Modoc County Municipal Code § 18.138.050 Allowed incentives or concessions

The purpose of this section is to implement state law requirements under California Government Code, sections 65915 through 65918, as they may be amended from time to time, or the current equivalent to encourage the development of residential development that offers a percentage of its units to be made available to families of less than moderate incomes.

Pursuant to Government Code sections 65915 and 65917, the county must grant to an applicant of a qualifying housing development who seeks a density bonus ("developer") either 1) a density bonus or 2) a density bonus with an additional incentive(s) as set forth in this article. A density bonus housing agreement shall be made a condition of any density bonus approved pursuant to this section, and may be prepared as part of the development agreement ("DA") process.

(Ord. No. 236-162, 3-24-2026; Ord. No. 236-146, 12-12-2017)

Pursuant to Government Code sections 65915 and 65917, the county must grant to an applicant of a qualifying housing development who seeks a density bonus ("developer") either 1) a density bonus or 2) a density bonus with an additional incentive(s) as set forth in this article. A density bonus housing agreement shall be made a condition of any density bonus approved pursuant to this section, and may be prepared as part of the development agreement ("DA") process.

(Ord. No. 236-162, 3-24-2026; Ord. No. 236-146, 12-12-2017)

The following are eligibility requirements for a density bonus, incentives or concessions applicable to this section:

A. Affordability: A developer entering into an agreement pursuant to California Government Code section 65915 to construct a housing development may qualify for a density bonus if the proposed housing development consisting of five or more residential units:

1. A minimum of five percent of the total units made available to very low-income households, as defined by the most recent version of the applicable section of the California Health and Safety Code; or

2. A minimum of ten percent of the total units are made available to low-income households, as defined by the most recent version of the applicable sections of the California Health and Safety Code; or

3. A minimum of ten percent of the total units in a common interest development, made available to moderate-income households, as defined by the most recent version of the California Health and Safety Code, provided that all units in the development are offered to the public for purchase; or

4. A senior housing development or senior restricted mobile home parks, as defined by the most recent version of the applicable in section 65915 of the California Government Code; or

5. A minimum of ten percent of the total units are reserved for transitional foster youth, disabled veterans, or homeless persons, consistent with the definitions in Education Code section 66025.9, Military and Veterans Code section 18541, and the federal McKinney-Vento Homeless Assistance Act. These units must be subject to a fifty-five-year recorded affordability restriction and provided at the same affordability level as very low-income units; or

6. A minimum of twenty percent of the total units are reserved for lower-income students in a qualifying student housing development; or

7. Any additional qualifying project allowable under California Government Code section 65915 as amended from time to time.

California Government Code section 65915.5 shall govern the availability of bonus incentives for projects which convert apartments to condominium projects which include at least thirty-three percent of the total units of the proposed condominium project to persons and families of low or moderate income as defined in California Health and Safety Code section 50093, or fifteen percent of the total units to low-income households as defined in California Health and Safety Code section 50079.5.

B. Allowed density bonus: For the purposes of calculating the density bonus below, the developer shall select which qualifying part of subsection (A) that the bonus is proposed to be awarded. Qualifying developments are eligible for a density bonus and one or more additional incentives or concessions as follows:

1. Low-income households. A housing development eligible for a bonus in compliance with criteria of subsection (A)(2) (ten percent of lower income households) shall be entitled to a density bonus calculated pursuant to California Government Code section 65915(f)(1).

2. Very low-income households. A housing development eligible for a bonus in compliance with criteria of subsection (A)(1) (five percent of very low-income households) shall be entitled to a density bonus calculated pursuant to California Government Code section 65915(f)(2).

3. Senior citizen development. A housing development eligible for a bonus in compliance with criteria of subsection (A)(4) (senior citizen development or mobile home park) shall be entitled to a density bonus calculated pursuant to California Government Code section 65915(f)(3).

4. Common interest development. A housing development eligible in compliance with criteria of subsection (A)(3) (ten percent for moderate-income households) shall be entitled to a density bonus calculated pursuant to California Government Code section 65915(f)(4).

5. Transitional foster youth, disabled veterans, or homeless persons. A housing development eligible for a bonus in compliance with subsection (A)(5) (a minimum of ten percent of the total units reserved for transitional foster youth, disabled veterans, or homeless persons, consistent with Education Code section 66025.9, Military and Veterans Code section 18541, and the federal McKinney-Vento Homeless Assistance Act) shall be entitled to the density bonus assigned to this category, and such units shall be subject to a fifty-five-year affordability restriction at the very low-income level.

