Chapter 824.3 — AFFORDABLE HOUSING INCENTIVES - DENSITY BONUS

As required by Government Code Section 65915, this Chapter offers density bonuses, and incentives or concessions for the development of housing that is affordable to the types of households and qualifying residents identified in Section 824.3.020 (Eligibility for Bonus, Incentives, or Concessions), below. This Chapter is intended to implement the requirements of Government Code Section 65915 et seq. and the Housing Element of the General Plan.

In order to be eligible for a density bonus, reduced parking ratios, and other incentives or concessions as provided by this Chapter, a proposed housing development shall comply with the following requirements and shall satisfy all other applicable provisions of this Zoning Ordinance, except as provided by Section 824.3.040 (Allowed Incentives or Concessions).

• A. Resident requirements. A housing development proposed to qualify for a density bonus shall be designed and constructed so that it includes at least any one of the following:

  1. 10 percent of the total number of proposed units are for lower income households, as defined in Health and Safety Code Section 50079.5;

  2. Five percent of the total number of proposed units are for very low-income households, as defined in Health and Safety Code Section 50105;

  3. The project is a senior citizen housing development as defined in Civil Code Sections 51.3 and 51.12, or is a mobile home park that limits residency based on age requirements for housing older persons in compliance with Civil Code Sections 798.76 or 799.5; or

  4. 10 percent of the total dwelling units in a common interest development as defined in Civil Code Section 4100 are 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.

  5. 10 percent of the total dwelling units in 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 McKinney – Vento 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.

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6. 20 percent of the dwelling units in a student housing development for lower income students that meet the requirements of Government Code Section 65915.

7. 100 percent of the total units, exclusive of the manager’s unit or units, are for lower income households, as defined by Section 50079.5 of the Health and Safety Code, except that up to 20 percent of the total units in the development may be for moderate-income households, as defined in Section 50053 of the Health and Safety Code.

• B. Applicant selection of basis for bonus. For purposes of calculating the amount of the density bonus in compliance with Section 824.3.030 (Allowed Density Bonuses), below, the applicant who requests a density bonus shall elect whether the bonus shall be awarded on the basis of Subparagraphs A. 1., 2., 3.,4.,5.,6., or 7., above.

• C. Bonus units shall not qualify a project. A density bonus granted in compliance with Section 824.3.030 (Allowed Density Bonuses), below, shall not be included when determining the number of housing units that is equal to the percentages required by Subsection A., above.

• D. Minimum project size to qualify for density bonus. The density bonus provided by this Chapter shall be available only to a housing development of five or more dwelling units.

• E. Condominium conversion projects. A condominium conversion project for which a density bonus is requested shall comply with the eligibility and other requirements specified in Government Code Section 65915.5.

• F. Replacement of Affordable Units. Units that are replacing affordable dwelling units are eligible for a density bonus if in compliance with Government Code Section 65915.

For the purposes of this Chapter, "density bonus" means a density increase over the otherwise maximum allowable residential density under the applicable General Plan Land Use designation and zone as of the date of application by the applicant to the County.

• A. Density bonus. A housing development that complies with the eligibility requirements specified in Subsections 824.3.020 A. 1., 2., 3., or 4., above, shall be entitled to density bonuses as follows, unless a lesser percentage is proposed by the applicant.

  1. Bonus for units for lower income households. A housing development that is eligible for a bonus in compliance with the criteria specified in Section 824.3.020 A. 1. (10 percent of units for lower income households) shall be entitled to a density bonus calculated as follows:

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TABLE 3-3

BONUS FOR LOW INCOME HOUSEHOLDS

2. Bonus for units for very low-income households. A housing development that is eligible for a bonus in compliance with the criteria specified in Section 824.3.020 A. 2., (five percent of units for very low-income households) shall be entitled to a density bonus calculated as follows:

TABLE 3-4

BONUS FOR VERY LOW-INCOME HOUSEHOLDS

3. Bonus for senior citizen development. A housing development that is eligible for a bonus in compliance with the criteria in Section 824.3.020 A. 3., (senior citizen development or mobile home park) shall be entitled to a density bonus of 20 percent.

