Article 10 — Density Bonus Ordinance

The purpose of this chapter is to provide incentives for the production of housing for extremely low income, very low income, low income, and moderate income households, senior citizens, transitional foster youth, disabled veterans, homeless persons, and low income college students, in accordance with Government Code Sections 65915 through 65918 (State Density Bonus Law). In enacting this chapter, the City's intent is to facilitate the development of affordable housing and to implement the goals, policies, and actions of the housing element of the City's General Plan. (§3, Ord. 2240, eff. 7/19/24)

This article shall be known and cited as the "Density Bonus Ordinance of the City of Walnut Creek" or "Density Bonus Ordinance." (§3, Ord. 2240, eff. 7/19/24)

A. The City shall grant a density bonus and one or more incentives or concessions to any housing development consisting of five (5) or more dwelling units, as and to the extent required pursuant to Section 65915 of the State Density Bonus Law.

B. The City shall grant a density bonus or other incentives of equivalent financial value to applicants for approval to convert apartments to a condominium project, as and to the extent required pursuant to Section 65915.5 of the State Density Bonus Law.

C. A developer may seek approval of a conditional use permit for additional bonus units that exceed the maximum density bonus available under the State Density Bonus Law. If the City grants and the developer accepts such additional bonus units, the additional bonus units shall be considered an incentive or concession.

D. If a developer agrees to construct a housing development that will contain less than the percentage of affordable units required to qualify for a density bonus pursuant to the State Density Bonus Law, the developer may seek approval of a conditional use permit for a density bonus that is proportionally lower than the minimum density bonus specified in the State Density Bonus Law.

E. With the exception of the additional density bonuses for a land donation, child care facility and qualifying affordable housing projects, as provided in this article or under the State Density Bonus Law, each housing development shall be entitled to only one (1) density bonus.

F. Any dwelling unit that would otherwise qualify as a restricted unit that is required to be maintained as an affordable unit pursuant to the City's Inclusionary Housing Ordinance shall also be considered a restricted unit for purposes of determining whether the housing development qualifies for a density bonus.

G. Any density bonus or incentive or concession awarded pursuant to this article shall generally apply only to the particular housing development for which the density bonus or incentive or concession is awarded. A density bonus or incentive or concession may be transferred, credited, or applied to a different housing development only if the City and the developer agree pursuant to an approved density bonus housing agreement.

H. The approval of a density bonus shall not, in and of itself, preclude a housing development from receiving other government subsidies for affordable housing.

I. The approval of a density bonus, incentive or concession, development standard waiver or modification, or parking modification as provided herein, shall not be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval. (§3, Ord. 2240, eff. 7/19/24)

A developer may seek a waiver or reduction of development standards that will have the effect of physically precluding the construction of a housing development that qualifies for a density bonus at the densities or with the incentives or concessions permitted by this article, as and to the extent required pursuant to Section 65915 of the State Density Bonus Law. The developer must make such request in writing. If the City determines that the requested waiver or reduction does not meet the criteria under Section 65915 of the State Density Bonus Law, and upon the request of a developer, the City shall meet with the developer to discuss such deficiencies and compliance with said criteria in a requested waiver or reduction of City development standards.

Notwithstanding the foregoing, the City shall not be required to approve any request for a waiver or modification of development standards as permitted by Section 65915 of the State Density Bonus Law. (§3, Ord. 2240, eff. 7/19/24)

When a developer proposes to construct a housing development that qualifies for a density bonus under Section 10-2.3.1003 and the qualifying housing development includes a child care facility that will be located on the premises of, as part of, or immediately adjacent to, the housing development, and the housing development otherwise meets the requirements under subdivisions (b) and (h) of Section 65915 of the State Density Bonus Law, the City shall grant an additional density bonus and concession or incentive as provided under subdivision (h) of Section 65915 of the State Density Bonus Law and subject to the requirements therein. (§3, Ord. 2240, eff. 7/19/24)

When a developer proposes to construct a commercial development project and has entered into an agreement for partnered housing to contribute affordable housing through a joint project or two (2) separate projects encompassing affordable housing, and such form and content of agreement, joint project and construction to affordable housing, the type of partner housing developer, and the site proposed for housing construction all comply with the requirements of Section 65915.7 of the State Density Bonus Law, the City shall grant a density bonus in accordance with Section 65915.7. For a commercial development project receiving a density bonus pursuant to this section, construction for the affordable housing shall commence in accordance with time lines ascribed by the agreement between the commercial developer and affordable housing partner, or the City shall withhold certificates of occupancy for the commercial development until the partner developer has completed construction of the affordable units. (§3, Ord. 2240, eff. 7/19/24)

