West Covina Municipal Code § 26-150 Waivers

(a) The purpose of this division is to provide requirements and incentives for the development of affordable housing units in conjunction with other residential, mixed-use, and commercial projects by partnering with affordable housing providers as provided by state law. The following provisions are intended to implement the policies of the City's General Plan to encourage the production of affordable housing for all economic groups, and housing for disabled and elderly residents, transitional foster youth, and disabled veterans, and homeless persons as defined in Government Code 65915, all of which is integrated, compatible with and complements adjacent uses, and is located near public and commercial services.

(b) The incentives offered in this division are provided by the City as a means of meeting its commitment to encourage housing affordability to all economic groups, and to meet the regional fair share requirements for the construction and rehabilitation of affordable housing for very-low-, low-, and moderate-income persons.

(c) This division shall be interpreted in a manner supplementary to, and consistent with, the California Government Code 65915, et seq., as it may be amended from time to time.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

The definitions found in state density bonus law shall apply to the terms contained in this section.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) The provisions of this division apply to a housing development consisting of either five (5) or more general dwelling units. A housing development as defined in state density bonus law shall be eligible for a density bonus and other regulatory incentives that are provided by state density bonus law when the applicant seeks and agrees to provide very-low, low or moderate income housing units, or units intended to serve seniors, transitional foster youth, disabled veterans, homeless persons, and lower income students in the threshold amounts specified in state density bonus law. A housing development includes only the residential component of a mixed-use project.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) Any applicant requesting a density bonus and any incentive(s), concession(s), waiver(s), parking reductions, or commercial development bonus provided by state density bonus law shall submit a density bonus application as described below concurrently with the filing of the planning application for the first discretionary permit required for the housing development, commercial development, or mixed-use development. The requests contained in the density bonus report shall be processed concurrently with the planning application. The applicant shall be informed whether the application is complete consistent with California Government Code Section 65943.

(b) The density bonus application shall include the following minimum information:

(1) Requested density bonus.

(2) Summary table showing the maximum number of dwelling units permitted by the zoning and General Plan excluding any density bonus units, proposed affordable units by income level, proposed bonus percentage, number of density bonus units proposed, total number of dwelling units proposed on the site, and resulting density in units per acre.

(3) A tentative map and/or preliminary site plan, drawn to scale, showing the number and location of all proposed units, designating the location of proposed affordable units and density bonus units.

(4) The zoning and General Plan designations and assessor's parcel number(s) of the housing development site.

(5) A description of all dwelling units existing on the site in the five-year period preceding the date of submittal of the application and identification of any units rented in the five-year period. If dwelling units on the site are currently rented, income and household size of all residents of currently occupied units, if known. If any dwelling units on the site were rented in the five-year period but are not currently rented, the income and household size of residents occupying dwelling units when the site contained the maximum number of dwelling units, if known.

(6) Description of any recorded covenant, ordinance, or law applicable to the site that restricted rents to levels affordable to very-low or lower income households in the five-year period preceding the date of submittal of the application.

(7) If a density bonus is requested for a land donation, the location of the land to be dedicated, proof of site control, and reasonable documentation that each of the requirements included in California Government Code Section 65915, subdivision (g) can be met.

(8) Requested concession(s) or incentive(s). In the event an application proposes concessions or incentives (a reduction in site development standards or a modification of zoning code or architectural design requirements) for a housing development pursuant to state density bonus law, the density bonus report shall include the following minimum information for each incentive requested, shown on a site plan if appropriate:

a. The City's usual development standard and the requested development standard or regulatory incentive.

(9) Requested waiver(s). In the event an application proposes waivers of development standards for a housing development pursuant to state density bonus law, the density bonus report shall include the following minimum information for each waiver requested on each lot, shown on a site plan if appropriate:

a. The City's usual development standard and the requested development standard.

b. Reasonable documentation that the development standards for which a waiver is requested will have the effect of physically precluding the construction of a development at the densities or with the concessions or incentives permitted by California Government Code Section 65915.

(10) Requested parking reduction. In the event an application proposes a parking reduction for a housing development pursuant to California Government Code Section 65915, subdivision (p), a table showing parking required by the zoning regulations, parking proposed under Section 65915, subdivision (p), and reasonable documentation that the project is eligible for the requested parking reduction.

(11) Child-care facility. If a density bonus or incentive is requested for a child-care facility in a housing development, reasonable documentation that all of the requirements included in California Government Code Section 65915, subdivision (h) can be met.

(12) Condominium conversion. If a density bonus or incentive is requested for a condominium conversion, reasonable documentation that all the requirements included in California Government Code Section 65915.5 can be met.

