Chapter 17.80

Affordable Housing Requirements and Incentives

3. Low-income housing;

4. Moderate-income housing;

5. Land donations;

• A. Purpose. This chapter provides incentives for the production of affordable housing for qualifying persons, households, and facilities. [Source: 17.22.010, modified]

• B. Applicability. This chapter is intended to implement the requirements of State Law (Government Code Sections 65302, 65913, and 65915—65918 et seq.) and the goals and policies of the Town's Housing Element. [Source: 17.22.010, modified]

• C. Conflicts. Where regulations are not specifically addressed in this chapter or where there are conflicts between these provisions and the provisions of the Government Code, the provisions of the Government Code, as they may be amended over time, shall apply. [Source: NEW]

6. Senior housing;

7. Student housing;

8. Transitional foster youth, disabled veteran, or homeless persons housing. [Source: NEW]

• A. An applicant for a density bonus which complies with the eligibility requirements established in Section 17.80.020 (Eligibility and Requirements), shall submit a request for the specific density bonus, incentive, or concession established in California Government Code Section 65915 (as amended over time). [Source: NEW] Applying for a density bonus provided in this chapter shall comply with the following:

• A. To be eligible for a density bonus, incentives, or concessions as provided by this chapter, a

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1. An applicant for a density bonus in compliance with this chapter and Government Code Section 65915 shall submit a request for the specific incentives or concessions

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listed in Subsection G (Type of Incentives), below, and may request a meeting with the Director. [Source: NEW]

2. The applicant may file a request for incentives or concessions either before filing an application for Town approval of a proposed project or concurrently with an application for project approval. [Source: NEW]

• B. Right to Modify. If a density bonus or other incentives cannot be accommodated on a parcel due to strict compliance with the provisions of this Zoning Code, modified standards may be considered subject to the review and final action by the applicable Review Authority. [Source: 17.22.030, modified]

• C. Consideration of Request for Density Bonus and Incentive. The Town shall grant a density bonus or incentive requested by the applicant unless the Council makes a written finding, based on substantial evidence, of any the following: [Source: 17.22.030.E.2, modified]

  1. The density bonus or incentive does not result in identifiable and actual cost reductions, consistent with Government Code Section 65915(k) (as amended over time), to provide for affordable housing costs, as defined in Health and Safety Code Section 50052.5 (as amended over time), or for rents for the targeted units to be set as specified in Government Code Section 65915(c) (as amended over time). [Source: 17.22.030.E.2.a, modified]

  2. The density bonus or incentive would have a specific, adverse impact, as defined in Government Code Section 65589.5(d)(2) (as amended over time), upon the public health or 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-income and moderate-income households. [Source: 17.22.030.E.2.b, modified]

3. The density bonus or incentive would be contrary to State or Federal law. [Source: NEW]

4. Effect of Density Bonus or Incentive. The granting of a density bonus shall not be interpreted, in and of itself, to require a General Plan amendment, Zoning Map amendment, or other discretionary approval. The granting of a density bonus shall not require or be interpreted to require the waiver of a local ordinance or provisions of a local ordinance unrelated to development standards. [Source: 17.22.030.E.3, modified]

s or Incentive. The granting of a density bonus shall not be interpreted, in and of itself, to require a General Plan amendment, Zoning Map amendment, or other discretionary approval. The granting of a density bonus shall not require or be interpreted to require the waiver of a local ordinance or provisions of a local ordinance unrelated to development standards. [Source: 17.22.030.E.3, modified]

5. Interpretation. Nothing in this section shall be interpreted to require the Town to waive or reduce development standards or to grant an incentive that would have a specific, adverse impact upon health, safety or the physical environment for which there is no feasible method to mitigate or avoid the specific adverse impact; nor shall this section require the Town to waive or reduce development standards or to grant an incentive that would have an adverse impact on any real property that is listed in the California Register of Historical Resources. [Source: 17.22.030.E.4]

6. Number of Incentives. An eligible project shall receive the number of incentives based on the percentage of affordable units in the proposed project in compliance with Government Code Section 65915.

