Chapter 4-32 — AFFORDABLE HOUSING INCENTIVES

Sections:

Sec. 4-32-010. Intent and purpose. Sec. 4-32-020. Definitions. Sec. 4-32-030. Types of bonuses and incentives allowed. Sec. 4-32-040. Additional density bonus for donations of land. Sec. 4-32-050. General provisions governing density bonus calculations. Sec. 4-32-060. Incentives and concessions for affordable housing. Sec. 4-32-070. Waivers and modifications of development standards. Sec. 4-32-080. Parking incentives. Sec. 4-32-090. Standards for density bonus housing developments. Sec. 4-32-100. Application requirements. Sec. 4-32-110. Application review. Sec. 4-32-120. Developer affordable housing agreement. Sec. 4-32-130. SB 35 - Streamlined affordable housing.

This Chapter is being enacted: a) to provide incentives for the production of housing for very low income, low income, moderate income and senior citizen households; b) to provide incentives for the creation of rental housing serving lower and moderate-income households; and c) to implement California Government Code §§ 65915, 65915.5, and 65917, as required by § 65915(a). In enacting this Chapter, the City also intends to implement the goals, objectives, and policies of the City's general plan housing element to encourage the construction of affordable housing in the City. It is also the City's intent to encourage the development of rental housing to serve an economically diverse community. Accordingly, the City desires to provide a density bonus upon the request of an applicant when the applicant includes affordable or senior citizen restricted units in a project. This Chapter implements the laws for density bonuses and other incentive and concessions available to qualified applicants under California Govern-

*Editor’s note— Ord. No. 482, §2(Exh. A), adopted Mar. 6, 2018, repealed the former Ch. 4-32, §§ 4-32-010—4-32-080, and enacted a new Ch. 4-32 as set out herein. The former Ch. 4-32 pertained to similar subject matter and derived from the 2008 Zoning and Subdivision Code.

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ment Code §§ 65915 through 65918. In the event these California Government Code Sections are amended, those amended provisions shall be incorporated into this Chapter as if fully set forth herein.

(Ord. No. 482, § 2(Exh. A), 3-6-18)

For purposes of this Chapter, the following definitions shall apply. Unless specifically defined below, words or phrases shall be interpreted as to give this Chapter its most reasonable interpretation.

"Affordable ownership cost" means the average annual housing costs, including mortgage payments, property taxes, homeowner's insurance, and homeowners' association dues, if any, which do not exceed the following:

1. Very low-income households: 50 percent of area median income, adjusted for assumed household size based on unit size, multiplied by 30 percent.

2. Lower income households: 70 percent of area median income, adjusted for assumed household size based on unit size, multiplied by 30 percent.

3. Moderate income households: 110 percent of area median income, adjusted for assumed household size based on unit size, multiplied by 35 percent.

"Affordable rent" means the annual rent, including utilities and all fees for housing services, which does not exceed the following:

1. Very low-income households: 50 percent of area median income, adjusted for assumed household size based on unit size, multiplied by 30 percent.

2. Lower income households: 60 percent of area median income, adjusted for assumed household size based on unit size, multiplied by 30 percent.

"Affordable units" means dwelling units that are affordable to very low, lower, or moderateincome households as defined by this Chapter or by any federal or state housing program and are subject to rental, sale, or resale restrictions to maintain affordability.

"Applicant" means a developer or organization applying for a density bonus who seeks and agrees to construct a qualified housing development on or after the effective date of this Chapter pursuant to Section 65915, subdivision (b), of the California Government Code.

"Area median income" means the median income for Merced County as published by the State of California pursuant to California Code of Regulations, Title 25, Section 6932, or a successor provision.

"Assumed household size based on unit 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.

"Child care facility" is defined as a facility installed, operated, and maintained for the nonresidential care of children as defined under applicable state licensing requirements for the facility.

"Child care facility density bonus" means a floor area ratio bonus over the otherwise maximum allowable floor area permitted under the applicable zoning ordinance and land use elements of the general plan of the City of Gustine of the following amounts: A maximum of five

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square feet of floor area for each one square-foot of floor area contained in the child care facility for existing structures; or a maximum of ten square feet of floor area for each one square-foot of floor area contained in the child care facility for new structures.

"Commercial development bonus" means a modification of development standards mutually agreed upon by the City and a commercial developer and provided to a commercial development eligible for such a bonus. Examples of a commercial development bonus include an increase in floor area ratio or increased building height.

"Common interest development" means as defined in California Civil Code Section 1351, a common interest development may include a community apartment project, a condominium project, a planned development, or a stock cooperative.

