San Benito County Municipal Code Ch. 21.03 Affordable Housing Regulations

(A) San Benito County goals and general plan.

(1) The Board of Supervisors finds that a decent home and suitable living environment for all is a priority of the highest order; this priority conforms to state and federal policies. A key goal of the county is to achieve a balanced community with housing available for persons of all economic levels, with priority given to those persons currently residing or working within the county.

(2) The Board of Supervisors finds there is an inadequate supply of housing in San Benito County that is affordable to very low, low, and moderate-income households. Federal and state housing finance and subsidy programs are not sufficient in themselves to meet that need.

(3) The Board of Supervisors finds that the cost of housing in new developments has increased and will continue to perpetuate this housing shortage. Further, land for residential development in the county is limited, and the amount of land which can be used for development of housing for very low, low, and moderate-income households is being depleted by development of high cost housing.

(4) The Board of Supervisors finds that the provision of housing affordable to very low, low, and moderate-income households is a county-wide responsibility, and the provision of such housing is a goal of the housing element of the county general plan. A county-wide inclusionary housing program will assist in alleviating the use of available residential land solely for the benefit of households that are able to afford market rate housing because such market rate development will be required to contribute to the provision of affordable housing for the entire San Benito community.

(B) Provide for workforce.

(1) The Board of Supervisors finds that the housing shortage for persons of very low, low, and moderate-income is detrimental to the public health, safety and welfare, and particularly finds that provision of very low, low, and moderate-income housing is fundamental to the maintenance of an adequate, growing workforce and market place for the local economy, as well as to provide housing for additional employees whose jobs serve the increasing population living in new market-rate housing.

(2) The Board of Supervisors acknowledges that if very low, low, and moderate income workers cannot find housing in the county, then employers will have difficulty in securing a labor force; and employees will be forced to commute. Employee commutes use limited gasoline resources and increase air pollution.

(C) Benefit to the county. The Board of Supervisors finds that a county-wide affordable housing program will benefit the county as a whole. Each property that contributes to inclusionary housing augments the housing mix, increases the supply of housing for all economic segments of the community, and thereby provides for a balanced community, which is deemed to be in the public interest.

(D) Resale restrictions/shared equity recapture.

(1) The Board of Supervisors finds that the effect of an affordable housing program is severely diminished if it benefits only the first occupants of very low, low, and moderate-income housing, and affordable for-sale and rental units are resold at market prices. Therefore, the Board of Supervisors recognizes that resale control, to ensure the continuing availability of affordable units to extremely low, very low, low, and moderate-income households, is a necessary consideration in order to prevent undermining of the credibility of the whole program, particularly because of the loss of the unit itself as an affordable for-sale and rental unit.

(2) If the project site is receiving state- administered funding and the State Housing & Community Development Agency does not allow resale restriction requirements, the project must develop a supplemental requirement to maintain the affordability of the unit and recapture any loan funding.

(E) Public purpose. The Board of Supervisors finds that public housing programs and housing subsidy programs can meet only a small portion of the need for very low, low, and moderate-income housing. The vast majority of housing units has been and will continue to be produced by the private housing industry. This industry has the knowledge and ability to produce housing affordable to extremely low, very low, low, and moderate-income households given supportive government policies, including incentives and public investment as appropriate. Therefore, the Board of Supervisors finds it is a public purpose of the county to seek assistance and cooperation from the private sector and non-profit agencies in making available an adequate supply of housing for persons of all economic segments of the community.

(F) Benefits of the application of this chapter. Application of this chapter may benefit the public through increased housing opportunities in all areas of the county, an increased supply of very low, low, and moderate-income housing, and an increased availability of funds for very low, low, and moderate-income housing projects.

(G) Collection of in-lieu fees. Fees can be paid in lieu of building units and will be based on an in-lieu fee study. The fees permitted by this chapter will be fair and effective because the fees will be imposed at a later date after an in-lieu fee study is performed. The Board of Supervisors finds that the fees required or permitted by this chapter will be appropriate and permissible.

(1) The fee amount will be based on the amount necessary to construct or subsidize an affordable unit or affordable units as called for by this chapter, so that when a developer applies to pay an in-lieu fee, funds will be available to reach the county’s overall affordability target, without excessive payments and without setting varying fee standards on a case-by-case basis;

(2) The fees collected will be used in a specific time frame for the provision of extremely low, very low, low, and/or moderate-income housing;

(3) Fees will be adjusted annually based on the Construction Cost Index. A new in-lieu study will be conducted every five years.

(H) Other objectives.

(1) The Board of Supervisors finds that an objective of this chapter is to meet the housing needs of all types of very low, low, and moderate-income groups in a manner that is economically feasible and consistent with their needs.

(2) The Board of Supervisors further finds that extremely low, very low, low, and moderate- income housing best achieves the broader community goal of integrating households of all economic levels into the community when such housing is provided throughout the community and that a specific objective of this chapter is to provide housing opportunities throughout the community, in all planning areas of the county for very low, low, and moderate-income households.

(3) The Board of Supervisors further finds that an objective of this chapter is to provide housing opportunities for very low, low, and moderate-income household members currently residing or working in the county, on a priority basis.

(Ord. 866, § 1(part), 2010; Ord. 951, § 1(part), 2016; Ord. 1,014, §§ 2 and 3, 2020; Ord. 1059, § 2 (part), 2023)

The purposes of this chapter are to enhance the public welfare, benefit the property being developed, assure compatibility between future housing development and the housing units affordable to persons of very low, low, and moderate-income and ensure that remaining developable land in the county is utilized in a manner consistent with state and local housing policies and needs.

(Ord. 866, § 1 (part), 2010; Ord. 951, § 1(part), 2016)

For the purposes of this chapter, the following definitions shall apply:

ADMINISTRATIVE MANUAL. The manual prepared pursuant to § 21.03.010(G).

AFFORDABLE. A cost for housing, whether for an owner-occupied or rental unit, that does not exceed “affordable housing cost” as set forth in Cal. Health and Safety Code § 50052.5 for owner-occupied and “affordable rent” as set forth in Cal. Health and Safety Code § 50053. Adjustments for household size based on the number of bedrooms in the unit and other monthly housing cost factors, including assumed mortgage interest rates, loan insurance fees, maintenance and repair allowances, utility allowances, homeowners insurance, property tax and assessment costs, and homeowners association dues, shall be as provided by the county in the Administrative Manual.