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4. Bonus for moderate income units in common interest development. A housing development that is eligible for a bonus in compliance with the criteria specified in Section 824.3.020 A. 4. (10 percent of units in a common interest development for persons and families of moderate income) shall be entitled to a density bonus calculated as follows:

TABLE 3-5 BONUS FOR MODERATE INCOME HOUSEHOLDS

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TABLE 3-5 BONUS FOR MODERATE INCOME HOUSEHOLDS

5. Density bonus for land donation. When an applicant for a tentative map, parcel map, or other residential development approval donates land to the County in compliance with this Subsection, the applicant shall be entitled to a density bonus for the entire development, as follows; provided, that nothing in this Subsection shall be construed to affect the authority of the County to require a developer to donate land as a condition of development.

• a. Basic bonus. The applicant shall be entitled to a 15 percent increase above the otherwise maximum allowable residential density under the applicable Land Use Plan designation and zone for the entire development, and an additional increase as follows.

TABLE 3-6 BASIC BONUSES

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TABLE 3-6 BASIC BONUSES

• b. Increased bonus. The increase identified in Table 3-6 above shall be in addition to any increase in density required by Subsections A. 1. through A. 4., up to a maximum combined mandated density increase of 35 percent if an applicant seeks both the increase required in compliance with this Subsection A. 5., as well as the bonuses provided by Subsections A. 1. through A. 4.

• c. Eligibility for increased bonus. An applicant shall be eligible for the increased density bonus provided by this Subsection if all of the following conditions are met:

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

  • (2) The developable acreage and zoning classification of the land being transferred are sufficient to allow construction of units affordable to very lowincome households in an amount not less than 10 percent of the number of residential units of the proposed development.

  • (3) The transferred land is at least one acre in size, or of sufficient size to allow development of at least 40 units; has the appropriate Land Use Plan designation; is appropriately zoned for development as affordable housing; and is or will be served by adequate public facilities and infrastructure. The land shall have appropriate zoning and development standards to make the development of the affordable units feasible.

at least one acre in size, or of sufficient size to allow development of at least 40 units; has the appropriate Land Use Plan designation; is appropriately zoned for development as affordable housing; and is or will be served by adequate public facilities and infrastructure. The land shall have appropriate zoning and development standards to make the development of the affordable units feasible.

• (4) No later than the date of approval of the final map, parcel map, or of the residential development, the transferred land shall have all of the permits and approvals, other than Building Permits, necessary for the development of the very low income housing units on the transferred land, except that the County may subject the proposed development to subsequent design review to the extent authorized by Government Code Section 65583.2(i) if the design is not reviewed by the County before the time of transfer.

• (5) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with Section 824.3.070 (Continued Availability), which shall be recorded on the property at the time of dedication.

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  - (6) The land is transferred to the County or to a housing developer approved by the County. The County may require the applicant to identify and transfer the land to the approved housing developer. 

  - (7) The transferred land shall be within the boundary of the proposed development or, if the County agrees, within one-quarter mile of the boundary of the proposed development. 

  - (8) A proposed source of funding for the very low-income units shall be identified not late than the date of approval of the final subdivision map, parcel map, or residential development application. 

6. Density bonus for 100% affordable housing projects. A housing development that is eligible for a bonus in compliance with the criteria in Section 824.3.020 A. 7., shall be entitled to: 1) a density bonus of 80 percent of the number of units for lower income households; 2) no maximum controls on density shall be imposed if the development is located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code; 3) density, height and parking concessions shall also be permitted for qualifying projects per the requirements of Government Code Section 65915 including projects for special needs and supportive housing.

• B. Greater or lesser bonuses. The County may choose to grant a density bonus greater than provided by this Section for a development that meets the requirements of this Section or grant a proportionately lower density bonus than required by this Section for a development that does not fully comply with the requirements of this Section.

• C. Density bonus calculations. The calculation of a density bonus in compliance with this Section that results in fractional units shall be rounded up to the next whole number, as required by State law. For the purpose of calculating a density bonus, the residential units do not have to be based upon individual subdivision maps or parcels.

• D. Requirements for amendments or discretionary approval. The granting of a density bonus shall not be interpreted, in and of itself, to require a General Plan amendment, Zone Map amendment, or other discretionary approval. The granting of a density bonus shall not require or be interpreted to require the waiver of a local ordinance or provisions of a local ordinance unrelated to development standards.

• E. Location of bonus units. The developer may locate density bonus units in the housing project in areas other than where the units for the lower income households are located.

• A. Applicant request and County approval.

