El Cerrito Municipal Code Ch. 19.22 Affordable Housing Bonus

The purposes of this Chapter are to:

A. Implement the policies of the General Plan Housing Element for encouraging and expanding housing opportunities for households with very-low and lower incomes, seniors, disabled, and other persons with special housing needs.

B. Allow for density bonuses and additional incentives, consistent with Government Code Section 65915 and the General Plan Housing Element, for affordable housing, housing developed for seniors and disabled persons, and development that includes a childcare facility.

C. Provide additional incentives for affordable housing containing three or more bedrooms to meet the needs of large families.

D. Require resale and rental controls on affordable housing and ensure that lower income rental units remain affordable for at least 30 years or such other term approved by the City, consistent with State law.

(Ord. 2008-2 Div. II (part), 2008.)

A. State Law Governs. The provisions of this chapter shall be governed by the requirements of Government Code Section 65915, as that statute is amended from time-to-time. Where conflict occurs between the provisions of this chapter and State law, the State law provisions shall govern, unless otherwise specified.

B. Compatibility. All affordable housing units shall be dispersed within market-rate projects whenever feasible. Affordable housing units within market-rate projects shall be comparable with the exterior design and use of market-rate units in appearance, use of materials, and finished quality. The exterior design and appearance of the affordable housing units shall be compatible with the design of the total housing project and consistent with the surrounding neighborhood. Forms, materials and proportions that are compatible with the character of the surroundings shall be used.

C. Availability. All affordable housing units shall be constructed concurrently with, and made available for qualified occupants at the same time as, the market-rate housing units within the same project unless both the City and the developer agree in the Affordable Housing Agreement to an alternative schedule for development.

D. Affordable Housing Agreement. An Affordable Housing Agreement shall be made a condition of the discretionary planning permits for all projects granted a density bonus, pursuant to this Chapter. The Agreement shall be recorded as a restriction on the parcel or parcels on which the affordable housing units will be constructed. The Agreement shall be consistent with Section 19.22.060.D of this Chapter.

E. Median Income Levels. For the purpose of determining the income levels for Households under this Chapter, the City shall use the Contra Costa County income limits found in Title 25, Section 6932 of the California Code of Regulations, and regularly updated and published by the State Department of Housing and Community Development, or other income limits adopted by the City Council if the State Department of Housing and Community Development fails to provide regular updates.

F. Effect of Granting Density Bonus. The granting of a density bonus shall not, in and of itself, be interpreted to require a general plan amendment, zoning change, or other discretionary approval.

(Ord. 2008-2 Div. II (part), 2008.)

A. Density Bonus. Pursuant to Government Code Section 65915, the City shall grant a density bonus in the following amounts over the otherwise allowable maximum residential density permitted by this Title and the General Plan, and one or more of the Affordable Housing Incentives set forth in Section 19.22.050 below, if the applicant agrees or proposes to construct any one of the following:

1. Lower Income Units. A density bonus of twenty percent if ten percent of the total units of a housing development are target units affordable to lower income households, as defined in Section 50079.5 of the Health and Safety Code.

2. Very Low Income Units. A density bonus of twenty percent, if five percent of the total units of a housing development are target units affordable to very low income households, as defined in Section 50105 of the Health and Safety Code.

3. Senior Citizen Housing Development. A density bonus of twenty percent, if a housing development qualifies as a Senior Citizen Housing Development, as defined in Section 51.3 of the Civil Code.

4. Moderate Income Units in Condominium and Planned Unit Developments. A density bonus of five percent if ten percent of the total dwelling units in a condominium project, as defined in subdivision (f) of, or in a Planned Development, as defined in subdivision (k) of Section 1351 of the Civil Code, as Target Units affordable to persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code.

5. Housing Accompanied by Land Donation. A density bonus of fifteen percent, if a housing developer agrees to donate land to the City, subject to the requirements of Section 19.22.070.

B. Applicability. The provisions of subsection (A) shall be applicable to residential projects of five or more units, and senior citizen housing developments of at least 35 units.

