Richmond Municipal Code Art. 15.04.602 Affordable Housing Density Bonus

The purpose of this Article is to provide increased residential densities for projects that guarantee that a portion of the housing units, constructed in a housing development, will be restricted to senior citizens or affordable to moderate, lower, very low, or extremely low income persons or for the donation of land for very low income housing.

A. State Law Governs. Where a conflict occurs between the provisions of this Article and State law, State law will govern.

B. Compatibility. All affordable housing units must be dispersed within market-rate projects whenever feasible. Affordable housing units within market-rate projects must be comparable with the design and appearance of market-rate units in appearance, use of materials, and finish quality.

C. Availability. All affordable housing units must be constructed concurrently with, and made available for qualified occupants at the same time as, the market-rate housing units within the same project, unless both the City and the developer agree in the Density Bonus Agreement to an alternative schedule for development.

D. Density Bonus Agreement. A Density Bonus Agreement will be made a condition of the discretionary permits for all projects granted a density bonus, pursuant to this Article. The Agreement must be recorded as a restriction on the parcel or parcels on which the affordable housing units will be constructed. The Agreement must be consistent with Section 15.04.602.060.

E. Effect of Granting Density Bonus. The granting of a density bonus will not, in and of itself, be interpreted to require a General Plan amendment, Zoning Text or Map change, or other discretionary approval.

A. Minimum Requirements for Density Bonus. The City shall grant one density bonus when a housing developer seeks and agrees to construct a housing development with five or more units, excluding any units permitted by the density bonus awarded, that will contain housing for any one of the following household income groups, as defined by State law, and satisfies the findings outlined in this Section:

1. Low Income Households. Ten percent of the total dwelling units of a housing development for lower-income households.

2. Very Low Income Households. Five percent of the total dwelling units of a housing development for very low income households.

3. Extremely Low Income Households. Five percent of the total dwelling units of a housing development for extremely low income households.

4. Senior Households. A senior citizen housing development or mobile home park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code.

5. Common Interest Developments. Ten percent of the total dwelling units in a common interest development for persons and families of moderate income provided that all units in the development are offered to the public for purchase.

B. Calculation of Density Bonus. The amount of density bonus to which the developer is entitled shall vary according to the amount by which the percentage of affordable housing units equals or exceeds the percentage established in Table 15.04.602.030-B. The density bonus shall not be included when determining the number of housing units which are to be affordable.

1. Density Bonus.The density bonus for housing developments shall be calculated as shown in Table 15.04.602.030-B:

TABLE 15.04.602.030-B: POTENTIAL DENSITY BONUS

2. Density Bonus for Common Interest Developments.The density bonus for common interest developments with moderate income units shall be calculated as follows:

3. Rounding of Fractional Units. All density bonus calculations resulting in fractional units shall be rounded up to the next whole number.

4. Density Bonus for Land Donations.When the developer for a tentative subdivision map, parcel map, or other residential development approval donates land to the City in return for providing housing for very low income households, the developer shall be entitled to a 15 percent increase above the otherwise maximum allowable residential density under the applicable zoning district for the entire development, as follows:

This increase shall be in addition to any increase in density otherwise mandated, up to a maximum combined mandated density increase of 35 percent if the developer seeks both the increase required pursuant to this Section and a density bonus. The developer shall be eligible for the increased density bonus described in this paragraph 4 if all the following conditions are met:

a. The developer shall donate and transfer lands no later than the date of approval of the final subdivision map, parcel map, or residential development application.

b. 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 the amount not less than 10 percent of the number of residential units of the proposed development.

c. 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 for development as affordable housing, and is or will be served by adequate public facilities and infrastructure. The transferred lands shall have all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units prior to the date of approval of the final subdivision map, parcel map, or the residential development.

d. The transferred lands and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with this Article, which shall be recorded on the property at the time of dedication.

e. The land is transferred to the City or to a housing developer approved by the City. The City may require the developer to identify and transfer the land to the developer.

f. 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.