6. Student housing development. A housing development eligible for a bonus in compliance with subsection (A)(6) (a minimum of twenty percent of the total units reserved for lower-income students in a qualifying student housing development) shall be entitled to the density bonus applicable to student housing developments pursuant to Government Code section 65915.

7. One-hundred-percent affordable housing developments. A housing development in which all units, except manager's units, are restricted to lower-income households, with up to twenty percent of the total units permitted for moderate-income households, is eligible for the density bonus provisions applicable to one hundred percent affordable projects pursuant to Government Code section 65915, including circumstances where maximum density controls do not apply.

8. Density bonus for land donation. When an applicant for a tentative subdivision map, parcel map, or other residential development approval donates land to the county, a maximum of fifteen percent increase over the allowable density shall be provided for the entire development, as permitted by California Government Code section 65915(g)(1). This increase shall be in addition to any other density bonus. The applicant shall meet the conditions in California Government Code section 65915(g) in order to qualify for the additional development. Density bonus for housing with child care facilities. The county shall grant a density bonus for housing development that includes a child care facility in compliance with California Government Code section 65915(h).

9. Any additional qualifying density bonus, incentive, or concession allowable under California Government Code section 65915 as amended from time to time.

(Ord. No. 236-162, 3-24-2026; Ord. No. 236-149, § 13, 7-28-2021; Ord. No. 236-146, 12-12-2017)

A. In addition to a density bonus set forth in section 18.138.030.B (Allowed Density Bonuses), the county will allow projects to potentially obtain a total density bonus of up to one hundred percent by providing the initial percentage of affordable units to secure an initial fifty percent density bonus and then a secondary percentage of affordable units in order to obtain an additional density bonus of up to fifty percent. Where a housing development is seeking an additional bonus, the application shall identify the subparagraph of Government Code section 65915(v)(1) under which the development qualifies and provide reasonable documentation demonstrating eligibility for the additional bonus under that subparagraph. The additional density bonus will be available to projects that meet the following minimum set-asides:

1. Rental or for-sale housing developments that provide fifteen percent of the total units to very low-income households.

2. Rental or for-sale housing developments that provide twenty-four percent of the total units to lower income households.

3. For sale housing developments that provide forty-four percent of the total units to moderate income households.

B. Calculation of additional density bonus: Rental or for-sale housing development that meets the requirements specified in subsection A, an additional density bonus shall be entitled to a density bonus calculated in accordance with Government Code section 65915(v)(2).

(Ord. No. 236-162, 3-24-2026)

At the time of adoption of this density bonus chapter, the county does not have an inclusionary housing policy in place. However, if an inclusionary housing policy is adopted, designated density bonus units shall not count towards the requirements of the county's inclusionary housing requirements.

(Ord. No. 236-162, 3-24-2026; Ord. No. 236-146, 12-12-2017)

An applicant for a density bonus may submit to the county a proposal for the specific incentives or concessions listed that the applicant requests, and may request a meeting with the county staff prior to submitting the development application. The planning director shall grant an incentive or concession request that complies with the requirements of this section and state law, unless the board of supervisors states in writing, based on substantial evidence, the findings established in Government Code section 65915(d)(1)(A), 65915(d)(1)(B), or 65915(d)(1)(C). The following are allowed incentives or concessions that can be made for projects qualifying under this section:

A. Number of incentives. The applicant shall receive other concessions or incentives, as listed in subsection B of this section, that result in identifiable and actual cost reductions for the construction of the qualifying development project. The number of concessions or incentives will be determined by Government Code section 65915(d)(2).

B. Types of incentives. For the purposes of this section, bonus concessions or incentives which the county may provide include, but are not limited to, any of the following, as established in Government Code section 65915(k).

1. A reduction in site development standards or a modification of architectural design requirements that exceed the minimum State of California Building Standard, including, but not limited to, reductions in setback requirements, square footage requirements, or vehicular parking ratios, that result in identifiable and actual cost reductions pursuant to California Government Code section 65915(k)(1);

2. Approval of mixed-use zoning in conjunction with the housing project, if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located pursuant to California Government Code section 65915(k)(2); and

3. Any other incentive or concession proposed by the developer or the county that results in an identifiable, and actual cost reductions to provide for affordable housing cost pursuant to California Government Code section 65915(k)(3). See section 18.138.060 Processing of bonus requests.

