Contra Costa County Municipal Code Ch. 822-4 Inclusionary Housing

This chapter is known and may be cited as the Contra Costa County inclusionary housing ordinance.

(Ord. 2006-43 § 2).

The purpose of this chapter is to facilitate the development and availability of housing affordable to a broad range of households with varying income levels within the county. It is intended in part to implement state policy declaring that local governments have a responsibility to exercise their powers to facilitate the development of housing necessary to adequately provide for the housing needs of all economic segments of the community. The goal of this chapter is to ensure that affordable housing units are added to the county's housing stock in proportion to the increase in new housing units in the county, in accordance with Goal 3 of the housing element of the county general plan.

(Ord. 2006-43 § 2).

For purposes of this chapter, the following terms have the following meanings:

(a) "Affordable rent" means a rent, including a reasonable utility allowance as determined by the conservation and development director or designee, for a rental inclusionary unit that does not exceed the following calculations pursuant to Health and Safety Code Section 50053:

(1) For extremely low income households, the product of thirty percent times thirty percent of the area median income adjusted for family size appropriate for the unit.

(2) For very low income households, the product of thirty percent times fifty percent of the area median income adjusted for family size appropriate for the unit.

(3) For lower income households with gross incomes that exceed the maximum income for very low income households, the product of thirty percent times sixty percent of the area median income adjusted for family size appropriate for the unit.

(4) For moderate income households, the product of thirty percent times one hundred ten percent of the area median income adjusted for family size appropriate for the unit.

(b) "Affordable sales price" means a sales price at which very low, lower, or moderate income households can afford to purchase an inclusionary unit. An affordable sales price is determined using the housing affordability calculator published annually by the state department of housing and community development. An affordable sales price includes a reasonable down payment and results in an affordable housing cost, as described in California Code of Regulations, Title 25, Section 6920, that does not exceed the following calculations pursuant to Health and Safety Code Section 50052.5:

(1) For extremely low income households, the product of thirty percent times thirty percent of the area median income adjusted for family size appropriate for the unit.

(2) For very low income households, the product of thirty percent times fifty percent of the area median income adjusted for family size appropriate for the unit.

(3) For lower income households with gross incomes that exceed the maximum income for very low income households, the product of thirty percent times seventy percent of the area median income adjusted for family size appropriate for the unit.

(4) For moderate income households, the product of thirty-five percent times one hundred ten percent of the area median income adjusted for family size appropriate for the unit.

(c) "Area median income" means the median gross yearly income, adjusted for household size, for households in Contra Costa County as published and periodically updated by the state department of housing and community development pursuant to Health and Safety Code Section 50093(c).

(d) "Assumed household size" means a household of one person in a studio apartment, two persons in a one bedroom unit, three persons in a two bedroom unit, and one additional person for each additional bedroom thereafter.

(e) "Developer" means any person or combination of persons that seeks county approvals for all or part of a residential development.

(f) "Dwelling unit" means a building of portion thereof that is designed, intended, or used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household. For purposes of this chapter, "dwelling unit" does not include an accessory dwelling unit.

(g) "Extremely low income household" means a household whose income does not exceed the extremely low income limits applicable to Contra Costa County, adjusted for household size, as published and periodically updated by the state department of housing and community development pursuant to Health and Safety Code Section 50106.

(h) "For-sale unit" means a single-family detached dwelling unit or a dwelling unit in a multifamily residential development that will be offered for sale, not for rent.

(i) "Inclusionary housing agreement" means a legally binding agreement between a developer and the county setting forth the provisions necessary to ensure that the requirements of this chapter are satisfied.

(j) "Inclusionary unit" means a rental unit that is required to be rented at an affordable rent or a for-sale unit that is required to be sold at an affordable sales price to the households specified in Section 822-4.402.

(k) "Lower income household" means a household whose income does not exceed the lower income limits applicable to Contra Costa County, adjusted for household size, as published and periodically updated by the state department of housing and community development pursuant to Health and Safety Code Section 50079.5.

(l) "Market rate unit" means a dwelling unit whose sales price or rent is not restricted under this chapter.

(m) "Moderate income household" means a household whose income does not exceed the moderate income limits applicable to Contra Costa County, adjusted for household size, as published and periodically updated by the state department of housing and community development pursuant to Health and Safety Code Section 50093.