"Condominium conversion density bonus" means an increase in units of 25 percent over the number of apartments, to be provided within the existing structure or structures proposed for conversion.

"Density bonus" means a density increase over the otherwise allowable zoning maximum residential density on a site as of the date of application by the applicant to the City, granted pursuant to Chapter 4-32.

"Density bonus units" means dwelling units granted pursuant to Chapter 4-32 which exceed the otherwise allowable zoning maximum residential density for a housing development.

"Household income" means the combined adjusted gross household income for all adult persons living in a dwelling unit as calculated for the purpose of the Section 8 program under the United States Housing Act of 1937, as amended, or its successor provision.

"Housing development" means one or more groups of projects to construct dwelling units in the planned development of the City. Housing development also includes a subdivision or common interest development, as defined in California Civil Code Section 1351, approved by the City and consisting of dwelling units or unimproved residential lots and either a project to substantially rehabilitate and convert an existing commercial building to residential use or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of Section 65863.4, where the result of the rehabilitation would be a net increase in available dwelling units. For the purpose of calculating a density bonus, the dwelling units shall be on contiguous sites that are the subject of one development application, but do not have to be based upon individual subdivision maps or parcels.

"Incentive and concessions" means regulatory concessions as listed in Section 4-32-060 of this Chapter.

"Lower income household" means as defined in California Health and Safety Code Section 50079.5 lower income persons and families are those whose incomes do not exceed the qualifying limits for low income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937 which is 70 percent of area median income, adjusted for family size and revised annually.

"Market rate unit" means a dwelling unit which is not an affordable unit or an inclusionary unit.

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"Maximum residential density" means the maximum number of dwelling units permitted by the Zoning Code and Land Use element of the general plan or, if a range of density is permitted, means the maximum allowable density for the specific zoning range and community development element of the general plan applicable to the project. Where the density allowed under the zoning ordinance is inconsistent with the density allowed under the community development element of the general plan, the general plan density shall prevail. The maximum allowable density is based on the date an application for a housing development is deemed complete. This definition is used to calculate a density bonus pursuant to this Chapter.

"Moderate income household" means persons and families of low or moderate income; means persons and families whose income does not exceed 120 percent of area median income, adjusted for family size by the department in accordance with adjustment factors adopted and amended from time to time by the United States Department of Housing and Urban Development pursuant to Section 8 of the United States Housing Act of 1937.

"Senior citizen housing development" means senior citizen housing as defined in Section 51.3 (a housing development developed, substantially rehabilitated, or substantially renovated for senior citizens that has at least 35 dwelling units) and Section 51.12 of the California Civil Code, or a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code.

"Specific adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the housing development was deemed complete. Mere inconsistency with the zoning ordinance or general plan land use designation shall not constitute a specific, adverse impact upon the public health or safety.

"Very low-income household" means as defined in California Health and Safety Code Section 50105, very low-income persons and families are those whose incomes do not exceed the qualifying limits for very low-income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937 which is 50 percent of area median income, adjusted for family size and revised annually.

(Ord. No. 482, § 2(Exh. A), 3-6-18; Ord. No. 525, § 2(Att. A), 2-18-25)

• A. If a housing development qualifies for a density bonus under more than one income category, or additionally as a senior citizen housing development as defined in California Government Code § 65915—65918, or as housing intended to serve transitional foster youth, disabled veterans, homeless persons, or lower income students, the applicant shall identify the categories under which the density bonus would be associated and granted. Density bonuses from more than one category can be combined up to the maximum allowed under California Government Code § 65915—65918.

• B. Very low and lower income housing and senior citizen housing. Upon written request to the City, an applicant for a housing development is eligible for one density bonus as specified in subdivision (f) of Government Code § 65915 provided that the applicant agrees to construct the housing development in accordance with one of the following criteria:

  1. Very low-income households. Five percent of the total dwelling units, excluding any units permitted by the density bonus, are provided at affordable rent or ownership costs to very low-income households.

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2. Lower income households. Ten percent of the total dwelling units, excluding any units permitted by the density bonus, are provided at affordable rent or ownership costs to lower income households.

3. Senior citizen housing development. For senior citizen housing developments, the density bonus shall be 20 percent of the number of senior housing units provided.

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

5. Student housing development. Twenty percent of the total units for lower-income students in a student housing development meets the requirements of Government Code § 65915(b)(F)(i).

6. One hundred percent affordable. One hundred percent of all units in the development, including total units and density bonus units, but exclusive of a 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 units in the development, including total units and density bonus units, may be for moderate-income households, as defined in Section 50053 of the Health and Safety Code.

opment, including total units and density bonus units, but exclusive of a 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 units in the development, including total units and density bonus units, may be for moderate-income households, as defined in Section 50053 of the Health and Safety Code.