AFFORDABLE HOUSING AGREEMENT. Plans demonstrating how affordable development in the county consisting of six or more units will meet the requirements of this chapter, the Affordable Housing Regulations, and should be submitted with a tentative subdivision map application. These plans must demonstrate a comprehensive review of the implementation and administration of the Affordable Housing Regulations for the proposed development. These plans shall entail in an in-depth overview of each phase of the development process, tenant screening and income qualification process, proposed legal forms and applications, and other such information that is deemed necessary for a complete affordable housing plan.

AFFORDABLE HOUSING PLAN. A plan demonstrating how a specific development project will meet the requirements of this chapter.

APPLICANT. A person or entity that applies for a residential development and, if the APPLICANT does not own the property on which development is proposed, also means the owner or owners of the property.

APPROPRIATE AUTHORITY. That person, official, or body designated by county regulations to hear, grant, deny, modify, condition, revoke or otherwise act on permits required by the county’s regulations.

APPROVAL. Any approval by the appropriate authority of a discretionary permit for residential development, including, but not limited to, planned unit development or planned community development approval, subdivision approval, use permit, building permit or combined development permit, and if no discretionary approval is required, also means a building permit for residential development.

APPROVED DOCUMENTS. Affordable housing agreement or development agreement.

AREA MEDIAN INCOME. The median annual income for San Benito County, adjusted for household size, as published annually in the Cal. Code of Regulations, Title 25, Section 6932, or its successor provision, or the equivalent as established by the county in the event that such annual publication should be discontinued.

BUILDING PERMIT. A permit issued by the County Department of Planning and Building authorizing the construction of new dwellings.

CONDOMINIUM HOUSING. Multi-family housing on a single lot where residents own the air space of their individual unit.

DIRECTOR. The Director of the Resource Management Agency (or a county officer with similar responsibilities designated by the county administrative officer), or his or her designee.

DENSITY BONUS. An increase in the number of units permitted in a proposed residential project provided pursuant to the State Density Bonus Law as set forth in Cal. Gov’t Code § 65915 et seq., as amended.

DUPLEX HOUSING. Housing where two attached single-family units are on one lot.

DWELLING or UNIT. Any structure or portion thereof designed or used as the residence.

ELIGIBLE HOUSEHOLD. A household whose gross annual household income does not exceed the applicable maximum for a given inclusionary unit.

FOR-SALE INCLUSIONARY UNIT. An inclusionary unit which is designated in an inclusionary housing agreement to be sold to a household eligible under this chapter.

GROSS ANNUAL HOUSEHOLD INCOME. The combined adjusted gross income (pretax) of all adult persons in a household, who are applying for an inclusionary unit, or who are residing in an inclusionary unit, as calculated pursuant to the Section 8 Program under the United States Housing Act of 1937, as amended, or its successor.

HOUSEHOLD. One or more individuals who occupy one dwelling unit as a single housekeeping unit, whether or not related by blood or marriage.

HOUSEHOLD INCOME GROUPS.

(1) EXTREMELY LOW-INCOME HOUSEHOLD. A household with an annual income which does not exceed the California Department of Finance annual determination for extremely low-income households earning no more than 30% of area median income, adjusted for household size.

(2) VERY LOW-INCOME HOUSEHOLD. A household with an annual income which does not exceed the California Department of Finance annual determination for very low-income households earning no more than 50% of area median income, adjusted for household size.

(3) LOW-INCOME HOUSEHOLD. A household with an annual income which does not exceed the California Department of Finance annual determination for lower-income households with incomes earning no more than 80% of the area median income, adjusted for household size.

(4) MODERATE-INCOME HOUSEHOLD. A household, including a low-income household and a very low-income household, with an annual income which does not exceed 120% of the area median income, adjusted for household size.

HUD. The United States Department of Housing and Urban Development.

INCLUSIONARY UNIT. A housing unit which is required by an approval to meet affordability and occupancy limits under this chapter. In addition to standard subdivision single-family developments, other types of inclusionary units can include individual single-family homes, mixed-use properties, townhomes, and duplex units, assuming consistency with established zoning regulations.

IN-LIEU PAYMENT. The amount payable pursuant to this chapter as an alternative to the construction of fractional on-site or off-site inclusionary units. In addition, the in-lieu fee payment can be paid as an alternative to the construction of an on-site unit, or off-site unit.

MEDIAN INCOME. The median household income as determined by the California Department of Finance and updated on an annual basis.

MODERATE-INCOME INCLUSIONARY UNIT. An inclusionary unit reserved for occupancy by moderate-income households at an affordable rent or sales price.

MULTI-FAMILY HOUSING. Housing where multiple separate units are contained within one or more buildings, within one complex, on one or more lots, with a minimum of four units.

OWNER-OCCUPIED DEVELOPMENT. A residential development in which the same person or persons are sole or majority owner of the property at the time of approval of the development and at the time the development receives its building permit, and those persons make and record a legally binding agreement, acceptable to the Director and approved as to form by County Counsel, to reside in the residential development for not less than one year from the recordation of the notice of completion, and where the proposed owner-occupant has not previously been an owner-occupant under this chapter during a period of ten years prior to application for approval.

PENDING DEVELOPMENT. A residential development for which an application has been approved by the county on or before the effective date of this chapter, so long as the number of dwellings does not increase after the approval.

PLANNING AREA. The unincorporated area of the County of San Benito. Residential development projects in the PLANNING AREA that require any approval submit applications to the county. New construction projects or alteration of structures which create five or more new or additional dwelling units and/or lots are subject to this chapter.

RENTAL INCLUSIONARY UNIT. An inclusionary unit which is designated in an inclusionary housing agreement to be rented to a household eligible under this chapter.

RESIDENTIAL DEVELOPMENT MINIMUM PROJECT SIZES. Any project requiring any approval, for which an application or applications are submitted to the county and which would by construction or alteration of structures create five or more new or additional dwelling units and/or lots.

SINGLE-FAMILY HOUSING. Housing where one residential unit is on one lot.

SUBDIVISION. A “subdivision” as that term is defined by the California Subdivision Map Act which is intended for residential use.