(n) "Rental unit" means a single-family detached dwelling unit or a dwelling unit in a multifamily residential development that will be offered for rent, not for sale.

(o) "Residential development" means any development project that includes the construction of one or more dwelling units, including, but not limited to, exclusively residential projects and mixed-use projects. "Residential development" also includes any condominium conversion pursuant to Division 926 of this code.

(p) "Very low income household" means a household whose income does not exceed the very low income limits applicable to Contra Costa County adjusted for household size, as published and periodically updated by the state department of housing and community development pursuant to Health and Safety Code Section 50105.

(Ord. No. 2022-07 § II, 2-1-22; Ord. 2006-43 § 2).

This chapter applies to all residential developments in the unincorporated area of the county, except those that are exempt under Section 822-4.408.

(Ord. 2006-43 § 2).

Article 822-4.4. Requirements

(a) In a residential development of five through one hundred twenty-five rental units, at least fifteen percent of the rental units shall be developed and rented as inclusionary units under the terms and conditions of Section 822-4.410(a). At least twenty percent of the inclusionary units shall be rented at an affordable rent to very low income households, and the remaining inclusionary units shall be rented at an affordable rent to lower income households. As an alternative to providing some or all of the inclusionary units required by this subsection, an in-lieu fee may be paid pursuant to Section 822-4.404.

(b) In a residential development of five through one hundred twenty-five for-sale units, at least fifteen percent of the for-sale units shall be developed and sold as inclusionary units under the terms and conditions of Section 822-4.410(b). At least twenty percent of the inclusionary units shall be sold at an affordable sales price to lower income households, and the remaining inclusionary units shall be sold at an affordable sales price to moderate income households. As an alternative to providing some or all of the inclusionary units required by this subsection, an in-lieu fee may be paid pursuant to Section 822-4.404.

(c) In a residential development of one hundred twenty-six or more rental units, at least fifteen percent of the rental units shall be developed and rented as inclusionary units under the terms and conditions of Section 822-4.410(a). At least twenty percent of the inclusionary units shall be rented at an affordable rent to very low income households, and the remaining inclusionary units shall be rented at an affordable rent to lower income households.

(d) In a residential development of one hundred twenty-six or more for-sale units, at least fifteen percent of the for-sale units shall be developed and sold as inclusionary units under the terms and conditions of Section 822-4.410(b). At least twenty percent of the inclusionary units shall be sold at an affordable sales price to lower income households, and the remaining inclusionary units shall be sold at an affordable sales price to moderate income households.

(e) Affordable rents will be determined annually by the county. Affordable sales prices will be estimated annually by the county. The county will provide a developer with the exact affordable sales price at least ninety days before the developer markets the unit.

(f) If the calculation of the required number of inclusionary units results in a fraction of a whole number, a partial in-lieu fee shall be paid in accordance with Section 822-4.404 for the fraction of the unit. The amount of the partial in-lieu fee shall be a percentage of the in-lieu fee for a single unit, with the percentage equal to the fraction of the whole number.

(g) The calculation of the number of inclusionary units required by this chapter shall be made without including as part of the calculation any housing units authorized by a density bonus granted pursuant to this chapter or Chapter 822-2.

(Ord. 2006-43 § 2).

(a) The amount of a fee that is paid in lieu of some or all inclusionary units will be established by the board of supervisors in the department of conservation and development's fee schedule.

(b) Fee amounts in the fee schedule for for-sale units will be calculated as the difference between the affordable sales price for a targeted household and the median price, as determined by the county, of all single-family home sales in the county within the previous twelve months.

(c) Fee amounts in the fee schedule for rental units will be calculated as the difference over a fifty-five-year period between the average annual rent, as determined by the county, of a two-bedroom, one-and-a-half-bathroom apartment in the county and the annual affordable rent for a targeted household.

(d) Fee amounts in the fee schedule will be calculated annually.

(e) All fee revenues will be deposited in a restricted fund earmarked to provide housing opportunities for extremely low, very low, lower, and moderate income households.

(f) Funds will be appropriated for expenditures authorized by law that make housing units affordable to extremely low, very low, lower, and moderate income households and for costs associated with administering the restricted fund.

