N40 Phase 1 - Staff Report Exh.17-18GOVERNMENT CODE
SECTION 65915-65918
65915. (a) When an applicant seeks a density bonus for a housing
development within, or for the donation of land for housing within,
the jurisdiction of a city, county, or city and county, that local
government shall provide the applicant with incentives or concessions
for the production of housing units and child care facilities as
prescribed in this section. All cities, counties, or cities and
counties shall adopt an ordinance that specifies how compliance with
this section will be implemented. Failure to adopt an ordinance shall
not relieve a city, county, or city and county from complying with
this section.
(b) (1) A city, county, or city and county shall grant one density
bonus, the amount of which shall be as specified in subdivision (f),
and incentives or concessions, as described in subdivision (d), when
an applicant for a housing development seeks and agrees to construct
a housing development, excluding any units permitted by the density
bonus awarded pursuant to this section, that will contain at least
any one of the following:
(A) Ten percent of the total units of a housing development for
lower income households, as defined in Section 50079.5 of the Health
and Safety Code.
(B) Five percent of the total units of a housing development for
very low income households, as defined in Section 50105 of the Health
and Safety Code.
(C) A senior citizen housing development, as defined in Sections
51.3 and 51.12 of the Civil Code, or a mobilehome park that limits
residency based on age requirements for housing for older persons
pursuant to Section 798.76 or 799.5 of the Civil Code.
(D) Ten percent of the total dwelling units in a common interest
development, as defined in Section 4100 of the Civil Code, for
persons and families of moderate income, as defined in Section 50093
of the Health and Safety Code, provided that all units in the
development are offered to the public for purchase.
(2) For purposes of calculating the amount of the density bonus
pursuant to subdivision (f), an applicant who requests a density
bonus pursuant to this subdivision shall elect whether the bonus
shall be awarded on the basis of subparagraph (A), (B), (C), or (D)
of paragraph (1).
(3) For the purposes of this section, "total units" or "total
dwelling units" does not include units added by a density bonus
awarded pursuant to this section or any local law granting a greater
density bonus.
(c) (1) An applicant shall agree to, and the city, county, or city
and county shall ensure, the continued affordability of all very low
and low-income rental units that qualified the applicant for the
award of the density bonus for 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. Rents
for the lower income density bonus units shall be set at an
affordable rent as defined in Section 50053 of the Health and Safety
Code.
(2) An applicant shall agree to, and the city, county, or city and
county shall ensure that, the initial occupant of all for-sale units
that qualified the applicant for the award of the density bonus are
persons and families of very low, low, or moderate income, as
required, and that the units are offered at an affordable housing
cost, as that cost is defined in Section 50052.5 of the Health and
Safety Code. The local government shall enforce an equity sharing
agreement, unless it is in conflict with the requirements of another
public funding source or law. The following apply to the equity
sharing agreement:
(A) Upon resale, the seller of the unit shall retain the value of
any improvements, the downpayment, and the seller's proportionate
share of appreciation. The local government shall recapture any
initial subsidy, as defined in subparagraph (B), and its
proportionate share of appreciation, as defined in subparagraph (C),
which amount shall be used within five years for any of the purposes
described in subdivision (e) of Section 33334.2 of the Health and
Safety Code that promote home ownership.
(B) For purposes of this subdivision, the local government's
initial subsidy shall be equal to the fair market value of the home
at the time of initial sale minus the initial sale price to the
moderate-income household, plus the amount of any downpayment
assistance or mortgage assistance. If upon resale the market value is
lower than the initial market value, then the value at the time of
the resale shall be used as the initial market value.
(C) For purposes of this subdivision, the local government's
proportionate share of appreciation shall be equal to the ratio of
the local government's initial subsidy to the fair market value of
the home at the time of initial sale.
(3) (A) An applicant shall be ineligible for a density bonus or
any other incentives or concessions under this section if the housing
development is proposed on any property that includes a parcel or
parcels on which rental dwelling units are or, if the dwelling units
have been vacated or demolished in the five-year period preceding the
application, have been subject to a recorded covenant, ordinance, or
law that restricts rents to levels affordable to persons and
families of lower or very low income; subject to any other form of
rent or price control through a public entity's valid exercise of its
police power; or occupied by lower or very low income households,
unless the proposed housing development replaces those units, and
either of the following applies:
(i) The proposed housing development, inclusive of the units
replaced pursuant to this paragraph, contains affordable units at the
percentages set forth in subdivision (b).
(ii) Each unit in the development, exclusive of a manager's unit
or units, is affordable to, and occupied by, either a lower or very
low income household.
(B) For the purposes of this paragraph, "replace" shall mean
either of the following:
(i) If any dwelling units described in subparagraph (A) are
occupied on the date of application, the proposed housing development
shall provide at least the same number of units of equivalent size
or type, or both, to be made available at affordable rent or
affordable housing cost to, and occupied by, persons and families in
the same or lower income category as those households in occupancy.
For unoccupied dwelling units described in subparagraph (A) in a
development with occupied units, the proposed housing development
shall provide units of equivalent size or type, or both, to be made
available at affordable rent or affordable housing cost to, and
occupied by, persons and families in the same or lower income
category in the same proportion of affordability as the occupied
units. All replacement calculations resulting in fractional units
shall be rounded up to the next whole number. If the replacement
units will be rental dwelling units, these units shall be subject to
a recorded affordability restriction for at least 55 years. If the
proposed development is for-sale units, the units replaced shall be
subject to paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been
vacated or demolished within the five-year period preceding the
application, the proposed housing development shall provide at least
the same number of units of equivalent size or type, or both, as
existed at the highpoint of those units in the five-year period
preceding the application to be made available at affordable rent or
affordable housing cost to, and occupied by, persons and families in
the same or lower income category as those persons and families in
occupancy at that time, if known. If the incomes of the persons and
families in occupancy at the highpoint is not known, then one-half of
the required units shall be made available at affordable rent or
affordable housing cost to, and occupied by, very low income persons
and families and one-half of the required units shall be made
available for rent at affordable housing costs to, and occupied by,
low-income persons and families. All replacement calculations
resulting in fractional units shall be rounded up to the next whole
number. If the replacement units will be rental dwelling units, these
units shall be subject to a recorded affordability restriction for
at least 55 years. If the proposed development is for-sale units, the
units replaced shall be subject to paragraph (2).
(C) Paragraph (3) of subdivision (c) does not apply to an
applicant seeking a density bonus for a proposed housing development
if his or her application was submitted to, or processed by, a city,
county, or city and county before January 1, 2015.
(d) (1) An applicant for a density bonus pursuant to subdivision
(b) may submit to a city, county, or city and county a proposal for
the specific incentives or concessions that the applicant requests
pursuant to this section, and may request a meeting with the city,
county, or city and county. The city, county, or city and county
shall grant the concession or incentive requested by the applicant
unless the city, county, or city and county makes a written finding,
based upon substantial evidence, of any of the following:
(A) The concession or incentive is not required in order to
provide for affordable housing costs, as defined in Section 50052.5
of the Health and Safety Code, or for rents for the targeted units to
be set as specified in subdivision (c).
(B) The concession or incentive would have a specific adverse
impact, as defined in paragraph (2) of subdivision (d) of 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.
(C) The concession or incentive would be contrary to state or
federal law.
(2) The applicant shall receive the following number of incentives
or concessions:
(A) One incentive or concession for projects that include at least
10 percent of the total units for lower income households, at least
5 percent for very low income households, or at least 10 percent for
persons and families of moderate income in a common interest
development.
(B) Two incentives or concessions for projects that include at
least 20 percent of the total units for lower income households, at
least 10 percent for very low income households, or at least 20
percent for persons and families of moderate income in a common
interest development.