TOWNHOME HOUSING. Housing where multiple single-family units are on separate lots and are attached at the property line.

TRIPLEX HOUSING. Housing where three attached single-family units are on one lot.

(Ord. 866, § 1(part), 2010; Ord. 951, § 1(part), 2016; Ord. 1,014, § 4, 2020; Ord. 1052, § 2, 2023)

(A) The requirements of this chapter are minimum requirements and shall not preclude a residential development from providing additional affordable units and/or affordable units with lower rents or sales prices. Except as expressly provided in divisions (C) and (D) of this section, all residential developments shall contribute to the provision of housing for very low, low, and moderate-income households in the County of San Benito as provided in this chapter.

(B) Affordable units will be required to be constructed within ten miles of an incorporated city within San Benito County. If a residential development is proposed outside of the ten-mile radius, the development’s corresponding affordable units shall be located off-site and may be located outside of the planning area of the market rate project, subject to approval by the Planning Commission and the Board of Supervisors. The quantity of affordable units constructed off-site shall be calculated according to the off-site inclusionary requirement.

(C) Residential developments which meet one of the following criteria shall not be required to comply with this chapter:

(1) Residential developments that form part of a larger residential development as to which the requirements of this chapter have previously been fully satisfied and as to which there is no default in continuing obligations under this chapter, where the new residential development results in no increase in the number of previously approved lots or units;

(2) Development as to which the applicant demonstrates that there is no reasonable relationship between the development and the requirements imposed by this chapter, that the requirements of this chapter would take property in violation of the United States or California Constitutions, or that as a result of unusual or unforeseen circumstances, it would not be appropriate to apply, or would be appropriate to modify, the requirements of this chapter, provided that the Board of Supervisors makes the determination to approve or disapprove an exemption or modification, and makes written findings, based on substantial evidence, supporting that determination;

(3) Development for farm workers;

(4) Mobile-home park development.

(5) Notwithstanding any other provision of this chapter, an applicant may propose an alternative means of compliance with this chapter by submitting an affordable housing plan that achieves the purpose and intent of this chapter. The Board of Supervisors may approve such alternative method of meeting the county’s inclusionary housing requirement by means of a development agreement or an affordable housing agreement or other appropriate means if the Board of Supervisors finds and determine that, based on substantial evidence in the record, the proposed new residential development is consistent with the general plan, will assist in the attainment of the county’s identified housing needs and regional fair share responsibilities for very low, low, and moderate income households, and the number of affordable housing units will provide an acceptable level of affordable housing while providing public benefits consistent with compliance with the express requirements of this chapter.

(a) Developers may reserve or set-aside land to be transferred to an affordable housing developer to satisfy an affordable housing requirement. Land may be part of the market-rate development being constructed, or may be provided off-site in a high density residential zone. Priority will be given to development projects that satisfy affordable requirements through land set-aside and dedicated to high-density affordable housing.

(D) Pending developments, as that term is defined by this chapter, shall be subject to the requirements of the inclusionary housing ordinance in effect when the application for the development is approved by the appropriate authority, with the exception that vesting tentative maps shall be subject to the requirements of the inclusionary housing ordinance in effect when the application for the vesting tentative map was deemed complete.

(E) Notwithstanding any other provision of this chapter, an applicant may propose an alternative means of compliance with this chapter by submitting an affordable housing plan that achieves the purpose and intent of this chapter. The Board of Supervisors may approve such alternative method of meeting the county’s inclusionary housing requirement by means of a development agreement or an affordable housing agreement or other appropriate means if the Board of Supervisors finds and determine that, based on substantial evidence in the record, the proposed new residential development is consistent with the general plan, will assist in the attainment of the county’s identified housing needs and regional fair share responsibilities for very low, low, and moderate-income households, and the number of affordable housing units will provide an acceptable level of affordable housing while providing public benefits consistent with compliance with the express requirements of this chapter. Such alternative means of compliance may include:

(1) Payment of in-lieu fees;

(2) Developers may reserve or set aside the right to land to be transferred to an affordable housing developer to satisfy an affordable housing requirement. Land may be part of the market-rate development being constructed or may be provided off-site in a high-density residential zone. Priority will be given to development projects that satisfy affordable requirements through land set aside and dedicated to high-density affordable housing;

(3) Build affordable multi-family rental units within the development rather than affordable for-sale, single-family homes;

(4) Inclusionary requirement can be met through a combination of providing inclusionary units and in-lieu fees;

(5) Townhomes can meet for-sale housing requirements;

(6) Off-site construction. Require a higher percentage of inclusionary units if the developer selects this option;

(7) Land donation. Value of the land should not be lower than the total fees that would have been paid.

(F) Review process and approving authority. The Planning Commission will review affordable housing plans submitted with tentative subdivision map applications for compliance with this chapter and provide recommendations to the Board of Supervisors. The Board of Supervisors have the authority to approve affordable housing plans. Once an affordable housing plan is approved:

(1) The tentative map may be approved or conditionally approved by the Planning Commission if it finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan, the Affordable Housing Regulations, and any applicable provision pursuant to County Code Title 23 Chapter 7.

(2) The County Engineer shall review the final map and any other required information, and the subdivider shall make corrections and/or additions until acceptable to the County Engineer pursuant to County Code Ch. 23.09.

(3) The final map, approved by the County Engineer as complying with the approved or conditionally approved tentative map, shall be recorded with the Board of Supervisors of approval after all required certificates have been signed. The date the map shall be deemed recorded with the Board of Supervisors is the date on which the Clerk of the Board receives the map. The Board of Supervisors shall consider the final map and affordable housing plan for approval at its next regular meeting following receipt of the map by the Clerk of the Board pursuant to County Code Title 23 Chapter 9.

(4) Any determination made by the appropriate authority to implement this chapter in connection with granting approval may be appealed pursuant to the appeal provisions of County Code Title 25 Chapter 1.