(g) In-lieu fees are non-refundable and shall be paid before the first building permit is issued for any portion of the residential development.

(Ord. No. 2022-07 § III, 2-1-22; Ord. 2006-43 § 2).

A developer may submit a proposal for complying with this chapter by proposing one or more of the following compliance alternatives:

(a) Off-Site Development. Some or all of the required inclusionary units may be constructed off-site, or an existing off-site development may be acquired and rehabilitated to provide some or all of the required inclusionary units, if the county determines that the combination of location, unit size, unit type, pricing, and timing of availability of the proposed off-site inclusionary units would provide equivalent or greater benefit than would result from providing those inclusionary units on-site, or if the county determines that on-site construction of those inclusionary units would be infeasible. Any off-site inclusionary units must be constructed or rehabilitated prior to or concurrently with construction of the on-site residential development. The off-site development location must be appropriately zoned and all required entitlements issued for the off-site development alternative before building permits are issued for the on-site residential development. The off-site development location should be within a reasonable geographic distance of the on-site residential development, such as within the same school district or identified community, unless otherwise directed by the board of supervisors.

(b) Land Conveyance. The developer may convey title to land in fee simple absolute to an affordable housing developer if all of the following requirements have been met:

(1) The affordable housing developer has been approved by the county.

(2) The land is at a location in the county where the county permits residential use at a density that will result in the same or greater number of inclusionary units than would be produced by providing the units on-site.

(3) The land is suitable for construction of inclusionary units in a manner that complies with this chapter. The land must be suitable from the perspective of size, configuration, physical characteristics, physical and environmental constraints, access, location, adjacent use, and other relevant planning criteria.

(4) The land is served with the infrastructure necessary for residential development at that location, including sewer, utilities, water, streets and sidewalks.

(5) The developer must submit a Phase I environmental report before the land can be considered for conveyance.

(c) The county may accept any combination of on-site construction, off-site construction, in-lieu fees and land conveyance, or any other feasible alternative, that in the county's determination would provide equivalent or greater benefit than that which would result from providing on-site inclusionary units.

(d) Two or more developers of separate residential developments required to comply with this chapter may propose to meet their combined then-existing obligations under this chapter by doing any of the following:

(1) Providing the total number of inclusionary units required of all developers at one residential development;

(2) Crediting inclusionary units in excess of the number required at one residential development toward the number of inclusionary units required at another residential development;

(3) Jointly providing a combination of feasible alternatives consistent with subsection (c) of this section.

Two or more developers may proceed under this subsection only if the county determines the proposal would result in equivalent or greater benefit than the benefit resulting from providing on-site inclusionary units at separate residential developments. When two or more developers propose to proceed under this subsection, each developer must submit an inclusionary housing plan pursuant to Section 822-4.414 and enter into or amend an inclusionary housing agreement pursuant to Section 822-4.416.

(Ord. 2006-43 § 2).

(a) The following residential developments are exempt from the requirements of this chapter:

(1) Residential developments of one through four dwelling units.

(2) The reconstruction of any dwelling units that were destroyed by fire, flood, earthquake, or other act of nature, provided the square footage, number of units, and use of the units remain the same and the use is resumed within six months of the interruption.

(3) Residential developments that obtain one of the following before November 23, 2006:

(A) A discretionary approval.

(B) A building permit.

(4) A community care facility as defined in Health and Safety Code Section 1502.

(5) Residential developments that are exempt from the requirements of this chapter pursuant to State law, including, but not limited to, the following:

(A) Residential developments that obtain a vesting tentative map before the effective date of the ordinance codified in this chapter, provided the vesting tentative map has not expired.

(B) Residential developments where the application for a tentative map has been deemed complete by the county before the effective date of the ordinance codified in this chapter.

(b) A residential development that is located in or proposed for a former county redevelopment area is exempt from the provisions of this chapter, if the development is subject to a successor agency disposition and development agreement, owner participation agreement, acquisition agreement or other written agreement that requires affordable housing to be produced in the development, or if the development is subject to a condition of approval requiring affordable housing to be provided in the former county redevelopment area.

(Ord. No. 2022-07 § IV, 2-1-22; Ord. 2006-43 § 2).