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1. An applicant for a density bonus in compliance with this Chapter may submit to the County a proposal for the specific incentives or concessions listed in Subsection C. (Type of incentives), below, that the applicant requests in compliance with this Section, and may request a meeting with the Director. The applicant may file a request either before filing an application for County approval of a proposed project or concurrently with an application for project approval. The Board shall grant an incentive or concession request that complies with this Section unless the Board makes any of the following findings in writing, based upon substantial evidence:

   • a. The incentive or concession does not result in identifiable and actual cost reduction 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 as specified in Section 824.3.070 B. (Unit cost requirements);

   • 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 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- and moderate-income households; or

   • c. The concession or incentive would be contrary to State or Federal law.

2. The applicant shall show that a waiver or modification of development standards is necessary to make the housing units economically feasible.

• B. Number of incentives. The applicant shall receive the following number of incentives or concessions.

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

  2. Two incentives or concessions. Two incentives or concessions for a project that includes at least 17 percent of the total units for lower income households, at least 10 percent for very low-income households, or at least 20 percent for persons and families of moderate income in a common interest development.

  3. Three incentives or concessions. Three incentives or concessions for a project that includes at least 24 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 common interest development.

5. Four incentives or concessions. Four incentives or concessions for a project that 100 percent of all units are for lower income household or when up to 20 percent of units are

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for moderate income. If the project is located one-half mile of a major transit stop, the application shall also receive a height increase of up to three additional stories or 33 feet.

5. One incentive or concession. One incentive or concession for projects that include twenty percent of total units for lower income students with the density bonus shall be 35 percent of the student housing units. The term “unit” means one rental bed and its pro rata share of associated common area facilities. The units shall be subject to a recorded affordability restriction of 55 years.

6. Transitional youth, disabled veterans, or homeless persons . A density bonus equal to twenty percent of the total number of units. A density bonus equal to twenty percent of the total number of units when 10 percent of the total dwelling units are for transitional youth, disabled veterans, or homeless persons. The units 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.

• C. Type of incentives. For the purposes of this Chapter, concession or incentive means any of the following:

  1. A reduction in the site development standards of this Zoning Ordinance (e.g., site coverage limitations, setbacks, onsite open space requirements, reduced parcel sizes, and/or parking requirements) (see also Section 824.3.050 [Parking Requirements in Density Bonus Projects]), or a modification of architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission in compliance with Health and Safety Code Section 18901 et seq., that would otherwise be required, that results 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 as specified in Section 824.0.080

  2. Approval of mixed-use land uses not otherwise allowed by this Zoning Ordinance in conjunction with the housing development, if nonresidential land uses will reduce the cost of the housing development, and the nonresidential land uses are compatible with the housing project and the existing or planned development in the area where the project will be located;

  3. Other regulatory incentives proposed by the applicant or the County that 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 as specified in Section 824.3.080; and/or

4. In its sole and absolute discretion, a direct financial contribution granted by the Board, including writing-down land costs, subsidizing the cost of construction, or participating in the cost of infrastructure.

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• D. Effect of incentive or concession. The granting of a concession or incentive shall not be interpreted, in and of itself, to require a General Plan amendment, Zone Map amendment, study, or other discretionary approval.

• A. Applicability. This Section applies to a development that meets the requirements of Section 824.3.020 (Eligibility for Density Bonus, Incentives, and Concessions), above, but only at the request of the applicant. An applicant may request additional parking incentives or concessions beyond those provided in this Section in compliance with Section 824.3.040 (Allowed Concessions and Incentives), above. A request pursuant to this Section shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to Section 824.0.040. Modifications to Government Code Section 65915 relaxing standards for specific identified uses or bonuses shall supersede this subsection.

B. Number of parking spaces required.

1. Default Parking Ratio. At the request of the applicant, the County shall not require a vehicular parking ratio for a project that complies with the requirements of Section 824.3.020 (Eligibility for Density Bonus, Incentives, and Concessions), above, inclusive of handicapped and guest parking, that exceeds the following ratios:

   • a. Zero to one bedroom: One on-site parking space.

   • b. Two to three bedrooms: One and one-half on-site parking spaces.

   • c. Four and more bedrooms: Two and one half on-site parking spaces.

2. 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.

