Chapter 22.22 — AFFORDABLE HOUSING REGULATIONS

Marin County is experiencing a shortage of homes affordable to the workforce of the county, seniors and individuals with disabilities. The California Legislature has found that the availability of housing is of vital statewide importance and a priority of the highest order, and that local governments have a responsibility to use the powers vested in them to facilitate the improvement and development of housing to make adequate provision for the housing needs of all economic segments of the community.

To help attain local and state housing goals, this Chapter requires new developments to contribute to the County's affordable housing stock through the provision of housing units, land dedication, and/or fees. This Chapter provides procedures and requirements applicable to development proposals in the unincorporated areas of Marin County, which are intended to achieve the following goals:

A.

Countywide Plan housing goals. Enhance the public welfare and ensure that further residential and nonresidential development contribute to the attainment of the housing goals of the Countywide Plan by increasing the production of affordable housing, and stimulating funds for development of affordable housing.

B.

Reduce affordable housing shortage. Reduce the housing shortage for income qualifying households.

C.

Balanced community. Achieve a balanced community with housing available for households with a range of income levels.

D.

Affordable housing requirements. Ensure that remaining developable land within the County is utilized in a manner consistent with the County's housing policies and needs. This can be accomplished in part by

applying the residential and non-residential affordable housing requirements or fees contained in this Chapter.

(Ord. No. 3577, 2012; Ord. No. 3666, § II(exh. A), 2017)

The provisions of the Chapter apply to new market rate development that entails the development of new residential floor area, lot creation, multifamily housing, residential care facilities, and the development of new non-residential floor area. Additional applicability standards are enumerated below. Table 3-4a provides examples of housing and fee requirements for different types of development.

TABLE 3-4a

EXAMPLES OF AFFORDABLE HOUSING REQUIREMENTS

A.

Single-family dwellings. All new single-family dwellings greater than 2,000 square feet, except those located in subdivisions previously subject to an inclusionary requirement, shall pay an Affordable Housing Impact Fee per Ordinance 3500.

B.

Multi-family rental housing. New multi-family housing developed without a subdivision map and where dwelling units cannot be sold separately shall provide affordable housing consistent with Section 22.22.090 (Inclusionary Housing Standards).

C.

Multi-family housing with a subdivision map. All new multi-family housing and condominium conversions approved with a subdivision map or with dwelling units that can be sold separately, including multi-family housing, condominiums, townhouses, and stock cooperatives, shall provide affordable housing consistent with Section 22.22.090 (Inclusionary Housing Standards).

D.

Lot creation with proposed dwellings. Any subdivision with a proposed development of one or more dwellings shall provide affordable housing consistent with Section 22.22.090 (Inclusionary Housing Standards).

E.

Lot creation without proposed dwellings. Any subdivision creating one or more new lots shall provide inclusionary lots for the immediate or future development of affordable housing consistent with Section 22.22.090 (Inclusionary Housing Standards).

F.

Non-residential developments. Non-residential development shall pay a Jobs/Housing linkage fee consistent with Section 22.22.100 (Non-Residential and Mixed Use Affordable Housing Standards).

G.

Mixed use developments. Mixed use developments are subject to both the non-residential and residential affordable housing requirements.

H.

Affordable housing regulations. The requirements of this Chapter shall be imposed only once on a given development approval. Affordable housing requirements imposed on a development shall be consistent with the affordable housing requirements in effect at the time of each successive Precise Development Plan or Design Review approved in conformance with a governing Master Plan. Subdivisions subject to an inclusionary requirement are also not subject to the Affordable Housing Impact Fee, but may be subject to other applicable inclusionary in-lieu fees.

(Ord. No. 3577, 2012; Ord. No. 3706, 2019; Ord. No. 3745, § 1(exh. A), 2021; Ord. No. 3798, § II(exh. A), 2023)

An affordable housing plan shall be submitted as part of the first application for any development project, including a housing development project, subject to this Chapter, except single-family dwellings subject to the Affordable Housing Impact Fee, and shall be processed, reviewed, and approved, conditionally approved, or denied concurrently with all other applications required for the project. Any request for a waiver of requirements of this Chapter must be submitted as part of the affordable housing plan.