(Ord. 951, § 1(part), 2016; Ord. 1,014, § 5, 2020; Ord. 1052, § 2, 2023)

All residential development in the county consisting of six to ten units shall be subject to an inclusionary housing fee. All residential development in the county consisting of 11 or more units shall provide inclusionary units on-site or off-site, except that a fee may be paid in-lieu of providing fractional units and in other circumstances specified in § 21.03.008. Applicants may elect to substitute an in-lieu fee if the fraction is less than 0.7. All fractions of 0.7 or greater are required to round to the nearest whole number resulting in an additional unit. The size, design, and location of inclusionary units shall be consistent with a project-specific affordable housing plan, the county general plan, zoning ordinance, and other county ordinances and building standards. To satisfy the inclusionary requirement, the inclusionary housing type is not limited to single family units and based on the appropriate zoning can include mixed-use residential, townhome, duplex, and other housing types proposed by the affordable housing plan. Compliance may be accomplished by the applicant alone or in combination with others, including a non-profit housing corporation, as specified in §§ 21.03.006 and 21.03.007.

(Ord. 951, § 1(part), 2016; Ord. 1,014, § 6, 2020; Ord. 1052, § 2, 2023)

(A) To satisfy its inclusionary requirement on-site, a residential development must construct inclusionary units in an amount equal to or greater than 15% of the total number of units approved for the residential development (except to the extent a fraction of a unit would be required). Applicants may elect to substitute an in-lieu fee if the fraction is less than 0.7. All fractions of 0.7 or greater are required to round to the nearest whole number resulting in an additional unit. Initial and subsequent affordability levels and eligible occupants of the inclusionary units shall conform to the requirements of § 21.03.010, as applicable.

(B) If a residential development is proposed more than ten miles from an incorporated city within San Benito County on- site affordable units shall not be constructed and instead off-site units shall be constructed. Said off-site units may be located outside of the planning area of the market rate project, subject to approval by the Planning Commission and the Board of Supervisors. The quantity of affordable units constructed off-site shall be calculated according to the off-site inclusionary requirement.

(C) On-site affordable units must receive building permits and certificates of occupancy concurrently with the remainder of the residential development, as set forth in and except as otherwise provided by the affordable housing agreement;

(D) The percentage of required inclusionary units is the same for both rental and for-sale housing, but income targeting for rental housing and for-sale housing are not the same. See the tables below for both on-site and off-site affordability target for-sale and rental inclusionary units. Should there be any discrepancy between this table and the text of this chapter, the text shall control.

On-Site For-Sale Inclusionary Requirements (15%)

On-Site For-Sale Inclusionary Requirements (15%)

On-Site Rental Unit Inclusionary Requirements (15%)

On-Site Rental Unit Inclusionary Requirements (15%)

(Ord. 951, § 1(part), 2016; Ord. 1,014, § 7, 2020; Ord. 1052, § 2, 2023; Ord. 1059, § 2 (part), 2023)

(A) Off-site inclusionary units, in place of or combined with on-site units, may be approved upon a showing by the applicant for the residential development, approved by the appropriate authority, that off-site units will provide a greater contribution to the county’s affordable housing needs. If a developer chooses off-site affordable housing, the inclusionary requirement shall be 20% (except to the extent a fraction of a unit would be required). Applicants may elect to substitute an in-lieu fee if the fraction is less than 0.7. All fractions of 0.7 or greater are required to round to the nearest whole number resulting in an additional unit. The development of off-site units must result in the creation of newly constructed units, or units that are not otherwise previously planned or required for a separate development, unless approved by the Board of Supervisors.

(B) Off-site affordable units, to the greatest extent possible, should be located within the same planning area as the market rate project.

(1) Affordable units will be required to be constructed within ten miles of an incorporated city within San Benito County. If a residential development is proposed outside of the ten-mile radius, the development's corresponding affordable units shall be located off-site and may be located outside of the planning area of the market rate project, subject to approval by the Planning Commission and the Board of Supervisors. The quantity of affordable units constructed off-site shall be calculated according to the off-site inclusionary requirement.

(C) Off-site units may be allowed only if their location is identified and is owned, or site control is demonstrated by the applicant, at the time of approval.

(D) Except as otherwise provided in the affordable housing agreement for the residential development, building permits for corresponding market-rate units will not be issued until building permits have been issued for off-site units, and final inspections for occupancy will not occur for corresponding market-rate units until final inspections for occupancy have occurred for off-site units.

(E) The off-site inclusionary housing requirements of this chapter are summarized in the following tables. Should there be any discrepancy between these tables and the text of this chapter, the text shall control.

Off-Site For-Sale Inclusionary Requirement (20%)

Off-Site For-Sale Inclusionary Requirement (20%)

Off-Site Rental Unit Requirement (20%)

Off-Site Rental Unit Requirement (20%)

(Ord. 951, § 1(part), 2016; Ord. 1,014, § 8, 2020; Ord. 1052, § 2, 2023; Ord. 1059, § 2 (part), 2023)

(A) For both on-site and off-site construction, unless an exemption is approved by the Board of Supervisors pursuant to division (C) below, the applicant shall be required to build the whole number of inclusionary units as determined in division (C) below. The Director of Resource Management Agency or his or her designee shall calculate and update the in-lieu fees on an annual basis based on the annual increase in the Residential Construction Cost Index to adjust the in-lieu fee annually as part of the Master Fee Schedule.

(B) Fractions of units. Residential developments required to construct fractions of a unit under this chapter shall pay an in-lieu fee if the fraction is less than 0.7 in an amount corresponding to the fractional unit, computed by multiplying the in-lieu fee amount determined under division (C) below by the fraction. All fractions of 0.7 or greater are required to round to the nearest whole number resulting in an additional unit.

(C) Qualification for in-lieu payment. The developer of a residential development containing 11 or more units may apply to pay a fee in lieu of providing some or all of the required inclusionary units if the developer demonstrates, based on evidence in the record, in connection with the approval for the residential development, that specific characteristics of the development site, including at least one of the following: (1) septic systems or individual wells that are not connected to a public agency or regulated water purveyor, (2) zoning which requires large lot development, or (3) is not within ten miles of an incorporated city, make the site unsuitable for households at the required income levels. The evidence must be reviewed by the Planning Commission and the qualifications for an in-lieu payment must be approved by the Board of Supervisors.

(D) Payment amount. Inclusionary fees shall be reviewed by the Planning Commission and set forth by resolution of the Board of Supervisors and shall reflect the findings found in § 21.03.001(G).

