Poway Municipal Code § 17.26.620 Administration

It is the goal of the City to provide adequate and appropriate housing opportunities for the needs of, and affordable to, current and future residents. The purpose of this article is to implement the housing element of the general plan; implement Sections 65915 through 65917 of the California Government Code; and provide incentives to developers for the production of housing affordable to very low-, lower-, and moderate-income households, and senior citizens and for the provision of child care facilities.

(Ord. 701 § 6, 2009)

As used in this article:

“Affordable housing cost”

means the allowable housing expenses paid by a qualifying household that does not exceed a specified fraction of the gross monthly income, adjusted for household size and as established in Section 50052.5 of the California Health and Safety Code.

“Affordable rent”

means the allowable rental housing expenses paid by a qualifying household that does not exceed a specified fraction of gross monthly income adjusted for household size and as established by Section 50053 of the California Health and Safety Code.

“Allowable housing expense”

means the total monthly or annual recurring expenses required of a household to obtain shelter. For a for-sale unit, allowable housing expenses include loan principal, loan interest, property and mortgage insurance, property taxes, homeowner’s association dues and a reasonable allowance for utilities. For a rental unit, allowable housing expenses include rent and a reasonable allowance for utilities.

“Child care facility”

means a child day care facility other than a family day care home, including, but not limited to, infant centers, preschools, extended day care facilities, and school age child care centers.

“Concession”

means any of the following:

A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the California Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements, and in the ratio of vehicular parking spaces that would otherwise be required that result in identifiable, financially sufficient and actual cost reductions.

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.

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

“Condominium project”

means a project as defined by California Civil Code Section 1351(f), as the same may be amended from time to time, or any state law replacing Section 1351(f).

“Density bonus”

means a density increase over the otherwise maximum allowable residential density as of the date of application by the applicant to the City. The amount of density bonus to which the applicant is entitled shall vary in accordance with applicable provisions of this article.

“Development standard”

means any site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an on-site open space requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law, policy, resolution, or regulation.

“Housing development”

means a development project for five or more residential units and includes a subdivision or planned community or condominium project, approved by the City, consisting of residential units or unimproved residential lots and includes either: (1) a project that substantially rehabilitates and converts an existing commercial building to residential use, or (2) the substantial rehabilitation of an existing multifamily dwelling, as defined in Government Code Section 65863.4(d), where the result of the rehabilitation would be a net increase in available residential units.

Incentive.

See “Concession.”

“Lower-income household”

means households of lower income as defined in Section 50079.5 of the California Health and Safety Code. At the time of the adoption of the ordinance codified in this article, a household whose median income is equal to or less than 80 percent of the area median income is lower income, and is considered to be able to afford rent that does not exceed 30 percent of 80 percent of the area median income.

“Maximum allowable residential density”

means the density allowed under the zoning ordinance 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 land use 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 land use element of the general plan, the general plan density shall prevail.

“Moderate-income household”

means households of moderate income as defined in Section 50093 of the California Health and Safety Code. At the time of adoption of the ordinance codified in this article, a household whose median income is equal to or less than 120 percent of the area median income is moderate income, and is considered to be able to afford rent that does not exceed 30 percent of 120 percent of the area median income.

“Planned development”

means a project as defined by California Civil Code Section 1351(k), as the same may be amended from time to time, or any state law replacing Section 1351(k).

“Qualifying resident”

means a resident as defined by California Civil Code Section 51.3 as the same may be amended from time to time, or any state law replacing Section 51.3.

“Senior citizen housing development”

means a development as defined by Sections 51.3 and 51.12 of the California Civil Code, or mobile home park that limits residency based on age requirements for housing older persons pursuant to Section 798.76 or 799.5 of the California 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 the application was deemed complete. Inconsistency with the zoning ordinance or general plan land use designation shall not constitute a specific, adverse impact upon the public health or safety.

“Target dwelling unit”

means a dwelling unit that will be offered for rent or sale exclusively to and which shall be affordable to the designated income group or qualified resident, as required by this article.

“Target income level”

means the income standards for very low, lower and moderate income levels within San Diego County as determined annually by the U.S. Department of Housing and Urban Development.

“Very low-income household”

means households of very low income as defined in Section 50105 of the California Health and Safety Code. At the time of the adoption of the ordinance codified in this article, a household whose median income is equal to or less than 50 percent of the area median income is very low income, and is considered to be able to afford rent that does not exceed 30 percent of 50 percent of the area median income.

