixed use development projects proposing five or more housing units shall include housing that is affordable to low, very low and/or moderate income households, in compliance with this section. Housing units provided in compliance with this section that meet the requirements of both this Section 17.22.020(A) and Section 17.22.020(B) shall be eligible for density bonuses and incentives in compliance with Section 17.22.030. At a

minimum, a proposed residential development project shall include the following number of affordable housing units at the stated rental rates or sales prices, or shall provide off-site alternatives in compliance with the provisions of this chapter:

1.

Twenty (20) percent of the total number of units shall be rented or sold at prices affordable to households with an income of up to one hundred ten (110) percent of the county median income; or

2.

Fifteen (15) percent of the total number of units shall be rented or sold at prices affordable to households with an income of up to ninety (90) percent of the county median income; or

3.

Ten (10) percent of the total number of units shall be rented or sold at prices affordable to households with an income of up to seventy-five (75) percent of the county median income; or

4.

Five percent of the total number of units shall be rented or sold at prices affordable to households with an income of up to fifty (50) percent of the county median income.

B.

In order to be eligible for a density bonus and other incentives as provided by this chapter, a proposed residential development project shall:

1.

Consist of five or more dwelling units; and

2.

Provide for the construction of one or more of the following within the development, one of which the permit applicant shall elect as the basis for its request for a density bonus:

a.

Ten (10) percent of the total units of a housing development for low income households, as defined in Health and Safety Code section 50079.5; or

b.

Five percent of the total units of a housing development for very low income households, as defined in Health and Safety Code section 50105; or

c.

A senior citizen housing development as defined in Civil Code sections 51.3 and 51.12, or mobile home park that limits residency based on age requirements for housing for older persons pursuant to Civil Code section 798.76 or 799.5; or

d.

Ten (10) percent of the total dwelling units in a common interest development as defined in Civil Code section 1351, 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; or

e.

Ten percent of the total units of a housing development for transitional foster youth, as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in Section 18541, or homeless persons, as defined in the federal McKinneyVento Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.). The units described in this subparagraph shall be subject to a recorded affordability restriction of 55 years and shall be provided at the same affordability level as very low income units.

3.

Satisfy all other applicable provisions of this development code.

(Ord. No. 2010-265, § 3, 1-27-2010; Ord. No. 2014-310, § 1(Att. A), 2-12-2014; Ord. No. 2017-346, § 3, 2-8-2017) 17.22.025 - AHO site development limits for qualifying projects.

A.

Processing of Projects Seeking Entitlement under AHO.

1.

Permits Required. Any project located within the AHO which includes affordable housing units and which qualifies for review and consideration in accordance with the provisions of the AHO, shall be reviewed and considered in accordance with the standards and procedures for the underlying zone and any other applicable overlay zone. Any such project shall require approval of a site plan review (per 17.62.020 of this title), and all other permits applicable to the project as required under Titles 15 and 17 of this Code.

2.

Criteria for AHO project reviews. In reviewing and analyzing any project for which one or more AHO site development limits are requested in lieu of the corresponding standards specified for the underlying zoning district, staff and reviewing bodies shall confirm that the applicant has agreed to construct the project such that it meets the requirements of this section.

B.

Applicable Development Standards. For a qualifying project on a property located in the AHO, the applicant may submit to the city a proposal which includes affordable housing units at a percentage consistent with the minimum required affordable housing percentages or ratios as specified by the AHO. The applicant may request review and approval of a qualifying project such that the project would benefit from any combination of the following more permissive site development limits: maximum allowable density, maximum allowable building height, maximum allowable floor area ratio, and minimum on-site open space (inclusive of private and community spaces). These AHO site development limits are specified in Table 3-8. The allowable development limits for qualifying AHO projects supersede the corresponding development standards established for the applicable underlying zoning district, with the exception of any requirement imposed by Section 17.16.030. Except as required by Section 17.16.030, in no case may the city apply any other development standard that would have the effect of precluding construction of a qualifying development project meeting the AHO criteria and the AHO site development limits permitted by this chapter, and consistent with the development standards applicable to the underlying zoning district.

Table 3-8: Multifamily and Mixed-use Affordable Housing Projects Site Development Limits

The site development limits below apply to multi-family housing projects and commercial mixed-use projects providing affordable housing units consistent with either the Inclusionary Housing requirements specified in CMC 17.22.020.A, or the Affordable Housing Overlay (AHO) zone, as articulated in CMC Sections 17.18.060 and 17.22.025 for properties within the AHO zone and where the owner/developer elects to apply the AHO. For projects in either category, the standards herein supersede the corresponding standards for the respective underlying zoning district (reference Table 2-5 and Table 2-6).