(a) Rental Inclusionary Unit Restriction. The monthly rent for a rental inclusionary unit shall remain reserved for the targeted households at the applicable affordable rent for a period of fifty-five years.

(b) For-Sale Inclusionary Unit Restrictions.

(1) The initial sale of a for-sale inclusionary unit shall occur only to a household that meets all of the following:

(A) The household's annual income does not exceed the maximum income limits applicable to the targeted household for the inclusionary unit.

(B) The household has not owned a residence within the previous three years.

(C) The household has no more than two hundred fifty thousand dollars in assets. This amount excludes assets reserved for a down payment and closing costs, assets in retirement savings accounts, and assets in medical savings accounts.

(2) The initial purchaser of a for-sale inclusionary unit must agree to occupy the dwelling unit as the principal residence for at least three years, unless an emergency requires the earlier sale of the unit.

(3) A for-sale inclusionary unit may be sold after the initial sale to an above-moderate income purchaser and at a market price, provided that the sale results in a recapture by the county of a financial interest in the unit equal to the sum of:

(A) The difference between the initial affordable sales price and the appraised market value of the unit at the time of the initial sale; and

(B) The county's proportionate share of any appreciation since the time of the initial sale. Appreciation is the difference between the resale price to the above-moderate income purchaser and the appraised market value at the time of the initial sale. The county's proportionate share of appreciation is equal to the percentage by which the initial affordable sales price was less than the appraised market value at the time of the initial sale.

(4) All recaptured amounts under subsection (3) will be deposited in a restricted fund established pursuant to Section 822-4.404.

(Ord. No. 2022-07 § V, 2-1-22; Ord. 2006-43 § 2).

(a) Inclusionary units must be dispersed throughout the residential development and have access to all on-site amenities that are available to market rate units.

(b) The construction quality and exterior design of inclusionary units must be comparable to the market rate units. However, an inclusionary unit may:

(1) Be smaller in size by up to ten percent when compared to the average size of market rate units in the development that have the same number of bedrooms as the inclusionary unit.

(2) Be developed on smaller lots of up to ten percent when compared to the average lot size of market rate units in the development that have the same number of bedrooms as the inclusionary unit.

(3) Have alternative interior finishes that reduce interior construction costs by up to five percent when compared to the average interior construction cost of market rate units in the development that have the same number of bedrooms as the inclusionary unit.

(c) The average number of bedrooms for all inclusionary units must be equivalent to the average number of bedrooms for market rate units within the same residential development.

(d) All inclusionary units must be constructed and occupied prior to or concurrently with the market rate units within the same residential development. For phased residential developments, the inclusionary units may be constructed and occupied in proportion to the number of dwelling units in each phase of the project.

(Ord. No. 2022-07, § VI, 2-1-22; Ord. 2006-43 § 2).

(a) Concurrently with a developer's first application for a discretionary approval for a residential development, the developer shall submit to the Department of Conservation and Development an inclusionary housing plan for review.

(b) An inclusionary housing plan must include all of the following information:

(1) A brief description of the residential development, including the number of market rate units and inclusionary units proposed, and the basis for the calculation of the number of units.

(2) The unit mix, location, structure type, and size (including number of bedrooms) of the market rate and inclusionary units. A site plan depicting the location of the inclusionary units must be provided.

(3) The targeted household income levels of the inclusionary units.

(4) For a phased project, a phasing plan that provides for the timely development of the inclusionary units as the residential development is built out.

(5) Any proposed density bonus and a description of any incentives requested of the county.

(6) If the developer intends to satisfy the inclusionary unit requirement by payment of an in-lieu fee, a statement to that effect, and a calculation of the total in-lieu fee payment required.

(7) If an alternative compliance method is proposed, information sufficient to allow the county to determine either that on-site construction of inclusionary units is infeasible or that an alternative method of compliance could provide equivalent or greater benefit than would result from providing those inclusionary units on-site.

(c) The department of conservation and development will accept as complete or reject as incomplete the inclusionary housing plan within thirty days of receiving the proposed inclusionary housing plan.

(d) An application for a discretionary approval of the residential development will not be deemed complete for processing until after the inclusionary housing plan has been accepted as complete. Preliminary approval of the inclusionary housing plan is required prior to any discretionary approval of the residential development.