(Ord. No. 236-162, 3-24-2026; Ord. No. 236-146, 12-12-2017)

The following is required for processing a bonus request:

A. Application procedures. An application for a density bonus or other incentive under this section for a housing development shall be submitted in writing to the planning department to be processed concurrently with all other entitlements of the proposed housing development. The application for a housing development shall contain information sufficient to fully evaluate the request under the requirements of this chapter and applicable State law.

B. Approval of incentives or concessions. The planning commission or the board of supervisors shall grant an incentive requested by the applicant unless it makes a written finding, based upon substantial evidence, of any of the following::

1. The proposed incentive does not result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in Health and Safety Code section 50052.5; or for affordable rents, as defined in Health and Safety Code section 50053; or

2. The proposed incentive would be contrary to state or federal law; or

3. The proposed incentive would have a specific, adverse impact upon the public health or safety or on any real property that is listed in the California Register of Historic Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the housing development unaffordable to low- and moderate-income households. For the purpose of this subsection, "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 as defined in Government Code section 65589.5.

C. Approval of waivers. The planning commission or the board of supervisors shall grant the waiver of development standards requested by the applicant unless it makes a written finding, based upon substantial evidence, of any of the following:

1. The proposed waiver would be contrary to state or federal law; or

2. The proposed waiver would have an adverse impact on any real property listed in the California Register of Historic Resources; or

3. The proposed waiver 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 impact without rendering the housing development unaffordable to low- and moderate-income households. For the purpose of this subsection, "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 as defined in Government Code section 65589.5.

D. Continued affordability. The application shall be considered by the planning commission or board of supervisors concurrently with the project for which the request is being made is considered. If the project is not to be otherwise considered by the planning commission or the board of supervisors, the request being made under this section shall be considered by the planning director. The request shall be approved if the applicant complies with Government Code section 65915 et seq.

(Ord. No. 236-162, 3-24-2026; Ord. No. 236-146, 12-12-2017)

The following is required for a density bonus agreement:

A. Agreement required and provisions. An applicant requesting a density bonus agreement shall agree to enter into a recordable density bonus agreement ("agreement") with the county in a form approved by the county counsel. The approval and recordation of the agreement shall take place prior to final map approval, or where a map is not being processed, prior to issuance of building permits for such properties.

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

1. The total number of units approved for the housing development, including the number of designated low income or affordable units and any student housing units and/or senior housing units, if provided.

2. A description of the household income group to be accommodated by the housing development, and standards for determining the corresponding affordable rent or affordable housing cost.

3. The location, unit sizes (square feet), and number of bedrooms of the designated affordable dwelling units, student housing units, and/or senior housing units.

4. The required affordability term shall be consistent with Government Code section 65915(e).

5. A schedule for completion and occupancy of the designated affordable dwelling units.

6. A description of the additional incentives being provided by the county.

7. A description of the remedies for breach of the agreement by the owners.

8. Other provisions to ensure successful implementation and compliance with this section and Government Code section 65915.

C. For-sale housing conditions. In the case of for-sale housing developments, the agreement shall provide for the following conditions governing the initial sale and use of designated low income or affordable dwelling units:

1. A requirement that designated affordable dwelling units shall be owner-occupied by eligible households, or by qualified residents in the case of senior housing.

2. Provisions of the county may require ensuring continued compliance with maintaining low income or affordable dwelling units through a recorded equity sharing agreement in compliance with this section and state density bonus law.

3. Terms for future sales and recapture of any equity pursuant to a recorded equity sharing agreement consistent with Government Code section 65915(c)(2).

D. Rental housing conditions. In the case of rental housing development, the agreement shall provide for the following conditions governing the use of designated low income or affordable dwelling units during the restriction period:

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

2. Provisions requiring owners to annually verify to the county tenant incomes and maintain books and records to demonstrate compliance with this section.

3. Provisions requiring owners to submit an annual report to the county, which includes the occupancy status, affordability level, bedroom size, and monthly rent for each designated affordable dwelling unit.

4. A requirement that the designated affordable rental dwelling units shall remain affordable to the qualified income group for a minimum of fifty-five years, or longer if required by applicable financing, consistent with state density bonus law.

(Ord. No. 236-162, 3-24-2026; Ord. No. 236-146, 12-12-2017)