• C. Moderate income housing. Upon written request to the City, an applicant for a housing development is eligible for one density bonus of five percent over the maximum residential density if the applicant agrees to construct the housing development in accordance with all of the following criteria:

  1. At least ten percent of the total dwelling units, excluding any units permitted by the density bonus, are provided at affordable ownership costs to moderate income households; and

  2. The housing development is a common interest project as defined by California Civil Code Section 1351; and

  3. All of the dwelling units in the housing development are offered for sale to the public.

D. Higher density bonus for greater contribution of affordable units.

1. Upon written request to the City, an applicant for a housing development that is eligible for a density bonus based upon the contribution of affordable units, may receive a higher amount of density bonus if the percentage of very low, lower, and moderateincome housing units exceeds the base percentage established in Government Code § 65915, and amended from time to time.

2. An additional density bonus may be granted provided that the resulting housing development would not restrict more than 50 percent of the total units to moderateincome, lower-income, or very low-income households and when an applicant proposed to construct a housing development that conforms to the requirements of Government Code § 65915 and meets the following requirements:

• a. 24 percent of the total units to lower-income households.

• b. 15 percent of the total units to very low-income households.

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• c. 44 percent of the total units to moderate-income households.

3. An additional density bonus shall be granted for a housing development that meets the requirements of section D.1. above, calculated as follows:

TABLE 1: VERY LOW-INCOME UNITS

TABLE 2: MODERATE-INCOME UNITS

4. The increase required shall be in addition to any increase in density granted by Government Code § 65915(b).

5. The additional density bonus required shall be calculated using the number of units excluding any density bonus awarded by this section.

• E. Continued affordability. Affordable units qualifying a housing development for a density bonus shall remain affordable as follows:

  1. Very low income and low-income household units shall remain affordable to the designated income group for a minimum of 30 years, or for a longer period of time if required by any construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program applicable to the dwelling units.

  2. Moderate income household units shall remain affordable for a minimum of 30 years, or for a longer period of time if required by any construction or mortgage financing assistance program, mortgage insurance program applicable to the dwelling units.

• F. Specification of basis for density bonus. Each applicant who requests a density bonus pursuant to this Section, shall elect whether the bonus will be awarded on the basis of subsection A.1, A.2, A.3, or B of this Section. Each housing development is entitled to only

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one density bonus, which may be selected based on the percentage of either very low income affordable housing units, lower income affordable housing units or moderate income affordable housing units, or the development's status as a senior citizen housing development. Density bonuses from more than one of these categories may not be combined.

(Ord. No. 482, § 2(Exh. A), 3-6-18; Ord. No. 525, § 2(Att. A), 2-18-25)

• A. Land suitability. Upon written request, when an applicant for a tentative map, subdivision map, parcel map, or other residential development approval qualified for a density bonus pursuant to Section 4-32-030 of this Chapter also donates land to the City in accordance with this Section, the applicant shall be entitled to an additional density bonus. Applicants donating land to the City shall be eligible for an additional 15 percent density bonus at the site of the housing development if the donated land is suitable for the construction of very low-income units equaling at least ten percent of the market rate units being constructed for the project. The density bonus provided pursuant to this Section shall be in addition to any density bonus granted pursuant to Section 4-32-030 of this Chapter, up to a maximum combined density bonus of 35 percent.

• B. Qualification criteria. To qualify for the additional density bonus described in subsection A of this Section, the donation of land must meet all of the following criteria:

  1. The tentative map, subdivision map, parcel map, or other residential development must otherwise be subject to a density bonus pursuant to Section 4-32-030 of this Chapter; and

  2. The land must be transferred no later than the date of the approval of the final subdivision map, parcel map, or housing development application; and

  3. The developable acreage and zoning classification of the land being transferred must be sufficient to permit construction of dwelling units affordable to very low-income households in an amount not less than ten percent of the total number of market rate dwelling units in the proposed development (i.e., the proposed development before the addition of any density bonus); and

  4. The donated land is at least one acre in size or is large enough to permit development of at least 40 units, has the appropriate general plan land use designation, has the appropriate zoning and development standards for affordable housing and, at the time of project approval is, or at the time of construction will be, served by adequate public facilities and infrastructure; and

  5. No later than the date of approval of the final map, parcel map, or other development application for the housing development, the donated land must have all of the applicable permits and approvals (other than building permits) necessary for the development of the very low income housing units on the donated land, except that the City may subject the proposed housing development to subsequent design review to the extent authorized by California Government Code Section 65583.2 Subsection (i) if the design is not reviewed by the City prior to the time of transfer; and

  6. The donated land is subject to a deed restriction ensuring continued affordability of the very low-income units consistent with Section 4-32-030.D. of this Chapter, which deed restriction shall be recorded upon the donated property at the time of its transfer; and

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7. The land will be transferred to the City, or to a housing developer approved by the City. The City reserves the right to require the applicant to identify a developer and to require that the land be transferred to that developer; and

8. The land is within the boundary of the proposed housing development or within one-fourth mile of the boundary of the proposed housing development; and

9. No later than the date of approval of the final map, parcel map, or other development application for the housing development, a proposed source of funding for the construction of the very low-income units shall be identified.