(C) Three incentives or concessions for projects that include at
least 30 percent of the total units for lower income households, at
least 15 percent for very low income households, or at least 30
percent for persons and families of moderate income in a common
interest development.
(3) The applicant may initiate judicial proceedings if the city,
county, or city and county refuses to grant a requested density
bonus, incentive, or concession. If a court finds that the refusal to
grant a requested density bonus, incentive, or concession is in
violation of this section, the court shall award the plaintiff
reasonable attorney's fees and costs of suit. Nothing in this
subdivision shall be interpreted to require a local government to
grant an incentive or concession that has a specific, adverse impact,
as defined in paragraph (2) of subdivision (d) of Section 65589.5,
upon health, safety, or the physical environment, and for which there
is no feasible method to satisfactorily mitigate or avoid the
specific adverse impact. Nothing in this subdivision shall be
interpreted to require a local government 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.
The city, county, or city and county shall establish procedures for
carrying out this section, that shall include legislative body
approval of the means of compliance with this section.
(e) (1) In no case may a city, county, or city and county apply
any development standard that will have the effect of physically
precluding the construction of a development meeting the criteria of
subdivision (b) at the densities or with the concessions or
incentives permitted by this section. An applicant may submit to a
city, county, or city and county 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 of subdivision (b) at the densities or with the concessions
or incentives permitted under this section, and may request a meeting
with the city, county, or city and county. If a court finds that the
refusal to grant a waiver or reduction of development standards is
in violation of this section, the court shall award the plaintiff
reasonable attorney's fees and costs of suit. Nothing in this
subdivision shall be interpreted to require a local government to
waive or reduce development standards if the waiver or reduction
would have a specific, adverse impact, as defined in paragraph (2) of
subdivision (d) of Section 65589.5, upon health, safety, or the
physical environment, and for which there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact. Nothing
in this subdivision shall be interpreted to require a local
government to waive or reduce development standards that would have
an adverse impact on any real property that is listed in the
California Register of Historical Resources, or to grant any waiver
or reduction that would be contrary to state or federal law.
(2) A proposal for the waiver or reduction of development
standards pursuant to this subdivision shall neither reduce nor
increase the number of incentives or concessions to which the
applicant is entitled pursuant to subdivision (d).
(f) For the purposes of this chapter, "density bonus" means a
density increase over the otherwise maximum allowable residential
density as of the date of application by the applicant to the city,
county, or city and county. The applicant may elect to accept a
lesser percentage of density bonus. The amount of density bonus to
which the applicant is entitled shall vary according to the amount by
which the percentage of affordable housing units exceeds the
percentage established in subdivision (b).
(1) For housing developments meeting the criteria of subparagraph
(A) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:
Percentage Low-Income Units Percentage
Density Bonus
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
17 30.5
18 32
19 33.5
20 35
(2) For housing developments meeting the criteria of subparagraph
(B) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:
Percentage Very Low Percentage Density Bonus
Income Units
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
(3) For housing developments meeting the criteria of subparagraph
(C) of paragraph (1) of subdivision (b), the density bonus shall be
20 percent of the number of senior housing units.
(4) For housing developments meeting the criteria of subparagraph
(D) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:
Percentage Moderate- Percentage Density Bonus
Income Units
10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
(5) All density calculations resulting in fractional units shall
be rounded up to the next whole number. The granting of a density
bonus shall not be interpreted, in and of itself, to require a
general plan amendment, local coastal plan amendment, zoning change,
or other discretionary approval.
(g) (1) When an applicant for a tentative subdivision map, parcel
map, or other residential development approval donates land to a
city, county, or city and county in accordance with this subdivision,
the applicant shall be entitled to a 15-percent increase above the
otherwise maximum allowable residential density for the entire
development, as follows:
Percentage Very Low Percentage
Income Density Bonus
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
18 23
19 24
20 25
21 26
22 27
23 28
24 29
25 30
26 31
27 32
28 33
29 34
30 35
(2) This increase shall be in addition to any increase in density
mandated by subdivision (b), up to a maximum combined mandated
density increase of 35 percent if an applicant seeks an increase
pursuant to both this subdivision and subdivision (b). All density
calculations resulting in fractional units shall be rounded up to the
next whole number. Nothing in this subdivision shall be construed to
enlarge or diminish the authority of a city, county, or city and
county to require a developer to donate land as a condition of
development. An applicant shall be eligible for the increased density
bonus described in this subdivision if all of the following
conditions are met:
(A) The applicant donates and transfers the land no later than the
date of approval of the final subdivision map, parcel map, or
residential development application.
(B) The developable acreage and zoning classification of the land
being transferred are sufficient to permit construction of units
affordable to very low income households in an amount not less than
10 percent of the number of residential units of the proposed
development.
(C) The transferred land is at least one acre in size or of
sufficient size to permit development of at least 40 units, has the
appropriate general plan designation, is appropriately zoned with
appropriate development standards for development at the density
described in paragraph (3) of subdivision (c) of Section 65583.2, and
is or will be served by adequate public facilities and
infrastructure.
(D) The transferred land shall have all of the permits and
approvals, other than building permits, necessary for the development
of the very low income housing units on the transferred land, not
later than the date of approval of the final subdivision map, parcel
map, or residential development application, except that the local
government may subject the proposed development to subsequent design
review to the extent authorized by subdivision (i) of Section 65583.2
if the design is not reviewed by the local government prior to the
time of transfer.
(E) The transferred land and the affordable units shall be subject
to a deed restriction ensuring continued affordability of the units
consistent with paragraphs (1) and (2) of subdivision (c), which
shall be recorded on the property at the time of the transfer.
(F) The land is transferred to the local agency or to a housing
developer approved by the local agency. The local agency may require
the applicant to identify and transfer the land to the developer.
(G) The transferred land shall be within the boundary of the
proposed development or, if the local agency agrees, within
one-quarter mile of the boundary of the proposed development.
(H) A proposed source of funding for the very low income units
shall be identified not later than the date of approval of the final
subdivision map, parcel map, or residential development application.
(h) (1) When an applicant proposes to construct a housing
development that conforms to the requirements of subdivision (b) and
includes a child care facility that will be located on the premises
of, as part of, or adjacent to, the project, the city, county, or
city and county shall grant either of the following:
(A) An additional density bonus that is an amount of square feet
of residential space that is equal to or greater than the amount of
square feet in the child care facility.
(B) An additional concession or incentive that contributes
significantly to the economic feasibility of the construction of the
child care facility.
(2) The city, county, or city and county shall require, as a
condition of approving the housing development, that the following
occur:
(A) The child care facility shall remain in operation for a period
of time that is as long as or longer than the period of time during
which the density bonus units are required to remain affordable
pursuant to subdivision (c).
(B) Of the children who attend the child care facility, the
children of very low income households, lower income households, or
families of moderate income shall equal a percentage that is equal to
or greater than the percentage of dwelling units that are required
for very low income households, lower income households, or families
of moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subdivision, a city,
county, or city and county shall not be required to provide a density
bonus or concession for a child care facility if it finds, based
upon substantial evidence, that the community has adequate child care
facilities.
(4) "Child care facility," as used in this section, means a child
day care facility other than a family day care home, including, but
not limited to, infant centers, preschools, extended day care
facilities, and schoolage child care centers.
(i) "Housing development," as used in this section, means a
development project for five or more residential units. For the
purposes of this section, "housing development" also includes a
subdivision or common interest development, as defined in Section
4100 of the Civil Code, approved by a city, county, or city and
county and consists of residential units or unimproved residential
lots and either a project to substantially rehabilitate and convert
an existing commercial building to residential use or the substantial
rehabilitation of an existing multifamily dwelling, as defined in
subdivision (d) of Section 65863.4, 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 shall be on contiguous sites that are the subject
of one development application, but do not have to be based upon
individual subdivision maps or parcels. The density bonus shall be
permitted in geographic areas of the housing development other than
the areas where the units for the lower income households are
located.