(13) Commercial development bonus. If a commercial development bonus is requested for a commercial development, the application shall include the proposed partnered housing agreement and the proposed commercial development bonus, as defined in Section 21.86.110, and reasonable documentation that each of the standards included in Subsection 21.86.110(C) has been met.

(14) Fee. Payment of any fee in an amount set by resolution of the City Council for staff time necessary to determine compliance of the density bonus plan with state density bonus law.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) All calculations are rounded up for any fractional numeric value in determining the total number of units to be granted, including base density and bonus density as well as the resulting number of affordable units needed for a given density bonus project.

(b) When calculating the density bonus, the base density shall be the allowed gross density of the property allowed under the applicable zoning code.

(c) If a housing development qualifies for a density bonus under more than one (1) income category, or additionally as a senior citizen housing development as defined in state density bonus law, or as housing intended to serve transitional foster youth, disabled veterans, homeless persons, or lower income students, the applicant shall identify the categories under which the density bonus would be associated and granted. Density bonuses from more than one (1) category can be combined up to the maximum allowed under state density bonus law.

(d) The density bonus units shall not be included in determining the number of affordable units required to qualify a housing development for a density bonus pursuant to state density bonus law.

(e) The applicant may elect to accept a lesser percentage of density bonus than the housing development is entitled to, or no density bonus, but no reduction will be permitted in the percentages of required affordable units contained in California Government Code Section 65915, subdivisions (b), (c), and (f). Regardless of the number of affordable units, no housing development shall be entitled to a density bonus of more than what is authorized under state density bonus law.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) In providing opportunities for the granting of density bonuses in excess of those specified in article IV, division 3, it is the City's intent to be of further meaningful assistance to promoting the development of housing to meet the diverse housing needs of the community. This notwithstanding, proposals for discretionary density bonuses shall be carefully reviewed and considered and may only be granted where standards set forth under subsection (b) have been determined to be met.

(b) Determination of discretionary density bonuses. Rather than utilizing a specific formula, the determination of whether and at what level to grant a discretionary density bonus shall be based on a case-by-case evaluation of proposed housing developments. The factors to be considered in this evaluation shall include, but are not limited to:

(1) The type and extent of target units being proposed.

(2) That the density bonus is necessary to make the project economically feasible.

(3) That the proposed housing will help fulfill the housing needs of the community as established within the housing element of the General Plan.

(4) That the housing development reflects high standards in the quality of design and provision of amenities.

(5) That the proposed housing development is compatible with the surrounding neighborhood.

(c) A density bonus of greater than thirty-five (35) percent above the otherwise allowable density, but in no case greater than one hundred (100) percent as allowed in each income category of the state density bonus law may be granted at the City's discretion to applicants that agree to provide the following types of housing, provided said housing developments comply with all other provisions of this division.

(1) Greater than fifty (50) percent of the total dwelling units reserved for qualifying residents (senior citizens); or

(2) Any combination of dwelling units, meeting or exceeding the minimum percentages specified state density bonus law, reserved for and affordable to very low-income households, reserved for and affordable to lower-income households, and reserved for qualifying residents (senior citizens).

(d) A density bonus of greater than thirty-five (35) percent above the otherwise allowable density, but in no case greater than two hundred (200) percent, may be granted at the City's discretion to applicants that agree to provide any combination of dwelling units where all of the units are reserved for and affordable to very low- income households and/or lower-income households.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) Incentives and concessions area a reduction in site development standards or a modification of zoning code requirements or architectural design requirements which exceed the minimum building standards, and which results in identifiable, financially sufficient, and actual cost reductions, including, but not limited to:

(1) Reduced minimum lot sizes and/or dimensions.

(2) Reduced minimum lot setbacks.

(3) Reduced minimum outdoor and/or private outdoor living area.

(4) Increased maximum lot coverage.

(5) Increased maximum building height and/or stories.

(6) Reduced minimum building separation requirements.

(7) Reduced street standards, such as reduced minimum street widths.

(8) Reduced standards included in the West Covina Multi-Family Objective Design Standards.

(b) If an applicant requests a height increase pursuant to AB 2334 (2022), increased maximum building height and/or stories may not be granted as a concession.

(c) The number of incentives or concessions that may be requested shall be based upon the number the applicant is entitled to pursuant to state density bonus law.

(d) Nothing in this section requires the provision of direct financial incentives for the housing development, including, but not limited to, the provision of financial subsidies, publicly owned land, fee waivers, or waiver of dedication requirements. The City, at its sole discretion, may choose to provide such direct financial incentives.

(e) For the purposes of this calculation, each individual deviation from the zoning requirements, rules, or other standards or conditions of the City shall constitute a separate concession. However, a variation in one (1) standard or requirement shall constitute only one (1) concession if, by necessity, the one (1) variation results in the automatic and unavoidable variation in a second standard.