(E) Time of payment. Payment of in-lieu fees shall be made in full to the county prior to issuance of a certificate of occupancy and final inspection, unless an affordable housing agreement otherwise provides.

(F) Alternative compliance mechanisms should be used only when they will lead to the production of more affordable units than would otherwise be provided on-site, while still being consistent with the chapter’s other goals. Also, alternatives should be made available where on-site production of units is less feasible, rather than as a default option for all developments. Examples of alternative mechanisms include (but are not limited to) the following: land donation, construction of rental units adjacent to for-sale projects, and provision of subsidies to non-profit developers for affordable rental housing.

(Ord. 951, § 1(part), 2016; Ord. 1,014, § 9, 2020; Ord. 1052, § 2, 2023; Ord. 1059, § 2 (part), 2023)

(A) A residential development application will not be deemed complete until the applicant has submitted plans and proposals which demonstrate the manner in which the applicant proposes to meet the requirements of this chapter, including any plans for the construction of on-site units, commitment of off-site units, and/or intent to pay in-lieu fees.

(B) Conditions to carry out this chapter shall be imposed on the approval of a residential development. When granting the approval, the appropriate authority shall determine and include as a condition of approval: (1) the method of compliance with this chapter, including whether the residential development will comply with this chapter through provision of on-site units or off-site units or payment of an in-lieu fee or combination thereof; (2) if inclusionary units are to be provided, the number of units required and fractional amount of units for which an in-lieu fee may be paid; and (3) such other matters as the appropriate authority deems proper. The condition of approval shall further provide that prior to the recordation of the parcel map or final map in the case of subdivisions and/or prior to the issuance of building permits in the case of all other land use permits to which this chapter applies, the applicant shall enter into an affordable housing agreement acceptable to the director that contains specific requirements implementing the condition of approval including, but not limited to, as applicable, the number of inclusionary units, the level of affordability, location and type of inclusionary units, timing of construction of inclusionary units in relation to the construction of the market rate units contained in the development, and amount of the in-lieu fee, if any. The affordable housing agreement may be amended by the parties, provided the amendment is consistent with the condition of approval imposed as part of the approval and the existing county approvals. If the proposed amendment is minor or technical in nature, the Director shall have authority to approve or disapprove the amendment on behalf of the county. If the proposed amendment makes a substantive or material change to the affordable housing agreement, the amendment shall be effective only if, following notice and hearing and such other procedures as may be required by law, approved by the appropriate authority who gave the approval on the project.

(C) Where a residential development receives a subdivision approval, the final subdivision map or parcel map, which is to be filed and recorded, shall include a notation, in a form acceptable under the Subdivision Map Act, describing the condition of approval to comply with this chapter.

(D) Where the party subject to a fully executed affordable housing agreement or other document regulating or limiting the operation, price or rent of an inclusionary unit, entered into under this chapter or any previous version of this chapter, believes that the document requires modification as a result of unusual circumstances which could not have been foreseen at the time the document was entered into, the affected party may apply to the County Board of Supervisors for modification of the document. Such modification shall be considered at a public hearing during a regularly scheduled meeting.

(E) Review process and approving authority. The Planning Commission will review affordable housing plans submitted with tentative subdivision map applications for compliance with this chapter and provide recommendations to the Board of Supervisors. The Board of Supervisors have the authority to approve affordable housing plans. Once an affordable housing plan is approved:

(1) The tentative map may be approved or conditionally approved by the Planning Commission if it finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan, the Affordable Housing Regulations, and any applicable provision pursuant to County Code Title 23 Chapter 7.

(2) The County Engineer shall review the final map and any other required information, and the subdivider shall make corrections and/or additions until acceptable to the County Engineer pursuant to County Code Ch. 23.09.

(3) The final map, approved by the County Engineer as complying with the approved or conditionally approved tentative map, shall be recorded with the Board of Supervisors of approval after all required certificates have been signed. The date the map shall be deemed recorded with the Board of Supervisors is the date on which the Clerk of the Board receives the map. The Board of Supervisors shall consider the final map and affordable housing plan for approval at its next regular meeting following receipt of the map by the Clerk of the Board pursuant to County Code Title 23 Chapter 9.

(4) Any determination made by the appropriate authority to implement this chapter in connection with granting approval may be appealed pursuant to the appeal provisions of County Code Title 25 Chapter 1.

(Ord. 866, § 1(part), 2010; Ord. 951, § 1(part), 2016; Ord. 1052, § 2, 2023; Ord. 1059, § 2 (part), 2023)

(A) The occupancy and continuing availability of inclusionary units shall be provided for in the following manner:

(1) The number and type of rental inclusionary units and for-sale inclusionary units shall be determined for each application or approval under the standards of this chapter and set forth in the affordable housing agreement or development agreement as approved by the Board. On-site and off-site for-sale and/or rental inclusionary units shall be sold/rented only to eligible households and only to extremely low, very low, low, or moderate-income households, as applicable, at prices affordable to such households and pursuant to further requirements of resale restrictions, a promissory note, second deed of trust naming the county as beneficiary, deed restrictions and/or other documents pursuant to this chapter.

(2) Where the number of required moderate-income units is not a whole number, the fractional units required shall be added to the number of low-income inclusionary units required. If the resultant number of low-income units is not a whole number, the fractional units required shall be added to the number of very low-income inclusionary units required. Where (after any addition of fractional units under the preceding sentences) the number of very low-income inclusionary units required is not a whole number, the applicant shall include the next higher whole number of very low-income and inclusionary units or may apply to pay a fractional unit in-lieu fee in the amount provided in § 21.03.008.

(B) The initial maximum sale price of the inclusionary unit to the first purchaser shall be determined by the Director, pursuant to a method set forth in the Administrative Manual. Similar restrictions shall be required of subsequent owners at the time they acquire the unit. The initial maximum rental price of the rental inclusionary unit shall be determined by the Cal. Health and Safety Code related to Section 8 Rental Housing Assistance or by the Director pursuant to a method set forth in the Administrative Manual, or as established by ordinance.

(C) Resale value for an inclusionary for-sale unit. The maximum resale price shall be determined under the approved documents, consistent with the Administrative Manual and the following:

(1) The maximum permitted resale price of an inclusionary unit shall not be increased above the purchase price within one year of purchase.