(Ord. 701 § 6, 2009)

A. Applicability. The provisions established by this article apply to all applications for density bonuses and concessions and incentives made pursuant to Section 65915 of the California Government Code.

B. Application. All affordable housing projects proposing to utilize the density bonus, concession or incentive provisions of this article shall be required, at a minimum, to submit a development review application. For moderate income household projects, a specific plan shall also be required. A development review or specific plan shall be used to waive any development standards that would otherwise serve to prohibit the implementation of this article. The granting of a density bonus, concession or incentive consistent with this article shall not be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval. In addition to the standard application submittal requirements, the following additional information shall be provided with any density bonus request:

1. The total number of requested housing units above the amount allowed by the existing zoning and any additional incentives being requested.

2. The number of affordable units by number of bedrooms and income group to be provided by the project.

3. The term of affordability for the affordable units.

4. The standards for maximum qualifying incomes for affordable units.

5. The process to be used to verify tenant/homeowner incomes.

6. The process for monitoring the continued affordability of the units.

7. How vacancies will be marketed and filled.

8. Restrictions and enforcement mechanisms in the event of failure to maintain affordability provisions.

9. The type and justification for the specific concession(s) or incentive(s) the applicant is seeking, information regarding the concession(s) or incentive(s), and to request, if desired, to meet with the City regarding the concession or incentive request.

10. Any other provisions deemed necessary by the City.

(Ord. 701 § 6, 2009; Ord. 741 § 2, 2012)

A. The City shall grant one density bonus, as specified in PMC § 17.26.640, and concessions or incentives, as described in PMC § 17.26.680, when an applicant seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this article, that will contain at least one of the following:

1. Five percent of the total units of a housing development for very low-income households.

2. Ten percent of the total units of the housing development for lower-income households.

3. A senior citizen housing development.

4. Ten percent of the total units of a condominium project or planned development as affordable housing units affordable to moderate-income households; provided, that all units in the development are offered to the public for purchase subject to the restrictions specified in this article.

B. As used in subsection A of this section, the term “total units” does not include units permitted by a density bonus awarded pursuant to this section or any other local law granting a greater density bonus.

C. Each applicant who requests a density bonus pursuant to this article shall elect whether the bonus shall be awarded on the basis of subsection (A)(1), (2), (3), or (4) of this section. Each housing development is entitled to only 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 category may not be combined.

(Ord. 701 § 6, 2009)

A. Only housing developments consisting of five or more dwelling units that comply with PMC § 17.26.630 are eligible for the density bonus percentages provided by this article. For the purposes of this section, density bonus shall mean a density increase over the otherwise maximum allowable residential density as of the date of application by the applicant to the City. The density bonus is based on the percentage of affordable units as indicated in the tables in this section. The percentage of affordable units shall be determined prior to applying the density bonus. The applicant may elect to accept a lesser percentage of density bonus.

B. Density Bonus for Very Low-Income Units. If the housing development provides five to 11 percent of the total housing units for very low-income households, the density bonus shall be calculated as follows:

Density Bonus for Very Low-Income Units

C. Density Bonus for Lower-Income Units. If the housing development provides 10 to 20 percent of the total housing units for low-income households, the density bonus shall be calculated as follows:

Density Bonus for Lower-Income Units

D. Density Bonus for Senior Citizen Housing Development. If the development is a senior citizen housing development, the density bonus shall be 20 percent of the number of senior housing units.

E. Density Bonus for Moderate-Income Units. If the housing development provides 10 to 40 percent of the total housing units of a condominium project or planned development affordable to moderate-income households and all the units of the development are offered to the public for purchase subject to the restrictions specified in PMC § 17.26.710, the density bonus shall be calculated as follows:

Density Bonus for Moderate-Income Units

F. An applicant may elect to accept a lesser percentage of density bonus than that to which the applicant is entitled to under this article. All density bonus calculations resulting in a fractional number shall be rounded upwards to the next whole number.

G. For the purpose of calculating a density bonus, the residential 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 units for the lower-income households are located.