(e) The conservation and development director will approve the inclusionary housing plan if the plan complies with the requirements of this chapter. If the director denies the inclusionary housing plan, the director will notify the developer in writing of the reasons for denial. Approval of the inclusionary housing plan is required prior to any discretionary approval of the residential development.

(Ord. No. 2022-07 § VII, 2-1-22; Ord. 2006-43 § 2).

(a) All developers whose projects are not exempt under Section 822-4.408 shall enter into an inclusionary housing agreement with the county, except where the requirements of this chapter are satisfied by payment of an in-lieu fee. The agreement must be in a form provided by the department of conservation and development.

(b) All inclusionary housing agreements will include, at a minimum, the following information:

(1) The number of for-sale units and rental units.

(2) The number, size, location, and square footage of inclusionary units.

(3) Provisions for determining the market value and sales price or rental price of the inclusionary units.

(4) Incentives, if any.

(5) Provisions and documents for enforcing the restrictions established by Section 822-4.410, including deed restrictions in a form acceptable to the county.

(6) Provisions for determining income eligibility and monitoring the ongoing affordability of inclusionary units.

(7) Provisions for enforcing the construction and occupancy standards specified in Section 822-4.412(d). These provisions may include withholding approval of permits for any structure or property located within the residential development.

(8) If an alternative compliance method has been proposed, provisions for implementation and enforcement of that method, consistent with Section 822-4.406.

(9) Provisions requiring annual compliance reporting to the department of conservation and development during the term of the inclusionary housing agreement.

(c) The inclusionary housing agreement must be executed before the approval of the final map or the issuance of the first building permit for any portion of the residential development, whichever occurs first. Following execution, the agreement will be recorded as a covenant running with the land against the real property of the residential development.

(Ord. No. 2022-07 § VIII, 2-1-22; Ord. 2006-43 § 2).

(a) For any project where inclusionary units are required by this chapter, a developer may request a density bonus for providing the required inclusionary units. The developer may request a density bonus in an amount equal to or less than fifteen percent of the total units in the development, including the inclusionary units provided in the development. A developer who requests a density bonus for providing inclusionary units is entitled to a density bonus in the requested amount, up to the maximum fifteen percent. A developer is not entitled to any incentives or concessions under Chapter 822-2, except for incentives that may otherwise be granted pursuant to subsection (c) of this section.

(b) If a project includes moderate income, lower income, very low income, or senior housing units at levels beyond those required by this chapter, a developer may request a density bonus under Section 822-2.404 and may request incentives or concessions under Section 822-2.408. If requested under this subsection, the density bonus to which a developer is entitled will be calculated in accordance with subsection (d) of Section 822-2.404.

(c) The county may grant one or more of the following affordable housing development incentives in order to mitigate the financial impact of this chapter's requirements on a particular residential development:

(1) Fee deferrals or waivers.

(2) Provision of housing set-aside funds, tax exempt financing, or other financial assistance.

(3) Modification of zoning or development standards.

(Ords. 2007-28 § 12, 2006-43 § 2).

(a) The county may establish a compliance monitoring fee to recover the county's reasonable costs incurred for ongoing implementation of this chapter. The fee will be an amount established by the board of supervisors in the community development department's fee schedule.

(b) For for-sale inclusionary units, the fee shall be payable by the developer at the time of the first sale. For rental inclusionary units, the property owner shall pay an annual fee each year during the term of the applicable inclusionary housing agreement.

(Ord. 2006-43 § 2).

The county may adjust or waive the requirements of this chapter if the applicant for approval of a residential development demonstrates the absence of any reasonable relationship or nexus between the impact of the development and either the amount of the fee charged or the inclusionary requirement, thereby effecting a taking of private property without just compensation or otherwise constituting a violation of the United States Constitution, California Constitution, or other applicable federal or state laws. Any person requesting a waiver or adjustment must submit a written request not later than fifteen days before the first public hearing on any discretionary approval for the residential development, accompanied by economic information and other evidence necessary for the county to make a determination regarding the request. If no discretionary approval is required or the action complained of occurs after the first public hearing on such approval, then the request shall be filed within ten days after the challenged action. Authority to act on a request for a waiver or adjustment rests with the board of supervisors.

(Ord. 2006-43 § 2).