• A. The applicant shall agree to, and the Town shall ensure, the continued affordability of the

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units that qualified the housing development for a density bonus and other incentives shall continue to be available as affordable dwelling units in compliance with the following requirements, as required by Government Code Section 65915(c) (as amended over time). [Source: 17.22.040, modified]

• B. Control of Resale. The Town shall control the resale of eligible units in compliance with the following standards:

  1. In order to maintain the availability of the affordable housing units as may be constructed in compliance with the requirements of this chapter, the following resale conditions shall be imposed. The price received by the seller of an affordable unit shall be limited to the purchase price plus an increase based on the Bay Area Consumer Price Index, an amount consistent with the increase in the median income since the date of purchase, or the fair market value, whichever is less. Prior to offering an affordable housing unit for sale, the seller shall provide written notice of intent to sell to the Town. The notice shall be provided by certified mail to the Director. [Source: 17.22.080.A]

  2. Home ownership affordable units constructed, offered for sale, or sold under the requirements of this chapter shall be offered to the Town or its assignee for a period of at least ninety (90) days from the date of the notice of intent to sell is delivered to the Town by the first purchaser or subsequent purchaser(s). Home ownership affordable units shall be sold and resold from the date of the original sale only to households as determined to be eligible for affordable units by the Town according to the requirements of this section. The seller shall not levy or charge any additional fees nor shall any "finder's fee" or other monetary consideration be allowed

other than customary real estate commissions and closing costs. [Source: 17.22.080.B]

3. The owners of any affordable unit shall attach and legally reference in the grant deed conveying title of the affordable ownership unit a declaration of restrictions provided by the Town, stating the restrictions imposed in compliance with this chapter. The grant deed shall afford the grantor and the Town the right to enforce the attached declaration of restrictions. The declaration of restrictions shall include all applicable resale controls, occupancy restrictions, and prohibitions as required by this chapter. [Source: 17.22.080.C]

4. The Town shall monitor the resale of ownership affordable units. The Town or its designee shall have a ninety-day option to commence purchase of ownership affordable units after the owner gives notification of intent to sell. Any abuse in the resale provisions shall be referred to the Town for appropriate action. [Source: 17.22.080.D]

5. Multi-unit and mixed-use-income projects within the Station Area/Downtown Specific Plan Area are exempt from the requirements set forth in this section. A Density Bonus Agreement in compliance with Section 17.80.140 (Density Bonus Agreement) is required to receive a density bonus for moderate-income projects in the Downtown Plan area. [Source: 17.22.080.E]

Upon the approval by the Council, an applicant shall be eligible for the increased density bonus for land donated or dedicated provided all the following conditions established in California Government Code Section 65915(g) (as amended over time). The density bonus percentage received for land donated shall be in addition to the density

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bonus received for providing affordable units in compliance with the provisions of State law. The intent of allowing a land dedication option is to provide the land needed to make affordable housing development feasible, thus furthering the intent of this chapter. [Source: 17.22.100, modified]

• A. Housing Developments Childcare Facilities. When an applicant proposes to construct a housing development that complies with the resident and project size requirements established in Government Code Section 65915(b)(1) (as amended over time) and includes as part of that development a childcare facility or community healthcare facility that will be located on the site of, as part of, or adjacent to the housing project, the Town shall grant either an additional density bonus or an additional incentive, unless otherwise specified in this section or State law. [Source: 17.22.035.A, modified]

  1. Bonuses and Incentives. In compliance with Government Code Section 65915(h)(1) (as amended over time), the Town shall grant a qualifying project which includes a childcare facility or community healthcare facility one (1) or more of the following: [Source: NEW]

     • a. An additional ten (10) percent density bonus in addition to what the project would normally qualify as established in State law and this Zoning Code. [Source: NEW]

     • b. An additional density bonus that is an amount of floor area in square feet of residential space that is equal to or greater than the floor area of the childcare facility or community healthcare facility; or [Source: 17.22.035.A.1, modified]

