Malibu Municipal Code § 3.7 Affordable Housing

A. Purpose and Intent. The purpose of this section is to implement the incentive program provided in the State density bonus regulations (Government Code Sections 65915 through 65918) in order to provide additional opportunities for the provision of affordable housing within the City of Malibu in compliance with the policies of the Local Coastal Program. The intent of the following regulations is to ensure that the provisions of Government Code Sections 65915 through 65918 are implemented in a manner that is consistent with the policies of Chapter 3 of the Coastal Act and is most protective of coastal resources.

B. Eligibility. A density bonus may be granted to an eligible housing development in any residential district through approval by the city council (after recommendation from the planning commission) of a CDP. In order to qualify for a density bonus or other financial incentives of equivalent value as specified in Government Code Section 65915 the developer of a housing development project shall agree to construct one of the following:

1. At least ten (10) percent of the total units of a housing development for persons and families of lower income;

2. At least five (5) percent of the total units of a housing development for very low income households;

3. A senior citizen housing development; or

4. At least ten (10) percent of the units in a common interest subdivision for persons and families of moderate income.

Only one density bonus up to a maximum of thirty-five (35) percent shall be granted to each project regardless of the number of preceding qualifying commitments made by the developer.

C. General Provisions for Density Bonuses and Incentives/Concessions. In accordance with Government Code Section 65915, the City shall consider a density bonus and provide incentives or concessions for a housing development subject to the following provisions:

1. Determination of unit count. When determining the percentage of housing units which are to be affordable, the density bonus units shall not be included.

2. Minimum project size. A project must contain at least five dwelling units in order to be considered for a density bonus.

3. Previous density bonuses. The density bonus provision shall not apply to any parcel or project area which has previously been granted increased density through a general plan amendment, zone change or other permit to facilitate affordable housing.

4. Dispersal of affordable units. "Affordable" or "density bonus" units shall be generally dispersed throughout a development project and shall not differ in appearance from other units in the development.

5. Regulatory incentives. In accordance with Government Code Section 65915, in addition to a density bonus the City shall grant at least one of the following regulatory concessions and/or incentives to ensure that the residential project will be developed at a reduced cost:

a. A reduction in the site development standards or a modification of zoning code requirements including, but not limited to, reduced minimum lot size or dimensions; or reduced minimum setbacks.

b. Approval of mixed-use development in conjunction with a multi-family residential project if commercial, office, industrial or other land uses will reduce the cost of the housing development and if the project will be compatible internally as well as with the existing or planned development in the area where the proposed project will be located.

c. Other regulatory incentives or concessions proposed by the developer or the City which result in identifiable cost reductions.

D. Procedures for Approval.

1. Notification to developer. The City shall, within ninety (90) days of receipt of a written proposal to utilize a density bonus for affordable housing, notify the developer in writing of the procedures governing these provisions.

2. Findings. When required by Government Code Section 65915, the City shall grant a density bonus that allows the applicant to build no more than thirty-five (35) percent more units than a property's zoning would ordinarily allow, if the City finds:

a. The number of units is compatible with the existing and planned infrastructure and service facilities serving the site;

b. The developer has demonstrated that the density bonus and adjustment of standards is necessary to make the project economically feasible;

c. The proposed increased density is consistent with Section 30604(f) of the California Coastal Act, Government Code Section 65915 and Section 3.7.1 of the Local Coastal Program;

d. If located within the coastal zone, the project is found to be in conformity with the coastal resource protection standards in the Local Coastal Program (including but not limited to sensitive habitat, agriculture, public viewshed, public services, public recreational access and open space protections), with the exception of the density provisions; and

e. The proposed project is compatible with the goals and coastal resource protection policies of the LCP and purpose and intent of this section.

3. In accordance with Government Code Section 65915(f), the density bonus shall be calculated based on the otherwise maximum allowable residential density under the LCP. The "otherwise maximum allowable residential density" shall mean the maximum density determined by applying all site-specific environmental development constraints applicable under the LCP.

4. Any housing development approved pursuant to Government Code Section 65915 shall be consistent with all applicable certified local coastal program coastal resource protection policies and development standards, with the exception of the density provisions. If, however, the City determines that the means for accommodating the density increase proposed by the applicant will have an adverse effect on coastal resources, before approving a density increase, the City shall identify all feasible means of accommodating the density increase and consider the effects of such means on coastal resources. The City shall require implementation of the means that avoid impacts to coastal resources, as required by relevant LCP policies, while still providing the density increase permitted by law.