5. Density Bonus for Development with a Childcare Facility.

a. When a developer proposes to construct a housing development that conforms to the requirements of subsection 15.04.602.030(A) and includes a child care facility that will be located on the site of, as part of, or adjacent to, the project, the City shall grant either of the following:

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

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

b. The City shall require, as a condition of approving a density bonus housing development with a child care facility that the following shall occur:

i. 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.

ii. Of the children who attend the child care facility, the children of extremely low income, very low income households, lower-income households, or families of moderate income shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for extremely low income, very low income households, lower-income households, or families of moderate income pursuant to this Section.

c. The City shall not be required to provide a density bonus or concession for a child care facility if it finds, based upon substantial evidence, that the surrounding neighborhood has adequate child care facilities.

C. Possible Incentives or Concessions. When a developer seeks and agrees to construct any one of the housing specified in subsections 15.04.602.030(A) and (B), the City shall grant incentives or concessions as described below, if requested by the developer, in addition to a density bonus, unless the City makes written findings per subsection 15.04.602.050(C) of this Article:

1. A reduction in site development standards or a modification of zoning requirements or design requirements that exceed the minimum building standards approved by the California Standards Commission as provided for in Part 2.5 (commencing with Section 18901) of Division 13 of the California Health and Safety Code including, but not limited to the following:

a. Reduced minimum lot sizes and/or dimensions;

b. Reduced minimum setbacks;

c. Reduced minimum common and/or private outdoor open space;

d. Increased maximum lot coverage;

e. Increased maximum building height and/or stories;

f. Reduced on-site parking standards;

g. Reduced minimum building separation requirements;

h. Reduced street standards, including street widths;

i. Approval of mixed-use zoning within the housing development where it is demonstrated that commercial, office, or other nonresidential land uses will reduce housing costs over residential-only uses on a site and will be compatible with the existing and planned housing units on the site and the surrounding neighborhood where the proposed housing development will be located.

2. Other incentives proposed by the developer or the City that result in identifiable, financially sufficient, and actual cost reductions, including, but not limited to, the following:

a. Expedited "fast track" processing of development applications and permits (e.g., allowing plan check to begin during planning appeal period);

b. Waiver of filing or processing fees on development applications and permits, or other development fees, following established City fee waiver processes or policies;

c. Use of public financing; or

d. Other regulatory incentives or concessions that result in identifiable cost reductions.

There is no limit or requirement, however, for the City to provide any direct financial incentives for the housing development, to waive fees and/or dedication requirements, or to provide publicly-owned land for a housing development.

D. Number of Concessions Available. The developer shall receive the number of incentives or concessions shown in Table 15.04.602.030-D, in addition to a density bonus:

TABLE 15.04.602.030-D: NUMBER OF CONCESSIONS ALLOWED

E. No Maximum Density Bonus or Number of Concessions. Nothing in this Article shall be construed to prohibit the City from granting a density bonus greater than what is described in this Section or a greater number of concessions or incentives than what is described in this Section for a development that meets the requirements of this Section.

F. Standards for Density Bonus and Incentives. The following standards shall apply to the granting of the density bonus and incentives:

1. Duration of Affordability. For the purposes of this Section, "total units" or "total dwelling units" does not include units added by a density bonus awarded pursuant to this Section or any other Municipal Code provision granting a greater density bonus.

a. An applicant shall agree to, and City shall ensure, the continued affordability of all extremely low, very low and low-income rental units that qualified the applicant for the award of the density bonus for 55 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 lower income density bonus units shall be set at an affordable rent as defined in Section 50053 of the Health and Safety Code.

b. An applicant shall agree to, and the City shall ensure that, the initial occupant of all for-sale units that qualified the applicant for the award of the density bonus are persons and families of extremely low, very low, low, or moderate income, as required, and that the units are offered at an affordable housing cost, as that cost is defined in Section 50052.5 of the Health and Safety Code.