(2) The maximum permitted resale price shall be the initial sale price of the inclusionary unit, increased at the same rate as the median income has increased, with the following modifications.

(3) Where an owner has lawfully added a bedroom to a for-sale inclusionary unit, the maximum resale price of the unit shall be calculated based on an assumed household size corresponding to the total number of bedrooms, including the added bedroom.

(4) The Administrative Manual and/or approved documents may provide for a ceiling which limits the resale price increases resulting from the modifications in divisions (C) and (D).

(D) Transfer. Transfer of a for-sale inclusionary unit to a child or stepchild upon the death of one or more of the prior owners shall be permitted without payment of any amount otherwise due to the county based on the sales price or appreciation of the unit, and without regard to any otherwise applicable preferences or waiting list priority for successor owners, if, but only if, the household of the child or stepchild would be eligible to purchase the unit and will occupy the unit. A child or stepchild, whether or not his or her household is income eligible or will occupy the unit and regardless of any otherwise applicable preferences or waiting list priority, shall be entitled to own and/or occupy a for-sale inclusionary unit after the death of the prior parent owner, for a period not to exceed one year, without regard to otherwise applicable resale requirements of this chapter but subject to any applicable provisions of the Administrative Manual or county documents regulating the project. Not later than the expiration of the one-year period, the unit shall be transferred to the child or stepchild (if the household is eligible and wishes to keep the unit) or shall be offered for sale in conformance with this chapter, with appropriate restrictions recorded against the unit under this chapter for the county’s benefit.

(E) Refinancing. For-sale inclusionary units may be refinanced, to the extent provided in the Administrative Manual. A separate notice of that restriction shall be recorded to prevent lenders from bypassing this requirement.

(F) Terms of affordability.

(1) New and existing for-sale inclusionary units. New and existing for-sale inclusionary units, affordability and occupancy restrictions shall remain in effect for 30 years and shall apply to any replacement structure or structures constructed if a structure containing an inclusionary unit or units is demolished or destroyed. If demolition or destruction of a structure containing inclusionary units occurs 30 years or more after recording of the restrictions and said demolition or destruction was unintentional, restrictions on the units in the structure shall terminate on demolition or destruction. Where a for-sale inclusionary unit is transferred and the new owner is required to enter into new regulatory documents under this chapter, the new regulatory documents will provide for an affordability period of 30 years.

(2) New and existing rental inclusionary units. New and existing inclusionary rental units, affordability and occupancy restrictions shall remain in effect for a minimum of 55 years and shall apply to any replacement structure or structures constructed if a structure containing an inclusionary unit or units is demolished or destroyed. If demolition or destruction of a structure containing inclusionary units occurs 55 or more after recording of the restrictions and said demolition or destruction was unintentional, restrictions on the units in the structure shall terminate on demolition or destruction.

(G) Maintenance. Regulatory agreements and recorded restrictions on resale shall include maintenance and insurance requirements for affordable units.

(H) Approval and recording of documents.

(1) The Director, in consultation with County Counsel, shall establish the form and content of agreements and restrictions authorized under this chapter. Regulatory agreements and resale restriction documents may provide for specific affordability and/or occupancy requirements for particular affordable units, consistent with this chapter and with the terms of the project’s affordable housing agreement. Restrictions on resale are required and shall be recorded against title to the affordable units and shall prohibit or limit leasing of inclusionary units.

(2) These documents shall be executed by the record owners of affected property, approved as to form by County Counsel and recorded in the official records of the county.

(I) Occupancy. Initial and subsequent occupancy of inclusionary units shall be in accord with conditions and requirements stated in the Administrative Manual.

(J) Marketing/selection of participants. The Administrative Manual shall set forth marketing and selection policies and/or procedures for inclusionary for-sale and rental units and identify county staff responsible for supervising marketing. If the county maintains an eligible list(s), it may select households first from an eligibility list for newly available affordable units prior to other applicants.

(K) Changes in a renter’s income. If the monitoring process conducted by county staff reveals that the income of the household occupying the inclusionary rental unit exceeds the maximum amount of income for the restricted unit for the specific household size, the renter-household can remain in the home for an additional year.

(L) Administrative Manual. The Board of Supervisors shall adopt and may from time to time amend an Administrative Manual, approved as to form by County Counsel, to establish guidelines to interpret and implement this chapter, including without limitation income and maximum asset guidelines for inclusionary units and units assisted by in-lieu fee proceeds. All mandatory provisions of the manual, when adopted, shall bind applicants and other private parties subject to this chapter. Maximum permitted sales prices shall be governed by the administrative manual. The Board of Supervisors shall conduct a duly noticed public hearing prior to the adoption or any amendment of the Administrative Manual.

(Ord. 951, § 1(part), 2016; Ord. 1,014, § 10, 2020; Ord. 1052, § 2, 2023)

(A) Use of fees. To the maximum extent possible, any monies received by the county pursuant to this chapter shall be used to increase, improve, and preserve the supply of affordable housing and services to provide extremely low, very low, low, and/or moderate-income housing. Any monies received pursuant to this chapter may be used for appropriate monitoring, enforcement, and administrative costs. Monies received may also be used to assist the county with all costs associated with construction, acquisition, unit purchase, development, and rehabilitation of property for rental or homeownership purposes as long as the property is offered for very low, low, and moderate-income housing. Monies received may also be used to provide subsidies for equity participation loans, low-interest loans, rent subsidies, grants, housing trusts, or down payment assistance to eligible participants of extremely low, very low, low, or moderate-income housing. Monies received may also be used for related activities that promote affordable housing such as homebuyer education, grant writing workshops, credit management workshops, financial literacy workshops and foreclosure prevention education. Any monies received by the county pursuant to this chapter shall be used to provide reasonable reimbursement to approved governmental agencies or non-profit organizations for related expenses associated with preserving an affordable “at-risk” unit for extremely low, very low, low, or moderate income in order to prevent foreclosure. Any monies received by the county pursuant to this chapter may also be used to provide reasonable reimbursement to the county to cover infrastructure costs associated with impact fee waivers provided to 100% affordable housing developments as authorized by this section. All such monies on deposit with the county including in-lieu fees, fees, promissory note repayments, shared appreciation payments, penalties, interest generated, or other funds collected shall be separately accounted for and shall not be used for purposes not authorized by § 21.03.002.

