Chapter 17.98

The Town of Windsor recognizes the importance of achieving a diverse and balanced community with housing available for households of all income levels. Economic and social diversity cultivates a healthy social fabric that is beneficial to all residents of Windsor. The Town is experiencing an increasing shortage of housing affordable to very low-, low-, and moderate- income households. New residential development does not provide housing opportunities for this segment of society. As a result, very low-, low-, and moderateincome households are excluded from new housing, creating economic stratification in the Town that is detrimental to the public health, safety, and welfare.

The purpose of this chapter is to establish an inclusionary requirement on residential development projects. This chapter will mitigate the impacts caused by these development projects for the additional demand for more affordable housing and rising land prices for limited supply of available residential land. The inclusionary requirements required by this chapter do not replace other regulatory requirements and processing fees or exactions, funding required pursuant to a development agreement or reimbursement agreement; assessment charged pursuant to special as-

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sessments or benefit assessments districts proceedings, etc., unless so specified. [Source: 17.23.010]

• A. Threshold. The provisions of this chapter shall apply to all new residential developments of ten (10) or more parcels or dwelling units intended and designed for permanent occupancy, including, but not limited to, singleunit dwellings, multi-unit residential projects which receive subdivision, Conditional Use Permit, or Design Review approval after the effective date of this chapter. [Source: 17.23.020.A]

• B. Exemptions. The following shall not be subject to the provisions of this chapter:

  1. Residential dwelling for which a Building Permit has been issued by the Town prior to the effective date of this chapter.

  2. Residential and mixed-use development projects that the Council has determined have a vested right to proceed without complying with the provisions herein.

  3. Existing residences, which are altered, improved, restored, expanded, or extended, provided that the number of units is not increased to five (5) or more.

  4. Accessory dwelling units constructed in compliance with Chapter 17.82 (Accessory Dwelling Unit) and Chapter 17.84 (Junior Accessory Dwelling Unit).

  5. Dwelling units, which are offered and restricted for sale, lease, or rent solely to individuals or households of very low, low, or moderate incomes.

• C. Replacement of any dwelling unit or residential development which is damaged or destroyed by fire or other catastrophe provided the number of units and the use of the building remain the same. [Source: 17.23.020.B.1-6, modified]

• A. Percentage Requirement. Table 17.98-01 established the inclusionary percentage requirement for qualifying projects of ten (10) or more units. If, in the application of the requirements of this section, a decimal fraction unit requirement is obtained, an in-lieu fee shall be provided equal to the applicable decimal fraction cost of a full housing unit. [Source: 17.23.030.A, modified]

Table 17.98-01 Inclusionary Housing Percentage Requirements

• B. Payment of an In-Lieu Fee for All Units. The Council shall establish an in-lieu fee for inclusionary housing units in the Towns Master Fee Schedule. Any fee required by this section shall be paid in full prior to the issuance of a Building Permit for the project. In multi-phase projects, the entire inlieu fees required for the project, inclusive of all phases,

shall be paid prior to issuance of any Building Permits for the first phase. [Source: 17.23.030.B, modified]

• C. Land Donation. Dedicate with cost to the Town, a parcel(s) within, contiguous to or elsewhere in Town sufficient to accommodate at least the required number of affordable units for the residential project. An election to ded-

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icate land in lieu of compliance with other provisions of this section shall be allowed only if:

1. The appraised value of the parcel(s) to be dedicated, net of demolition and environmental remediation costs, is equal to at least one hundred fifty (150) percent of the project's in-lieu fee obligation and financing or a viable financing plan is in place for at least the required number of affordable units; and

2. The parcel(s) are suitable for the construction of affordable housing at a feasible cost, defined by the Town Manager, are zoned appropriately for affordable housing development, served by utilities, streets, and other infrastructure and there are no hazardous materials or other material constraints on the development of affordable housing. [Source: 17.23.030.C.1-2]

• D. Off-Site Construction. Construct, or make possible construction by another developer, of units not physically contiguous to the marketrate units or units that are physically contiguous to the marketrate units if it is determined that this will provide greater public benefit and if the inclusionary housing regulatory agreement is acceptable to the Town Manager. [Source: 17.23.030.D]

• E. Construction of Inclusionary Units. The inclusionary units shall be provided at the same time as the other units. Both the inclusionary and market rate housing units shall be completed at the same time. [Source: 17.23.030.E]