(Ord. No. 3577, 2012; Ord. No. 3745, § 1(exh. A), 2021)

In Marin County, it shall be unlawful to restrict housing choice on the basis of race, color, disability, religion, sex, familial status, national origin, sexual orientation, marital status, ancestry, age, and source of income.

(Ord. No. 3577, 2012; Ord. No. 3798, § II(exh. A), 2023)

The following shall be exempt from the provisions of this Chapter: agricultural development; agricultural worker housing and all related accessory structures; development by special districts and authorities subject to the Marin Local Agency Formation Commission's (LAFCO) authority over boundaries and organization; up to one SB 9 lot/unit; residential Accessory Dwelling Units; and residential projects developed at the targeted income level and percentage cited in the Housing Overlay Designation policies in the Countywide Plan. Affordable housing shall be exempt from Inclusionary Housing Standards; however, if State or Federal Regulations establish a limited term affordability requirement, then the inclusionary standards in this Chapter shall begin to apply once that term is completed, and shall apply in perpetuity.

(Ord. No. 3577, 2012; Ord. No. 3602, § II(exh. A), 2013; Ord. No. 3666, § II(exh. A), 2017; Ord. No. 3706, 2019; Ord. No. 3745, § 1(exh. A), 2021; Ord. No. 3798, § II(exh. A), 2023)

The review authority may grant a waiver to the requirements of this Chapter if they determine an alternative affordable housing proposal demonstrates a better means of serving the County in achieving its affordable housing goals than the requirements of Chapter 22.22 (Affordable Housing Regulations).

A.

Residential projects. The review authority may approve one or more of the following alternative means of compliance with the requirements of Section 22.22.090 (Inclusionary Housing Standards) or the mixed use residential inclusionary requirements of Section 22.22.100.B (Mixed use development). Any proposed alternative means of compliance must include an analysis of fair housing implications to ensure that any proposed off-site location will promote diversity. Required units or lots must be located in an unincorporated area of the County within the same census tract or in an identified Racially Concentrated Area of Affluence. The options below are listed in order of priority, with the provision of in-lieu fees being the lowest priority. The applicant must demonstrate that each option is infeasible before the County may consider the next option.

1.

Affordable units off-site. Inclusionary units may be constructed on one or more sites not contiguous with the proposed development. The off-site property shall be located within the same census tract or in an identified Racially Concentrated Area of Affluence with appropriate zoning, density, location, size, accessibility to public transportation, and other services, consistent with sound community planning principles and shall be devoid of contaminants and other hazardous wastes. The offsite location must include either a greater number of inclusionary units than required on-site or the same number of inclusionary units that are affordable at a lower income level.

2.

Lots. The applicant may dedicate suitable real property to the County or its designee to develop the required inclusionary units. The property shall be within the same census tract or in an identified Racially Concentrated Area of Affluence with appropriate zoning, density, location, size, accessibility to public transportation, and other services, consistent with sound community planning principles and shall be devoid of contaminants and other hazardous wastes. The offsite location must include either a greater number of inclusionary units than required on-site or the same number of inclusionary units that are affordable to a lower income level.

3.

In-lieu fee. The applicant may pay an in-lieu participation fee based on 125% of the requirement of Section 22.22.090 (Inclusionary Housing Standards). The review authority shall apply the lowest preference to the payment of an in-lieu fee for compliance with the requirements of this chapter.

B.

Non-Residential Development and Residential Care Facilities. If the review authority finds that an alternative provides a better means of serving the County in achieving its affordable housing goals, one or more of the following alternative means may be approved for compliance with the requirements of this chapter. Any proposed alternative means of compliance must include an analysis of fair housing implications to ensure that any proposed off-site location will promote housing diversity. Required units or lots must be located in an unincorporated area of the County within the same census tract or in an identified Racially Concentrated Area of Affluence. A combination of both income-restricted units and affordable housing fees may be allowed. The options below are listed in order of priority, with the provision of in-lieu fees being the lowest priority. The applicant must demonstrate that each option is infeasible before the County may consider the next option.