C. Calculation of Density Bonuses.

1. Density Bonus Units. When calculating the number of permitted density bonus units, all fractional units shall be rounded to the next whole number. The density bonus shall not be included when determining the number of target affordable or senior housing units to be provided in a development project.

2. Sliding Scale for Greater Density Bonus. The number of units to which the applicant is entitled may exceed the percentage specified in subsection A if the percentage of affordable housing exceeds the percentages specified in subsection A, subject to the following provisions:

a. Lower Income Dwellings. For each additional one percent increase above 10 percent in the proportion of units affordable to lower income households, the density bonus shall be increased by 1.5 percent up to a maximum of 35 percent of the maximum allowable residential density for the site.

b. Very Low Income Dwellings. For each additional one percent increase above five percent in the proportion of units affordable to very low income households, the density bonus shall be increased by 2.5 percent up to a maximum of 35 percent of the maximum allowable residential density for the site.

c. Condominium and Planned Unit Developments. For each additional one percent increase above 10 percent in the proportion of units affordable to moderate income households in condominium and planned unit developments, the density bonus shall be increased by one percent up to a maximum of 35 percent of the maximum allowable residential density for the site.

d. Housing Accompanied by Land Donation. For each additional one percent increase above the minimum 10 percent land donation described in Section 19.22.070, the density bonus shall be increased by one percent, up to a maximum of 35 percent of the maximum allowable residential density for the site.

D. Applicant May Request Smaller Density Bonus. Notwithstanding the foregoing, the City may award a smaller density bonus than specified in this section if the Applicant so requests in writing.

(Ord. 2008-2 Div. II (part), 2008.)

A. Density Bonus. When an applicant proposes to construct a housing development that conforms to the requirements of Section 19.22.030(A), Density Bonus, and includes a childcare facility other than a family day care home that will be located on the premises of, as part of, or adjacent to the project, the City shall grant either of the following:

1. Additional Density Bonus. A density bonus of additional residential units equal in square footage to the amount of square feet of the childcare facility, or.

2. Additional Concession or Incentive. An additional concession or incentive that contributes significantly to the economic feasibility of the construction of the childcare facility.

B. Conditions of Approval. The City shall require, as a condition of approving the housing development, that the following occur:

1. Length of Operation. The childcare facility remains in operation for a period of time that is as long as, or longer than the length of time during which Section 19.22.060.B requires that the affordable housing units remain affordable.

2. Attending Children. The percentage of children of very low, low or moderate income households who attend the childcare facility shall be the same or greater than the percentage of dwelling units in the project that are required for households at each income level, pursuant to Section 19.22.030(A).

C. Exceptions. The City shall not be required to provide a density bonus or concession for a childcare facility if it finds that, based upon substantial evidence, the community has adequate childcare facilities.

(Ord. 2008-2 Div. II (part), 2008.)

A. Number of Incentives or Concessions. An applicant is entitled to receive incentives or concessions in addition to the density bonus as follows:

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 persons and families of moderate income in a condominium or planned development, or

2. One incentive or concession for senior citizen housing developments, or

3. Two incentives or concessions for projects that include at least 20 percent of the total units for lower income households, at least ten percent for very low income households, or at least 20 percent for persons and families of moderate income in a condominium or planned development, or

4. Three incentives or concessions for projects that include at least 30 percent of the total units for lower income households, at least 15 percent for very low income households, or at least 30 percent for persons and families of moderate income in a condominium or planned development.

B. Proposal of Incentives and Findings. An applicant may propose specific incentives or concessions that would contribute significantly to the economic feasibility of providing affordable units pursuant to this chapter and State law. In addition to any increase in density to which an applicant is entitled, the City shall grant one or more incentives or concessions that an applicant requests, up to the maximum number of incentives and concessions required pursuant to subsection A, unless the City makes a written finding that either:

1. The concession or incentive is not necessary in order to provide the proposed targeted units, or

2. The concession or incentive would have a specific adverse impact that can not be feasibly mitigated on public health and safety or the physical environment or any property that is listed in the California Register of Historical Resources.