• F. Distribution of Inclusionary Units. Inclusionary units are encouraged to be distributed throughout the development. Distribution of units may take into account the number of required inclusionary units in the project, as well as consideration of environmental and aesthetic factors. [Source: 17.23.030.F]

• G. Appearance of Inclusionary Units. The inclusionary units are encouraged to be substantially the same as the market rate units or structures in exterior materials and finish. The developer may provide less expensive interior amenities for the inclusionary unit as long as there are not significant differences visible from the exterior. All units must conform to the requirements of the Building and Housing Codes, and subject to the approval of the Town Manager. [Source: 17.23.030.G]

• H. Bedroom Count of Inclusionary Units. Inclusionary units shall be comparable in bedroom count distribution to the market rate units. [Source: 17.23.030.H]

Allowable rents and sales prices. Inclusionary units shall be made available at affordable rents or purchase prices and occupied by qualified incomeeligible households, adjusted for household size and occupancy standards appropriate for the unit. The Department shall set maximum allowable rents and maximum allowable purchase price for inclusionary units, adjusted by the household size appropriate for the unit. Such maximum allowable rents and maximum allowable purchase prices shall be set as rates such that qualified occupants pay no more than the affordable housing expense, as defined below: [Source: 17.23.040, modified]

• A. For Renters. For renters, affordable housing expenses shall include rent plus a Utility Allowance and shall not exceed those percentages established in Table 17.98-02 (Affordable Housing Expense for Renters). [Source: 17.23.040, modified]

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Table 17.98-02 Affordable Housing Expense for Renters

Notes

[(1) ] "AMI" stands for Area Medium Income.

• B. For Owners. For owners, affordable housing expenses shall include principal, interest, private mortgage insurance (PMI), property taxes, insurance, homeowners' association dues, property maintenance, repairs, and a Utility Allowance shall not exceed those percentage established in Table 17.98-03 (Affordable Housing Expense for Owners). [Source: 17.23.040, modified]

Table 17.98-03 Affordable Housing Expense for Owners

Notes

• [(1) ] "AMI" stands for Area Medium Income.

• ---

• A. Qualified Households. Only qualified households shall be eligible to occupy or own and occupy the inclusionary units. Developers shall utilize an entity such as a non-profit housing cooperation or a public Housing Authority to obtain qualified occupants. Developers shall select only qualified households to occupy or own and occupy inclusionary units. Inclusionary for-sale units must be owner-occupied by a qualified household, with an exception granted in the case of an owner's absence required by military service. [Source: 17.23.050.A]

• B. Excluded Persons. The immediate relative of the project developer or owner, by virtue of their position or relationship, are ineligible to occupy an inclusionary unit. [Source: 17.23.050.B, modified]

• A. Eligibility for Fee Payment. When the calculation of inclusionary requirements yields a fractional number, or if a developer wishes to pay the in-lieu fee to satisfy the requirements of this chapter, a fee in-lieu of providing a full unit shall be paid to the Town: [Source: 17.23.060.A]

• B. Amount of Fee. For purposes of this section, the fractional remainder and in-lieu inclusionary fee shall be established in the Town's Master Fee Schedule.

• C. Payment of Fee. Any fee required by this chapter shall be paid in full prior to the issuance of a Building Permit for the project. In multiphase projects, the entire in-lieu fees required for the project shall be paid prior to issuance of any Building Permits.

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• D. Use of Funds. Any funds received from in-lieu fee payments shall be placed in a reserve account used for the exclusive purpose of providing housing affordable to very-low-, low-, and moderate-income households. [Source: 17.23.060.A.1-3]

When inclusionary units are required, a deed restriction shall be recorded setting forth the applicable restrictions in this chapter. Except as may be otherwise provided in Chapter 17.80 (Affordable Housing Requirements and Incentives), inclusionary units which are built without a public subsidy, or density bonus or other concession granted pursuant to Government Code Section 65915, shall be required to maintain affordability in perpetuity for rental units and for the longest feasible time, but not less than forty-five (45) years, for owner units, or for a different period when required by the Town or State law. At the resale of an affordable owner unit, the affordability period of not less than forty-five (45) years shall be renewed. A program to assure affordability for these units for this period of time shall be administered by the Town or by a non-profit housing agency approved by the Town. The developer shall enter into an agreement with the Town or its designee to provide monitoring and to assure affordability of the inclusionary units in perpetuity for rental units and for the longest feasible time, but not less than forty-five (45) years, for owner units from the effective date of first occupancy or resale of an affordable owner unit. The Town Manager shall be authorized to enter into such agreement on behalf of the Town. The approved agreement shall be recorded with the Sonoma County Recorder prior to issuance of a Building Permit for the project. [Source: 17.23.070.A]