Findings for Approval. In addition to the project approval findings required by the underlying zoning district, any other applicable overlay zoning district, and all other applicable chapter or section of this development code, approval of a qualifying project for which any AHO site development limits have been requested shall require the following additional findings:

1.

The development project would not be a hazard or public nuisance or establish a use or development inconsistent with the goals and policies of the General Plan; and,

2.

The units will remain subject to a recorded affordability restriction for at least fifty-five (55) years, as required by Government Code Section 65915.

C.

Continued Availability and Affordability. Before issuance of a building permit for any dwelling unit in a development benefitting from any AHO site development limit, as specified within Section 17.22.025.B, above:

1.

The land use permit application for the qualifying AHO project shall include procedures for maintaining continued affordability of all lower income units and any other restricted occupancy units;

2.

The land use permit application shall identify the affordable (income restricted) housing units within the project; and,

3.

The applicant shall enter into a written agreement or covenant with the city to guarantee the continued affordability of all such lower income and restricted occupancy AHO units, consistent with the requirements of California Government Code

Section 65915, which requires units to be subject to a recorded affordability restriction of fifty-five (55) years.

D.

Recordation of Agreement. The terms and conditions of the covenant set forth in subsection D.3, above, shall run with the land which is to be developed, shall be binding upon the successor(s)-in-interest of the permit applicant, shall be recorded in the county recorder's office, shall last for fifty-five (55) years from the date of the certificate of occupancy for each unit, and shall be approved as to form by the city attorney as compliance with applicable state and local law.

E.

Qualifying projects under this section, and consistent with Section 17.18.060, shall be given the highest priority for application processing.

(Ord. No. 2021-395, § 4, 10-13-2021)

As required by Government Code Section 65915, this section offers density bonuses, incentives, concessions, and waivers, as applicable, to permit applicants for providing housing that is affordable to the types of households and qualifying residents identified in subsection (A) of this section. A housing or mixed-use development that satisfies all applicable provisions of this section shall be entitled to one density bonus and one or more incentives or concessions, described below. If the density bonus, incentives, or concessions cannot be accommodated on a site due to strict compliance with the provisions of this development code, the council shall waive or modify development standards, to the extent required by state law, to accommodate the bonus units, incentives, or concessions to which the development would be entitled, unless such waiver or modification does not result in identifiable and actual cost reductions to provide for affordable housing costs or would have a specific, adverse impact, as defined in Government Code Section 65589.5(d)(2), upon public health, safety, or the physical environment, and for which there is no feasible method to mitigate or avoid the specific adverse impact. In offering these incentives, this section carries out the requirements of Government Code Sections 65302, 65913, and 65915, et seq.

A.

Density Bonus. The density bonus granted to a residential development project shall consist of an increase over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the General Plan as of the date of application. The applicant may elect to accept a lesser percentage of a density bonus. The amount of density bonus to which the applicant is entitled shall vary according to the amount and type of affordable housing units provided, and shall be set at the amount specified in Government Code Section 65915. The city will also grant a density bonus for qualifying projects containing affordable housing provided by partnership between a commercial developer and an affordable housing developer, as required by Government Code Section 65915.7.

B.

Additional Density Bonus. When an applicant for a tentative subdivision map, parcel map, or other residential development approval donates developable land to the city as provided for in Government Code Section 65915, the applicant shall be entitled to an increase above the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the General Plan for the entire development, as required and at the amounts set by Government Code Section 65915. This increase is in addition to any density bonus provided by subsection (A)(2) of this section, up to a maximum combined density increase of thirty-five (35) percent.

C.

Incentives and Concessions, Number. In addition to reduced off-street parking requirements, as provided in Government Code 65915, an eligible project shall receive at least one and as many as four incentives or concessions as follows:

One incentive or concession for a project that includes at least ten (10) percent of the total units for lower income households, at least five percent for very low income households, or at least ten (10) percent for persons and families of moderate income in a common interest development;

2.

Two incentives or concessions for a project that includes at least seventeen (17) percent of the total units for lower income households, at least ten (10) percent for very low income households, or at least twenty (20) percent for persons and families of moderate income in a common interest development;

3.

Three incentives or concessions for a project that includes at least twenty-four (24) percent of the total units for lower income households, at least fifteen (15) percent for very low income households, or at least thirty (30) percent for persons and families of moderate income in a common interest development; and

4.

Four incentives or concessions for a project that includes at least eighty (80) percent of the total units for very low income or low income households.

D.

Incentives and Concessions, Description. A project that is eligible to receive incentives pursuant to subsection (C) above shall be entitled to at least one of the following incentives identified in Government Code Section 65915(I):

1.

A reduction in the site development standards (as defined by Government Code Section 65915 Subsection (o)(1)) or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission.

