Newark Municipal Code Ch. 17.19 Density Bonus for Affordable Housing

This chapter is intended to provide a local ordinance for implementation of the state-mandated density bonus set forth in California Government Code Section 65915 et seq. For the purposes of this chapter, "density bonus" means a density increase over the otherwise maximum allowable residential density under the applicable zoning and general plan land use designation as of the date of application by the applicant to the city.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Density bonuses pursuant to California Government Code Section 65915 et seq. are available for the following projects. The total density bonus for a project shall not exceed thirty-five percent.

A. Housing Development.

1. Criteria. A density bonus shall be granted to housing developments that meet all of the following criteria:

a. The development will include five or more dwelling units;

b. The development will provide at least the amount of housing designated for very low or low income households, or moderate income households in a common interest development, set forth in Government Code Section 65915(b), or the development is a senior citizen housing development; and

c. The affordability of the housing designated for very low, low or moderate income households shall be protected in accordance with Government Code Section 65915(c).

2. Amount. The amount of the density bonus to which the developer is entitled shall be determined in accordance with Government Code Section 65915(f).

B. Land Donation. An applicant for a tentative subdivision map, parcel map or other residential development approval may receive a density bonus for a donation of land if the land meets all of the following criteria:

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

2. The developable acreage and zoning district classification of the land being transferred are sufficient to permit construction of units affordable to very low income households in an amount not less than ten percent of the number of residential units of the proposed development;

3. The transferred land is at least one acre in size or of sufficient size to permit development of at least forty units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at the required density, and is or will be served by adequate public facilities and infrastructure;

4. The transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units on the transferred land, not later than the date of approval of the final subdivision map, parcel map, or residential development application.

5. The developer shall record a deed restriction approved by the city attorney for the transferred land and the density bonus units to restrict affordability with the requirements set forth in this chapter;

6. The land shall be transferred to the city or to a housing developer approved by the city prior to approval;

7. The transferred land must be within the boundary of the proposed development. Alternatively, the city council may approve a site within one-quarter mile of the project site; and

8. A proposed source of funding for the very low income units shall be identified to the satisfaction of the city council not later than the date of approval of the final subdivision map, parcel map, or residential development or application.

C. Childcare Facility. A development which meets the requirements of Subsection A or Subsection B above and also includes a child care facility shall receive an additional density bonus or an additional incentive or concession.

1. To qualify, the child care facility must:

a. Be located on the premises of, be a part of, or be adjacent to the housing development;

b. Agree to remain in operation for at least as long as the density bonus units are required to remain affordable; and

c. Maintain percentages of children from very low income, low income, and moderate income households equal to the percentages of dwelling units required for each income level.

2. The amount of the additional density bonus shall be determined per Government Code Section 65917.5(a)(2)(A) and (B).

3. Application for an additional incentive or concession shall be made as described in Section 17.19.030, Incentives and Concessions.

4. A request for a child care bonus or incentive may be denied if the City Council finds, based on substantial evidence, that the community has adequate child care facilities.

5. If the space allocated for a child care facility under this section is used for purposes other than a child care facility, or if developer fails to allocate space for the child care facility within three years of the issuance of the first temporary certificate of occupancy, the city council may levy and collect an assessment based on the square footage of the project.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Applicants for a density bonus may also request incentives or concessions. The number of incentives or concessions will be determined based on Government Code Section 65915(d).

B. Incentives or concessions may include the following:

1. Allowing tandem or uncovered parking;

2. Reduced parking standards;

3. Reduced setbacks;

4. Allowing mixed-use when compatible with neighboring properties and when mixed-use would reduce the cost of the housing development; or

5. Other incentives or concessions that would result in identifiable, financially sufficient, and actual cost reductions.

C. The city council may deny an application for an incentive or concession if it makes at least one of the following findings:

1. The incentive or concession is not required to provide for affordable housing costs or rents;

2. The incentive or concession would have a specific adverse impact that cannot be mitigated upon health, safety or the physical environment, including historical resources; or

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

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Applicants for a density bonus may also request waivers or modifications of development standards.

B. If a development standard would have the effect of physically precluding the construction of a development with a density bonus under this section, the city council will waive or modify the standard unless it makes one of the following findings:

1. The waiver or modification would have a specific adverse impact that cannot be mitigated upon health, safety, or the physical environment;

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

3. The waiver or modification would be contrary to state or federal law.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Timing. Applicants shall submit applications for a density bonus, incentive or concession, and waivers or modifications as part of a project application.

B. Materials required.

1. Application for a density bonus.

a. Total number of units in the development;

b. Number of units that will be limited by income or to seniors;

c. Income limits that will be applied to each unit; and

d. Amount of density bonus requested.

2. Application for an incentive or concession.

a. Description of incentives or concessions requested; and

b. Financial information describing how each incentive or concession requested is necessary to provide for affordable housing costs or rents.

3. Application for a Waiver or Reduction of Development Standards.

a. Description of development standards requested for waiver or reduction;

b. If a reduction is requested, the level to which the standards are proposed to be reduced; and

c. An explanation of how the development standard would physically preclude the construction of a development that meets the criteria of Government Code Section 65915(b).

C. Processing.

1. If the project is subject to any discretionary approvals, the request for a density bonus, incentive or concession, and/or waiver or reduction of development standards shall be considered concurrently with the discretionary approval.

2. For all other projects, the applications for a density bonus, incentive or concession, and/or waiver or reduction shall go through the following process:

a. The planning commission shall consider the application and, based on due consideration of state requirements and all information presented, shall make a recommendation to the city council concerning the application.

b. The city council shall approve or deny the application based on the requirements of state law, the provisions of this chapter, and the information presented in the application and at the meeting.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. All requirements and provisions related to the density bonus, any incentives or concessions, or any waivers or reductions in development standards, shall be set forth in a density bonus housing agreement in a form acceptable to the city attorney.

B. The density bonus housing agreement shall be executed by the developer and the city manager and recorded at the county recorder's office.

C. For any development that includes moderate income units which are used to qualify for a density bonus, incentive or concession, and/or waiver or modification of development standards, the developer shall provide draft legal documents for the equity sharing provisions that are set forth in Government Code Section 65915(c)(2).

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

In any instance where this density bonus ordinance conflicts with California state law, the state law shall govern.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)