1.

Affordable units off-site. Affordable units may be constructed off-site on an adjacent property or on one or more sites not contiguous with the proposed development. The off-site property shall be located within the same census tract or in an identified Racially Concentrated Area of Affluence with appropriate zoning, character and density, location, size, accessibility to public transportation, and other services, consistent with sound community planning principles and shall be devoid of contaminants and other hazardous wastes. The offsite location must include either a greater number of inclusionary units than required on-site or the same number of inclusionary units that are affordable to a lower income level.

2.

Lots. The applicant may dedicate suitable real property to the County or its designee to be developed for affordable housing by the County, or a profit or nonprofit, private or public applicant. The off-site property shall be located in the same census tract or in an identified Racially Concentrated Area of Affluence and shall be appropriately sized and zoned for development equivalent to or more than the residential units that are not created on-site. The property shall be offered in a condition that is suitable for development,

including appropriate access and services, consistent with sound community planning principles and shall be devoid of contaminants and other hazardous wastes.

3.

In-lieu fee. The applicant may pay an in-lieu participation fee based on 125% of the requirement of Section 22.22.090 (Inclusionary Housing Standards). The review authority shall apply the lowest preference to the payment of an in-lieu fee for compliance with the requirements of this chapter.

(Ord. No. 3577, 2012; Ord. No. 3602, § II(exh. A), 2013; Ord. No. 3706, 2019; Ord. No. 3798, § II(exh. A), 2023)

22.22.080 - General Affordable Housing Standards.

A.

Property Restriction. All affordable housing units shall be restricted by a Regulatory Agreement recorded against the property to place certain rules and regulations on the operation and maintenance of the site and restrict the rental/sale of the housing to Income Qualifying Households at an affordable rental level or sale price.

B.

Eligible occupants. All affordable housing units shall be sold or rented to Income Qualifying Households, at income levels established pursuant to the applicable affordable housing requirement, as certified by the County or its designee.

C.

Income restriction. All affordable housing units shall be income-restricted in perpetuity, unless the review authority reduces the term of the affordability requirement to reflect the maximum term that is permitted by Federal or State financing sources. Once that limited term has expired, the requirements of this Chapter shall begin to apply and shall apply in perpetuity.

D.

Affordable unit cost. Units shall be developed using a mix of affordability levels based on Area Median Income, adjusted for household size, as described in Table 3-4b. Required ownership units shall be affordable to households at 35 percent of the household income. Any affordable rental units shall be offered at an affordable rent not exceeding 30 percent of the household income. The housing unit prices shall be established based on applicable income range, the number of bedrooms and consistent with the following:

TABLE 3-4b

AFFORDABLE HOUSING INCOME RANGES AND ASSOCIATED RENT LEVELS/SALES PRICE REQUIREMENTS

E.

Location of affordable housing units. All required affordable housing units on-site shall be disbursed throughout the development. This requirement may be modified for cause by the review authority. The review authority may grant a waiver to this requirement if they determine an alternative proposal demonstrates a better means of serving the County in achieving its affordable housing goals.

F.

Design and character of affordable housing units. Required affordable housing units shall be dispersed throughout the project, and shall contain, on average, the same number of bedrooms as the market rate units in a residential development, and shall be compatible with the exterior design and use of the remaining units in appearance, materials, amenities, and finished quality. Interior appearance. amenities, and finishes shall be of similar design and materials as market rate units. Residential units constructed on behalf of, or funded by a public entity, must comply with the Department of Justice's Standards for Accessible Design and other relevant state and federal requirements for accessibility.

G.

Lots dedicated to affordable housing. Any required inclusionary lot shall be offered in a condition that is suitable for development, including appropriate access and services, consistent with sound community planning principles, and shall be devoid of contaminants and other hazardous wastes.

H.