2. Equity Sharing Agreement. An applicant shall agree to, and the City shall ensure that, the initial occupant of all for-sale units that qualified the applicant for the award of the density bonus are persons and families of extremely low, very low, low, or moderate income, as required, and that the units are offered at an affordable housing cost, as that cost is defined in Health and Safety Code Section 50052.5. The following provisions must be included in an equity sharing agreement:

a. Upon resale, the seller of the unit shall retain the value of any improvements, the down payment, and the seller's proportionate share of appreciation. The City shall recapture any initial subsidy, as defined in subsection ii. below, and its proportionate share of appreciation, as defined in subsection iii. below, which amount shall be used within five years for any of the purposes described in Health and Safety Code Section 33334.2(e) that promote home ownership.

i. 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.

ii. 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.

3. Protection of Existing Rental Units. An applicant shall be ineligible for a density bonus or any other incentives or concessions under this Section if the housing development is proposed on any property that includes a parcel or parcels on which rental dwelling units are or, if the dwelling units have been vacated or demolished in the five-year period preceding the application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of low, very low, or extremely low income; subject to any other form of rent or price control through the City's valid exercise of its police power; or occupied by low, very low, or extremely low income households, unless the proposed housing development replaces those units, and either of the following applies:

a. The proposed housing development, inclusive of the units replaced pursuant to this paragraph, contains affordable units at the percentages set forth in subsection 15.04.602.030(B).

b. Each unit in the development, exclusive of a manager's unit or units, is affordable to, and occupied by, either a lower or very low income household.

c. For the purposes of this paragraph, "replace" shall mean the following:

i. If any dwelling units described in paragraph 15.04.602.030(F)(3) are occupied on the date of application, the proposed housing development shall provide at least the same number of units of equivalent size or type, or both, to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those households in occupancy. For unoccupied dwelling units described in paragraph 15.04.602.030(F)(3) in a development with occupied units, the proposed housing development shall provide units of equivalent size or type, or both, to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category in the same proportion of affordability as the occupied units.

ii. If all dwelling units described in subparagraph (i) have been vacated or demolished within the five-year period preceding the application, the proposed housing development shall provide at least the same number of units of equivalent size or type, or both, as existed at the highpoint of those units in the five-year period preceding the application to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those persons and families in occupancy at that time, if known. If the incomes of the persons and families in occupancy at the highpoint is not known, then one-half of the required units shall be made available at affordable rent or affordable housing cost to, and occupied by, very low income persons and families and one-half of the required units shall be made available for rent at affordable housing costs to, and occupied by, low income persons and families.

iii. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to an equity sharing agreement pursuant to paragraph 15.04.602.030(F)(2).

d. If any dwelling units described in paragraph 15.04.602.030(F)(3) are occupied on the date of application, each household of extremely low, very low, low, or moderately low income residing in the dwelling units must be offered the right to return to a comparable unit in the proposed housing development with rent for the first 12 months subsequent to that return being the lower of the following: up to 5 percent higher than the rent at the time of application, or up to 30 percent of household income.

e. Paragraph 15.04.602.030(F)(3) does not apply to an applicant seeking a density bonus for a proposed housing development if his or her application was submitted to, or processed by, the City before January 1, 2015.

4. Location and Design of Affordable Housing Units. The affordable housing units shall be integrated with other housing units in the housing development with regard to siting and placement within buildings, and shall not differ in exterior appearance from the other housing units. The location of the affordable housing units may or may not be on contiguous parcels within the site. In no event shall the affordable housing units be located in only one portion of the housing development or situated in one building of a multi-building development;

5. Location of Density Bonus Units. The density bonus units can be located in geographic areas of the development site other than the areas where the units for the affordable housing units are located, and can be located only on parcels for which the density bonus was granted;

6. Zoning Basis. The maximum units allowed in the underlying zoning district of the project site and the net acreage of the project site shall be the basis on which the density bonus is determined unless the project is in a specific plan area, a Form-Based code zone, or a Planned Area District, in which case the density bonus shall be determined based on the maximum residential density for the General Plan designation for the site.