(j) (1) The granting of a concession or incentive shall not be
interpreted, in and of itself, to require a general plan amendment,
local coastal plan amendment, zoning change, or other discretionary
approval. This provision is declaratory of existing law.
(2) Except as provided in subdivisions (d) and (e), the granting
of a density bonus shall not be interpreted to require the waiver of
a local ordinance or provisions of a local ordinance unrelated to
development standards.
(k) 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 Part 2.5 (commencing
with Section 18901) of Division 13 of the Health and Safety Code,
including, but not limited to, a reduction in setback and square
footage requirements and in the ratio of vehicular parking spaces
that would otherwise
be required that results in identifiable, financially
sufficient, and actual cost reductions.
(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
developer or the city, county, or city and county that result in
identifiable, financially sufficient, and actual cost reductions.
(l) Subdivision (k) does not limit or require the provision of
direct financial incentives for the housing development, including
the provision of publicly owned land, by the city, county, or city
and county, or the waiver of fees or dedication requirements.
(m) This section does not supersede or in any way alter or lessen
the effect or application of the California Coastal Act of 1976
(Division 20 (commencing with Section 30000) of the Public Resources
Code).
(n) If permitted by local ordinance, nothing in this section shall
be construed to prohibit a city, county, or city and county from
granting a density bonus greater than what is described in this
section for a development that meets the requirements of this section
or from granting a proportionately lower density bonus than what is
required by this section for developments that do not meet the
requirements of this section.
(o) For purposes of this section, the following definitions shall
apply:
(1) "Development standard" includes a site or construction
condition, including, but not limited to, a height limitation, a
setback requirement, a floor area ratio, an onsite open-space
requirement, or a parking ratio that applies to a residential
development pursuant to any ordinance, general plan element, specific
plan, charter, or other local condition, law, policy, resolution, or
regulation.
(2) "Maximum allowable residential density" means the density
allowed under the zoning ordinance and land use element of the
general plan, or if a range of density is permitted, means the
maximum allowable density for the specific zoning range and land use
element of the general plan applicable to the project. Where the
density allowed under the zoning ordinance is inconsistent with the
density allowed under the land use element of the general plan, the
general plan density shall prevail.
(p) (1) Except as provided in paragraphs (2) and (3), upon the
request of the developer, a city, county, or city and county shall
not require a vehicular parking ratio, inclusive of handicapped and
guest parking, of a development meeting the criteria of subdivisions
(b) and (c), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: two onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking spaces.
(2) Notwithstanding paragraph (1), if a development includes the
maximum percentage of low- or very low income units provided for in
paragraphs (1) and (2) of subdivision (f) and is located within
one-half mile of a major transit stop, as defined in subdivision (b)
of Section 21155 of the Public Resources Code, and there is
unobstructed access to the major transit stop from the development,
then, upon the request of the developer, a city, county, or city and
county shall not impose a vehicular parking ratio, inclusive of
handicapped and guest parking, that exceeds 0.5 spaces per bedroom.
For purposes of this subdivision, a development shall have
unobstructed access to a major transit stop if a resident is able to
access the major transit stop without encountering natural or
constructed impediments.
(3) Notwithstanding paragraph (1), if a development consists
solely of rental units, exclusive of a manager's unit or units, with
an affordable housing cost to lower income families, as provided in
Section 50052.5 of the Health and Safety Code, then, upon the request
of the developer, a city, county, or city and county shall not
impose a vehicular parking ratio, inclusive of handicapped and guest
parking, that exceeds the following ratios:
(A) If the development is located within one-half mile of a major
transit stop, as defined in subdivision (b) of Section 21155 of the
Public Resources Code, and there is unobstructed access to the major
transit stop from the development, the ratio shall not exceed 0.5
spaces per unit.
(B) If the development is a for-rent housing development for
individuals who are 62 years of age or older that complies with
Sections 51.2 and 51.3 of the Civil Code, the ratio shall not exceed
0.5 spaces per unit. The development shall have either paratransit
service or unobstructed access, within one-half mile, to fixed bus
route service that operates at least eight times per day.
(C) If the development is a special needs housing development, as
defined in Section 51312 of the Health and Safety Code, the ratio
shall not exceed 0.3 spaces per unit. The development shall have
either paratransit service or unobstructed access, within one-half
mile, to fixed bus route service that operates at least eight times
per day.
(4) If the total number of parking spaces required for a
development is other than a whole number, the number shall be rounded
up to the next whole number. For purposes of this subdivision, a
development may provide on-site parking through tandem parking or
uncovered parking, but not through on-street parking.
(5) This subdivision shall apply to a development that meets the
requirements of subdivisions (b) and (c), but only at the request of
the applicant. An applicant may request parking incentives or
concessions beyond those provided in this subdivision pursuant to
subdivision (d).
(6) This subdivision does not preclude a city, county, or city and
county from reducing or eliminating a parking requirement for
development projects of any type in any location.
(7) Notwithstanding paragraphs (2) and (3), if a city, county,
city and county, or an independent consultant has conducted an
areawide or jurisdictionwide parking study in the last seven years,
then the city, county, or city and county may impose a higher
vehicular parking ratio not to exceed the ratio described in
paragraph (1), based upon substantial evidence found in the parking
study, that includes, but is not limited to, an analysis of parking
availability, differing levels of transit access, walkability access
to transit services, the potential for shared parking, the effect of
parking requirements on the cost of market-rate and subsidized
developments, and the lower rates of car ownership for low- and very
low income individuals, including seniors and special needs
individuals. The city, county, or city and county shall pay the costs
of any new study. The city, county, or city and county shall make
findings, based on a parking study completed in conformity with this
paragraph, supporting the need for the higher parking ratio.
65915.5. (a) When an applicant for approval to convert apartments
to a condominium project agrees to provide at least 33 percent of the
total units of the proposed condominium project to persons and
families of low or moderate income as defined in Section 50093 of the
Health and Safety Code, or 15 percent of the total units of the
proposed condominium project to lower income households as defined in
Section 50079.5 of the Health and Safety Code, and agrees to pay for
the reasonably necessary administrative costs incurred by a city,
county, or city and county pursuant to this section, the city,
county, or city and county shall either (1) grant a density bonus or
(2) provide other incentives of equivalent financial value. A city,
county, or city and county may place such reasonable conditions on
the granting of a density bonus or other incentives of equivalent
financial value as it finds appropriate, including, but not limited
to, conditions which assure continued affordability of units to
subsequent purchasers who are persons and families of low and
moderate income or lower income households.
(b) For purposes of this section, "density bonus" means an
increase in units of 25 percent over the number of apartments, to be
provided within the existing structure or structures proposed for
conversion.
(c) For purposes of this section, "other incentives of equivalent
financial value" shall not be construed to require a city, county, or
city and county to provide cash transfer payments or other monetary
compensation but may include the reduction or waiver of requirements
which the city, county, or city and county might otherwise apply as
conditions of conversion approval.
(d) An applicant for approval to convert apartments to a
condominium project may submit to a city, county, or city and county
a preliminary proposal pursuant to this section prior to the
submittal of any formal requests for subdivision map approvals. The
city, county, or city and county shall, within 90 days of receipt of
a written proposal, notify the applicant in writing of the manner in
which it will comply with this section. The city, county, or city and
county shall establish procedures for carrying out this section,
which shall include legislative body approval of the means of
compliance with this section.
(e) Nothing in this section shall be construed to require a city,
county, or city and county to approve a proposal to convert
apartments to condominiums.
(f) An applicant shall be ineligible for a density bonus or other
incentives under this section if the apartments proposed for
conversion constitute a housing development for which a density bonus
or other incentives were provided under Section 65915.