Use and payment of affordable housing fees. Affordable housing fees (including Affordable Housing Impact Fees, Rental Housing Impact Fees, Jobs/Housing linkage fees, and In-lieu fees) shall be used by the County or its designee for the purpose of developing and preserving affordable housing for income qualifying households, with preference for use in the unincorporated areas of the county.

I.

Requested rental affordable housing. An applicant may request to provide affordable rental units as an alternative to the provision of ownership units otherwise required by Sections 22.22.090 (Inclusionary Housing Standards) and 22.22.100 (Non-Residential and Mixed Use Affordable Housing Standards). To ensure compliance with the Costa-Hawkins Act (Chapter 2.7 of Title 5 of Part 4 of Division 3 of the California Civil Code) the County may only approve such a proposal if the applicant agrees in a rent regulatory agreement with the County to limit rents in consideration for a direct financial contribution or a form of assistance specified in Chapter 4.3 commencing with Section 65915 of Division 1 of Title 7 of the Government Code. All affordable rental units proposed by an applicant shall comply with all provisions related to rentals in Section 22.22.080 (General Affordable Housing Standards).

J.

Accessory Dwelling Units. Accessory Dwelling Units and Junior Accessory Dwelling Units cannot be used to satisfy affordable housing requirements.

(Ord. No. 3577, 2012; Ord. No. 3602, § II(exh. A), 2013; Ord. No. 3745, § 1(exh. A), 2021; Ord. No. 3798, § II(exh. A), 2023)

This Section addresses the inclusionary housing standards for lot creation with or without proposed dwellings, multifamily development within an existing lot, and the residential portion of mixed use developments. This Section also provides the means to levy in-lieu fees for the construction of affordable housing in cases where the inclusionary requirement includes a decimal fraction of a unit or lot or when a combination of both inclusionary units and an in-lieu fee is required.

A.

Number of inclusionary units/lots required. Twenty percent of the total number of dwelling units or lots within a subdivision shall be developed as, or dedicated to, affordable housing. Projects with 4 or fewer units/lots where the inclusionary housing calculation results in a decimal fraction greater than 0.70, the fraction shall be rounded up to one additional dwelling unit or lot. Projects with five or more units/lots, where the inclusionary housing calculation results in any decimal fraction, the project applicant shall comply with State Density Bonus Law round up provisions.

Developers of rental units shall select from the following two options for establishing the number of inclusionary units and affordability levels:

TABLE 3-4c

AFFORDABLE RENTAL HOUSING REQUIREMENTS

Developers of ownership units shall establish the number of inclusionary units and affordability levels based on the project size:

TABLE 3-4d

AFFORDABLE OWNERSHIP HOUSING REQUIREMENTS

Developers may choose to develop units at lower-income ranges than the above inclusionary policy specifies.

1.

Lots developed with a primary residence and a Certificate of Occupancy issued at least five years prior to subdivision approval shall be deducted from the total number of lots in the proposed subdivision for the purpose of applying the inclusionary requirement.

B.

In-lieu fee. A fee shall be required in addition to inclusionary units or lots in cases where the inclusionary requirement includes a decimal fraction of a unit or lot or when a combination of both inclusionary units and in-lieu fees is required. The current Affordable Housing Fee as established by the County shall be multiplied by the fraction of the inclusionary requirement to determine the applicable fee to be paid.

(Ord. No. 3577, 2012; Ord. No. 3798, § II(exh. A), 2023)

22.22.100 - Non-Residential, Mixed Use, and Residential Care Facility Affordable Housing Standards.

Developments with no residential component are required to pay a Jobs/Housing linkage fee. Mixed use developments proposing residential rental units are required to pay a Jobs/Housing linkage fee for the nonresidential component and are subject to the Inclusionary Housing Standards for the residential component. Mixed use developments proposing residential units which can be sold separately shall comply with the applicable provision of Section 22.22.020.C through E (Applicability). Mixed use development shall also provide new affordable units for the non-residential component consistent with Table 3-4c rather than payment of a Jobs/Housing Linkage Fee. All required affordable housing units shall comply with Section 22.22.080 (General Affordable Housing Standards).