(Ord. 701 § 6, 2009)

A. Density Bonus for Land Donation. When an applicant for a tentative subdivision map, parcel map, or other residential development approval donates land to the City or another developer that is to be used to develop housing for very low-income households, the applicant shall be entitled to density bonus above the otherwise maximum allowable residential density for the entire residential development as noted in the table below, provided the conditions contained in subsection B of this section are met:

Density Bonus for Land Donation

The density bonus noted in the table above shall be in addition to any density bonus granted pursuant to PMC § 17.26.630, up to a maximum combined density increase of 35 percent, if an applicant seeks both the increase pursuant to this section and PMC § 17.26.630. All density calculations resulting in fractional units shall be rounded up to the next whole number. Nothing in this subsection shall be construed to enlarge or diminish the City’s authority to require an applicant to donate land as a condition of development.

B. An applicant shall be eligible for the density bonus described in subsection A of this section if all of the following conditions are met:

1. The applicant donates and transfers 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 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 10 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 40 units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at the density described in Section 65583.2(c)(3) of the California Government Code, 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, except that the local government may subject the proposed development to subsequent development review to the extent authorized by Section 65583.2(i) of the California Government Code if the design is not reviewed by the City prior to the time of transfer.

5. The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with PMC § 17.26.710, which shall be recorded on the property at the time of the transfer.

6. The land is transferred to the local agency or to a housing developer approved by the City. The City may require the applicant to identify and transfer the land to a developer.

7. The transferred land shall be within the boundary of the proposed development or, if the City agrees, within one-quarter mile of the boundary of the proposed development.

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

(Ord. 701 § 6, 2009)

A. When an applicant proposes to construct a housing development that conforms to the requirements of PMC § 17.26.630 and includes a child care facility that will be located on the premises of, as part of, or adjacent to the project, the City shall grant either of the following if requested by the developer:

1. An additional density bonus that is an amount of square feet of residential space that is equal to or greater than the amount of square feet in the child care facility; or

2. An additional concession or incentive that contributes significantly to the economic feasibility of the construction of the child care facility.

B. A housing development shall be eligible for the density bonus or concession described in this section if the City, as a condition of approving the housing development, requires all of the following to occur:

1. The child care facility shall remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable pursuant to PMC § 17.26.710.

2. Of the children who attend the child care facility, the children of very low-income households, lower-income households, or moderate-income households shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very low-income households, lower-income households, or moderate-income households pursuant to PMC § 17.26.630.

C. Notwithstanding any requirement of this section, the City shall not be required to provide a density bonus or concession or incentive for a child care facility if it finds, based upon substantial evidence, that the community has adequate child care facilities.

D. The application and review process for the provision of child care facilities and related density bonus or concessions or incentives is set forth in PMC § 17.26.620.

(Ord. 701 § 6, 2009)

A. The City shall grant either a density bonus of 25 percent or in-lieu incentive(s) of equivalent financial value to an applicant or developer proposing to convert apartments to condominiums pursuant to PMC Title 16, and who agrees to provide either of the following:

1. A minimum 33 percent of the total units of the housing development as restricted and affordable to persons and families of very low, lower, or moderate income; or

2. A minimum of 15 percent of the total units of the housing development as restricted and affordable to persons and families of lower-income households.

B. An applicant proposing to convert apartments to condominiums shall be ineligible for a density bonus or in-lieu incentive(s) under this section if the apartments proposed for conversion constitute a housing development for which a density bonus or in-lieu incentive(s) were previously provided under this article.

C. In determining the number of density bonus dwelling units to be granted pursuant to the standards of this section, the number of existing apartment units within the structure or structures proposed for conversion shall be multiplied by 0.25. Any resulting decimal fraction shall be rounded up to the next whole number.

D. In determining the number of target dwelling units to be reserved pursuant to the standards of this section, the number of existing apartment units within the structure or structures proposed for conversion shall be multiplied by 0.33 for moderate- or lower-income units or 0.15 for lower- or very-low-income units. Any resulting decimal fraction shall be rounded up to the next whole number.

E. The density bonus shall not be included when determining the number of housing units, which is equal to 33 percent or 15 percent of the total units of the housing development.

F. In cases where a density increase of less than 25 percent is requested, no reduction will be allowed in the number of target dwelling units required.

G. A density bonus housing agreement shall be made a condition of the density bonus approval. The density bonus housing agreement shall be consistent with PMC § 17.26.720.