(g) An applicant shall be ineligible for a density bonus or any
other incentives or concessions under this section if the condominium
project is proposed on any property that includes a parcel or
parcels on which rental dwelling units are or, if the dwelling units
have been vacated or demolished in the five-year period preceding the
application, have been subject to a recorded covenant, ordinance, or
law that restricts rents to levels affordable to persons and
families of lower or very low income; subject to any other form of
rent or price control through a public entity's valid exercise of its
police power; or occupied by lower or very low income households,
unless the proposed condominium project replaces those units, as
defined in subparagraph (B) of paragraph (3) of subdivision (c) of
Section 65915, and either of the following applies:
(1) The proposed condominium project, inclusive of the units
replaced pursuant to subparagraph (B) of paragraph (3) of subdivision
(c) of Section 65915, contains affordable units at the percentages
set forth in subdivision (a).
(2) Each unit in the development, exclusive of a manager's unit or
units, is affordable to, and occupied by, either a lower or very low
income household.
(h) Subdivision (g) does not apply to an applicant seeking a
density bonus for a proposed housing development if their application
was submitted to, or processed by, a city, county, or city and
county before January 1, 2015.
65916. Where there is a direct financial contribution to a housing
development pursuant to Section 65915 through participation in cost
of infrastructure, write-down of land costs, or subsidizing the cost
of construction, the city, county, or city and county shall assure
continued availability for low- and moderate-income units for 30
years. When appropriate, the agreement provided for in Section 65915
shall specify the mechanisms and procedures necessary to carry out
this section.
65917. In enacting this chapter it is the intent of the Legislature
that the density bonus or other incentives offered by the city,
county, or city and county pursuant to this chapter shall contribute
significantly to the economic feasibility of lower income housing in
proposed housing developments. In the absence of an agreement by a
developer in accordance with Section 65915, a locality shall not
offer a density bonus or any other incentive that would undermine the
intent of this chapter.
65917.5. (a) As used in this section, the following terms shall
have the following meanings:
(1) "Child care facility" means a facility installed, operated,
and maintained under this section for the nonresidential care of
children as defined under applicable state licensing requirements for
the facility.
(2) "Density bonus" means a floor area ratio bonus over the
otherwise maximum allowable density permitted under the applicable
zoning ordinance and land use elements of the general plan of a city,
including a charter city, city and county, or county of:
(A) A maximum of five square feet of floor area for each one
square foot of floor area contained in the child care facility for
existing structures.
(B) A maximum of 10 square feet of floor area for each one square
foot of floor area contained in the child care facility for new
structures.
For purposes of calculating the density bonus under this section,
both indoor and outdoor square footage requirements for the child
care facility as set forth in applicable state child care licensing
requirements shall be included in the floor area of the child care
facility.
(3) "Developer" means the owner or other person, including a
lessee, having the right under the applicable zoning ordinance of a
city council, including a charter city council, city and county board
of supervisors, or county board of supervisors to make an
application for development approvals for the development or
redevelopment of a commercial or industrial project.
(4) "Floor area" means as to a commercial or industrial project,
the floor area as calculated under the applicable zoning ordinance of
a city council, including a charter city council, city and county
board of supervisors, or county board of supervisors and as to a
child care facility, the total area contained within the exterior
walls of the facility and all outdoor areas devoted to the use of the
facility in accordance with applicable state child care licensing
requirements.
(b) A city council, including a charter city council, city and
county board of supervisors, or county board of supervisors may
establish a procedure by ordinance to grant a developer of a
commercial or industrial project, containing at least 50,000 square
feet of floor area, a density bonus when that developer has set aside
at least 2,000 square feet of floor area and 3,000 outdoor square
feet to be used for a child care facility. The granting of a bonus
shall not preclude a city council, including a charter city council,
city and county board of supervisors, or county board of supervisors
from imposing necessary conditions on the project or on the
additional square footage. Projects constructed under this section
shall conform to height, setback, lot coverage, architectural review,
site plan review, fees, charges, and other health, safety, and
zoning requirements generally applicable to construction in the zone
in which the property is located. A consortium with more than one
developer may be permitted to achieve the threshold amount for the
available density bonus with each developer's density bonus equal to
the percentage participation of the developer. This facility may be
located on the project site or may be located offsite as agreed upon
by the developer and local agency. If the child care facility is not
located on the site of the project, the local agency shall determine
whether the location of the child care facility is appropriate and
whether it conforms with the intent of this section. The child care
facility shall be of a size to comply with all state licensing
requirements in order to accommodate at least 40 children.
(c) The developer may operate the child care facility itself or
may contract with a licensed child care provider to operate the
facility. In all cases, the developer shall show ongoing coordination
with a local child care resource and referral network or local
governmental child care coordinator in order to qualify for the
density bonus.
(d) If the developer uses space allocated for child care facility
purposes, in accordance with subdivision (b), for purposes other than
for a child care facility, an assessment based on the square footage
of the project may be levied and collected by the city council,
including a charter city council, city and county board of
supervisors, or county board of supervisors. The assessment shall be
consistent with the market value of the space. If the developer fails
to have the space allocated for the child care facility within three
years, from the date upon which the first temporary certificate of
occupancy is granted, an assessment based on the square footage of
the project may be levied and collected by the city council,
including a charter city council, city and county board of
supervisors, or county board of supervisors in accordance with
procedures to be developed by the legislative body of the city
council, including a charter city council, city and county board of
supervisors, or county board of supervisors. The assessment shall be
consistent with the market value of the space. A penalty levied
against a consortium of developers shall be charged to each developer
in an amount equal to the developer's percentage square feet
participation. Funds collected pursuant to this subdivision shall be
deposited by the city council, including a charter city council, city
and county board of supervisors, or county board of supervisors into
a special account to be used for child care services or child care
facilities.
(e) Once the child care facility has been established, prior to
the closure, change in use, or reduction in the physical size of, the
facility, the city, city council, including a charter city council,
city and county board of supervisors, or county board of supervisors
shall be required to make a finding that the need for child care is
no longer present, or is not present to the same degree as it was at
the time the facility was established.
(f) The requirements of Chapter 5 (commencing with Section 66000)
and of the amendments made to Sections 53077, 54997, and 54998 by
Chapter 1002 of the Statutes of 1987 shall not apply to actions taken
in accordance with this section.
(g) This section shall not apply to a voter-approved ordinance
adopted by referendum or initiative.
65918. The provisions of this chapter shall apply to charter
cities.
ORDINANCE 2209
ORDINANCE OF THE TOWN OF LOS GATOS
ADDING A NEW DIVISION 8 TO CHAPTER 29, ARTICLE I OF THE LOS GATOS
TOWN CODE ENTITLED "DENSITY BONUS (STATE MANDATED)"
WHEREAS, pursuant to California Government Code Section 65915, the Town is
required to adopt a density bonus ordinance that applies to housing developments that provide a
specified percentage of housing dedicated to and affordable to very low income, low income,
senior housing, and moderate income housing; and
WHEREAS, the Density Bonus Program provides incentives and concessions for
affordable housing projects to meet State mandated housing goals; and
WHEREAS, the Town of Los Gatos Density Bonus Ordinance will meet the
requirements under State law.
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS:
SECTION I
Chapter 29, Article I, Division 8, entitled "Density Bonus (State Mandated)" is hereby
added to the Los Gatos Town Code, and shall read as follows:
CHAPTER 29
ARTICLE I. In General
Division 8. State Mandated Density Bonus
29.10.405 Intent and Authority.
The density bonus ordinance in this chapter is intended to comply with the State
Density Bonus Law codified in California Government Code Section 65915 et
seq., which provides that a local governrneni shall grant a density bonus and an
additional concession, or financially equivalent incentive(s), to a qualified
housing development agreeing to construct a specific percentage of housing for
lower income households, very low income households, or senior housing as
defined by state law.
