32-74 DENSITY BONUS.

32-74.1 Purpose.

This Section 32-74 is adopted to comply with state law requirements for providing a density bonus to a housing developer who provides affordable housing units.

(Ord. #2014-07, § 2)

32-74.2 Definitions.

For the purposes of this section, certain words and phrases shall be interpreted as set forth in this section unless it is apparent from the context that a different meaning is intended.

Affordable housing cost shall be the cost to rent or purchase a house as defined in Section 50052.5 of the Health and Safety Code. (Government Code Section 65915(d)(1).) Housing cost means the monthly mortgage (including principal and interest), property taxes, and homeowner association fees, where applicable, for ownership units; and the monthly rent and an appropriate utility allowance for rental units.

Affordable unit, for rent. Affordable rent (including a reasonable utility allowance) shall not exceed the following:

1. For very low-income households, the product of thirty percent (30%) times fifty percent (50%) of the area median income adjusted for family size appropriate for the unit;

2. For low-income households whose gross incomes exceed the maximum income for very low-income households, the product of thirty percent (30%) times sixty percent (60%) of the area median income adjusted for family size appropriate for the unit;

3. For moderate-income households, the product of thirty percent (30%) times one hundred (110%) of the area median income adjusted for family size appropriate for the unit. (Health. and Safety Code Section 50053.)

Affordable unit, for sale. Affordable housing cost may not exceed the following:

1. For very low-income households, the product of thirty percent (30%) times fifty percent (50%) of the area median income adjusted for family size appropriate for the unit;

2. For low-income households whose gross incomes exceed the maximum income for very low-income households and do not exceed seventy percent (70%) of the area median income adjusted for family size, the product of thirty percent (30%) times seventy percent (70%) of the area median income adjusted for family size appropriate for the unit;

3. For moderate-income households, not less than twenty-eight percent (28%) of the gross income of the household, not exceeding the product of thirty-five percent (35%) times one hundred ten percent (110%) of area median income adjusted for family size appropriate for the unit. (Health and Safety Code Section 50052.5(b).)

Affordable units. Living units that are required to be rented at affordable rents or available at affordable housing costs to specified households.

Applicant means any person, firm, partnership, association, joint venture, corporation, or any entity or combination of entities which seeks Town real property development permits and approvals.

Approval means approval by the Town of a discretionary permit such as a tentative map, planned development or land use permit for a project.

Area median income. The area median income for Contra Costa County as published at Title 25, California Code of Regulations, Section 6932.

Density bonus. An increase over the otherwise maximum allowable residential density. (Government Code Section 65915(f). See also Government Code Section 65917.5(a)(2).)

Developer means the same as applicant. (See above definition.)

Disabled person means a person with a physical or mental disability as defined at Government Code Section 12926.

Household income levels includes:

1. Low-income household. A household whose income does not exceed the low-income limits applicable to Contra Costa County, as published and periodically updated by the State Department of Housing and Community Development pursuant to Health and Safety Code Section 50079.5.

2. Lower income household. A lower income household as defined in Civil Code Sections 51.3 and 51.12. (Government Code Sections 65915(b)(1) and (c)(1) and Health and Safety Code Section 50079.5.) It includes both lowincome and very-low income households.

3. Moderate-income household. A household with an annual income between the lower income eligibility limit and one hundred twenty (120%) of area median income limits applicable to Contra Costa County, as published and periodically updated by the State Department of Housing and Community Development pursuant to Section 50079.5 of the California Health and Safety Code. (Government Code Section 65915(c)(2), Health and Safety Code Section 50093.)

4. Very low-income household. A household whose income does not exceed the very low-income limits applicable to Contra Costa County, as published and periodically updated by the State Department of Housing and Community Development pursuant to California Health and Safety Code Section 50105. (Government Code Section 65915(b)(2) and (c) (1).

Incentive or concession means a regulatory modification that results in identifiable, financially sufficient, actual cost reductions, such as a reduction in site development standards, modification of zoning requirements (including approval of mixed-use zoning), modification of architectural design requirements, reduction in setback or square footage requirements, and reduction in vehicular parking spaces. (Government Code Section 65915(d) and (k).)

Permit means an approved application by the Town of Danville for a development plan, land use entitlement, subdivision, Planned Unit Development or building permit.

Project means a housing development at one (1) location, including all dwelling units for which permits have been applied for or approved within a twelve (12) month period.

Project owner means any person, firm, partnership, association, joint venture, corporation, or any entity or combination of entities that holds fee title to the land on which the project is located.

Restricted occupancy unit means a unit restricted in such a manner that it is sold or rented at a rate affordable to very low or low income households; a unit restricted in such a manner that it is sold or rented at a rate affordable to moderate income households containing a handicapped household member; or a unit restricted in such a manner that it is occupied by a senior household.