A.

Non-residential development and Residential Care Facilities. The Jobs/Housing linkage fees for all nonresidential development shall be determined based on the development type and floor area of the development. Alternatively, an applicant for a non-residential development may propose to provide new affordable units, based on relevant data from the applicant or information from the County's relevant housing studies, at the discretion of the Director. All affordable housing units shall comply with Section 22.22.080 (General Affordable Housing Standards).

Job/Housing linkage fees are established using per square foot of floor area[[3]] unless noted otherwise for the following development types:

• Office[2 ] /Research and Development

• Retail/Restaurant[3]

• Hotel/Motel

• Residential Care Facility

• Medical-Extended Care

Other types of non-residential development will be assessed based on project specific factors including number of employees and the use of the development.

B.

Mixed use development. Mixed use developments are subject to both the non-residential and residential affordable housing requirements. The residential inclusionary requirement shall be calculated consistent with the applicable Section 22.22.090 (Inclusionary Housing Standards) and the non-residential inclusionary requirement shall be calculated consistent with Section 22.22.100.A (Non-residential development) above.

Affordable housing units provided under this Section shall comply with the Section 22.22.080 (General Affordable Housing Standards).

(Ord. No. 3706, 2019; Ord. No. 3798, § II(exh. A), 2023)

Editor's note— Ord. No. 3706, adopted March 12, 2019, amended § 22.22.100 in its entirety to read as herein set out. Former § 22.22.100 pertained to non-residential and mixed use affordable housing standards and derived from Ord. No. 3577, adopted in 2012; Ord. No. 3602, § II(exh. A), adopted in 2013; and Ord. No. 3666, § II(exh. A), adopted in 2017.

Footnotes:

--- ( 3 ) ---

For purposes of this Chapter, the floor area excludes all areas permanently allocated for vehicle parking, unless such areas are used for commercial or industrial purposes.[2 ] Office uses include offices associated with professional, business, medical, religious and educational services.[3 ] Accessory uses, such as retail, restaurant, and meeting facilities within a hotel shall be subject to requirements for a retail use.

22.22.110 - Post Approval.

A.

Requirements Post approval. Before issuance of construction permits for any approved project that is subject to the requirements of this Chapter, the applicant shall submit an affordable housing plan for review

and approval and subsequently conform to the approved affordable housing plan. The approved housing plan shall:

1.

Specify the construction of the affordable units and/or the timing of payment of fees. All affordable housing units and other phases of a development shall be constructed prior to, or concurrent with, the construction of the primary project unless the review authority approves a different schedule;

2.

Specify the number of units at appropriate price levels, as determined by the review authority;

3.

Specify provisions for any incentives granted pursuant to Chapter 22.24 (Affordable Housing Incentives) where applicable;

4.

Determine when in-lieu fees shall be paid, including whether payment shall be made prior to recordation of the map or issuance of any building permit;

5.

Require a written agreement between the County and the applicant prior to recordation of any final or parcel map or issuance of any building permit which indicates the number, type, location, size, and construction scheduling of all affordable housing units, and the reasonable information that shall be required by the County for the purpose of determining compliance with this Chapter. This agreement shall also specify provisions for income certification and screening of potential purchasers and/or renters of units, and specify resale control mechanisms, including the financing of ongoing administrative and monitoring costs. The applicant shall be responsible for any direct costs associated with the negotiation of this agreement.

B.

Project review procedure. Affordable housing plans shall be analyzed by the County Housing Division to ensure that the plan is consistent with the purpose and intent of this Chapter.

(Ord. No. 3577, 2012; Ord. No. 3706, 2019; Ord. No. 3798, § II(exh. A), 2023)

Editor's note— Ord. No. 3798, § II(exh. A), adopted September 19, 2023, renamed § 22.22.100 from "decision" to "post approval."

A.

Administration. The County or its designee shall monitor required affordable housing units.

B.

Required inclusionary units. In addition to the standards in Section 22.22.090 (Inclusionary Housing Standards) the property owner shall enter into a Regulatory Agreement with the County or its designee, to ensure that the following standards are applied to required affordable housing units:

1.