• C. Additional density bonus based on greater suitability of land for very low-income housing. For each one percent increase above the minimum ten percent in the number of very low-income housing units that can be accommodated on the donated land, the maximum density bonus shall be increased by one percent, up to a maximum of 35 percent, as follows:

TABLE 4: LAND DONATION

(Ord. No. 482, § 2(Exh. A), 3-6-18)

• A. For the purposes of any provisions in this Chapter, an applicant may elect to accept a lesser percentage of density bonus than that to which the housing development is eligible.

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• B. When calculating the number of permitted density bonus units, any calculations resulting in fractional units shall be rounded up to the next larger whole number.

• C. For the purpose of calculating a density bonus, the dwelling units shall be on contiguous sites that are the subject of one development application, but do not have to be based upon individual subdivision maps or parcels. The density bonus shall be permitted in geographic areas of the housing development other than the areas where the affordable units are located.

• D. For the purposes of this Chapter, the "total units" or "total dwelling units" in a housing development does not include those units added by any density bonus.

TABLE 5: DENSITY BONUS SUMMARY

(Ord. No. 482, § 2(Exh. A), 3-6-18; Ord. No. 525, § 2(Att. A), 2-18-25)

• A. Definition of a qualified incentive or concession. Per Government Code § 65915, as it may be modified from time to time, the Applicant shall submit a Density Bonus Application, for the specific incentives or concessions that the Applicant requests. The City shall grant the concession or incentive requested by the Applicant unless the City makes a written finding, based upon substantial evidence, of either of the following:

  1. The concession or incentive does not result in identifiable and actual cost reductions to provide for affordable housing costs, or for rents for the affordable housing units; or

  2. The concession or incentive would have a specific adverse impact upon public health and safety, or on any real property that is listed in the Federal Register of Historic Resources, the California Register of Historical Resources, or the City's List of Officially Designated Architecturally and Historically Significant Buildings and for

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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

3. The concession or incentive would be in compliance with state or federal law.

• B. A qualifying project shall be entitled to the following incentives identified by state law:

  1. A reduction in the parcel development standards (e.g. coverage, setback, zero lot line and/or reduced parcel sizes, architectural design requirements and/or parking requirements). Development standard means any ordinance, general plan element, specific plan, condition, law, policy, resolution, or regulation. In no case may the City apply a development standard that will have the effect of precluding the construction of affordable units. A waiver or modification to development standards may be requested by the applicant, and shall be approved unless such waiver or modification creates an adverse impact as described below. The City shall consider the following modifications in parcel development standards as an incentive for a qualifying affordable housing project:

  - **a.** A 30 percent reduction in minimum lot size and reduction in minimum lot dimensions to accommodate the reduced minimum lot size. 
  
  - **b.** A height increase of 20 percent, or enough to accommodate one additional story, whichever is greater, up to 35 feet. 
  
  - **c.** A 20 percent reduction in setback requirements, provided these reductions do not affect any easement, right-of-way, safety code, or dedication as determined by the City Engineer. 
  
  - **d.** A 20 percent reduction in parking requirements for sites located outside transitrich areas, as defined by California Public Resources Code § 21064.3. 
  
  - **e.** A 15 percent reduction in open space requirements.
  

• f. A 15 percent increase in lot coverage.

  2. Approval of mixed-use zoning in conjunction with the housing project if nonresidential land uses will reduce the cost of the housing project, and the nonresidential land uses are compatible with the housing project and existing or planned development in the area where the proposed development will be located.

  3. Other regulatory incentives or concessions proposed by the applicant or the City that will result in identifiable, financially sufficient, and actual cost reductions.

C. Number of incentives or concessions.

1. As defined in Government Code § 65915, as it may be modified from time to time, projects that include certain percentages of affordable units qualify for various incentives or concessions from development standards. The number of incentives or concessions that may be requested and granted shall be based upon the number the applicant is entitled to pursuant to Government Code § 65915.