Target unit. A dwelling unit within a housing development which will be reserved for sale or rent to, and is made available at an affordable rent or affordable ownership cost to, very low-, low-, or moderate-income households, or is a unit in a senior citizen housing development.

Town means the Town of Danville or its designee, or any entity with which the Town contracts with to administer this section.

Unit type means dwelling units with similar floor area and number of bedrooms.

(Ord. #2014-07, § 2)

32-74.3 Density Bonus.

The Town shall grant a density bonus and other incentives to a qualifying applicant for a housing development of five (5) or more units. A Developer may qualify for a density bonus if:

a. The proposed housing development provides the minimum number of affordable housing units, under subsection 3274.4 below. Additional density bonus and/or incentives may be available if a child care facility is also provided (Government Code Section 65915(h));

b. The applicant donates land for affordable housing, under Government Code Section 65915(g);

c. The housing development is a condominium conversion that will provide affordable housing, under Government Code Section 65915.5 and Danville Municipal Code Section 31-7; or

d. A child care facility is proposed in a commercial or industrial project, under Government Code Section 65917.5.

Neither the granting of a density bonus nor the granting of an incentive, in and or itself, requires a general plan amendment, zoning change, or other discretionary approval. (Government Code Section 65915 (g)(1) (2) and (k).) All density calculations resulting in fractional units shall be rounded up to the next whole number. (Government Code Section 65915 (f)(5), (g)(2.)

(Ord. #2014-07, § 2)

a. Density bonus - minimum requirement (target units). The city shall grant a density bonus to an applicant for a housing development of five (5) or more units who seeks a density bonus and agrees to construct at least one (1) of the following (Government Code Section 65915(b)):

1. Ten percent (10%) of the total units of the housing development as target units affordable to low-income households;

2. Five percent (5%) of the total units of the housing development as target units affordable to very low-income households;

3. A senior citizen housing development of thirty-five (35) units or more. (Defined in California Civil Code Section 51.3(b)(4)); or

4. Ten percent (10%) of the total units of a newly constructed condominium project or planned development as target units affordable to moderate-income households. (Government Code Section 65915(b).)

An inclusionary unit or second unit under Danville Municipal Code Section 32-73 counts toward the total of target units.

b. Density bonus - calculation of bonus units. The maximum amount of density bonus to which an applicant is entitled varies according to (1) the type of qualifying housing under subsection a above and (2) the amount the percentage of affordable housing exceeds the minimum percentages set forth in subsection a above. The specific calculations are set forth in Government Code Section 65915(f).

Unit calculations do not need to be based on individual subdivisions or parcels. If the density bonus units are located separate from the restricted occupancy units, such project groups shall, unless otherwise authorized by the Town, be contiguous and shall be developed simultaneously with the development of the restricted occupancy units.

• c. Continued affordability. An applicant shall agree to and the Town shall ensure:

1. The continued affordability of a low-and very-low income units for a period of thirty (30) years or longer (Government Code Section 65915(c));

2. Owner-occupied units are available at an affordable housing cost;

3. The initial occupant of a moderate income unit in a common interest development is a person or family or moderate income and that the units are offered at an affordable housing cost;

Whenever applicable or appropriate, the applicant shall enter into an agreement acceptable to the Town Attorney to assure the continued affordability, under Danville Municipal Code subsection 32-74.9.

(Ord. #2014-07, § 2)

a. Number of incentives. An applicant for a density bonus may submit a proposal for specific incentives or concessions. In addition to the types of incentives defined in subsection 32-74.4, the Town Council may reduce or waive Townestablished fees.

The applicant may receive the following number of incentives or concessions (Government Code Section 65915(d)(2)):

When a developer requests one (1) or more incentives, he or she shall submit a project financial report (pro forma) along with the application for the project in order to evaluate the financial need for the incentive(s). At the developer's cost, the Town may retain a consultant to review the financial report. (If the developer is a nonprofit organization, the Town Council may elect to pay the cost of the consultant.)

b. Findings required for denial. The Town shall grant the requested incentive or concession unless the Town makes a written finding based upon substantial evidence that the incentive or concession:

1. Is not required to provide for affordable housing costs or for rents to be set at the specified levels; or

2. Would have a specific adverse impact upon public health and safety or the physical environment, or on any property listed in the California Register of Historical Resources, and for which there is no feasible method to satisfactorily mitigate or avoid the impact without rendering the development unaffordable to low and moderate income households. "Specific adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions. (Government Code Section 65589.5.)