Limitation on Resale Price. In order to maintain the affordability of the housing units constructed in compliance with this Chapter, the County shall impose the following resale condition. The price received by the seller of a resale unit shall be the lowest of the following:

a.

Median income. The original price paid by the seller increased by an amount equal to purchase price multiplied by the percentage increase in the median household income for the San Francisco Primary Metropolitan Statistical Area since the date of purchase;

b.

Index price. The original price increased by an amount equal to the original price multiplied by the percentage increase in the Consumer Price Index for the San Francisco Bay Area since the date of purchase; or

c.

Fair market value. The fair market value of the resale unit as determined by an appraiser approved by the County or its designee and paid for by the seller.

2.

Eligible purchasers. Ownership inclusionary units shall be sold and resold from the date of the original sale only to income qualifying households, as determined to be eligible for inclusionary units by the County or its designee, in compliance with the requirements of this Chapter.

a.

Every purchaser of an inclusionary housing unit shall certify by a form acceptable to the County or its designee that the unit is being purchased for the purchaser's primary place of residence. The County or its designee shall verify this certification. Failure of the purchaser to maintain eligibility for a homeowner's property tax exemption shall be construed to mean that the inclusionary unit is not the primary place of residence of the purchaser.

b.

The seller shall not levy or charge any additional fees, nor shall any "finders' fee" or other monetary consideration be allowed other than customary real estate commissions and closing costs.

c.

The County or its designee shall advertise the inclusionary units to the general public. Upon notification of the availability of ownership units by the applicant, the County or its designee shall seek and screen qualified purchasers through a process involving applications and interviews. Where necessary, the County or its designee shall hold a lottery to select purchasers from a pool of income-eligible applicants.

3.

Income restrictions. The owners of any inclusionary unit shall, upon purchase, sign and record appropriate resale and other restrictions, deeds of trust, and other documents as provided by the County or its designee, stating the restrictions imposed in compliance with this Chapter. The recorded documents shall afford the grantor and the County the right to enforce the restrictions. The restrictions shall include all applicable resale controls, occupancy restrictions, and prohibitions required by this Chapter.

4.

Notice of resale restrictions. The County or its designee shall advise all prospective purchasers of the resale restriction applicable to ownership inclusionary units.

5.

Monitoring of Resales. The County or its designee shall be given the responsibility of monitoring the resale of ownership inclusionary units. The County or its designee shall have the option to commence purchase of ownership inclusionary units after the owner gives notification of intent to sell or in the event of any default or violation of the income restrictions. Any abuse in the resale provisions shall be referred to the County for appropriate action.

C.

Requested affordable housing rental units. In addition to the standards in Section 22.22.080 (General Affordable Housing Standards), the Review Authority shall ensure that the following standards are applied to any requested affordable rental units after they are constructed:

1.

Advertising and screening. The applicant or owner shall agree to advertise available rental housing, screen applicants, and perform annual income certifications for the affordable rental units, or retain a qualified entity to do so. The applicant or owner shall have final discretion in the selection of eligible tenants, provided that the same rental terms and conditions are applied to tenants of income-restricted units as are applied to all other tenants, with the exception of rent levels, household income, and any requirements of government subsidy programs.

2.

Recorded agreements. For any requested rental units, the owner shall enter into recorded agreements with the County and take appropriate steps necessary to ensure that the required affordable rental units are provided, and that they are rented to income qualifying households. Recorded documentation may include a Marketing Plan, Rent Regulatory Agreement, Compliance Report, Notice of Affordability Restrictions on

Transfer of Property, and other documents as may be required by the County to maintain the continued affordability of the affordable units.

3.

Monitoring. The owner shall be required to provide tenant income qualification reports to the County or its designee for monitoring on an annual or biennial basis.

(Ord. No. 3577, 2012; Ord. No. 3798, § II(exh. A), 2023)

Chapter 22.24 - AFFORDABLE HOUSING INCENTIVES