(B) Funding proposals. At least once a year when the county holds unappropriated in-lieu fees, the county shall advertise by notice in newspapers of local circulation and other such written notice as deemed necessary by the Board of Supervisors the availability of funds for the provision of very low, low, and/or moderate-income housing in the county. Included in the notice shall be an invitation to submit proposals and requests for funds to provide such housing in the county. Proposals submitted for funding shall be in accordance with the Board of Supervisors’ housing priorities set for the year. Proposals shall be reviewed by the Planning Commission to be submitted with recommendations to the Board of Supervisors for approval. The requests may be for grants, low-interest loans and other funding mechanisms deemed appropriate to secure the purpose of this chapter. The proposals may be for pre-development projects and services, projects to promote very low, low, or moderate-income housing unit(s), rehabilitation, land acquisition, unit purchase, and development of infrastructure or other projects deemed appropriate to secure the purpose of this chapter.

(C) Director’s authority. All proposals and requests for funding shall be referred initially to the Director or designee. The Director or designee shall make recommendations for funding to the Planning Commission, which shall make a funding recommendation to the Board of Supervisors in accordance with the procedures in this section. The Board of Supervisors, at its discretion, may elect to fund none, any, or all of proposals received and may attach conditions of approval, performance standards, or mitigation measures to any such approval. For proposals which have received approval in accordance with the procedures set forth in this section, the Director or designee shall have the authority to execute all documents necessary to implement the approval on behalf of the county, subject to the approval of County Counsel as to legal form.

(D) Grant contract. Upon authorization for funding, the Director, on behalf of the county, shall enter into a contract to assure to the greatest extent possible that the approved proposals and requests are satisfactorily completed. No warrant shall be issued until such contract is completed and signed by the appropriate parties.

(E) Household eligibility. The Director or designee shall establish standards for eligibility of extremely low, very low, low, and/or moderate-income households in units assisted with the proceeds of in-lieu fees. Priority for occupancy shall be granted to residents of the county and those employed in the county.

(F) Impact fees. Developments that provide 100% affordable housing may have pro rata reduction of impact fees, provided the Board of Supervisors identifies and allocated another source of funds to replace the impact fee waiver amount, as follows:

(1) Moderate income units shall require payment of 50% of the impact fees.

(2) Low-income units shall require payment of 25% of the impact fees.

(3) Very low-income units shall be exempt from impact fees.

(Ord. 866, § 1(part), 2010; Ord. 951, § 1(part), 2016; Ord. 1,014, § 12, 2020; Ord. 1052, § 2, 2023; Ord. 1059, § 2 (part), 2023)

(A) The county shall provide density bonuses, incentives, or concessions for the production of housing units and/or childcare facilities in accordance with Cal. Gov’t Code § 65915 through § 65918. The county may, in its discretion, grant a density bonus greater than required by Cal. Gov’t Code § 65915 for a development that meets the requirements of Cal. Gov’t Code § 65915 or grant a proportionately lower density bonus than what is required by Cal. Gov’t Code § 65915 for developments that do not meet the requirements of Cal. Gov’t Code § 65915.

(1) Twenty percent of the total units of housing development shall be affordable for lower-income households, as defined in Cal. Health and Safety Code § 50079.5;

(2) Ten percent of the total units of a housing development shall be affordable for very low-income households, as defined in Cal. Health and Safety Code § 50105;

(3) Fifty percent of the total dwelling units of a housing development for qualifying residents, such as seniors, as defined in Cal. Civil Code § 51.3; or

(4) Twenty percent of the total dwelling units in a condominium project as defined in Cal. Civil Code § 1351(f), for persons or families of moderate income, as defined in Cal. Health and Safety Code § 50093.

(B) The county shall grant the additional concessions or incentives required by this section unless the county makes a written finding, based upon substantial evidence, that the additional concessions or incentives are not required in order to provide for affordable housing costs, as defined in Cal. Health and Safety Code § 50052.5. Concessions and incentives may be approved without any requirement that the applicant demonstrates to the county that the requested concessions or incentives result in identifiable and actual cost reductions to the project to provide affordable ownership costs or affordable rents.

(C) An applicant/developer may submit to the county a proposal for the specific incentives or concessions that the applicant requests pursuant to this section and may request a meeting with the county. The county shall grant the concession or incentive requested by the applicant developer unless the county makes a written finding, based upon substantial evidence, of either of the following:

(1) The concession or incentive is not required in order to provide for affordable housing costs, as defined in Cal. Health and Safety Code § 50052.5.

(2) The concession or incentive would have a specific adverse impact, as defined in Cal. Gov’t Code § 65589.5(d)(2), 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 low and moderate-income households.

(D) Nothing in this section shall be interpreted to require the county to grant an incentive or concession that has a specific, adverse impact, as defined in Cal. Gov’t Code § 65589.5(d)(2), upon health, safety, or the physical environmental, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this section shall be interpreted to require the county to grant an incentive or concession that would have an adverse impact on any real property that is listed in the California Register of Historical Resources.

(E) In no case shall the county apply any development standard that will have the effect of precluding the construction of a development at the densities or with the concessions or incentives permitted by this section. An applicant/developer may submit to the county a proposal for the waiver or reduction of development standards and may request a meeting with the county.

(F) It shall be the responsibility of the applicant/developer to show that the waiver or modification is necessary to make the housing units economically feasible.

(G) For the purposes of this chapter, except as provided in division (I), DENSITY BONUS means a density increase of at least 25%, unless a lesser percentage is elected by the applicant/developer, over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the general plan as of the date of application by the applicant/developer to the county. All density calculations resulting in fractional units of 0.7 or greater shall be rounded up to the next whole number. Applicants may apply to substitute an in-lieu fee if the fraction is less than 0.7. The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, zone change, or other discretionary approval. The density bonus shall not be included when determining the number of housing units which is equal to 10%, 20% or 50% of the total. The density bonus shall apply to housing developments consisting of five or more dwelling units.