• A. All buyers of "for sale" inclusionary units shall enter into a Resale Agreement with the Town to the close of escrow for such inclusionary unit. The Resale Agreement shall specify the required affordability term,

shall provide for an option for the Town to designate an eligible purchaser and shall provide the Town with first right of refusal to purchase the unit, and shall provide for a calculation of future equity assignment upon sale of the unit. Such agreement shall be recorded against each parcel or unit. [Source: 17.23.070.A.1]

• B. Conversion of an inclusionary rental unit to a "for sale" unit, if otherwise permitted, shall not void any provisions of applicable inclusionary housing agreements or requirements. [Source: 17.23.070.A.2]

Each owner of any rental inclusionary units shall submit an annual report to the Department, no later than March 1, for the previous calendar year, identifying monthly rental rates, vacancy status of each inclusionary unit, income status for the resident(s), and any other related data deemed necessary by the Town while ensuring privacy for all occupants. The deed restriction for ownership units shall require a comparable conformance report to the Town upon sale of ownership of inclusionary units. [Source: 17.23.080]

When a developer proposes a housing project that is subject to the inclusionary requirements of this chapter, the Town shall provide the developer a density bonus compliant with State density bonus law, as defined in California Government Code section 65915 et seq., as revised periodically. Subject to the approval of the Town Manager, the Town may also provide other incentives, including, but not limited to:

• A. Reduction in site development standards;

• B. Modification of architectural design requirements;

• C. Other similar incentives that assist in making the project economically feasible; and/or

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• D. Other incentives may be offered to produce very low- or low-income housing units. [Source: 17.23.090, modified]

As part of any submittal to the Town for the construction of ten (10) or more new dwelling units, or for the subdivision of land into ten (10) or more parcels for residential use, each developer shall include information as to: the total number of housing units included within the application; the number of inclusionary units; proposed sale or rental prices of the inclusionary units; identification of the agency which will monitor occupancy and continued affordability of the inclusionary units for the amount of time specified by this chapter; and any other information deemed necessary by the Town. It shall be the responsibility of the developer to negotiate any needed agreement with the monitoring agency to comply with Section 17.98.070 (Deed Restrictions), of this chapter. [Source: 17.23.100]

Notwithstanding any other provision of this chapter, the requirements of this chapter shall be waived, adjusted, or reduced if the applicant shows, by the presentation of substantial evidence, that there is no reasonable relationship between the impact of a proposed residential project and the requirements of this chapter, or that applying the requirements of this chapter would take property in violation of the U.S. or California Constitution. To receive a waiver, adjustment or reduction under this section, the applicant shall make a showing when applying for a first approval for the residential project, and/or as part of any appeal which the Town provides as part of the process for the first approval. [Source: 17.23.110]

• A. Application of Requirements. The provisions of this chapter shall apply to all agents, suc-

cessors, and assignees of the developer. No permit shall be issued after the effective date of this chapter for any project which does not meet the requirements of this chapter. [Source: 17.23.120.A]

• B. Violations. Any person, firm, or corporation, whether as principal, agent, employee or otherwise, violating or causing the violation of any provision of this chapter, shall be guilty of a separate offense during each and every day during any portion of which any violation of this chapter is commenced, continued, or permitted by such person, firm or cooperation. [Source: 17.23.120.B]

• C. Appeal to the Commission. Any person aggrieved by any action involving denial, suspension or revocation of a Building Permit or denial, suspension or revocation of any development approval related to compliance with this chapter may appeal such determination to the Commission, with further appeal possible to the Council, upon payment of the applicable appeal fee. [Source: 17.23.120.C]

• D. Appeal to the Council. Any developer or other person who contends that his or her interests are adversely affected by a determination or requirement of the Town or its designee in regard to this chapter and is not satisfied with the decision of the Commission may appeal to the Council upon payment of the applicable fee. The appeal shall set forth specifically wherein in action of the Town or its designee fails to conform to the provisions of this chapter thereby adversely affecting the developer's or other person's interests. The Council may reverse or modify any determination or requirement of the Town or its designee if it finds that the action under appeal does not conform to the provisions of this chapter. [Source: 17.23.120.D]

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