• D. Findings to deny incentive or concession. The City shall grant the incentive or concession requested by the applicant unless the City makes a written finding based upon substantial evidence of any of the following:

  1. The incentive or concession is not required in order to provide for affordable housing costs or for affordable rents for the restricted units; or

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2. The concession or incentive would have a specific adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse without rendering the development unaffordable to low and moderateincome households. A specific adverse impact means a significant, unavoidable impact, as provided in written standards, policies, or conditions; or

3. The incentive or concession would be contrary to state or federal law.

• E. Exceptions. This Section does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the City or the waiver of fees or dedication requirements. Nor does any provision of this Section require the City to grant an incentive or concession found to have a specific adverse impact.

• F. Amendment, zone change. The granting of a concession or incentive shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval.

(Ord. No. 482, § 2(Exh. A), 3-6-18; Ord. No. 525, § 2(Att. A), 2-18-25)

• A. Applicants granted a density bonus pursuant to Section 4-32-030 of this Chapter may, by written proposal, seek a waiver, modification or reduction of development standards that would otherwise have the effect of physically precluding the construction of the housing development at the densities or with the concessions or incentives permitted pursuant to this Chapter. The applicant may also request a meeting with the City to discuss such request for waiver and modifications.

• B. In order to obtain a waiver or modification of development standards, the applicant shall show that the development standards will have the effect of precluding the construction of a housing development meeting the criteria of Section 4-32-030 of this Chapter, at the densities or with the concessions or incentives permitted by this Chapter.

• C. A proposal for the waiver or reduction of development standards pursuant to this Section shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to Section 4-32-060 of this Chapter.

• D. The City may deny a request for any waiver, modification or reduction of development standards if the wavier, modification or reduction would have a specific adverse impact.

• E. If a 100 percent affordable project is located within a half-mile of a major transit stop, the local government may not impose any maximum density limits at all, and the project is further entitled to receive a maximum height increase of up to three additional stories or 33 feet. However, if the project receives a waiver from maximum controls on density, it is not eligible for the waiver or reduction of any development standards which would otherwise be available. One hundred percent affordable projects are also entitled to a fourth incentive or concession.

(Ord. No. 482, § 2(Exh. A), 3-6-18; Ord. No. 525, § 2(Att. A), 2-18-25)

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• A. Upon the written request of the applicant for a housing development meeting the criteria for a density bonus under Section 4-32-030 of this Chapter, the City shall not require a vehicular parking ratio that exceeds the following:

  1. Zero to one bedroom units: One onsite parking space.

  2. Two to three bedroom units: Two onsite parking spaces.

  3. Four and more bedroom units: Two and one-half parking spaces.

• B. Guest parking and handicapped parking shall be included within the maximum number of spaces that may be required. If the total number of parking spaces required for a housing development is other than a whole number, the number shall be rounded up to the next whole number. For purposes of this Section, a housing development may provide onsite parking through tandem parking or uncovered parking, but not through on street parking. For purposes of this Chapter, the parking ratios set forth in this Section shall be deemed a concession or incentive available to the applicant under Section 4-32-060 of this Chapter.

• C. Special parking requirements. Lower parking ratios apply to specified projects.

  1. Rental/for sale projects with at least 11 percent very low-income or 20 percent lower-income units, within one-half mile of accessible major transit stop: One-half parking space.

  2. Rental projects 100 percent affordable to lower-income households, within one-half mile of accessible major transit stop: Zero parking spaces.

  3. Rental senior projects 100 percent affordable to lower-income households, either with paratransit service or within one-half mile of accessible bus route (operating at least eight times per day): Zero parking spaces.

  4. Rental special needs projects 100 percent affordable to lower-income households, either with paratransit service or within one-half mile of accessible bus route (operating at least eight times per day): Zero parking spaces.

  5. Rental supportive housing developments 100 percent affordable to lower-income households: Zero parking spaces.

• D. Onsite spaces may be provided through tandem or uncovered parking, but not on-street parking. Requesting these parking standards does not count as an incentive or concession, but the developer may request further parking standard reductions as an incentive or concession.

• (Ord. No. 482, § 2(Exh. A), 3-6-18; Ord. No. 525, § 2(Att. A), 2-18-25)

• A. Affordable units qualifying a housing development for a density bonus shall be reasonably dispersed throughout the housing development and compatible with the design of market rate units in terms of appearance, materials, and finished quality. The applicant may reduce the interior amenities and square footage of inclusionary units, provided all units conform to all other requirements of this zoning and subdivision code.

• B. For developments with multiple market rate units containing differing numbers of bedrooms, affordable units qualifying a housing development for a density bonus shall be representative of the market rate unit mix.