G. Vehicular Parking Ratio.

1. Maximum Parking Ratio. Upon the request of the developer, the City shall not require a vehicular parking ratio, inclusive of parking for disabled persons and guest parking, of a development meeting the criteria of subsection 15.04.613.020(B) that exceeds the following ratios:

a. Zero to one bedrooms: one on-site parking space;

b. Two to three bedrooms: two on-site parking spaces; and

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

2. Maximum Parking Ratio for Projects Near Transit. If a development includes the maximum percentage of extremely low, low or very low income units provided for in subsection 15.04.613.020(B) and is located within one-half mile of the Richmond BART/Intermodal Terminal, El Cerrito Plaza BART and the El Cerrito Del Norte BART Station, measured from the station platform, and there is unobstructed access to the major transit stop from the development, then, upon the request of the developer, the vehicular parking ratio, inclusive of handicapped and guest parking, shall not exceed 0.25 spaces per bedroom or the ratios set below, whichever are lower. For purposes of this paragraph, a development is considered to have unobstructed access to a major transit stop if a resident is able to access the major transit stop without encountering natural or constructed impediments.

a. If a development consists solely of rental units, exclusive of a manager's unit(s), with an affordable housing cost to lower income families, then, upon the request of the developer, the number of required parking spaces, inclusive of parking for disabled persons and guest parking, shall not exceed the following ratios:

i. If the development is located within one-half mile of a major transit stop and there is unobstructed access to the major transit stop from the development: 0.25 spaces per unit.

ii. If the development is a for-rent housing development for individuals who are 62 years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code: 0.25 spaces per unit, provided the development has either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.

iii. If the development is a special needs housing development, as defined in Section 51312 of the Health and Safety Code: no parking is required, provided the development has either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.

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.

c. For purposes of this subsection, a development may provide on-site parking through tandem parking or uncovered parking, but not through on-street parking.

d. This subdivision does not preclude the City from reducing or eliminating a parking requirement for development projects of any type in any location.

3. Parking Study. Notwithstanding paragraph (2), if the City or an independent consultant has conducted an area-wide or jurisdiction-wide parking study in the last seven years, then the City may impose a higher vehicular parking ratio, based upon substantial evidence found in the parking study, that includes, but is not limited to, an analysis of parking availability, differing levels of transit access, walkability access to transit services, the potential for shared parking, the effect of parking requirements on the cost of market-rate and subsidized developments, and the lower rates of car ownership for low, very low, and extremely low income individuals, including seniors and special needs individuals.

(Ord. No. 30-18 N.S., § I(Exh. A), 12-18-2018)

When a developer agrees to construct affordable housing as specified in this Section, the City may provide other incentives of equivalent financial value which make the affordable housing units economically feasible, instead of granting the density bonus and incentive(s) from the above section.

A. Preliminary Proposal. A developer requesting a density bonus or incentive(s) pursuant to this Article may submit a preliminary proposal for feedback prior to the submittal of any formal requests for approval of a density bonus and incentive and other planning approvals, such as a General Plan amendment, subdivision map, development plan, or design review. The purpose of the preliminary proposal is to determine whether the proposed housing development is in substantial compliance with applicable planning regulations and to establish the basis and procedures for granting the incentive(s) or concession(s). Approval of a preliminary proposal does not constitute approval of the housing development, but indicates that the housing development nominally complies with the City's zoning regulations, and establishes the type of incentive(s) or concession(s) and agreement to ensure compliance with this Article to be recommended by staff.

1. The following information is required to be submitted for a preliminary proposal:

a. A concise written description of the project, including location, number and type of housing units, including affordable units and bonus units, and the planning approval(s) required;

b. A site map showing the location and general layout of the proposed housing development and surrounding land uses and roadways;

c. A written request for the specific incentive(s) or concession(s) sought accompanied by a rationale and accurate supporting information sufficient to demonstrate that any requested incentive is required in order to provide for affordable housing costs or for rents for the targeted units to be set as specified above. If applicable, the developer shall identify the proposed use of any housing subventions or programs for the housing development, such as California Housing Community Development programs or other sources of funding.

2. Within 90 days of receipt of a complete preliminary proposal, the Zoning Administrator shall notify the developer in writing what the staff will recommend as to how the City will comply with this Article, and shall indicate whether or not the housing development complies with this Article and with the applicable planning and zoning regulations.