5. For the purposes of this section, "coastal resources" means any resource which is afforded protection under the policies of Chapter 3 of the Coastal Act, California Public Resources Code Section 30200 et seq., including, but not limited to, public access, marine and other aquatic resources, environmentally sensitive habitat, and the visual quality of coastal areas.

6. For any housing development where the City approves a density bonus, prior to issuing the coastal development permit, the owner must record an affordable housing agreement pursuant to Section 3.7.2 of the Malibu LIP.

E. Required Terms for Continued Availability of Affordable Units.

1. Low and Very-Low Income Households. An applicant providing low and very-low income units in accordance with this chapter must continue to restrict those units to low or very-low income households for a minimum of fifty-five (55) years or longer term under another regulator agreement from the date of initial occupancy.

2. Moderate Income Households. In the case of a housing development providing moderate income units, the initial occupant of the unit must be a moderate income household and the sale price must be affordable to moderate income households and household and the sale price must be affordable to moderate income households.

a. 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. The local government shall recapture any initial subsidy and its proportionate share of appreciation; which shall be used within five years for any of the purposes described in subsection (e) of Section 33334.2 of the California Health and Safety Code that promote home ownership. Any recaptured funds shall be deposited into a housing trust account to be used in accordance with subsection (e) of Section 33334.2 of the California Health and Safety Code.

An applicant that chooses any option for satisfying the affordability requirements of this chapter shall enter into an affordable housing agreement ("agreement") with the City. The agreement shall be executed in a recordable form prior to the issuance of a CDP and building permit for any portion of a project including affordable units, subject to the requirements of this chapter.

A. The agreement shall:

1. Provide a description of the project, how the affordable housing requirements will be met by the applicant, and whether the affordable units will be rented or owner-occupied;

2. Identify the type, size and location of each affordable housing unit required hereunder;

3. Identify the incentive(s) and/or concession(s) provided by the City (if any) for a density bonus;

4. Identify limits on income, rent, and sales price of affordable units;

5. Identify the term of the agreement, which would define the term of affordability of the required units;

6. Require that the affordable housing units be constructed and completed by the applicant as specified in this chapter and in accordance with state law;

7. Require that each affordable housing unit be kept available only to members of the identified income group at the maximum affordable rent during the term of the agreement;

8. Describe procedures for tenant selection and the process for qualifying prospective households for income eligibility;

9. Identify provisions and/or documents for resale restrictions, deeds of trust, rights of first refusal for owner-occupied units, or restrictions for rental units;

10. Include performance guarantees (e.g., a cash deposit, bond, or letter of credit) as required by the City;

11. Include provisions for the enforcement and penalties for violation of the agreement; and

12. Identify the means by which such continued availability shall be secured and enforced and the procedures under which the affordable housing units shall be leased and shall contain such other terms and provisions, the City may require.

B. The agreement, in its form and manner of execution, shall be in a form approved by the City Attorney and able to be recorded with the Los Angeles County Recorder. Additional rental or resale restrictions, deeds of trust, rights of first refusal and/or other documents shall also be recorded against owner-occupied affordable units.

C. The affordability of the required units shall be monitored for compliance by Planning Department staff. The Planning Director is hereby expressly authorized to act as the City's agent to enter into the agreement for the purpose of enforcing the terms of the agreement consistent with this chapter. The agreement shall include a provision for reimbursement of the City's costs of monitoring.

A. Fund Revenues. The fund shall receive all in-lieu fees paid under Section 3.7.1(E)(2) and may also receive moneys from other sources.

B. Purpose and Limitations. Affordable housing fund moneys shall be used in compliance with the general plan housing element and this chapter to construct, rehabilitate, or subsidize affordable housing or assist other governmental entities, private organizations or individuals to provide or preserve affordable housing. The fund may be used for the benefit of both rental and owner-occupied housing. Allowed uses of fund moneys include:

1. Assistance to housing development corporations;

2. Equity participation loans;

3. Grants;

4. Pre-home ownership co-investment;

5. Predevelopment loan funds;

6. Participation leases;

7. Other public-private partnership arrangements;

8. The acquisition of property and property rights;

9. Construction of affordable housing including costs associated with planning, administration, and design, as well as actual building or installation;

10. Costs of rehabilitation and maintenance of existing affordable housing when needed to preserve units that are at risk of going to a market rate or at risk of deterioration;

11. Other costs associated with the construction or financing of affordable housing;

12. Reasonable administrative charges or related expenses; and

13. Reasonable consultant and legal expenses related to the establishment and/or administration of the fund.