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• C. All building permits for affordable units qualifying a housing development for a density bonus shall be issued concurrently with, or prior to, issuance of building permits for the market rate units, and the affordable units shall be constructed concurrently with, or prior to, construction of the market rate units. Occupancy permits and final inspections for affordable units qualifying a housing development for a density bonus shall be approved concurrently with, or prior to, approval of occupancy permits and final inspections for the market rate units.

• (Ord. No. 482, § 2(Exh. A), 3-6-18)

• A. An application for a density bonus, incentive, concession, waiver, modification, or revised parking standard pursuant to this Section shall be submitted with the first approval of the housing development, commercial development, or mixed-use development and processed concurrently with all other applications required.

• B. For affordable units qualifying the development for a density bonus, the application shall include the following information:

  1. A site plan identifying the base project without the density bonus, number and location of all inclusionary units, affordable units qualifying for the project for a density bonus, and proposed density bonus units; and

  2. Proposed category(ies) qualifying the housing development for a density bonus; and

  3. Level of affordability of all affordable and inclusionary units and proposals for ensuring affordability, if applicable; and

  4. A description of any requested incentives, concessions, waivers or modifications of development standards, or modified parking standards.

  5. If a density bonus or concession is requested for a land donation, the application shall show the location of the land to be dedicated and provide evidence that each of the findings included in Section 4-32-040 of this Chapter can be made.

  6. A description of all dwelling units existing on the site in the five-year period preceding the date of submittal of the application and identification of any units rented in the five-year period. If dwelling units on the site are currently rented, income and household size of all residents of currently occupied units, if known. If any dwelling units on the site were rented in the five-year period but are not currently rented, the income and household size of residents occupying dwelling units when the site contained the maximum number of dwelling units, if known. (See Section 4-22-079, Required Replacement of Affordable Units.)

  7. Description of any recorded covenant, ordinance, or law applicable to the site that restricted rents to levels affordable to very low- or lower-income households in the five-year period preceding the date of submittal of the application. (See Section 4-22-079, Required Replacement of Affordable Units.)

  8. If a density bonus is requested for a land donation, the location of the land to be dedicated, proof of site control, and reasonable documentation that each of the requirements included in California Government Code § 65915(g) can be met.

• C. Upon submission of the application to the City, the Economic and Community Development Director or designee shall determine if the application is complete and conforms to

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the provisions of this Chapter. No application for a first approval for a housing development requesting a density bonus, incentives, concessions, or waivers may be deemed complete unless an affordable housing plan is submitted conforming to the provisions of this Chapter.

• D. A request for a minor modification of an approved application may be granted by the Economic and Community Development Director or designee if the modification is substantially in compliance with the original application and the conditions of approval. Other modifications to the affordable housing plan shall be processed in the same manner as the original application.

(Ord. No. 482, § 2(Exh. A), 3-6-18; Ord. No. 525, § 2(Att. A), 2-18-25)

• A. An application for a density bonus, incentive, concession, waiver, modification, or revised parking standard pursuant to this Chapter shall be reviewed as part of the first approval of the housing development by the approval body with authority to approve the housing development, unless additional review by the Planning Commission or City Council is required. An applicant proposing a housing development pursuant to this Chapter, may submit a preliminary application prior to the submittal of any formal request for approval of a housing development.

• B. Within 90 days of receipt of the preliminary application the City shall provide to an applicant, a letter which identifies project issues of concern (the maximum financial assistance that the Economic and Community Development Director can support when making a recommendation to the City Council), and the procedures for compliance with this Chapter. The Economic and Community Development Director shall inform the applicant that the requested additional incentives shall be recommended for consideration with the proposed housing development, or that alternative or modified additional incentives pursuant to Section 4-32-060 of this Chapter shall be recommended for consideration in lieu of the requested incentives. If alternative or modified incentives are recommended by the Economic and Community Development Director, the recommendation shall establish how the alternative or modified incentives can be expected to have an equivalent affordability effect as the requested incentives.

• C. Before approving an application for a density bonus, incentive, concession, waiver, or modification, the approval body shall make the following findings:

  1. The housing development is: a) eligible for a density bonus, and/or b) any concessions, incentives, waivers, modifications, or reduced parking standards requested conform to all requirements of this Chapter, and c) supported by a financing mechanism for all implementation and monitoring costs.

  2. If the density bonus is based all or in part on dedication of land, the application meets the qualifications and findings stated in Section 4-32-040 of this Chapter.

  3. If a waiver or modification is requested, the applicant has shown that the waiver, modification or reduction of development standards meets the qualifications and findings stated in Section 4-32-070 of this Chapter.