3. Would be contrary to state or federal law. (Government Code Section 65915(d).)

(Ord. #2014-07, § 2)

32-74.6 General Requirements.

a. Continued affordability.

1. Restricted occupancy units in projects receiving a density bonus shall remain affordable for a minimum of thirty (30) years, or a longer period if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. (Government Code Section 65915(c).)

2. Requirements for restricted occupancy units shall be established as conditions of project approval. Compliance with the conditions of this section shall be evidenced by an affordable housing agreement between the developer and the Town Manager, completed and recorded on the property to each affected unit before issuance of a building permit. It shall run with the land.

(a) The affordable housing agreement shall indicate the qualification criteria for the target households for the restricted occupancy units (e.g., very low income household, senior household, and the like), the intended household type (i.e., sale or rental restricted occupancy units), the number of restricted occupancy units and their corresponding number of bedrooms; standards for maximum qualifying household incomes for restricted occupancy units with affordability restrictions; standards for maximum rents or sales prices for restricted occupancy units with affordability restrictions; standards for qualifying for occupancy of senior or handicapped restricted occupancy units; party/process responsible for certifying qualifications of households which occupy restricted occupancy units; construction scheduling, how vacancies will be marketed and filled; restrictions and enforcement mechanisms binding on property upon sale or transfer; maintenance provisions; and any other information as required by the Town to comply with the conditions of approval for the project. If the agreement is an equity sharing agreement, it shall conform to the requirements of Government Code Section 65915(c)(2). (See also Government Code Sections 65916, 65917.)

(b) The affordable housing agreement shall include a provision which allows the Town of Danville to assign its authority to regulate and enforce the agreement to the Contra Costa County Housing Authority, a nonprofit housing agency or other similar entity.

3. For-sale restricted occupancy units shall not be rented unless specifically authorized by the Town and a new affordable housing agreement executed and recorded against the property.

b. Priority for Danville residents or employees. Households with Danville residents who meet the qualifications for occupancy of restricted units will have first preference for restricted occupancy units; second preference will be given to households with Danville employees who meet the qualifications for occupancy of restricted units; third preference shall be given to all other eligible households. A Danville resident or employee (or spouse) is one who has lived or worked in Danville for the year immediately preceding the occupancy of the affordable unit.

c. Timing and location of units.

1. Units in a project and phases of a project shall be constructed concurrently with, or prior to, the construction of units without occupancy restrictions.

2. Units shall be provided as follows:

• (a) Restricted occupancy units shall be dispersed throughout the project.

(b) Restricted occupancy units are not required to represent the predominant unit type in the project. Such as, but not limited to, locating affordable attached duet units on corner lots in a primarily single family development.

(c) The exterior design and character of the restricted occupancy units shall be substantially consistent with the units without occupancy restrictions in the project. There may be a reduction of interior amenities as may be necessary to attain affordability of the restricted occupancy units.

d. Limitations on Town. The Town may not:

1. Apply a development standard that will have the effect of physically precluding the construction at the desired density (Government Code Section 65915(e)(l).);

2. Require parking (other than handicapped and guest parking) to exceed one (1) space for one (1) bedroom, two (2) spaces for two-three (2-3) bedrooms, or two and one-half (2.5) spaces for four (4) or more bedrooms. (Government Code Section 65915(p).)

(Ord. #2014-07, § 2)

32-74.7 Violation - Penalty.

It is unlawful for any person, firm, corporation, partnership or other entity to violate any provision or fail to comply with any of the requirements of this section. A violation of any of the provisions or failing to comply with any of the requirements of this section shall constitute a misdemeanor; except that, notwithstanding any other provisions of this Code, any such violation constituting a misdemeanor under this section may, at the discretion of the enforcing authority, be charged and prosecuted as an infraction.

(Ord. #2014-07, § 2)

32-74.8 Enforcement.

• a. The Town Manager is hereby designated the enforcing authority of this section.

b. The provisions of this section shall apply to all agents, successors and assigns of developer. No building permit or occupancy permit shall be issued, nor any development approval be granted, which does not meet the requirements of this section. The Chief Building Official may suspend or revoke any building permit or approval upon finding a violation of any provision of this section.

c. In the event it is determined that rents in excess of those allowed by operation of this section have been charged to a tenant residing in a restricted occupancy rental unit, the Town may take the appropriate legal action to recover, and the rental unit owner shall be obligated to pay to the tenant (or to the Town in the event the tenant cannot be located), any excess rent charges.

• (Ord. #2014-07, § 2)

32-74.9 Appeals.

Any person aggrieved by any action or determination of the Town Manager under this section may appeal such action or determination to the Town Council as provided for in the Municipal Code.

(Ord. #2014-07, § 2)