1
29.10.410 Applicability of Regulations.
a) In addition to providing a density bonus and additional concession or
equivalent incentives to a qualified housing development for lower income
and very low income households or senior housing, it is the intent to apply
the state law density bonus to qualified physically handicapped persons.
The term "physically handicapped" shall be defined pursuant to California
Health and Safety Code Section 50070 and the Density Bonus Program
Guidelines initially adopted by Town Council in 2012 and amended from
time to time thereafter.
b) Applicant who elects to proceed with a housing development using the state
law density bonus shall not be eligible for any density increases under the
Town's General Plan Density Bonus Policy or the General Plan Below
Market Price (BMP) Program as set forth in the Town's Housing Element
portion of the General Plan.
29.10.415 General Requirements.
Applicants who voluntarily agree to develop a housing development project that
complies with the affordability requirements referenced in Government Code
65915 et seq. shall conform to the Density Bonus Program Guidelines adopted by
Town Council (initial adopted in 2012) and as may be amended from time to
time.
29.10.420 Grounds for Denial of a Project.
a) Nothing in Division 8 of this Chapter 29 limits the Town's right to deny an
affordable housing project electing to proceed under the state law density
bonus provisions, if the Council makes written findings, based on
substantial evidence, any of the following:
1. The Town has adopted a Housing Element as part of the General Plan,
and the Town has met or exceeded its share of the regional housing needs for the
income category proposed for the development project;
2. The project as proposed would have a specific, adverse impact upon
the public health or safety which cannot be satisfactorily mitigated without
rendering it unaffordable to lower- income households;
3. The denial of the project or imposition of conditions is required in
order to comply with State or Federal law and there is no feasible method to
comply without rendering the development unaffordable to lower - income
households;
2
4. The development project is proposed on land zoned for agriculture or
resource preservation which is surrounded on at least two sides by land being
used for agricultural or resource preservation purposes, and which does not have
adequate water or wastewater facilities to serve the project.
5. The development project is inconsistent with the Town's General
Plan land use designation as it existed on the date the application was deemed
complete, and the Town has adopted a housing element pursuant to state law.
b) Nothing in this chapter limits the Town's right to deny a senior housing
project if the Town finds, based on substantial evidence, that the project
would have a specific, adverse impact upon the public health or safety; and
there is no feasible method to satisfactorily mitigate or avoid the adverse
impact identified.
29.10.425 Housing Agreement
Applicant requesting a state law density bonus on any rental or for sale project
shall agree to enter into a density bonus housing agreement with the Town as
required under the Density Bonus Program Guidelines. This housing agreement
shall be made a condition of the planning permits for all residential developments
pursuant to this Division and shall be recorded as a restriction on any parcels on
which the density bonus units will be constructed.
29.10.430 Requirements to Maintain the Affordable Units.
a) All affordable units shall be occupied by the household type specified in
the written housing agreement required under this Division. The
applicant's obligation to maintain these units as affordable housing shall
be evidenced by the housing agreement which shall be recorded as a deed
restriction running with the land.
b) The Town may establish fees associated with the setting up and
monitoring of affordable units.
c) The owner shall submit an annual report to the Town, on a form provided
by the Town. The report shall include for each affordable unit the rent,
income, and family size of the household occupying the unit.
d) The owner shall provide to the Town any additional information required
by the Town to insure the long -term affordability of the affordable units
by eligible households.
3
29.10.435 Administrative Fee.
An administrative fee shall be charged to the applicant for the review of all
materials submitted in accordance with this Division and for future monitoring of
the affordability of the project. The fee amount shall be established and will be
included in the Town's Master Fee Schedule. Fees will be charged for staff and
consultant time associated with the development review process, project
marketing and leasing, and compliance with the affordability requirements of the
project.
29.10.440 Appeals.
Any person aggrieved by the denial, conditioning, suspension, or revocation of a
density bonus housing development in compliance with the provisions of this
Division may appeal such action or determination to the Council in compliance
with Chapter 29, Article II (Administration and Enforcement) of the Town Code.
SECTION II
In the event that any part of this ordinance is held to be invalid, the invalid part or parts
shall be severed from the remaining portions which shall remain in full force and effect.
SECTION III
This Ordinance was introduced at a regular meeting of the Town Council of the Town of
Los Gatos on June 4, 2012, and adopted by the following vote as an ordinance of the Town of
Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on June 18, 2012.
This ordinance takes effect 30 days after it is adopted.
COUNCIL MEMBERS:
AYES: Steven Leonardis, Diane McNutt, Joe Pirzynski, Barbara Spector, and Mayor Steve Rice
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OFT E TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST: LA 1 . /_ /„
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Exhibit A
TOWN OF LOS GATOS
DENSITY BONUS PROGRAM GUIDELINES
I. PURPOSE, AUTHORITY, AND DEFINITION
A. Purpose The density bonus regulations in these Guidelines are intended to comply with
the State Density Bonus Law codified in California Government Code Section 65915 et
seq., which provides that a local government shall grant a density bonus and an additional
concession, or financially equivalent incentive(s), to a qualified housing development
agreeing to construct a specific percentage of affordable housing and senior housing as
defined by state law. In enacting these guidelines, it is the intent of the Town of Los
Gatos to implement the goals, objectives, and policies of Town of Los Gatos 2020
General Plan and further to implement and be subject to California Government Code
Section 65915. In the event that any provision in these Guidelines conflicts with State
law, State law shall control.
B. Enabling Legislation The Density Bonus Program is governed by Chapter 29, Article I,
Division 8 (Section 29.10.400 et seq.) of the Town Code. The Density Bonus Program is
administered under these Program Guidelines.
C. 1. General Plan Density Bonus Policy Action HOU -1.3 Applicant who elects to
proceed with a housing development using the state law density bonus shall not be
eligible for any density increases under the Town's General Plan Density Bonus Policy
Action HOU -1.3.
2. General Plan Below Market Price (BMP) Program Policy Action HOU- 1.1
Applicant who elects to proceed with a housing development using the state law density
bonus shall not be eligible for any density increases under the Town's General Plan
Below Market Price (BMP) Program Policy Action HOU -1.1.
D. Definitions The following terms used in these Guidelines shall be defined as follows:
1. Affordable Housing/Affordable Housing Unit. A housing unit which is
available for sale to moderate income households or for rent to low and /or very
low income households, as those terms are defined in this Section.
2. Affordable Rent. Monthly rent charged to low and very low income households
for housing units as calculated in accordance with Section 50053 of the Health
and Safety Code.
3. Child Care Facility. A child day care facility other than a family day care home,
including, but not limited to, infant centers, preschools, extended day care
facilities, and school age child care centers as defined in California Government
Code Section 65915(h)(4).
4. Density Bonus. A density increase for residential units over the otherwise
allowed residential density under the applicable zoning and land use designation
on the date an application is deemed complete.
5. Density Bonus Housing Agreement. A legally binding agreement between a
developer and the Town that ensures the continued affordability of the affordable
housing units required by these Guidelines and to ensure the units are maintained
in accordance with these Guidelines.
6. Density Bonus Units. Those additional residential units granted pursuant to the
provisions of these Guidelines.
7. Housing Development. A development project for five or more residential units.
Within these Guidelines, it shall also include a subdivision or common interest
development, a project which substantially rehabilitates and converts a commercial
building to a residential use and a condominium conversion of an existing
apartment building as more fully defined in California Government Code Section
65915(i).
8. Incentives or Concessions. Regulatory concessions which include, but are not
limited to, the reduction of site development standards or zoning code
requirements, approval of mixed -use zoning in conjunction with the housing
development, or any other regulatory incentive which would result in identifiable,
financially sufficient, and actual cost reductions that are offered in addition to a
density bonus.