H. Upon application by a developer pursuant to this title, the final decision-making authority of the City shall grant either a density bonus and at least a concession or incentive, or in-lieu incentive(s) of equivalent financial value, to qualified lower-income and/or moderate-income housing developments unless specific findings are made pursuant to California Government Code Section 65589.5(d).

I. The value of each incentive will vary from project to project; therefore, additional incentives or in-lieu concession(s) or incentive(s) shall be determined on a case-by-case basis.

J. This section shall not limit or require the City to provide direct financial incentives or publicly owned land for the housing development, or to waive fees or dedication requirements. All concessions or incentives are to be negotiated between the City and the developer.

K. It is the exclusive prerogative of the City to offer in-lieu concession(s) or incentive(s) of equivalent financial value, based upon the land cost per dwelling unit, instead of a density bonus and at least one additional incentive.

L. Nothing in this section shall be construed to require the City to approve a proposal to convert apartments to condominiums.

(Ord. 701 § 6, 2009)

A. An applicant for a density bonus may also submit to the City a proposal for specific concession(s) or incentive(s) in exchange for the provision of affordable housing units in accordance with this article. All requests for concessions or incentives in association with applications for a density bonus are subject to PMC § 17.26.630. Applicants may request a meeting with the City to discuss requests pursuant to this section.

B. The City shall grant the concession or incentive requested by the applicant unless the City makes a written finding, based upon substantial evidence, of any of the following:

1. The concession or incentive is not required in order to provide for affordable housing costs, as defined in Section 50052.5 of the California Health and Safety Code;

2. The concession or incentive would have a specific adverse impact upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to very low-, lower-or moderate-income households; or

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

C. If the conditions of PMC § 17.26.630 are met by an applicant making a request pursuant to this section, the City shall grant the applicant the following number of concessions or incentives:

1. One incentive or concession for projects that include at least 10 percent of the total units affordable to lower-income households, at least five percent for very low-income households, or at least 10 percent for persons and families of moderate income in a condominium or planned development.

2. Two concessions or incentives for projects that include at least 20 percent of the total units for lower-income households, at least 10 percent very low-income households, or at least 20 percent for persons and families of moderate income in a condominium or planned development.

3. Three concessions or incentives for projects that include at least 30 percent of the total units for lower-income households, at least 15 percent for very low-income households, or at least 30 percent for persons and families of moderate income in a condominium or planned development.

The requirements to qualify for concessions or incentives are summarized in the following table:

Summary of Requirements to Qualify for Concessions or Incentives

D. Nothing in this section shall be interpreted to require the City to grant a concession or incentive that 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.

E. Nothing in this section shall be interpreted to require the City to grant a concession or incentive that would have an adverse impact on any real property that is listed in the California Register of Historical Resources.

F. Nothing in this section shall limit or require the provisions 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.

(Ord. 701 § 6, 2009)

A. An applicant may submit to the City a proposal for the waiver, modification or reduction of development standards that will otherwise physically preclude the construction of a development meeting the criteria of PMC § 17.26.630 at the densities or with the concession(s) or incentive(s) permitted by this article. The applicant may also request a meeting with the City to discuss such waiver, modification or reduction.

B. In order to obtain the waiver, modification or reduction in development standards, the applicant shall show that the development standards will have the effect of physically precluding the construction of a housing development meeting the criteria of PMC § 17.26.630, at the densities or with the concessions or incentives permitted by this article.

C. Nothing in this section shall be interpreted to require the City to waive or reduce development standards if the waiver or reduction would have 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.

D. Nothing in this section shall be interpreted to require the City to waive or reduce development standards that would have an adverse impact on any real property that is listed in the California Register of Historical Resources, or to grant any waiver or reduction that would be contrary to state or federal law.

E. A proposal for the waiver or reduction of development standards pursuant to this section shall neither reduce nor increase the number of concessions or incentives to which the applicant is entitled pursuant to PMC § 17.26.680.

(Ord. 701 § 6, 2009)

A. A developer may request that the parking standards list in this section be applied if the housing development meets any of the criteria in PMC § 17.26.630. If requested, the City shall grant the following maximum parking ratios, inclusive of handicapped and guest parking, which shall apply to the entire development, not just the restricted affordable units, when requested by the developer:

1. Zero to one bedroom dwelling unit: one on-site parking space.

2. Two to three bedrooms: two on-site parking spaces.

3. Four or more bedrooms: two and one-half parking spaces.

B. If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number. For purposes of this section, a development may provide on-site parking through tandem parking or uncovered parking, but not through on-street parking.