(f) Concessions shall not be provided to a development which obtains its entire density bonus entitlements through a qualifying land dedication.

(g) Findings to deny incentive or concession. The City shall grant the incentive or concession requested by the applicant unless the City makes a written finding based upon substantial evidence of any of the following:

(1) The incentive or concession is not required in order to provide for affordable housing costs or for affordable rents for the restricted units;

(2) The concession or incentive would have a specific adverse impact, as defined in Government Code Section 65589.5, 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; or

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

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) An applicant may submit to the City 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 at the densities or with the concession or incentives permitted under this division. The applicant may request a meeting with the City.

(b) The City shall not waive or reduce development standards if the waiver or reduction would:

(1) Have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Government Code Section 65589.5, upon public health and safety or the physical environment.

(2) Be contrary to state or federal law.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) Except for projects subject to Government Code section 65863.2, in the event an application proposes a parking reduction for a residential development project pursuant to Government Code Section 65915(p), as it may be modified from time to time, a table showing parking required by the zoning regulations, parking proposed under Government Code Section 65915(p), as may be modified from time to time and reasonable documentation that the project is eligible for the requested parking reduction.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) When an applicant proposes to construct a residential development project that conforms to the requirements of this division and includes a childcare facility that will be located on the premises of, as part of, or adjacent to, the residential development project, the City shall grant an additional density bonus pursuant to Government Code Section 65915, as it may be modified from time to time.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) If a density bonus is requested for a land donation as per Government Code Section 65915, the applicant shall provide the following:

(1) The location of the land to be dedicated; and

(2) A title report showing proof of site control.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) In accordance with Government Code Section 65915, as it may be modified from time to time, when an Applicant proposes to construct a commercial development and has entered into a partnered housing agreement approved by the City, the City shall grant a commercial development bonus mutually agreed upon by the developer and the City. The commercial development bonus shall not include a reduction or waiver of fees imposed on the commercial development to provide affordable housing. The requirements for commercial development bonus are as follows, which shall also be described in the partnered housing agreement:

(1) The residential development project shall be located either:

a. On the site of the commercial development; or

b. On a site within the City that is within one-half (½) mile of a major transit stop as defined in Government Code Section 65915, as it may be modified from time to time, and is located within one (1) mile of public amenities, including schools and employment centers.

(2) At least thirty (30) percent of the total units in the residential development project shall be made available at affordable ownership cost or affordable rent for low-income households, or at least fifteen (15) percent of the total units in the residential development project shall be made available at affordable ownership cost or affordable rent for very low-income households.

(3) The commercial developer must agree either to directly build the affordable units; donate a commercial development site consistent with state density bonus law, for the affordable units; or make a cash payment to the housing developer for the affordable units.

(4) Any approved partnered housing agreement shall be described in the City's housing element annual report as required by Government Code Section 65915, as it may be modified from time to time.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) The City may not issue building permits for more than fifty (50) percent of the market rate units until it has issued building permits for all the affordable units, and the City may not approve any final inspections or certificates of occupancy for more than fifty (50) percent of the market rate units until it has issued final inspections or certificates of occupancy for all the affordable units.

(b) Affordable units shall be comparable in exterior appearance and overall quality of construction to market rate units in the same housing development. Interior finishes and amenities may differ from those provided in the market rate units, but neither the workmanship nor the products may be of substandard or inferior quality as determined by the City.

(c) Affordable Units shall be built on site and shall be dispersed within the housing development. The number of bedrooms of the affordable units shall be equivalent to the bedroom mix of the non-affordable units of the housing development, except that the developer may include a higher proportion of affordable units with more bedrooms. The design and appearance of the affordable units shall be compatible with the design of the overall housing development.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) All requests for density bonuses, incentives, parking reductions, waivers, or commercial development bonuses shall be considered and acted upon by the approval body with authority to approve the development within the timelines prescribed by California Government Code Section 65950 et seq., with right of appeal to the City Council, as applicable.

(b) Eligibility for density bonus, incentive(s), parking reduction, and/or waiver(s) for a housing development. To ensure that an application for a housing development conforms with the provisions of state density bonus law, the staff report presented to the decision-making body shall state whether the application conforms to the following requirements of state law as applicable:

(1) The housing development provides the affordable units or senior housing required by state density bonus law to be eligible for the density bonus and any incentives, parking reduction, or waivers requested, including the replacement of units rented or formerly rented to very-low and low income households as required by California Government Code Section 65915, subdivision (c)(3).

(2) Any requested incentive or concession will result in identifiable and actual cost reductions to provide for affordable housing costs or rents; except that, if a mixed-use development is requested, the application must instead meet all of the requirements of California Government Code Section 65915, subdivision (k)(2).