B. Housing Density Bonus and Incentive Application. An application for a housing density bonus and, if requested, an incentive or concession must include:

1. Documentation for a Requested Density Bonus.

a. Evidence that the project includes the qualifying percentages of residential units set forth in Table 15.04.602.030-B, excluding the units added by the granted density bonus;

b. Calculations showing the maximum base density;

c. Number or percentage of affordable units and the income level at which the units will be restricted to;

d. Number of market rate units that will result from the granted density bonus;

e. Resulting density, described in units per square foot; and

f. A written acknowledgement that the project will be subject to the affordability restrictions and other provisions set forth in this Article.

2. Documentation of Requested Incentives or Concessions.

a. A pro forma or other report demonstrating that the requested incentives and concessions result in identifiable, financially sufficient and actual cost reductions necessary to ensure the financial feasibility of the proposed units shall be prepared. The City may require that an independent financial review be conducted at the expense of the applicant.

b. A description of any proposed waivers of development standards or other zoning requirements and why they are necessary for making the project physically possible.

3. If the housing development is proposed as a Planned Area District, the density bonus and incentive(s) shall be reviewed concurrently with the rezoning application. If the housing development is not proposed as a Planned Area District, a conditional use permit shall be required for the density bonus and incentive(s) or concession(s).

C. Housing Density Bonus and Incentive Approval. The City shall grant the concession or incentive requested unless the City makes a written finding, based upon substantial evidence, that:

1. The concession or incentive is not required in order to provide for affordable housing costs or for rents for the targeted units to be set as specified above; or

2. The concession or incentive would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5 of the Government Code, upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historic Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low and moderate-income households; or

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

D. Standards Must Not Preclude Development. In no case will the City apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subsection 15.04.602.030(A) at the densities or with the concessions or incentives permitted by this Article. An applicant may submit a proposal for the waiver or reduction of development standards that will have the effect of physically precluding the construction of a development meeting the criteria of subsection 15.04.602.030(A) at the densities or with the concessions or incentives permitted, and the Planning Commission shall consider that request at the same time as it reviews the application. A proposal for the waiver or reduction of development standards pursuant to this Section shall not include a request to reduce nor increase the number of incentives or concessions to which the applicant is otherwise entitled.

Prior to the issuance of a building permit for any dwelling unit in a development for which a density bonus has been awarded or incentives or concessions have been granted, the developer shall enter into a written agreement with the City for the duration of affordability. The terms and conditions of the agreement shall be binding upon the successor in interest of the developer, and shall be recorded in the Contra Costa County Clerk Recorder's Office, County Recorder Division. The agreement shall be approved by the City Attorney and shall include provisions for the following:

A. The number and proportion of housing units affordable to moderate-income, lower-income, very low income, and extremely low income households by type, location and number of bedrooms;

B. Standards for maximum qualifying household incomes and maximum rents or sale prices;

C. The party responsible for certifying rents and sales prices of affordable housing units;

D. The process that will be used to certify incomes of tenants or purchasers of the affordable housing units;

E. The manner in which vacancies will be marketed and filled, including the screening and qualifying of prospective renters and purchasers of the affordable units;

F. Deed restrictions on the affordable housing units binding on property upon sale or transfer;

G. Enforcement mechanisms to ensure that the affordable units are continuously occupied by eligible households and are not sold, rented, leased, sublet, assigned, or otherwise transferred to non-eligible households;

H. Project phasing, including the timing of completions, and rental or sale of the affordable housing units, in relation to the timing of the market-rate units; and

I. For Common Interest Development. An equity-sharing agreement for moderate-income units that are directly related to the receipt of the density bonus in the common interest development, unless it is in conflict with the requirements of another public funding source or law. The following provisions must be included pursuant to paragraph 15.04.602.030(F)(2): (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. (2) The City shall recapture any initial subsidy and its proportionate share of appreciation, which shall then be used within three years for any of the purposes described in subdivision (e) of Section 33334.2 of the Health and Safety Code that promote homeownership.