C. These parking standards may be granted when requested by a developer even if no density bonus is requested; provided, that all the criteria of PMC § 17.26.630 are met.

(Ord. 701 § 6, 2009)

A. An applicant shall agree to, and the City shall ensure, continued affordability of all very low- and lower-income units that qualified the applicant for the award of the density bonus for a period of 30 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. Rents for the very low- and lower-income density bonus units shall be set at an affordable rent. Owner-occupied affordable housing units shall be available at an affordable housing cost.

B. An applicant shall agree, and the City shall ensure, that the initial occupants of moderate-income units that are directly related to the receipt of the density bonus in a condominium project in the planned development are persons and families of moderate income and that the units are offered at an affordable housing cost. The City shall enforce an equity-sharing agreement, unless it is in conflict with the requirements of another public funding source law. The following shall apply to the equity-sharing agreement:

1. 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 City shall recapture any initial subsidy and its proportionate share of appreciation, which amount shall be used within five years for any of the purposes that promote home ownership as described in Section 33334.2(e) of the Health and Safety Code.

2. For purposes of this subsection, the City’s initial subsidy shall be equal to the fair market value of the home at the time of initial sale minus the initial sale price to the moderate-income household, plus the amount of any down payment assistance or mortgage assistance. If upon resale the market value is lower than the initial market value, then the value at the time of the resale shall be used as the initial market value.

3. For purposes of this subsection, the City’s proportionate share of appreciation shall be equal to the ratio of the City’s initial subsidy to the fair market value of the home at the time of initial sale.

(Ord. 701 § 6, 2009)

A. Applicants/developers requesting a density bonus, concession or incentive shall demonstrate compliance with this article by the preparation and approval of a density bonus, incentive or concession housing agreement (agreement). The terms of the agreement shall be subject to review by the Director of Development Services, the Director of Redevelopment Services and the City Attorney.

B. Following execution of the agreement by the applicant and the City, the completed agreement, or memorandum thereof, shall be recorded. The conditions contained in the agreement shall be filed and recorded as a deed restriction on the parcel or parcels designated for the construction of target units at the time of final map recordation, or, where a map is not being processed, prior to issuance of building permits for such parcels or units. The agreement shall be binding upon all future owners and successors in interest for this property, which is the subject of the housing development application.

C. At a minimum, the agreement shall include the following:

1. The total number of units proposed within the housing development, including the number of density bonus units and the number of target units;

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

3. The location, unit sizes (square feet) and number of bedrooms of target units;

4. Tenure of use restrictions for target units of at least 30 years;

5. A schedule for completion and occupancy of the target units;

6. A description of any additional incentives and/or financial assistance being provided by the City;

7. A description of remedies for breach of the agreement by either party (the City may identify tenants or qualified purchasers as third party beneficiaries under the agreement);

8. Where applicable, tenure and conditions establishing rules and procedures for qualifying tenants, setting rental rates, filling vacancies, and operating and maintaining units for rental target dwelling units; and

9. Other provisions to ensure implementation and compliance with this article.

D. In the case of for-sale housing developments, the agreement shall provide for the following conditions governing the initial sale and use of target units during the applicable use restriction period.

1. Target units shall, upon initial sale, be sold to and occupied by eligible very low-, lower-income, or, in the case of a condominium or planned development, moderate-income households at an affordable sales price and housing cost, or to qualified senior citizen residents (i.e., maintained as senior citizen housing).

2. The initial purchase of each target unit shall execute an instrument or agreement, approved by the City Attorney, restricting the sale of the target unit in accordance with this article during the applicable use restriction period. Such instrument or agreement shall be recorded against the parcel containing the target unit and shall contain provisions as the City may require ensuring continued compliance with this article and the state density bonus law.

E. In the case of rental housing developments, the agreement shall provide for the following conditions governing the use of target units during the use restriction period:

1. The rules and procedures for qualifying tenants, establishing affordable rent, filling vacancies and the proper management and maintenance of target units for qualified tenants;

2. Provisions requiring owners to verify tenant incomes and maintain books and records to demonstrate compliance with this article; and

3. Provisions requiring owners to submit an annual report to the City, which includes the name, address and income of each person occupying target units, and which identifies the bedroom size and monthly rent or cost of each target unit.

(Ord. 701 § 6, 2009)