2.

Approval of mixed-use zoning in conjunction with the housing project if nonresidential land uses would reduce the cost of the housing project, and the nonresidential land uses would be compatible with the housing project and adjoining development.

3.

Other regulatory incentives or concessions proposed by the permit applicant or the city that would result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set at the applicable affordability levels.

Nothing in this section shall be construed to require the city to provide, or limit the city's ability to provide, direct financial incentives for housing development, including the provision of publicly owned land by the city or the waiver of fees and dedication requirements.

E.

Limitations and Exceptions.

1.

In order to receive incentives or concessions as described in subsections (C) and (D), an applicant must submit a proposal to the city requesting the specific incentives or concessions that the applicant desires. The applicant must file an application for a density bonus, on the form provided by the Community Development Director and with the attachments required by that form, which is part of and must be filed with the application for the development project itself. The applicant must provide reasonable documentation to establish eligibility for a requested density bonus, incentives or concessions, and/or waivers or

reductions of development standards and parking ratios, including information demonstrating that the requested incentives, concessions, or waivers will result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set at the applicable affordability levels. The application for a density bonus is part of the application for the development project itself, as such the application for a density bonus may not be deemed complete until the application for the housing or mixed use development is deemed complete.

2.

The city shall grant the incentives or concessions requested by the permit applicant pursuant to subsection (E)(1) and required pursuant to subsection (C), unless the city makes a written finding, based upon substantial evidence, of either of the following:

a.

The incentive or concession will not result in identifiable and actual cost reductions 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 at the applicable affordability levels; 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 that is 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-income and moderate income households.

3.

The city's granting of an incentive, concession, or density bonus shall not require or be interpreted, in and of itself, to require a General Plan amendment, zoning change, or other discretionary approval.

4.

Nothing in this section shall be interpreted to require the city to waive or reduce development standards or to grant an incentive or concession that would violate applicable state or federal law or have a specific, adverse impact upon public health, safety or the physical environment for which there is no feasible method of mitigating or avoiding the specific adverse impact; nor shall this subsection require the city to waive or reduce development standards or to grant an incentive that would have an adverse impact on any real property that is listed in the California Register of Historical Resources.

F.

Continued Availability and Affordability. Before the issuance of a building permit for any dwelling unit in a development for which density bonus units have been awarded or incentives or concessions have been received, the land use permit application for the residential project shall include the procedures proposed by the permit applicant to maintain the continued affordability of all lower income and restricted occupancy density bonus units, and the permit applicant shall identify the restricted units and enter into a written covenant with the city to guarantee the continued affordability of all lower income and restricted occupancy density bonus units as required by Government Code section 65915.

G.

Recordation of Agreement. The terms and conditions of the covenant set forth in subsection (F) shall run with the land which is to be developed, shall be binding upon the successor(s)-in-interest of the permit applicant, shall be recorded in the county recorder's office, and shall be approved as to form by the city attorney as compliance with applicable state law.

H.

Processing of Bonus Request.

1.

Permit Required. Requests for affordable units shall require approval of a building permit, together with all other permits required by this Code, in compliance with the requirements of this development code which shall be reviewed and recommended by the commission, and approved by the council.

2.

Criteria to Be Considered. Criteria to be considered in analyzing a requested density bonus shall include whether the applicant has agreed to construct a development that meets the requirements of Section 17.22.020. Criteria to be considered in analyzing a requested incentive or concession shall include whether the applicant has provided information demonstrating that the requested incentives, concessions, or waivers will result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to

be set at the applicable affordability levels and whether an incentive or concession has a specific adverse impact upon health, safety or the physical environment, and whether there is no feasible method to eliminate or mitigate such specific adverse impact.

3.

Findings for Approval. In addition to the findings required for the approval of a building permit in compliance with the requirements of this development code, the approval of a density bonus shall require the following additional findings to be made:

a.

The development project would not be a hazard or public nuisance or establish a use or development inconsistent with the goals and policies of the General Plan;

b.

Adequate evidence exists to ensure that the development of the property would result in the provision of affordable housing in a manner consistent with the purpose and intent of this chapter, including information demonstrating that the requested incentives, concessions, or waivers will result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set at the applicable affordability levels and that the provision of any requested incentives, concessions, or waivers will not violate applicable state or federal law, not have a specific, adverse impact upon public health, safety or the physical environment for which there is no feasible method of mitigating or avoiding the specific adverse impact, and will not have an adverse impact on any real property that is listed in the California Register of Historical Resources;

c.

In the event that the city does not grant at least one financial concession or incentive as defined in Government Code Section 65915 in addition to the density bonus, that additional concessions or incentives will not result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set at the applicable affordability levels; and

d.