3. Definition of a Major Transit Stop. For the purpose of this section, major transit stop shall mean a site containing an existing rail transit station, a ferry terminal, served by either a bus or rail transit service, or the intersection of two or more major bus routes with a frequency of service internal of 15 minutes or less during the morning and afternoon peak commute periods.

4. Developments in Proximity to Major Transit Stop. If a development includes at least 20 percent low-income units for housing development that meets the criteria of 65915 (b)(1)(A) of the Government Code, or at least 11 percent very low income units for housing development meeting the criteria of section 65915 (b), is located within one-half mile of a major transit stop, and there is unobstructed access to the major transit stop from the development, then, upon the request of the developer, the county shall not impose a vehicular parking ratio ,inclusive of parking for persons with a and guests, that exceeds 0.5 pace per unit. If a development includes at least 40

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percent moderate income units for housing developments meeting the criteria of subdivision (b)(1)(D), is located within one-half mile of a major transit stop as defined in Section 2115521155(b) of the Public Resources Code, and the residents of the development have unobstructed access to the major transit stop for the development then, upon the request of the developer, the county shall not impose a vehicular parking ration, inclusive of parking for persons with a disability and guests, that exceeds 0.5 spaces per bedroom.

5. Exclusive Rental Units Development. If a development consists of solely of rental units, exclusive of a manager’s unit or units, with an affordable housing cost to lower income families, as provided in Section 50025.5 of the Health and Safety Code, then, upon the request of the developer, the County shall not impose a vehicular parking standards, if the development meets any of the following criteria:

   • a. If the development is located within one-half mile of a major transit stop, and there is unobstructed access to the major transit stop from the development.

   • b. If the development is a for-rent housing development for individuals who are 62 years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code, and the development has either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.

   • c. If the development consists solely of rental units, exclusive of a manager’s unit or units, with an affordable cost to low-income families, as defined in Section 50052.5 of the Health and Safety Code, and the development is either a special needs housing development, as defined in Section 51312 of the Health and Safety Code, or a supportive housing development, as defined in Section 50675.14 of the Health and Safety Code. A development that is a special needs housing development, shall have either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.

• C. Location of parking. For purposes of this Section, a development may provide on-site parking through tandem parking or uncovered parking, but not through on-street parking.

• D. Rounding. 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.

• A. Housing developments. A housing development that complies with the resident and project size requirements of Subsections 824.3.020 A. and B., above, and also includes as part of that development a child care facility other than a large or small family day care home, that will be located on the site of, as part of, or adjacent to the development, shall be subject to the following additional bonus, incentives, and requirements.

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1. Additional bonus and incentives. The County shall grant a housing development that includes a child care facility in compliance with this Section either of the following:

• a. An additional density bonus that is an amount of floor area in square feet of residential space that is equal to or greater than the floor area of the child care facility; or

• b. An additional incentive that contributes significantly to the economic feasibility of the construction of the child care facility.

2. Requirements to qualify for additional bonus and incentives.

  - a. The County shall require, as a condition of approving the housing development, that: 

     - (1) The child care facility shall remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable in compliance with Section 824.3.070 (Continued Availability), below; and 

     - (2) Of the children who attend the child care facility, the children of very lowincome households, lower income households, or families of moderate income shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very low income households, lower income households, or families of moderate income in compliance with Subsection 824.3.020 A. (Resident requirements), above. 

  - b. The County shall not be required to provide a density bonus for a child care facility in compliance with this Section if it finds, based upon substantial evidence, that the community has adequate child care facilities. 

• B. Child care in commercial and industrial developments. A developer of a commercial or industrial development project, containing at least 50,000 square feet of floor area, may be granted a density bonus when that developer agrees to set aside at least 2,000 square feet of interior floor area and 3,000 outdoor square footage to be used for a child care facility, other than a large or small family day care home, in compliance with Government Code Section 65917.5 (Commercial density bonus).

  1. Allowable density bonuses. The allowable density bonus may be one of the following:

  - a. A maximum of five square feet of floor area for each one square foot of floor area contained in the child care facility located in an existing child care facility; or
  

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• b. A maximum of 10 square feet of floor area for each one square foot of floor area contained in the child care facility located in a new child care facility.

2. Requirements. Requirements to qualify for the additional density bonus shall include all of the following:

• a. For purposes of calculating the allowable density bonus under this Subsection, both the total area contained within the exterior walls of the child care facility and all outdoor areas devoted to the use of the facility in compliance with applicable State child care licensing requirements shall be considered.