C. Types of Affordable Housing Incentives. Affordable housing incentives may consist of any combination of the items listed below. In addition to the incentives listed, the City may allow for fast track and priority processing for project with affordable housing.

1. Modification of Development Standards. Up to 20 percent in modification of site development standards or Zoning Ordinance requirements that exceed minimum building code standards and fire code standards, including, but not limited to:

a. Reduced minimum lot sizes and/or dimensions.

b. Reduced minimum building setbacks and building separation requirements.

c. Reduced minimum outdoor and/or private outdoor living area requirements.

d. Increased maximum lot coverage.

e. Increased maximum building height.

2. Reduced Parking.

a. Upon the applicant's request, the City shall allow a reduction in required parking, excluding handicapped parking. Notwithstanding the foregoing, the parking must satisfy at least the following minimum ratios:

i. One on-site space for zero to one bedroom units;

ii. Two on-site spaces for two or more bedrooms.

b. If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number.

c. At the applicant's request, tandem parking may be counted toward meeting these parking requirements.

3. Mixed Use Zoning. Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial or other land uses will reduce the cost of the housing development and such uses are compatible with the housing project and the surrounding area.

4. Other Incentives. Other regulatory incentives or concessions may be considered for approval by the City that result in identifiable cost reductions or avoidance.

D. Additional Affordable Housing Incentives. The City may allow for additional affordable housing incentives to be granted on a case-by-case basis, when requested by an applicant when more than 50 percent of the affordable housing units provided contain three or more bedrooms to meet the needs of large families.

(Ord. 2008-2 Div. II (part), 2008.)

A. Application and Review Process. A preliminary review of development projects imposed pursuant to this Chapter is encouraged pursuant to Chapter 19.32, Common Procedures, to discuss and identify potential application issues, including proposed modifications to development standards. The applicant shall request in the application the incentives the applicant wishes to obtain. The application shall include financial data showing how the incentives are necessary to make the affordable units feasible. Applications shall be reviewed and processed according to the provisions of Chapter 19.32, Common Procedures.

B. Duration of Affordability for Rental Units. All lower income and very low income housing units shall be kept affordable for a minimum period of 30 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program, consistent with State law.

C. Definition of Affordability. Those units targeted for lower income households as defined in Section 19.22.030 shall be affordable at a rent that does not exceed 30 percent of 60 percent of the area median income. Units targeted for very low income households shall be affordable at a rent that does not exceed 30 percent of 50 percent of area median income. Units targeted for moderate income households shall be affordable at a rent that does not exceed 35 percent of 110 percent of area median income. Median income levels shall be the income limits for Contra Costa County households as provided for in Section 19.22.020.E.

D. Affordable Housing Agreement Required. All affordable housing projects shall be subject to the approval of an affordable housing agreement conforming to the provisions of Title 7, Division 1, Chapter 4, Article 2.5 of the Government Code, which shall be recorded as a covenant on the title to the Property. The terms of the Agreement shall be reviewed and revised as appropriate by the Zoning Administrator and City Attorney, who shall formulate a recommendation to the Planning Commission for final approval. This Agreement shall include, but is not limited to, the following:

1. Number of Units. The total number of units approved for the projects, including the number of affordable housing units.

2. Target Units. The location, unit sizes (in square feet) and number of bedrooms of the affordable housing units.

3. Household Income Group. A description of the household income groups to be accommodated by the project and a calculation of the Affordable Rent or Sales Price.

4. Certification Procedures. The party responsible for certifying rents or sales prices of units, and the process that will be used to certify renters or purchasers of such units.

5. Schedule. A schedule for the completion and occupancy of the affordable housing units.

6. Remedies for Breach. A description of the remedies for breach of the Agreement by either party.

7. Required Term of Affordability. For lower income and very low income units, duration of affordability of the housing units, pursuant to Section 19.22.060(B) above. Provisions should also cover resale control and deed restrictions on targeted housing units that are binding on property upon sale or transfer.