There are sufficient provisions to guarantee that the units will remain affordable in the future.

4.

Development Standards. In no case may the city apply any development standard that would have the effect of precluding the construction of a development meeting the criteria of Section 17.22.020(B) at the densities or with the incentives or concessions permitted by this chapter. An applicant may submit to the city a proposal for the waiver or reduction of development standards. The applicant must show that the waiver or modification is necessary to not physical preclude the

construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted under this chapter.

I.

Appeal. In accordance with Chapter 17.74, appeals of commission actions on the granting of density bonuses in compliance with this chapter will be heard by the council. Additionally, an applicant may initiate judicial proceedings if the city refuses to grant a requested density bonus, incentive, or modification or waiver of a development standard. If a court finds that the refusal to grant a requested density bonus, incentive, or modification or waiver of a development standard is in violation of this chapter or Government Code Section 65915, the court shall award the plaintiff reasonable attorney's fees and costs of suit. Nothing in this section shall be interpreted to require the city to waive or reduce development standards or to grant an incentive that would have a specific, adverse impact upon public health, safety or the physical environment for which there is no feasible method of mitigating or avoiding the specific adverse impact; nor shall this subsection require the city to waive or reduce development standards or to grant an incentive that would have a specific adverse impact on any real property that is listed in the California Register of Historical Resources.

(Ord. No. 2010-265, § 3, 1-27-2010; Ord. No. 2017-346, § 5, 2-8-2017; Ord. No. 2021-392, § 3, 3-24-2021)

The location of affordable units within the qualifying project shall be at the discretion of the city with the goal to integrate the units into the overall project. The city has determined that, to the extent feasible, projects that provide housing units for very low, low and moderate income households should be designed to locate the units as follows:

A.

The number of assisted housing units in any project, except for those designed for the elderly or disabled, should not exceed forty (40) percent of the total number of units in the project;

B.

Assisted housing should be located within reasonable proximity to public facilities, including convenient shopping, public schools, park and recreation facilities, transportation services, and employment centers; and

C.

Assisted units, except those for the elderly, should be distributed throughout the project site, and not grouped together in a single area.

D.

To the extent that subsections (A) through (C) are not feasible, or circumstances arise in which the public interest would be served by allowing some or all of the affordable units associated with one housing development to be produced and operated at an alternative development site, such a site may be utilized. Under these circumstances, the resulting linked developments shall be considered a single housing development for purposes of this chapter, and the permit applicant shall be subject to the same requirements of this chapter for the affordable units to be provided on the alternative site. Where the director determines that on-site provision of affordable housing is not feasible, the review authority may approve one or more of the alternatives listed below (or other alternatives determined by the review authority to be equally effective). Any approved alternatives shall be carried out under a development agreement (Chapter 17.68) between the applicant and the city for covering the entire project.

1.

New Construction of Affordable Housing. An applicant may construct a number of new affordable units off-site equal to the number that would otherwise have been required on-site.

New Construction of Special Needs Housing. An applicant may construct new units off-site that are specifically designed to meet the needs of an identified special needs population. This housing may include emergency shelters, special care homes, employee housing, senior housing and hospices. Each unit created under this alternative shall satisfy the requirement for two affordable units as required by subsection (A)(1) of this section.

3.

Conversion of Market Rate Housing. An applicant may convert market rate housing to affordable housing through a "buy down" mechanism, and establishing restrictive covenants or similar protection of the affordability of the converted units.

4.

Rehabilitation of Existing Housing Stock. An applicant may rehabilitate structures that currently do not comply with Title 15 of this Code, and have been deemed uninhabitable by the city. Housing appropriate for rehabilitation need not be price restricted, and must be determined by the review authority to be affordable based on its age and/or condition.

5.

Preservation of Existing Affordable Housing. An applicant may extend the lifetime of an existing restrictive covenant on affordable units that have been identified by the city as being "at risk" of conversion to market rate housing within a five-year period.

6.

Payment of In-Lieu Fee. An applicant may pay an in-lieu fee as set by council resolution. The fee shall be deposited in a designated fund to be used for the preservation and development of affordable housing.

7.

Timing of Fee Payment. Where a fee is required, the fee shall be paid prior to issuance of building permits.

E.

Commercial Projects. A commercial, office or manufacturing/industrial development that introduces new workers into the community and thereby creates a need for more new housing than is available within a five-mile radius of the site, shall either, as determined to be appropriate by the director:

1.

Design the development as a mixed-use project, providing housing affordable to employees within the project site; or

2.

Pay to the city the housing impact fee established by the council, which will be placed into a housing trust fund administered as provided by the General Plan and council resolution.

(Ord. No. 2010-265, § 3, 1-27-2010)