(H) For the purposes of this chapter, if a development does not meet the requirements of divisions (A)(1), (A)(2) or (A)(3) of this section, but the applicant/developer agrees or proposes to construct a condominium project as defined in Cal. Civil Code § 1351(f), in which at least 20% of the total dwelling units are reserved for persons and families of moderate income, as defined in Cal. Health and Safety Code § 50093, a density bonus of at least 10% shall be granted, unless a lesser percentage is elected by the applicant/developer, over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the general plan as of the date of application by the applicant/developer to the county. All density calculations resulting in fractional units shall be rounded up to the next whole number.

(I) HOUSING DEVELOPMENT, as used in this section, means one or more groups of projects for residential units constructed in the county. This includes construction of rental or for-sale housing, including condominiums. For the purposes of this section, HOUSING DEVELOPMENT also includes either (1) a project to substantially rehabilitate and convert an existing non-residential building to residential use, or (2) the substantial rehabilitation of an existing multi-family dwelling, as defined in Cal. Gov’t Code § 65863.4(d), where the result of the rehabilitation would be a net increase in available residential units. For the purpose of calculating a density bonus, the residential units do not have to be based upon individual subdivision maps or parcels. Density bonus units need not be constructed in the same project area as affordable units.

(J) For the purposes of this chapter, CONCESSION or INCENTIVE means any of the following:

(1) 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 Cal. Health and Safety Code part 2.5 (commencing with § 18901) of division 13, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of parking spaces that would otherwise be required.

(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.

(3) Other regulatory incentives or concessions proposed by the applicant/developer or the county that result in identifiable and actual cost reductions may be considered. This section does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the county, or the waiver of fees or dedication requirements.

(K) For the purposes of this section, the following definitions shall apply.

DEVELOPMENT STANDARD. Any ordinance, general plan element, specific plan, or other local condition, law, policy, resolution, or regulation.

MAXIMUM ALLOWABLE RESIDENTIAL DENSITY. The density allowed under the zoning ordinance, excluding bonus units permitted under this section.

(Ord. 866, § 1 (part), 2010; Ord. 951, § 1(part), 2016; Ord. 1052, § 2, 2023)

Consult with planning staff to incorporate current concepts to include in development proposals. All affordable by design standards elected by a developer are in addition to the requirements of this chapter and do not replace them.

(Ord. 951, § 1(part), 2016; Ord. 1052, § 2, 2023)

(A) Inclusionary units shall be dispersed throughout the residential development to prevent the creation of a concentration of affordable units within the residential development for all developments except for self-help housing or multi-family housing.

(B) Inclusionary units shall be of similar architectural style and quality as the design of market rate units in terms of exterior appearance, materials, and finished quality. Interior finishes, features, and amenities may differ from those provided in the market rate units, so as long as the finishes, features, and amenities are durable, of good quality, compatible with the market rate units, and consistent with contemporary standards for new housing.

(C) Number of bedrooms in a development should average 2.2 rooms per unit for multi-family housing.

(D) Number of bedrooms in a development should average 3.2 rooms per unit for single-family housing.

(E) Minimum unit sizes for single-family, including duplex and triplex, are defined as one-bedroom unit at 950 square feet with one bathroom, two-bedroom unit at 1,260 square feet with two bathrooms, three-bedroom unit at 1,380 square feet with two bathrooms, and four-bedroom units at 1,500 square feet with two bathrooms.

(F) Minimum unit sizes for multi-family are defined as one bedroom unit at 596 square feet with one bathroom, two-bedroom unit at 801 square feet with minimum of one bathroom, three-bedroom unit at 1,027 square feet with two bathrooms, four-bedroom unit 1,232 square feet with a minimum of two bathrooms.

(G) All building permits for inclusionary units in a phase of a residential development shall be issued concurrently with, or prior to, issuance of building permits for the market rate units, and the inclusionary units shall be constructed concurrently with, or prior to, construction of the market rate units. Occupancy permits and final inspections for inclusionary units in a phase of a residential development shall be approved concurrently with, or prior to, approval of occupancy permits and final inspections for the market rate units. When alternative methods of compliance are proposed, the Assistant Director of Planning & Building (or equivalent) may approve alternative phasing of market rate and inclusionary units if it finds that the proposal provides adequate security to ensure construction of the inclusionary units. Phases of construction shall be defined as a part of the approval.

(H) Exemptions to or modifications of these development standards can be reviewed by the Housing Advisory Committee and Planning Commission and approved by the Board of Supervisors if specific conditions make adherence infeasible.

(Ord. 951, § 1(part), 2016; Ord. 1052, § 2, 2023)

(A) No permit, license, subdivision approval or map, or other approval or entitlement for a residential development shall be issued, including without limitation a final inspection for occupancy or certificate of occupancy, until all applicable requirements of this chapter have been satisfied.

(B) In the event of a violation of any provision of this chapter or any requirement imposed pursuant to this chapter, the county may in its discretion, in addition to all other remedies, take such enforcement action as is authorized under the San Benito County Code and/or any other action authorized by law or by any regulatory document, restriction or agreement executed under this chapter.

(Ord. 866, § 1 (part), 2010; Ord. 951, § 1(part), 2016)

(A) Owners and occupants of property subject to restrictions pursuant to this chapter shall permit county employees or others designated by the county to inspect the property in order to ensure compliance with restrictions on the property upon two business days’ advance written notice. Owners of property subject to restrictions pursuant to this chapter shall retain all records related to compliance with obligations under this chapter for a period not less than five years, and make such records available to county employees or others designated by the county for inspection and copying upon five business days’ advance written notice. The county shall be further entitled to monitor compliance on an annual basis with this chapter as provided in the Administrative Manual and documents executed with respect to any residential development and/or inclusionary unit.

(B) Homeowners will receive an annual monitoring notice from the county to confirm the owner occupancy requirement and prohibitions against rental of the dwelling. The review will provide owners with an opportunity to become familiar with the guidelines of the Inclusionary Housing Program and any changes in adopted policies and procedures. For rental units, an annual monitoring notice from the county will be sent to all management agencies to confirm residents are eligible to affordable units.

(C) Periodic evaluation. Unless funding or staff is not available, the Director shall at five-year intervals, or more often at the director’s discretion, at Board request, and any time the County Housing Element is updated as required by state law, prepare and submit to the Board of Supervisors an evaluation of this chapter and its effects.

(Ord. 951, § 1(part), 2016; Ord. 1,014, §13, 2020)