When a developer proposes to construct an eligible housing development as defined in Section 65917.2 of the State Density Bonus Law, and that otherwise meets the requirements of that section, the City shall grant a floor area ratio bonus in lieu of a density bonus awarded on the basis of dwelling units per acre, and related incentives or concessions including reduced parking ratios, in accordance with Section 65917.2. In the case of an eligible housing development that is zoned for mixed-use purposes, any floor area ratio requirement under the Zoning Ordinance, General Plan, and any specific plan applicable to the nonresidential portion of the eligible housing development shall continue to apply notwithstanding the award of a floor area ratio bonus pursuant to this section. (§3, Ord. 2240, eff. 7/19/24)

Upon the written request of the developer of a housing development that qualifies for a density bonus under Section 10-2.3.1003, the City shall permit vehicle parking ratios, inclusive of handicapped and guest parking, which do not exceed the parking ratios established pursuant to Section 65915(p) of the State Density Bonus Law. (§3, Ord. 2240, eff. 7/19/24)

All restricted units shall remain affordable in accordance with the requirements of, and for the minimum period required by, the State Density Bonus Law. The required affordability time limit for each restricted unit shall commence upon the issuance of a certificate of occupancy for such restricted unit. The owner of rental restricted units shall provide all notices and rights to tenants required to be given prior to and upon the

expiration of affordability covenants pursuant to Government Code Section 65863.10 or successor statutes. (§3, Ord. 2240, eff. 7/19/24)

A. All housing developments subject to this article must satisfy all of the requirements of this article, notwithstanding the housing development's satisfaction of other program requirements, laws or regulations such as Part III, Article 9, Inclusionary Housing. Those restricted units provided under this article which meet all of the requirements for inclusionary units set forth in Part III, Article 9, Inclusionary Housing, shall also qualify as inclusionary units for purposes of that article.

B. Restricted units shall be constructed concurrently with non-restricted units as specified in the density bonus housing agreement, unless the City and the developer otherwise agree pursuant to a schedule included in the density bonus housing agreement.

C. Unless the City and developer otherwise agree pursuant to a density bonus housing agreement, restricted units:

1. Shall be built on site;

2. Shall not be located in only one (1) portion of the housing development or be situated within only one (1) building of a housing development that contains multiple buildings; and

3. Shall be of the same size and interior finishes and features as the nonrestricted units.

D. Residents of restricted units shall be entitled to use all of the same amenities within the housing development. The number of bedrooms of the restricted units shall be proportional to the number of bedrooms in the nonrestricted units of the housing development. The exterior appearance of the restricted units shall be of the same design and appearance as the overall housing development by having the same building form (proportion of width to length and plate height with a variation of up to twenty-five percent (25%)), exterior construction materials, roof form, siding and trim, and window placement and type. Housing developments shall comply with all applicable development standards, except those that may be modified as provided by this article. In addition, all units in housing developments subject to this article must comply with all applicable California Building Standards Codes, including but not limited to residential and fire code requirements.

E. Density bonus units may be located in geographic areas of the development site other than the areas where the restricted units are located, and shall be located only on parcels for which the density bonus was granted except as permitted pursuant to Section 10-2.3.1003(G).

F. No building permit shall be issued, nor any development approval granted, for any improvements within a housing development subject to this article which do not meet the requirements of this article. No restricted unit shall be rented or sold except in accordance with this article.

G. The entry into and execution of a density bonus housing agreement shall be a condition of any application for a discretionary land use permit, including but not limited to subdivision maps, site plans, and conditional use permits, for a housing development proposed under this article. (§3, Ord. 2240, eff. 7/19/24)

A. An application for a density bonus, incentive, concession, waiver, modification, or revised parking standard pursuant to the density bonus ordinance shall, to the extent possible, be submitted with the first application for approval of a housing development, including a preliminary application submitted pursuant to Government Code Section 65941.1, and processed concurrently with all other applications required for the housing development. If any requested incentive, concession, waiver, modification, or revised parking standard requires a separate land use application, including but not limited to a variance or conditional use permit, the separate land use application shall, to the extent possible, be submitted with the housing development application for concurrent processing.

B. The Community Development Director or his or her designee shall prepare and maintain a list of supplemental application materials for density bonus, incentive, concession, waiver, modification, or revised parking standard requests under this article, which materials shall be submitted together with and as part of the project application.

C. The application shall be submitted on a form prescribed by the City and shall include at least the following information:

1. Site plan showing total number of dwelling units, including the number and location of non-restricted units, the number and location of restricted units, and the number and location of proposed density bonus units.