9. Initial Subsidy. The fair market value of the home at the time of initial sale minus
the initial sale price to the moderate income household, plus the amount of any
down payment assistance or mortgage assistance. If upon resale the market value is
lower than the initial market value, then the value at the time of the resale shall be
used as the initial market value. (e.g., X (fair market value of the home to be
purchased) - Y (the price the moderate income family paid for the home) + Z
amount of any down payment assistance) = Initial Subsidy).
10. Low Income Household. A household whose income does not exceed 80 percent
of the area median income for Santa Clara County, as published and periodically
updated by the State Department of Housing and Community Development
pursuant to Section 50079.5 of the California Health and Safety Code,
11. Moderate Income Household. A household whose gross income does not exceed
120 percent of the area median income for Santa Clara County, as published and
periodically updated by the State Department of Housing and Community
Development pursuant to Sections 50079.5 and 50052.5 of the California Health
and Safety Code.
12. Physically Handicapped Housing. A residential development developed,
substantially rehabilitated or renovated, and having at least 35 dwelling units
designed specifically for a family in which the head of the household suffers from
an orthopedic disability impairing personal mobility or has a physical disability
that substantially limits one or more major life activities; has a record of such
impairment; or is regarded as having such an impairment or a single person with
such a disability, where the family or person requires special care or facilities in
the home
13. Proportionate Share of Appreciation. The ratio of the local government's initial
subsidy as defined above to the fair market value of the home at the time of initial
N
sale. (e.g., X (initial subsidy) /Y (fair market value) = Proportionate Share of
Appreciation).
14. Senior Citizen Housing Development. A residential development developed,
substantially rehabilitated or renovated, and having at least 35 dwelling units for
senior citizens in compliance with the requirements of Section 51.3 and 51.12 of
the California Civil Code, or a mobile home park that limits residency based on
age requirements for housing for older persons pursuant to Section 798.76 or 799.5
of the Civil Code.
15. Very Low Income Household. A household whose income does not exceed 50
percent of the area median income for Santa Clara County, as published and
periodically updated by the State Department of Housing and Community
Development pursuant to Section 50105 of the California Health and Safety Code.
II. DENSITY BONUS HOUSING REQUIREMENTS
A. Eligibility Criteria for Density Bonus The Town of Los Gatos shall consider a density
bonus and incentives or concessions as described in these Guidelines when a developer of
a housing development seeks and agrees to construct a housing development that will
contain at least one of the following:
I. Five percent of the total units of a housing development strictly for very low
income households as defined herein;
2. Ten percent of the total units of a housing development strictly for low income
households as defined herein;
3. A senior citizen housing development, as defined herein;
4. Physically handicap housing development, as defined herein; or
5. Ten percent of the total dwelling units in a condominium or planned unit
development for persons and families of moderate income households as defined
herein, provided that all units in the development are offered to the public for
purchase.
III. IMPLEMENTATION
A. Project Specific Density Bonus The Town of Los Gatos will allow a housing
development a density bonus and concessions or incentives meeting all the applicable
eligibility requirements of these Guidelines according to the following density bonus
options. In the event that the minimum requirements for granting density bonus units or
number of applicable concessions or incentives as set forth in California Government
Code Section 65915 is amended or modified after the adoption of these Guidelines by the
Town, then the lowest minimum requirements shall apply.
All density bonus calculations resulting in fractional units shall be rounded up to the next
whole number. The granting of a density bonus shall not be interpreted, in and of itself, to
require a General Plan amendment, zoning change, or other discretionary approval.
Density bonus for very low income households. If a housing developer elects to
construct units for very low income households, the development shall be entitled
to the following density bonus calculations:
Table A - Provision of Very Low Income Units
Percentage of Very Low
Income Units Affordable
Density Bonus
Available
Number of Incentives or
Concessions
5%20%1
6%22.5%1
7%25%1
8%27.5%1
9%30%1
10%32.5%2
11%35%2
15%35%3
2. Density bonus for low income households. If a housing developer elects to
construct units for low income households, the housing development shall be
entitled to the following density bonus calculation:
Table B - Provision of Low Income Units
Percentage of Low Income
Units Affordable
Density Bonus
Available
Number of Incentives or
Concessions
10%20%1
11%21.5%1
12%23%1
13%24.5%1
14%26%1
15%27.5%1
16%29%1
17%30.5%1
18%32%1
19%33.5 1
20%35%2
30%35%3
3. Senior Citizen Housing Development. If a housing developer elects to construct a
senior citizen housing development, the density bonus shall be 20 percent of the
total number of allowed housing units without the density bonus.
4. Physically Handicap Housing Development. If a housing developer elects to
construct a housing development design for and restricted to physically handicap
citizens, the density bonus shall be 20 percent of the total number of allowed
housing units without the density bonus.
5. Moderate income units in condominiums and planned developments. If a housing
developer elects to construct units for sale to moderate income households, the
development shall be entitled to the following density bonus calculation:
5
Table C - Provision of Moderate Income Units
Percentage of Moderate
Income Units Affordable
Density Bonus
Available
Number of Incentives or
Concessions
10%5%1
11%6%1
12%7%1
13%8%1
14%9%1
15%10%1
16%11%1
17%12%1
18%13%1
19%14%1
20%15%2
21%16%2
22%17%2
23%18%2
24%19%2
25%20%2
26%21%2
27%22%2
28%23%2
29%24%2
30%25%3
31%26%3
32%27%3
33%28%3
34%29%3
35%30%3
36%31%3
37%32%3
38%33%3
39%34%3
40%35%3
6. Density bonus for land donation. When an applicant for a tentative map, parcel
map, or other residential development approval donates at least one acre of land
or enough land to develop 40 units, then the applicant shall be entitled to a 15
percent increase above the otherwise maximum allowable residential density for
the entire housing development as follows:
Table D - Land Donation
Percentage of Very Low Income Units Percentage
Density Bonus
10%15%
11%16%
12%17%
13%18%
14%19%
15%20%
16%21%
17%22%
18%23%
19%24%
20%25%
21%26%
22%27%
23%28%
24%29%
25%30%
26%31%
27%32%
28%33%
29%34%
30%35%
a) Nothing in this subsection shall be construed to enlarge or diminish the
authority of the Town to require a developer to donate land as a condition
of development.
b) The density bonus for land dedication shall be in addition to any density
bonus earned pursuant to these Guidelines and up to a maximum
combined increase of 35 percent if an applicant seeks an increase pursuant
to both this section and Section III.A1.
7
C) An applicant with a land donation shall be eligible for the increased
density bonus if all of the following conditions are met:
i). The applicant donates and transfers the land to the Town no later
than the date of approval of the Town of the final subdivision map,
parcel map, or housing development application, whichever occurs
first, for the proposed housing development seeking the density
bonus.
ii) The developable acreage and zoning classification of the land
being transferred are sufficient to permit construction of units
affordable to very low income households in an amount not less
than 10 percent of the number of residential units of the proposed
housing development seeking the density bonus.
iii). The land proposed to be donated to the Town meets the following:
1. The transferred land is at least 1 acre in size or of sufficient
size to permit development of at least 40 units, has the
appropriate General Plan designation and is appropriately
zoned for development at the density described in
paragraph (3) of subsection (c) of Section 65583.2; and
2. Is or will be served by adequate public facilities and
infrastructures; and
3. Is donated no later than the date of approval of the final
subdivision map, parcel map or housing development
application, seeking a density bonus and has all of the
permits and approvals, other than building permits,
necessary for the development of the very low income
housing units on the transferred land; and
4. Is transferred to the Town or a housing developer approved
by the Town by the date established in Section III.A.6
c)(i); and
5. Shall be within the Town and within the boundary of the
proposed development or within one - quarter mile of the
boundary of the proposed development; and
6. Must have a proposed source of funding for the very low
income units not later than the approval of the final
subdivision map, parcel map or housing development
application seeking the density bonus.