     • c. An additional incentive or concession that contributes significantly to the economic feasibility of the construction of the childcare facility or community healthcare facility. [Source: 17.22.035.A.2, modified]

  2. Determination of Adequate Childcare and Community Healthcare Facilities. In compliance with Government Code Section 65915(h)(1) (as amended over time), the Town shall not be required to provide a density bonus or concession for a childcare facility or community healthcare facility if it finds, based upon substantial evidence, that the community has adequate childcare facilities of community healthcare facilities. [Source: 17.22.035.C, modified]

• B. Commercial Developments Childcare and Community Healthcare Facilities. An applicant for a commercial development project, containing at least fifty thousand (50,000) square feet of floor area, may be granted a density bonus when that applicant agrees to set aside at least two thousand (2,000) square feet of interior floor area and three thousand (3,000) outdoor square footage to be used for a childcare facility of community healthcare facility, in compliance with Government Code Section 65915(h)(1) (as amended over time). [Source: NEW]

• A. Application. An application for a density bonus or donation of land for housing shall be filed and processed in compliance with this chapter. If desired, a request for specific incentives or concessions may be filed in compliance with Government Code Section 65915(a)(1) (as amended over time). [Source: NEW]

• B. Determination. Within thirty (30) days of filing the application, the Director shall notify

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the applicant in writing whether the application is complete and provide the applicant a determination as to: [Source: NEW]

1. The amount of the density bonus for which the project is eligible;

2. The parking ratio for which the project is eligible, if requested by the applicant; and

3. Whether the applicant has provided enough information for the Town to decide if the application is eligible for a density bonus or concession. [Source: NEW]

• A. Agreement Required. An applicant requesting a density bonus shall agree to enter into a density bonus agreement (referred to as the "agreement") with the Town. [Source: NEW]

• B. Agreement Provisions. Agreements between an applicant and the Town shall comply with the following:

  1. Project Information. The agreement shall include at least the following information about the project: [Source: NEW]

     • a. The total number of dwelling units approved for the housing development, including the number of designated affordable dwelling units; [Source: NEW]

     • b. A description of the household income group to be accommodated by the housing development, and the standards and methodology for determining the corresponding affordable rent or affordable sales price and housing cost consistent with the United States Department of Housing and Urban Development (HUD) Guidelines; [Source: NEW]

     • c. The marketing plan for the affordable dwelling units; [Source: NEW]

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  • d. The location, size (square feet), and number of bedrooms of the designated dwelling units; [Source: NEW]

  • e. Tenure of the use restrictions for designated dwelling units of the time periods required by Section 17.80.040 (Continued Affordability and Control of Resale); [Source: NEW]

  • f. A schedule for completion and occupancy of the designated dwelling units; [Source: NEW]

  • g. A description of the additional incentives and concessions being provided by the Town; [Source: NEW]

  • h. A description of the remedies for breach of the agreement by the owners, developers, and/or successors-ininterest of the project; and [Source: NEW]

  • i. Other provisions to ensure successful implementation and compliance with this chapter. [Source: NEW]

2. Minimum Requirements. The agreement shall provide, at minimum, that: [Source: NEW]

   • a. The developer shall give the Town the continuing right-of-first-refusal to lease or purchase any or all the designated dwelling units at the appraised value; [Source: NEW]

   • b. The deeds to the designated dwelling units shall contain a covenant stating that the developer or successors-ininterest shall not assign, lease, rent, sell, sublet, or otherwise transfer any interests for designated units without the written approval of the Town; [Source: NEW]

   • c. When providing the written approval, the Town shall confirm that the price

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(rent or sale) of the designated dwelling unit is consistent with the limits established for low- and very lowincome households, as published by the United States Department of Housing and Urban Development; [Source: NEW]

  - d. The Town shall have the authority to enter into other agreements with the developer, or purchasers of the designated dwelling units, to ensure that the required dwelling units are continuously occupied by eligible households; [Source: NEW]