• D. If the findings stated in subsection C of this Section can be made, and a request for an incentive or concession is otherwise consistent with this Chapter, the approval body may

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deny a concession or incentive based upon written findings of any of the factors stated in Section 4-32-060 of this Chapter for the denial or disqualification of a concession or incentive.

• E. If the required findings stated in subsection C of this Section can be made, and a request for a waiver or modification is otherwise consistent with this Chapter, the approval body may deny the requested waiver or modification based upon written findings of any of the factors stated in Section 4-32-070 of this Chapter for the denial or disqualification of a waiver or modification.

• F. Nothing in this Section shall be interpreted to require the City to grant an incentive or concession or to waive or reduce development standards if that incentive, concession, waiver, or reduction has a specific adverse impact upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.

• G. Any decision regarding a density bonus, incentive, concession, waiver, modification, or revised parking standard may be appealed pursuant to Chapter 4-74 (Appeals) of Article 7 (Zoning and Subdivision Code Administration) of the Gustine Zoning and Subdivision Code. In accordance with state law, neither the granting of a concession or incentive, nor the granting of a density bonus, shall be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval.

(Ord. No. 482, § 2(Exh. A), 3-6-18; Ord. No. 525, § 2(Att. A), 2-18-25)

• A. Applications requesting a density bonus shall agree to enter into a density bonus housing agreement with the City. The terms of the draft agreement shall be reviewed and revised as appropriate by the Economic and Community Development Director, who shall formulate a recommendation to the Planning Commission for final approval. A density bonus housing agreement shall be made a condition of the discretionary planning permits for all housing developments pursuant to this Chapter and shall be recorded as a restriction on any parcels on which the affordable units or density bonus units will be constructed.

• B. The density bonus housing agreement shall be recorded prior to final or parcel map approval, or, where the housing development does not include a map, prior to issuance of a building permit for any structure in the housing development. The density bonus housing agreement shall run with the land and bind future owners and successors in interest.

• (Ord. No. 482, § 2(Exh. A), 3-6-18; Ord. No. 525, § 2(Att. A), 2-18-25)

• A. Eligibility. California Senate Bill 35 (SB 35) created a "streamlined ministerial approval process" for certain housing projects under Government Code § 65913.4. To qualify for the "streamlined ministerial approval process," the project must satisfy the eligibility requirements listed in the checklist below:

  1. The development is a multi-family housing development that contains two or more residential units.

  2. The site is a legal parcel or parcels located in a city if, and only if, the city boundaries include some portion of either an urbanized area or urban cluster, as designated by

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the United States Census Bureau, or, for unincorporated areas, a legal parcel or parcels wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau.

3. The development is located on a site in which at least 75 percent of the perimeter of the site adjoins parcels that are developed with urban uses (including parcels that are only separated by a street or highway). "Urban uses" means any current or former residential, commercial, public institutional, transit or transportation passenger facility, or retail use, or any combination of those uses.

4. The development is located on a site that is zoned for residential use or residential mixed-use development, or has a general plan designation that allows residential use or a mix of residential and non-residential uses.

5. At least two-thirds of the square footage of the development is designated for residential use.

• a. At least 10 percent of the proposed residential units s must be dedicated as affordable to households at or below 80 percent AMI for either rental or ownership projects

6. The development did not or does not involve a subdivision of a parcel that is or would otherwise be subject to the Subdivision Map Act (Government Code § 66410 et seq.) or any other applicable law authorizing the subdivision of land, unless either of the following apply:

• a. The development has or will receive financing through a low-income housing tax credit and is subject to the requirement that prevailing wages be paid pursuant to Government Code § 65913.4(a)(8)(A).

• b. The development is subject to the requirement that prevailing wages be paid, and a skilled and trained workforce used, pursuant to Government Code § 65913.4(a)(8)

7. The development is not on an existing parcel of land or site that is governed under the Mobilehome Residency Law (Chapter 2.5 (commencing with Section 798) of Title 2 of Part 2 of Division 2 of the Civil Code), the Recreational Vehicle Park Occupancy Law (Chapter 2.6 (commencing with Section 799.20) of Title 2 of Part 2 of Division 2 of the Civil Code), the Mobilehome Parks Act (Part 2.1 (commencing with Section 18200) of Division 13 of the Health and Safety Code), or the Special Occupancy Parks Act (Part 2.3 (commencing with Section 18860) of Division 13 of the Health and Safety Code).

8. The development, excluding any additional density or any other concessions, incentives, or waivers of development standards for which the development is eligible pursuant to the Density Bonus Law in Section 65915, is consistent with objective zoning standards, objective subdivision standards, and objective design review standards in effect at the time that the development is submitted to the local government.