P
d) The transferred land and the affordable housing units shall be subject to a
deed restriction, which shall be recorded on the property at the time of the
transfer, ensuring continued affordability of units for at least 30 years or
longer term under another regulatory agreement from the date of initial
occupancy. A longer period of time may be specified if required by any
construction or mortgage financing assistance program, mortgage
insurance program, or rental subsidy program applicable to the housing
development.
7. Condominium conversions. When an Applicant's residential development project
is the conversion of an existing apartment complex to a condominium complex
and the Applicant agrees to make at least thirty -three percent (33 %) of the total
units of the proposed condominium residential development project affordable to
Low or Moderate Income households for thirty years (30), or fifteen percent
15 %) of the total units of the proposed condominium residential development
project to Lower Income households for thirty years (30), and agrees to pay for
the administrative costs incurred by the Town related to process the application
and monitor the future status of the Affordable Housing Units, the Town shall
either (i) grant a condominium conversion Density Bonus or (ii) provide other
incentives of equivalent financial value to be determined by the Town.
B. Density Bonus for Development of Child Care Facility A housing development meeting
the requirements of Section II.A. and including a child care facility that will be located on
the premises of, as part of, or adjacent to, such a housing development shall receive either
of the following:
1. An additional density bonus that is an amount of square feet of residential space
that is equal to or greater than the amount of square feet in the child care facility.
2. An additional incentive or concession that contributes significantly to the
economic feasibility of the construction of the child care facility.
When a housing development is providing a child care facility consistent with the
Guidelines, then the conditions of approval shall require that:
1. The child care facility shall remain in operation for a period of time that is as long
as or longer than the period of time during which the affordable units are required
to remain affordable; and
2. Of the children who attend the child care facility, the children of very low income
households, lower income households, or persons or families of moderate income
shall equal a percentage that is equal to or greater than the percentage of
affordable units that are required pursuant to Section II.A.
The Town shall not be required to provide a density bonus or incentive or concession for
a child care facility if it makes a written finding, based upon substantial evidence, that the
Town has adequate child care facilities.
E
C. Nothing in these Guidelines limits the Town's right to deny an affordable, senior or
physically handicap housing project electing to proceed under the state law density bonus
provisions, if the Council finds, based on substantial evidence, any of the following:
1. The Town has adopted a housing element, and the Town has met or exceeded its
share of the regional housing needs for the income category proposed for the
development project;
2. The project as proposed would have a specific, adverse impact upon the public
health or safety which cannot be satisfactorily mitigated without rendering it
unaffordable to lower- income households;
3. The denial of the project or imposition of conditions is required in order to
comply with State or Federal law and there is no feasible method to comply
without rendering the development unaffordable to lower- income households;
4. The development project is proposed on land zoned for agriculture or resource
preservation which is surrounded on at least two sides by land being used for
agricultural or resource preservation purposes, and which does not have adequate
water or wastewater facilities to serve the project.
5. The development project is inconsistent with the Town's General Plan land use
designation as it existed on the date the application was deemed complete, and the
Town has adopted a housing element pursuant to state law.
D. Incentives or Concessions Applicants who request a density bonus and voluntarily
agree to develop a housing development project that complies with the affordability
requirements referenced in Government Code 65915 may submit to the Town a proposal
for the specific incentive(s) or concession(s) provided by applicable state law. A
proposal shall be submitted concurrently with the application for the development and a
density bonus. In accordance with Government Code Section 65915(d)(2), the applicant
shall receive the number of incentives or concessions that correspond to the percentage of
density bonus as outlined in Section III (A) Tables A through C. The Town shall award
the incentive(s) or concession(s) requested by the applicant in compliance with state law
requirements unless the Town Council adopts a written finding that the incentive or
concession is not required to make the units affordable.
The deciding body may deny a request for an incentive or concession if it makes a written
finding, based upon substantial evidence, of either of the following:
1. The incentive or concession is not required to provide for affordable rents or
affordable ownership costs; or
2. The 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 development unaffordable to low, very 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,
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written public health or safety standards, policies, or conditions, as they existed
on the date that the application was deemed complete.
E. Reduction or Waivers of Development Standards The Town shall not apply any
development standard that would have the effect of precluding the construction of a
proposed housing development meeting the requirements of these Guidelines at the
densities or with the incentives permitted by these Guidelines. An applicant may submit
with its application to the Town a proposal for the waiver or reduction of development
standards. A reduction or waiver of development standards, the application of which
would physically preclude the development, shall not reduce nor increase the number of
incentives or concessions being requested.
Nothing in this subsection, however, shall be interpreted to require the Town to waive or
reduce development standards if the waiver or reduction would have a specific adverse
impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5 of the
California Government Code, 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 the Town determines there is no feasible method to satisfactorily mitigate or
avoid the specific adverse impact. Furthermore, the applicant shall be required to prove
that the waiver or modification is necessary to make the affordable units economically
feasible. The deciding body may deny a request for waiver if it makes a written finding,
based upon substantial evidence, of either of the following:
1. The modification would have a specific adverse impact upon health, safety, or the
physical environment, and there is no feasible method to satisfactorily mitigate or
avoid specific adverse impact without rendering the development unaffordable to
low, very 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
was deemed complete; or
2. The modification would have an adverse impact on any real property that is listed
in the California Register of Historic Resources; or
3. The incentive or concession would be contrary to State or Federal law
F. Parking Standard Upon request by the applicant, the Town shall not require the
proposed housing development eligible for a density bonus pursuant to these Guidelines
to provide a parking ratio, including physically handicapped and guest parking, which
exceeds the following:
a. Zero to one bedrooms: one onsite parking space.
b. Two to three bedrooms: two onsite parking spaces.
C. Four and more bedrooms: two and one -half onsite parking spaces.
If the total number of parking spaces required for the proposed housing development is
other than a whole number, the number shall be rounded up to the next whole number.
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For purposes of this subsection, a development may provide onsite parking through
tandem parking or uncovered parking, but not through on- street parking.
G. Design, Distribution, and Timing of Affordable Housing Units Affordable Housing
Units must be constructed concurrently with market -rate units. The Affordable Housing
Units shall be integrated into the Housing Development Project; be similar in size; and
have comparable infrastructure (including sewer, water, and other utilities), construction
quality and exterior design to the market -rate units. The applicant may have the option of
reducing the interior amenity level, provided that all of the units conform to the
requirements of the Town's Building and Housing Codes and the Community
Development Director finds that the reduction in the interior amenity level will provide a
quality and healthy living environment. The Town strongly encourages the use of green
building principles, such as the use of environmentally preferable interior finishes and
flooring, as well as the installation of water and energy efficient hardware, wherever
feasible.
The Affordable Housing Units must also comply with the following criteria:
1. Rental Residential Development Projects: When Affordable Housing Units are
required in rental Residential Development Projects, the units should be
integrated with the project as a whole. All Affordable Housing Units shall reflect
the range and numbers of bedrooms provided in the project as a whole, and shall
not be distinguished by exterior design, construction, or materials. All Affordable
Housing Units shall be reasonably dispersed throughout the project.
2. Owner- occupied Residential Development Projects: When Affordable Housing
Units are required in owner- occupied Housing Development Projects, the units
should be integrated with the project as a whole. Affordable Housing Units may
have different interior finishes and features than market -rate units so long as the
interior features are durable, of good quality, and consistent with contemporary
standards for new housing. All Affordable Housing Units shall reflect the range
and numbers of bedrooms provided in the project as a whole, except that if the
market -rate units provide more than four bedrooms, the Affordable Housing Units
need not provide more than four bedrooms.