(3) The development standards for which a waiver is requested would have the effect of physically precluding the construction of a development at the densities or with the concessions or incentives permitted by California Government Code Section 65915.

(4) The housing development is eligible for any requested parking reductions under California Government Code Section 65915, subdivision (p).

(5) If the density bonus is based all or in part on donation of land, all of the requirements included in California Government Code Section 65915, subdivision (g) have been met.

(6) If the density bonus or incentive is based all or in part on the inclusion of a child-care facility, all of the requirements included in California Government Code Section 65915, subdivision (h) have been met.

(7) If the density bonus or incentive is based all or in part on the inclusion of affordable units as part of a condominium conversion, all of the requirements included in California Government Code Section 65915.5 have been met.

(c) If a commercial development bonus is requested for a commercial development, the decision-making body shall make a finding that the development complies with all of the requirements of Subsection 21.86.110(C), that the City has approved the partnered housing agreement, and that the commercial development bonus has been mutually agreed upon by the City and the commercial developer.

(d) The decision-making body shall grant an incentive or concession requested by the applicant unless it makes a written finding, based upon substantial evidence, of any of the following:

(1) The proposed incentive does not result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in California Health and Safety Code Section 50052.5, or for affordable rents, as defined in California Health and Safety Code Section 50053; or

(2) The proposed incentive or concession would be contrary to state or federal law; or

(3) The proposed incentive or concession would have a specific, adverse impact upon public health or safety or the physical environment or on any real property that is listed in the California Register of Historic Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the housing development unaffordable to low- and moderate-income households. For the purpose of this subsection, specific adverse impact means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the housing development was deemed complete.

(e) The decision-making body shall grant the waiver of development standards requested by the applicant unless it makes a written finding, based upon substantial evidence, of any of the following:

(1) The proposed waiver would be contrary to state or federal law; or

(2) The proposed waiver would have an adverse impact on any real property listed in the California Register of Historic Resources; or

(3) The proposed waiver would have a specific, adverse impact upon public health or safety or the physical environment, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the housing development unaffordable to low- and moderate-income households. For the purpose of this subsection, specific adverse impact means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the housing development was deemed complete.

(f) If any density bonus, incentive, concession, parking reduction, waiver, or commercial development bonus is approved pursuant to this chapter, the applicant shall enter into an affordable housing agreement or senior housing agreement with the City pursuant to section 26-146.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) Density bonus housing agreement. Except where a density bonus, incentive, waiver, parking reduction, or commercial development bonus is provided for a market-rate senior housing development, the applicant shall enter into an affordable housing agreement with the City, in a form approved by the City Attorney, to be executed by the City Manager, to ensure that the requirements of this section are satisfied. The affordable housing agreement shall guarantee the affordability of the affordable units for a minimum of fifty-five (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; shall identify the type, size and location of each affordable unit; and shall specify phasing of the affordable units in relation to the market-rate units.

(b) Senior housing agreement. Where a density bonus, waiver, or parking reduction is provided for a market-rate senior housing development, the applicant shall enter a restrictive covenant with the City, running with the land, in a form approved by the City Attorney, to be executed by the City manager, to require that the housing development be operated as "housing for older persons" consistent with state and federal fair housing laws.

(c) The executed affordable housing agreement or senior housing agreement shall be recorded against the housing development prior to final or parcel map approval, or, where a map is not being processed, prior to issuance of building permits for the housing development. The affordable housing agreement or senior housing agreement shall be binding on all future owners and successors in interest.

(d) The affordable housing agreement shall include, but not be limited to, the following:

(1) The number of density bonus dwelling units granted;

(2) The number and type of affordable dwelling units;

(3) The unit size(s) (square footage) of target dwelling units and the number of bedrooms per target dwelling unit;

(4) The proposed location of the affordable dwelling units;

(5) Schedule for production of affordable dwelling units;

(6) Incentives or concessions or waivers provided by the City;

(7) Where applicable, tenure and conditions governing the initial sale of the affordable units;

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

(9) Marketing plan; publication and notification of availability of affordable units;

(10) Compliance with federal and state laws;

(11) Prohibition against discrimination;

(12) Indemnification;

(13) City's right to inspect units and documents;

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) An administrative fee shall be charged to the applicant for City review of all materials submitted in accordance with this division for implementation and on-going enforcement of the provisions of this division.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) If any portion of this chapter conflicts with state density bonus law or other applicable state law, state law shall supersede this chapter. Any ambiguities in this chapter shall be interpreted to be consistent with state density bonus law.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)

(a) If any provision of this chapter or its application 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.

(Ord. No. 2519, § 5(Exh. A), 2-20-24)