9. The development proponent shall demonstrate that, as of the date the application is submitted, the development is not located on a legal parcel(s) that is any of the following:

• a. Within a coastal zone, as defined in Division 20 (commencing with section 30000) of the Public Resources Code.

• b. Prime farmland or farmland of statewide importance, as defined pursuant to the United States Department of Agriculture land inventory and monitoring criteria, as

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modified for California, and designated on the maps prepared by the Farmland Mapping and Monitoring Program of the Department of Conservation, or land zoned or designated for agricultural protection or preservation by a local ballot measure that was approved by the voters of that locality.

• c. Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21,1993).

• d. Within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code. This subparagraph does not apply to sites excluded from the specified hazard zones by a local agency, pursuant to subdivision (b) of Section 51179, or sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development.

• e. A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code, unless the Department of Toxic Substances Control has cleared the site for residential use or residential mixed uses.

• f. Within a delineated earthquake fault zone as determined by the State Geologist in any official maps published by the State Geologist, unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by any local building department

• g. Within a special flood hazard area subject to inundation by the one percent annual chance flood (100-year flood) as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency. If a development proponent is able to satisfy all applicable federal qualifying criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site. A development may be located on a site described in this subparagraph if either of the following are met: (i) The site has been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction. (ii) The site meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program pursuant to Part 59 (commencing with Section 59.1) and Part 60 (commencing with Section 60.1) of Subchapter B of Chapter I of Title 44 of the Code of Federal Regulations.

• h. Within a regulatory floodway as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency, unless the development has received a no-rise certification in

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accordance with Section 60.3(d)(3) of Title 44 of the Code of Federal Regulations. If a development proponent is able to satisfy all applicable federal qualifying criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site.

• i. Lands identified for conservation in an adopted natural community conservation plan pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code), habitat conservation plan pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural resource protection plan.

i. Lands identified for conservation in an adopted natural community conservation plan pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code), habitat conservation plan pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural resource protection plan.

• j. Habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).

• k. Lands under a conservation easement.

• l. The development would require the demolition of a historic structure that was placed on a national, state, or local historic register.

• B. Fees. The Council shall establish a schedule of fees for the processing of the applications required by this Zoning and Subdivision Code, hereafter referred to as the City's Fee Schedule.

C. Project application submittal requirements.

1. Applicants must submit a "preliminary application" with a notice of intent to invoke the provisions of SB 35.

2. Prior to accepting an SB 35 application, the City must consult with Native American tribes based on the submitted notice of intent.

3. If the development is in a moderate resource area, low resource area, or an area of high segregation and poverty, as shown on the CTCAC/HCD Opportunity Map, the City is required to hold a public meeting within 45 days of receiving a notice of intent and before the developer submits an SB 35 application.

4. Once the tribal consultation and public meeting, if required, are completed, the developer is eligible to submit an SB 35 application which shall include:

  - **a.** Project eligibility for SB 35 review; and 

  - **b.** Architectural Review application and subdivision application materials (if required). 

• D. Parking requirements. A minimum of one off-street parking space per unit shall be provided unless the project site meets one of the following criteria:

  1. It is located within a 1/2 mile of public transit.

  2. It is located within an architecturally or historically significant historic district.

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3. It is within one block of a car share vehicle with a fixed position.

4. There is an on-street parking permit program which is not offered to the occupants of the project.

• E. Timelines. SB 35 establishes mandatory timelines for lead agencies to complete their streamlined review. Lead agencies must determine if a project is eligible for streamlining within:

  1. 60 days of application submittal for projects of 150 or fewer units, or

  2. 90 days of application submittal for projects containing more than 150 units.

• F. California Native American Tribal notification. Within 30 calendar days of receiving the applicant's "preliminary application" for SB 35, the lead agency must provide formal notice to each California Native American Tribe about the proposed development. The formal notice must include the location and description of the proposed development and an invitation to engage in a scoping consultation. Each Tribe then has 30 calendar days to respond and accept the invitation to engage in consultation, and after receiving the acceptance invitation, the agency has 30 calendar days to initiate consultation. If there is no response to the notification of intent or an agreement reached in a scoping consultation and the project application is deemed complete and qualifies for SB 35 review, the project is eligible for SB 35 ministerial approval. If an agreement with one or more tribes is not reached, a project is not eligible for SB 35 approval. Provided that the notification and scoping session result in either an agreement or no response, SB 35 timelines shall commence provided an application is submitted.

(Ord. No. 525, § 2(Att. A), 2-18-25)