8. Expiration of Agreement. Provisions covering the expiration of the agreement, including notice prior to conversion to market rate units and right of first refusal option for the City and/or the distribution of accrued equity for for-sale units.

9. Other Provisions. Other provisions to ensure implementation and compliance with this Chapter.

10. Condominium and Planned Unit Developments. In the case of condominium and planned unit developments, the Affordable Housing Agreement shall provide for the following conditions governing the initial sale and initial resale and use of affordable housing units:

a. Target Units shall, upon initial sale, be sold to eligible Very Low, Lower, or Moderate Income Households at an Affordable Sales Price and Housing Cost, or to Qualified Residents as defined by this Chapter.

b. Target Units shall be initially owner-occupied by eligible Very Low, Lower, or Moderate Income Households.

c. Upon resale, the seller of a Target Unit shall retain the value of any improvements, the downpayment, and the seller's proportionate share of appreciation. The City shall recapture its proportionate share of appreciation, which shall be used to promote home ownership opportunities as provided for in Health and Safety Code Section 33334.2. The City's proportionate share shall be equal to the percentage by which the initial sale price to the targeted household was less than the fair market value of the dwelling unit at the time of initial sale.

11. Rental Housing Developments. In the case of rental housing developments, the Affordable Housing Agreement shall provide for the following conditions governing the use of Target Units during the use restriction period:

a. The rules and procedures for qualifying tenants, establishing affordable rent rates, filling vacancies, and maintaining Target Units for qualified tenants.

b. Provisions requiring owners to verify tenant incomes and maintain books and records to demonstrate compliance with this Chapter.

c. Provisions requiring owners to submit an annual report to the City, which includes the name, address, and income of each person occupying Target Units, and which identifies the bedroom size and monthly rent or cost of each Target Unit.

E. Notice of Conversions. Notice of conversions of affordable units to market-rate units shall be provided pursuant to the following requirements:

1. General. At least one year notice shall be required prior to the conversion of any rental units for affordable households to market-rate.

2. Required Notice. Notice shall be given to the following:

a. The City.

b. The State Housing and Community Development Department (HCD).

c. The Contra Costa Housing Authority.

d. The residents of the affordable housing units proposed to be converted.

e. Any other person deemed appropriate by the City.

F. Conversion of Affordable Rental Units. If an owner of a housing development issues a notice-of-intent to convert affordable housing rental units to market-rate housing, the City shall consider taking one or more of the following actions:

1. Meet with the owner to determine the owner's financial objectives.

2. Determine whether financial assistance to the current owner will maintain the affordability of the rental housing development or whether acquisition by another owner dedicated to maintaining the affordability of the development would be feasible.

3. If necessary to maintain the affordability of the housing unit or facilitate sale of the rental development, consider the use of redevelopment housing set-aside funds or assistance in accessing state or federal funding.

(Ord. 2008-2 Div. II (part), 2008.)

The City shall grant a density bonus pursuant to Section 19.22.030 to a housing development if the applicant agrees to donate land to the City and the applicant satisfies all of the following requirements:

A. The applicant donates and transfers the land no later than the date of approval of the final subdivision map, parcel map, or residential development application;

B. The developable acreage and zoning classification of the land being transferred are sufficient to permit construction of units affordable to very low income households in an amount not less than 10 percent of the number of residential units of the proposed development;

C. The transferred land is at least one acre in size or of sufficient size to permit development of at least 40 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, as determined by the Director of Development Services;

D. The transferred land has appropriate zoning and development standards to make the development of the affordable units feasible, as determined by the Director of Development Services;

E. Prior to the date of approval of the final subdivision map, parcel map, or of the residential development, the transferred land has 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 City may subject the proposed development to subsequent design review if the design is not reviewed by the City prior to the time of transfer;

F. The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units meeting the requirements of an affordable housing agreement as set forth in Section 19.22.060.D;

G. 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 the developer; and

H. The transferred land is within the boundary of the proposed development or, if the City agrees, within one-quarter mile of the boundary of the proposed development.

(Ord. 2008-2 Div. II (part), 2008.)