• e. Applicable deed restrictions, in a form satisfactory to the Town Attorney, shall contain provisions for the enforcement of owner or developer compliance. Any default or failure to comply may result in foreclosure, specific performance, or withdrawal of the Certificate of Occupancy; [Source: NEW]

  - f. In any action taken to enforce compliance with the deed restrictions, the Town Attorney shall, if compliance is ordered by a court of competent jurisdiction, take all action that may be allowed by law to recover all the Town's costs of action including legal services; and [Source: NEW] 
  
  - g. Compliance with the agreement will be monitored and enforced in compliance with the measures included in the agreement. [Source: NEW] 
  

• C. Conditions by Project Type. The following conditions shall apply to affordable units in compliance with this chapter:

  1. For-Sale Housing. In the case of a for-sale housing development, the agreement shall provide for the following conditions gov-

erning the initial sale and use of designated dwelling units during the applicable restriction period: [Source: NEW]

• a. Designated dwelling units shall be owner-occupied by eligible households, or by qualified residents in the case of senior housing; and [Source: NEW]

• b. The initial purchaser of each designated dwelling unit shall execute an instrument or agreement approved by the Town which: [Source: NEW]

  • i. Restricts the sale of the unit in compliance with this chapter, or other applicable Town policy or ordinance, during the applicable use restriction period; [Source: NEW]

  • ii. Contains provisions as the Town may require ensuring continued compliance with this chapter and State law; and [Source: NEW]

  • iii. Shall be recorded against the parcel containing the designated dwelling unit. [Source: NEW]

2. Rental Housing. In the case of a rental housing development, the agreement shall provide for the following conditions governing the use of designated dwelling units during the applicable restriction period: [Source: NEW]

   • a. The rules and procedures for qualifying tenants, establishing affordable rent, filling vacancies, and maintaining the designated dwelling units for qualified tenants; [Source: NEW]

   • b. Provisions requiring owners to annually verify tenant incomes and maintain books and records to demonstrate compliance with this chapter; [Source: NEW]

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• c. Provisions requiring owners to submit an annual report to the Town, which includes the name, address, and income of each person occupying the designated dwelling units, and which identifies the bedroom size and monthly rent or cost of each unit; and [Source: NEW]

• d. The applicable use restriction period shall comply with the time limits for continued availability in Section 17.80.040 (Continued Affordability and Control of Resale). [Source: NEW]

3. Moderate-Income Housing. In the case of affordable units for moderate-income households, the density bonus housing agreement shall provide for the following requirements: [Source: NEW]

• a. The initial sale of each affordable unit shall be to a household that meets the income requirement for the affordable unit. [Source: NEW]

  • b. When the initial purchaser sells the unit, the initial purchaser shall retain the value of any improvements, the down payment, and the value of the unit's appreciation, less the Town's share of the appreciation. [Source: NEW]

  • c. When the initial purchaser sells the unit, the Town shall receive a share of the unit's appreciation equal to the percentage by which the initial sale price to the moderate-income household was less than the fair market value of the home at the time of initial sale. The Town shall use this share of appreciation for any of the purposes established in Health and Safety Code Section 33334.2(e) (as amended over time). [Source: NEW]

4. Childcare Facility. In the case of childcare facilities for which a density bonus or ad-

ditional incentive is being granted, the density bonus housing agreement shall provide operating duration requirements for the childcare facility, such that the childcare facility shall remain in operation for as long as or longer than the period during which the density bonus units are required to remain affordable. [Source: NEW]

5. Agreement Execution. Agreements between an applicant and the Town shall be executed as follows:

   • a. Following the Council's approval of the agreement, and execution of the agreement by all parties, the Town shall record the completed agreement on the parcels designated for the construction of designated dwelling units. [Source: NEW]

   • b. The approval of the agreement shall take place at the same time as the approval of any required final map or, where a map is not being processed before the issuance of Building Permits for the project. Recordation of the agreement shall take place as soon as possible after the approval of any required final map or, where a map is not being processed before the issuance of any Building Permit for the project. [Source: NEW]

   • c. The agreement shall be binding on all future owners, developers, and/or successors-in-interest. [Source: NEW]