• b. The child care facility shall be of a sufficient size to comply with all applicable State licensing requirements in order to accommodate at least 40 children.

• c. This facility may be located either on the project site or may be located off-site as agreed upon by the developer and the County.

• d. If the child care facility is not located on the site of the development project, the County shall determine whether the location of the child care facility is appropriate and whether it complies with the purpose and intent of this Section.

• e. The granting of a density bonus shall not preclude the County from imposing necessary conditions on the development project or on the additional square footage in compliance with Government Code Section 65917.5 (Commercial density bonus).

• A. Commercial development. When an applicant for approval of a commercial development has entered into an agreement for partnered housing to contribute affordable housing through a joint project or two separate projects encompassing affordable housing, the County shall grant to the commercial developer a development bonus.

  1. Agreement for partnered housing. The agreement for partnered housing shall be between the commercial developer and the housing developer, shall identify how the commercial developer will contribute affordable housing, and shall be approved by the Director. Affordable housing may be contributed by the commercial developer in one of the following manners:

  - a. The commercial developer may directly build the units. 
  
  - b. The commercial developer may donate a portion of the site or property elsewhere to the affordable housing developer for use as a site for affordable housing.
  

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• c. The commercial developer may make a cash payment to the affordable housing developer that shall be used towards the costs of constructing the affordable housing project.

2. Affordability requirements. In order to qualify for a development bonus under this section, a commercial developer shall partner with a housing developer that provides at least 30 percent of the total units for low-income households or at least 15 percent of the total units for very low-income households.

3. Location of affordable housing. The housing shall be constructed on the site of the commercial development or on a site that is all of the following:

• a. Within the boundaries of the unincorporated County;

• b. Close to public amenities, including schools and employment centers;

• c. Within one-half mile of a major transit stop, as defined in Section 21155(b) of the Public Resources Code.

4. Type of development bonus. The development bonus granted to the commercial developer shall mean incentives, mutually agreed upon by the developer and the County, that may include, but are not limited to, any of the following:

• a. Up to a 20 percent increase in maximum allowable intensity in the General Plan.

• b. Up to a 20 percent increase in maximum allowable floor area ratio.

• c. Up to a 20 percent increase in maximum height requirements.

• d. Up to a 20 percent reduction in minimum parking requirements.

• e. Use of a limited-use/limited-application elevator for upper floor accessibility.

• f. An exception to the zoning ordinance or other land use regulation.

5. Timing of construction. If the developer of the affordable units does not commence with construction of those units in accordance with timelines ascribed by the agreement described in Subparagraph 1, above, the County may withhold certificates of occupancy for the commercial development under construction until the developer has completed construction of the affordable units.

6. Annual report to the State. The County shall submit to the Department of Housing and Community Development, as part of the annual report required by Government Code Section 65400, information describing a commercial development bonus approved, including the terms of the agreements between the commercial developer

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and the affordable housing developer, and the developers and the County, and the number of affordable units constructed as part of the agreements.

The units that qualified the housing development for a density bonus and other incentives and concessions shall continue to be available as affordable units in compliance with the following requirements, as required by Government Code Section 65915(c). See also Section 824.3.110 (Control of Resale).

• A. Duration of affordability. The applicant shall agree to, and the County shall ensure, the continued availability of the units that qualified the housing development for a density bonus and other incentives and concessions, as follows.

  1. Low- and very low-income rental units. The continued affordability of all low- and very low-income qualifying rental units shall be maintained for 55 years, or a longer time if required by the construction or mortgage financing assistance program, mortgage insurance program, rental subsidy program, or by County policy or ordinance.

  2. Units for transitional foster youth, disables veterans, or homeless persons. Units for transitional foster youth, disabled veterans, or homeless persons 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. Units in common interest for-sale development. The initial occupant of all for-sale common interest units shall be persons and families of very low-, low-, or moderateincome. The County shall enforce an equity sharing agreement, pursuant to Subsection C, below, unless it is in conflict with the requirements of another public funding source of law.