2. Level of affordability of restricted units and plans for ensuring affordability.

3. Description of any requested incentive, concession, waiver or modifications of development standards, or modified parking standards. For any incentive and concession except mixed-use development, the application shall include evidence that the requested incentive and concession results in identifiable and actual cost reductions. For waivers or modifications of development standards, the application shall show that the development standards will have the effect of physically precluding the construction of a housing development that qualifies for a density bonus at the densities or with the incentives or concessions permitted by this density bonus ordinance.

4. If a density bonus is requested for a donation of land, the application shall show the location of the land to be dedicated and provide evidence that all of the conditions required by Section 65915 of the State Density Bonus Law for donations of land are satisfied.

5. If a density bonus or incentive or concession is requested for a child care facility, the application shall show the location and square footage of the child care facility and provide evidence that each of the findings included in Section 10-2.3.1005 can be made. (§3, Ord. 2240, eff. 7/19/24)

A. Upon submittal of an application for a density bonus, incentive, concession, waiver, modification, or revised parking standard, the Community Development Director or his or her designee shall determine if the application is complete and conforms to the provisions of this density bonus ordinance.

B. An application for a density bonus, incentive, concession, waiver, modification, or revised parking standard pursuant to the density bonus ordinance shall be considered by and acted upon by the approval body with authority to approve the housing development. Notwithstanding other provisions of this chapter, any decision regarding a density bonus, incentive, concession, waiver, modification, or revised parking standard may be appealed to the Planning Commission and from the Planning Commission to the City Council.

C. Public hearings shall be held pursuant to Section 10-2.4.301 for any density bonus, incentive, concession, waiver, modification, or revised parking standard applied for under the provisions of this density bonus ordinance. Density bonuses shall be approved by the highest approval body required to review and approve the requested application. Other reviewing bodies in advisory roles shall provide comments and recommendations to the approving body. (§3, Ord. 2240, eff. 7/19/24)

A. Any developer receiving a density bonus, incentives and concessions, waivers or modifications of development standards, or reduced parking requirements pursuant to this article shall agree to enter into a density bonus housing agreement with the City to ensure compliance with this article and the State Density Bonus Law, including that restricted units remain restricted and affordable in accordance with State Density Bonus Law requirements. The density bonus housing agreement shall be submitted by City to the developer, shall be made a condition of the discretionary planning permits for all housing developments pursuant to this article, and shall be recorded as a deed restriction on any parcels on which the restricted units will be constructed. Where an inclusionary housing agreement is required pursuant to Part III, Article 9, Inclusionary Housing, both the density bonus housing agreement and inclusionary housing agreement shall, if feasible, be combined into a single agreement.

B. The density bonus housing agreement shall be recorded prior to the approval of any parcel map or final map or, where the housing development does not include a map, prior to issuance of a building permit for any structure in the housing development. The density bonus housing agreement shall run with the land and be binding upon all future owners and successors in interest.

C. The density bonus housing agreement shall include, but not be limited to, the following terms:

1. The total number of units including restricted units approved for the housing development, the number of density bonus units granted, and the number, type, location, unit size (square footage), number of bedrooms, tenure of restrictions and affordability, and level of affordability of restricted units.

2. Standards for determining affordable rent or affordable ownership cost for the restricted units.

3. A schedule for completion and occupancy of restricted units in relation to construction of non-restricted units.

4. A description of any incentive, concession, waiver, modification, or revised parking standard being provided by the City.

5. Provisions to ensure affordability of the restricted units, including but not limited to, and where applicable, tenure and conditions governing the initial sale of for-sale restricted units.

6. Where applicable, tenure and conditions establishing rules and procedures for qualifying tenants and prospective purchasers, setting rental rates, filling vacancies, and operating and maintaining units for rental restricted units.

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

8. Other provisions to ensure implementation and compliance with this article and the State Density Bonus Law. (§3, Ord. 2240, eff. 7/19/24)

A. Density Bonus Resale Agreement. All buyers of for-sale restricted units shall enter into a density bonus resale agreement with the City prior to purchasing the unit or property. The resale agreement shall be consistent with the density bonus housing agreement.

B. Eligibility Requirements. Only households meeting the eligibility standards for the restricted units as set forth in the density bonus housing agreement shall be eligible to occupy restricted units.

C. Management and Monitoring. Rental restricted units shall be managed and operated by the owner or his or her agent. Each owner of rental restricted units shall submit an annual report to the City in the form prescribed by the City, identifying which units are restricted units, the monthly rent, vacancy information for each rental target dwelling unit for the prior year, monthly income for tenants of each rental target dwelling unit, and other information as required by the City, while ensuring the privacy of the tenant. (§3, Ord. 2240, eff. 7/19/24)

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the remainder of the chapter and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby. In the event of any conflict between this chapter and the State Density Bonus Law, the State Density Bonus Law shall prevail. (§3, Ord. 2240, eff. 7/19/24)