No building permits will be issued for market -rate units until permits for all Affordable
Housing Units have been obtained, unless Affordable Housing Units are to be
constructed in phases pursuant to a plan approved by the Town.
Market -rate units will not be granted final occupancy until all Affordable Housing Units
have been granted final occupancy, unless Affordable Housing Units are to be
constructed in phases pursuant to a plan approved by the Town.
IV. APPLICATION REQUIREMENTS, REVIEW PROCEDURES, AND FINDINGS
A. Application Requirements At the time the applicant of a proposed housing development,
seeking a density bonus and concessions or incentives under these Guidelines files a
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formal application for approval of the proposed development with the Community
Development Department, the following information shall be submitted with the fees and
required application(s):
1. Identification of the location, acreage, and the maximum number of base units
allowed under the zoning and the land use designated under the General Plan
without the Density Bonus.
2. Identification of the total number of units proposed, specifically identifying the
Density Bonus units and the Affordable Units which will demonstrate eligibility
under these guidelines.
3. Identification of the requested concessions or incentives or a list of any alternative
concessions or incentives which would provide, in the developer's opinion, an
equivalent financial value to the concession or incentive requested. This
requirement does not impair the applicant from substituting a new incentive or
concession from what is initially proposed; however, the identified incentives or
concessions may not be changed once the environmental review for the proposed
housing development has commenced. Any change subsequent to the
environmental review process may require additional environmental review.
4. For waivers of development standards, evidence demonstrating that the
development standard for which the waivers are requested would have the effect
of physically precluding the construction of the residential development project at
the density.
5. A pro forma demonstrating that any requested incentives and concessions result in
identifiable, financially sufficient and actual cost reductions. The pro forma shall
include: (a) the actual cost reduction achieved through incentive or concession;
and (b) evidence that the cost reduction allows the developer to provide affordable
rents or affordable sales prices that could not otherwise be provided. The
information shall be sufficiently detailed to enable Town staff to examine the
conclusions reached by the developer. The Town may require that any pro forma
submitted pursuant to this section include information regarding capital costs,
equity investment, debt service, projected revenues, operating expenses, and such
other information as is required to evaluate the pro forma, including but not
limited to the cost to the Town of hiring a consultant to review the pro forma.
6. Any additional information and materials required with a Planned Development
and Architecture and Site Application.
7. Technical studies required by the Town to evaluate the applications.
8. If a density bonus is requested for land donation, the application shall show the
location of the land to be dedicated and provide evidence that each of the findings
in Government Code Section 65915(h) can be made. If a density bonus or
concession is requested for a child care facility, the application shall provide
evidence that the findings in Governmental Code Section 69515 (i) can be made.
9. Other pertinent information as the Director of Community Development may
require enabling the Town to adequately analyze the identifiable, financially
sufficient and actual cost reductions of the proposed housing development with
respect to the requested additional concession or incentive and other concessions
or incentives which may be made available.
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B. Review Procedures Any request for a density bonus, incentive, concession, parking
reduction, or waiver pursuant to these Guidelines shall be submitted as part of the first
approval of any residential development project and shall be processed, reviewed, and
approved or denied concurrently with the discretionary applications required for the
project.
1. Planning Commission/Town Council. When a proposed housing development
needs only Architecture and Site approval, then the Planning Commission will
consider and act on the density bonus request when the Architecture and Site
application is considered. If the project requires additional entitlements such as a
planned development application review, then the Town Council will consider
and act on the density bonus request concurrent with the applicable project
entitlement/environmental clearance. Following Planning Commission
consideration of the application, the Community Development Director and /or the
Planning Commission may refer the application for a density bonus and any other
entitlements to the Town Council for final consideration and action.
C. Required Findings The Town shall grant a request for a density bonus, incentive,
concession, parking reduction, or waiver, unless the deciding body can make the
following written findings based on substantial evidence, as applicable:
1. The Town has adopted a housing element, and the Town has met or exceeded its
share of the regional housing needs for the income category proposed for the
development project;
2. The project as proposed would have a specific, adverse impact upon the public
health or safety which cannot be satisfactorily mitigated without rendering it
unaffordable to lower- income households;
3. The denial of the project or imposition of conditions is required in order to
comply with State or Federal law and there is no feasible method to comply
without rendering the development unaffordable to lower- income households;
4. The development project is proposed on land zoned for agriculture or resource
preservation which is surrounded on at least two sides by land being used for
agricultural or resource preservation purposes, and which does not have adequate
water or wastewater facilities to serve the project.
5. The development project is inconsistent with the Town's General Plan land use
designation as it existed on the date the application was deemed complete, and the
Town has adopted a housing element pursuant to state law.
D. Application and Administrative Fees Application and administrative fees shall be
charged to the applicant for the review of all materials submitted in accordance with these
Guidelines and for future monitoring of the affordability of the project. The fee amount
shall be established by Town Council resolution and will be included in the Town's
Comprehensive Fee Schedule. Fees will be charged for staff and consultant time
associated with the development review process, analysis of all pro formas and financial
feasibility documents related to the request for the density bonus, project marketing, and
compliance with the affordability requirements of the project.
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V. DENSITY BONUS HOUSING AGREEMENT
A. Required Density Bonus Agreement and Terms of Agreement Once the proposed
Housing Development has received its approval for the development application and the
Density Bonus, as described above, the developer shall file an application, including the
payment of any processing fees with the Community Development Department for
approval and finalization of the Density Bonus Housing Agreement in compliance with
the following requirements:
1. A Density Bonus Housing Agreement must be executed prior to recording any
final map for the underlying property or prior to the issuance of any building
permit for the housing development, whichever comes first, unless the
Community Development Director approves an alternative phasing plan. The
Density Bonus Housing Agreement shall be binding on all future owners and
successors of interests of the housing development.
2. The Density Bonus Housing Agreement shall:
a) Identify the type, size and location of each Affordable Housing Unit
required hereunder;
b) Identify the term of the agreement, which would define the term of
affordability of the required units;
c) Require that the Affordable Housing Units be constructed and completed
by the developer as specified in these Guidelines and in accordance with
state law;
d) Require that each Affordable Housing Unit be kept available only to
members of the identified income group at the maximum affordable rent
during the term of the agreement.
e) Identify the means by which such continued availability shall be secured
and enforced and the procedures under which the Affordable Housing
Units shall be leased and shall contain such other terms and provisions, the
Town may require. The agreement, in its form and manner of execution,
shall be in a form able to be recorded with the Santa Clara County
Recorder.
I) The Density Bonus Housing Agreement shall be reviewed and approved
by the Director of Community Development and Town Attorney. The
agreement shall also include the procedures for annual submission of
information, including any applicable review fees, sufficient to determine
continued compliance with the agreement to the Director of Community
Development.
3. Required Terms for the Continued Availability of Affordable Units:
a) Low and Very Low Income Households. A housing developer providing
Low and Very Low income units in accordance with these Guidelines
must continue to restrict those units to Low or Very Low Income
households for a minimum of 30 years or longer term under another
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regulatory agreement from the date of initial occupancy. A longer period
of time may be specified if required by any construction or mortgage
financing assistance program, mortgage insurance program, or rental
subsidy program applicable to the housing development.
b) Moderate Income Households. In the case of a Housing Development
providing Moderate Income units, the initial occupant of the unit must be
a person or family of Moderate Income.
i). Upon resale, the seller of the unit shall retain the value of any
improvements, the down payment, and the seller's proportionate
share of appreciation. The Town shall recapture any Initial Subsidy
and its Proportionate Share of Appreciation; which shall be used
within five years for any of the purposes described in subdivision
e) of Section 33334.2 of the Health and Safety Code that promote
home ownership.
NADMORMDensity Bonus Ordinance Exhibit A (Guidelines).doex
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