• B. Unit cost requirements. The rents and owner-occupied costs charged for the housing units in the development that qualify the project for a density bonus and other incentives and concessions, shall not exceed the following amounts during the period of continued availability required by this Section:

  1. Lower income units. Rents for the lower income density bonus units shall be set at an affordable rent as defined in Health and Safety Code Section 50053; and

  2. Owner-occupied units. Owner-occupied units shall be available at an affordable housing cost as defined in Health and Safety Code Section 50052.5.

• C. Occupancy and resale of for-sale units. An applicant shall agree to, and the County shall ensure that the initial occupant of for-sale units that are directly related to the receipt of the density bonus, are persons and families of very low-, low-, and moderate income, as defined in Health and Safety Code Section 50093, and that the units are offered at an

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affordable housing cost, as defined in Health and Safety Code Section 50052.5. The County shall enforce an equity sharing agreement unless it is in conflict with the requirements of another public funding source or law. The following requirements apply to the equity sharing agreement.

1. Upon resale, the seller of the unit shall retain the value of any improvements, the down payment, and the seller's proportionate share of appreciation.

2. The County shall recapture any initial subsidy and its proportionate share of appreciation, which shall then be used within five years for any of the purposes described in Health and Safety Code Section 33334.2(e) that promote home ownership. For the purposes of this Section:

   • a. The County's initial subsidy shall be equal to the fair market value of the home at the time of initial sale, minus the initial sale price to the qualified household, plus the amount of any down payment assistance or mortgage assistance. If upon resale the market value is lower than the initial market value, then the value at the time of the resale shall be used as the initial market value; and

   • b. The County's proportionate share of appreciation shall be equal to the ratio of the initial subsidy to the fair market value of the home at the time of initial sale.

• A. Location/dispersal of units. As required by the Board in compliance with Section 824.3.100 (Processing of Bonus Requests), below, designated units shall be reasonably dispersed throughout the project where feasible, shall contain on average the same number of bedrooms as the non-designated units in the project, and shall be compatible with the design or use of remaining units in terms of appearance, materials, and finish quality.

• B. Phasing. If a project is to be phased, the density bonus units shall be phased in the same proportion as the non-density bonus units or phased in another sequence acceptable to the County .

• A. Application and Permit requirement. A developer seeking approval of a density bonus and other incentives and concessions shall file an application per the requirements of Site Plan Review with the Department of Public Works and Planning (Department). If the development is not ministerial, the Department shall process the application concurrently with any other applications required for the development project. The form and content of the application shall be specified by the Department.

• B. Decision or Hearing Process. For ministerial developments, the application shall be reviewed and acted on by the Department. A decision to deny a density bonus shall be subject to the specific Findings identified in Subsection c below. For non-ministerial

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(discretionary) proposals involving other concurrent land use applications, such applications shall be heard and decided by the Commission and/or the Board, as set forth in procedures in Subsection (1) below.

1. Approval of incentives. Staff, the Commission or Board shall be authorized to approve incentives as follows:

  - a. The Commission shall be authorized to approve incentives that involve concurrent discretionary land use applications required for consideration by that body and as stated in the Zoning Ordinance. 

     - (1) Any decision must include a separate section clearly labeled “Density Bonus/Affordable Housing Incentives Program Determination”. 

     - (2) A decision to deny a density bonus shall be subject to the specific Findings identified in Subsection c below. 

  - b. Approval by the Board shall be required for requests as part of an appeal of the Commission’s decision, or legislative matters in which final action must be taken by the Board. 

     - (1) Any decision must include a separate section clearly labeled “Density Bonus/Affordable Housing Incentives Program Determination”. 

     - (2) A decision to deny a density bonus shall be subject to the specific Findings identified in Subsection C below. 

  - c. For an application deemed complete, the applicant shall be provided a determination per Government Code Section 65915 including: 1) the amount of density bonus calculated; 2) eligible parking ratios; 3) determination of information adequacy for incentives, waivers or reductions. 

• C. Findings for approval. The approval of a density bonus and other incentives and concessions requested by the applicant shall be granted by the County unless a written finding is made, based on substantial evidence, of any the following:

  1. The incentive or concession does not result in identifiable and actual cost reductions, consistent with Government Code Section 65915(k), 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 as specified in Government Code Section 65915(c).

2. The incentive or concession would have a specific, adverse impact, as defined in Government Code Section 65589.5(d) paragraph (2), upon the public health or 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

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satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low-income and moderate-income households.

3. The incentive or concession would be contrary to State or Federal law.

• A. Agreement required. An applicant requesting a density bonus shall agree to enter into a density bonus agreement (referred to as the "agreement") with the County in the County's standard form of agreement. The applicant shall prepare the draft agreement for submission to the County for review.

B. Agreement provisions.

1. Project information. The agreement shall include at least the following information about the project:

• a. The total number of units approved for the housing development, including the number of designated dwelling units;

• b. A description of the household income group to be accommodated by the housing development, and the standards and methodology for determining the corresponding affordable rent or affordable sales price and housing cost consistent with HUD Guidelines;

• c. The marketing plan for the affordable units;

• d. The location, unit sizes (square feet), and number of bedrooms of the designated dwelling units;

• e. Tenure of the use restrictions for designated dwelling units of the time periods required by Section 824.3.070 (Continued Availability);

• f. A schedule for completion and occupancy of the designated dwelling units;

• g. A description of the additional incentives and concessions being provided by the County;

• h. A description of the remedies for breach of the agreement by the owners, developers, and/or successors-in-interest of the project; and

• i. Other provisions to ensure successful implementation and compliance with this Chapter.

2. Minimum requirements. The agreement shall provide, at minimum, that:

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• a. The developer shall give the County the continuing right-of-first-refusal to lease or purchase any or all of the designated dwelling units at the appraised value;

• b. The deeds to the designated dwelling units shall contain a covenant stating that the developer or successors-in-interest shall not assign, lease, rent, sell, sublet, or otherwise transfer any interests for designated units without the written approval of the County;

• c. When providing the written approval, the County shall confirm that the price (rent or sale) of the designated dwelling unit is consistent with the limits established for low and very low-income households, as published by HUD;

• d. The County shall have the authority to enter into other agreements with the developer, or purchasers of the designated dwelling units, to ensure that the required dwelling units are continuously occupied by eligible households;

• e. Applicable deed restrictions, in a form satisfactory to the County Counsel, shall contain provisions for the enforcement of owner or developer compliance. Any default or failure to comply may result in foreclosure, specific performance, or withdrawal of the Certificate of Occupancy;

• f. In any action taken to enforce compliance with the deed restrictions, the County Counsel shall, if compliance is ordered by a court of competent jurisdiction, take all action that may be allowed by law to recover all of the County's costs of action including legal services; and

  • g. Compliance with the agreement will be monitored and enforced in compliance with the measures included in the agreement.

3. For-sale housing conditions. In the case of a for-sale housing development, the agreement shall provide for the following conditions governing the initial sale and use of designated dwelling units during the applicable restriction period:

• a. Designated dwelling units shall be owner-occupied by eligible households, or by qualified residents in the case of senior housing; and

• b. The initial purchaser of each designated dwelling unit shall execute an instrument or agreement approved by the County which:

  • (1) Restricts the sale of the unit in compliance with this Chapter, or other applicable County policy or ordinance, during the applicable use restriction period;

  • (2) Contains provisions as the County may require to ensure continued compliance with this Chapter and State law; and

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(3) Shall be recorded against the parcel containing the designated dwelling unit.

4. Rental housing conditions. In the case of a rental housing development, the agreement shall provide for the following conditions governing the use of designated dwelling units during the applicable restriction period:

• a. The rules and procedures for qualifying tenants, establishing affordable rent, filling vacancies, and maintaining the designated dwelling units for qualified tenants;

• b. Provisions requiring owners to annually 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 County, which includes the name, address, and income of each person occupying the designated dwelling units, and which identifies the bedroom size and monthly rent or cost of each unit; and

• d. The applicable use restriction period shall comply with the time limits for continued availability in Section 824.3.070 (Continued Availability), above.

C. Execution of agreement.

1. Following Commission’s or Board’s approval of the agreement, and execution of the agreement by all parties, the County shall record the completed agreement on the parcels designated for the construction of designated dwelling units, at the County Recorder's Office.

2. The approval and recordation shall take place at the same time as the final map or, where a map is not being processed, before issuance of Building Permits for the designated dwelling units.

3. The agreement shall be binding on all future owners, developers, and/or successorsin-interest.

In order to maintain the availability of for-sale affordable housing units constructed in compliance with this Chapter, the following resale conditions shall apply.

• A. Limits on resale price. The price received by the seller of an affordable unit shall be limited to the purchase price plus an increase based on the local consumer price index, an amount consistent with the increase in the median income since the date of purchase, or the fair market value, whichever is less. Before offering an affordable housing unit for sale, the seller shall provide written notice to the County of their intent to sell. The notice shall be provided by certified mail to the Director.

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• B. Units to be offered to the County. Home ownership affordable units constructed, offered for sale, or sold under the requirements of this Section shall be offered to the County or its assignee for a period of at least 90 days from the date of the notice of intent to sell is delivered to the County by the first purchaser or subsequent purchasers. Home ownership affordable units shall be sold and resold from the date of the original sale only to households as determined to be eligible for affordable units by the County in compliance with this Section. The seller shall not levy or charge any additional fees nor shall any "finder's fee" or other monetary consideration be allowed other than customary real estate commissions and closing costs.

• C. Declaration of restrictions. The owners of any affordable unit shall attach and legally reference in the grant deed conveying title of the affordable ownership unit a declaration of restrictions provided by the County, stating the restrictions imposed in compliance with this Section. The grant deed shall afford the grantor and the County the right to enforce the declaration of restrictions. The declaration of restrictions shall include all applicable resale controls, occupancy restrictions, and prohibitions required by this Section.

• D. County to monitor resale of units. The County shall monitor the resale of ownership affordable units. The County or its designee shall have a 90-day option to commence purchase of ownership affordable units after the owner gives notification of intent to sell. Any abuse in the resale provisions shall be referred to the County for appropriate action.

• A. Judicial relief. As provided by Government Code Section 65915(d)(3), the applicant may initiate judicial proceedings if the County refuses to grant a requested density bonus, incentive, or concession.

• B. Waiver of standards preventing the use of bonuses, incentives, or concessions.

  1. As required by Government Code Section 65915(e), the County shall not apply a development standard that will have the effect of precluding the construction of a development meeting the criteria of Subsection 824.3.020 A. (Resident requirements), above, at the densities or with the concessions or incentives allowed by this Chapter.

  2. An applicant may submit to the County a proposal for the waiver or reduction of development and zoning standards that would otherwise inhibit the utilization of a density bonus on a specific site, including minimum parcel size, side setbacks, and placement of public works improvements.

• C. County exemption. Notwithstanding the provisions of Subsections A. and B., above, nothing in this Section shall be interpreted to require the County to:

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1. Grant a density bonus, incentive, or concession, or waive or reduce development standards, if the bonus, incentive, concession, waiver, or reduction would have a specific, adverse impact, as defined in Government Code Section 65589.5(d)(2), upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact; or

2. Grant a density bonus, incentive, or concession, or waive or reduce development standards, if the bonus, incentive, concession, waiver, or reduction would have an adverse impact on any real property that is listed in the California Register of Historical Resources.

Per the requirements of Senate Bill (SB) 35, a streamlined review and approval for eligible housing developments upon meeting certain criteria. Qualifying projects must be approved ministerially within 60 days (if the development includes less than 150 housing units) or within 90 days (if the development includes more than 150 housing units). Ministerial projects are not subject to CEQA.

Qualifying Projects:

Housing development projects proposed within localities that fail to meet its RHNA goals to be permitted on a ministerial basis, upon satisfaction of the following criteria:

• Project is a multifamily housing development consisting of two or more units per Article 4, Chapter 834.4.430.

• Project dedicates either 10% or 50% of units affordable to 80% of average median income (AMI).

• Project site is on land zoned for residential or mixed-use residential use.

• Project site is on land in an urbanized area where 75% of the perimeter of site is developed. Per Census Bureau criteria updated in 2020, an urbanized area is an area that encompasses at least 5,000 people or at least 2,000 housing units.

• Project is consistent with objective zoning and design review standards.

• Project site is not located on or in any of the following: (1) prime farmland or farmland of statewide importance, (2) wetlands, (3) within a very high fire severity zone, (4) a hazardous waste site, (5) within a delineated earthquake fault zone, (6) within a flood plain, (7) within a floodway, (8) identified for conservation in an adopted natural community conservation plan, (9) habitat for protected species or (10) lands under conservation easement.

• Project applicant / developer shall provide supporting evidence that the project

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does not propose demolition of (1) housing subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income, or (2) housing subject to rent or price control, or (3) housing occupied by tenants within the past 10 years.

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Landscaping Standards