38-112.5 Density Bonus | Monterey City Code

Sec. 38-112.5. Density Bonus.

A. Purpose.California Government Code Section 65915 (known as the State Density Bonus Law) requires the City to offer certain density bonuses or incentives to developers who guarantee that a portion of their housing development will be affordable by persons of very low, low, or moderate income, thus expanding affordable housing opportunities throughout the City. To the extent practicable, the citation to the governing statutory provision is included next to the implementing text section. If any provision of this section conflicts with State law, the latter shall control. Applicable statutes should be consulted for amendments prior to applying the ordinance provision.

B. Applicability.The density bonuses and incentives contained in this section shall apply to housing developments eligible for a density bonus under the State Density Bonus Law. When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the City’s jurisdiction that meets the requirements set out in California Government Code Section 65915, the actions and procedures set out in this section shall apply. The burden is on the applicant to show that the housing development meets such requirements. The density bonus provisions of California Government Code Sections 65915 through 65918 (State Density Bonus Law), as may be amended from time to time, are incorporated by reference into this section. The City reserves the right to review applications for a density bonus in accordance with California Government Code Sections 65915 through 65918.

C. Definitions.In addition to the definitions in Section 38-11, the following definitions apply to this section and shall control where there is a conflict with the definitions in Section 38-11. State law definitions, as they may be amended from time to time, control over the definitions in this section. Where the definitions are provided by State law, the citation to the statute follows.

1.Affordable Housing: Dwelling units with a sales price or rent within the means of very low-income households, as defined in Health and Safety Code Section 50105; low-income households, as defined in Health and Safety Code Section 50079.5; or moderate-income households, as defined by Health and Safety Code Section 50093. As used in this Development Code:

2. Affordable Housing Benefits.Means one or more of the following:

a.A density bonus pursuant to subsection (G) of this section.

b.An incentive pursuant to subsection (K) of this section.

c.A development standard waiver or modification pursuant to subsection (N) of this section.

d.A parking standard modification pursuant to subsection (O) of this section.

3. Affordable Housing Cost.The definition set forth in Health and Safety Code Section 50052.5. (Government Code Section 65915(c)(1).)

4. Affordable Housing Developer.The applicant or permittee of a qualified housing development and its assignees or successors in interest.

5. Affordable Rent.The definition set forth in Health and Safety Code Section 50053. (Government Code Section 65915(c)(1).)

6. 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. (Government Code Section 65915(h)(4).)

7. Common Interest Development.Any of the following: a community apartment project, a condominium project, a planned development, and a stock cooperative pursuant to Civil Code Section 4100. All common interest development units must be offered to the public for purchase. (Government Code Section 65915(b)(1)(D).)

8. Condominium Conversion Project.A residential project in which the applicant proposes to convert apartment units to condominiums pursuant to Government Code Section 65915.5(a).

9. Density Bonus.A density increase over the otherwise maximum allowable residential density as of the date of application by the applicant to the City. (Government Code Section 65915(f).)

10. Density Bonus Units.Dwelling units granted pursuant to subsection (D) of this section which exceed the otherwise maximum allowable residential density.

11. Development Code.The City Development Code set forth in this chapter.

12. Development Standard.A site or construction condition, including but not limited to a height limitation, a setback requirement, a floor area ratio, an on-site open-space requirement, or a parking ratio, that applies to a residential development pursuant to the Development Code, the General Plan, or other City condition, law, policy, resolution, or regulation. (Government Code Section 65915(o)(1).)

13. Housing Development.A development project of five or more residential units or a subdivision or common interest development that is approved by the City 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 where the result of the rehabilitation would be a net increase in available residential units. (Government Code Section 65915(i).)

14. Incentive.Means “incentives and concessions” as that phrase is defined in Government Code Section 65915(k).

15. Market-Rate Unit.A dwelling unit that is not an affordable unit.

16. Maximum Allowable Residential Density.The density allowed under the Development Code and the Land Use Element of the General Plan, or if a range of density is permitted, means the maximum allowable density for the specific district density range applicable to the project. If the density allowed under the Development Code is inconsistent with the density allowed under the Land Use Element of the General Plan, the General Plan density shall prevail. (Government Code Section 65915(o)(2).)

17. Minimum Affordable Housing Component.A housing development project which includes a minimum of any of the following:

a. Very Low-income Minimum Affordable Housing Component.Provides at least five percent (5%) of the total units for very low-income household residents (Government Code Section 65915(b)(1)(B)); or

b. Low-Income Minimum Affordable Housing Component.Provides at least ten percent (10%) of the total units for low-income households (Government Code Section 65915(b)(1)(A)); or

c. Moderate-Income Minimum Affordable Housing Component.Provides at least ten percent (10%) of the total dwelling units in a Common Interest Development for moderate-income households. (Government Code Section 65915(b)(1)(D).)

18. Other Incentives of Equivalent Financial Value.The reduction or waiver of requirements which the City might otherwise apply as conditions of condominium conversion approval, but shall not be construed to require the City to provide cash transfer payments or other monetary compensation. (Government Code Section 65915.5(c).)

19. Qualified Housing Development.A housing development that meets the requirements of subsection (D) of this section for density bonus.

20. Qualified Land.Land offered for donation in accordance with subsection (J) of this section that meets the criteria set forth in subsection (J) of this section.

21. Senior Citizen Housing Development.A senior citizen housing development, as defined in Sections 51.3 and 51.12 of the 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. (Government Code Section 65915(b)(1)(C).)

22. Specific, Adverse Impact.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 the application for the housing development was deemed complete. Inconsistency with the Development Code or General Plan land use designation shall not constitute a specific, adverse impact upon the public health or safety. (Government Code Section 65589.5(d)(2).)

23. Total Units and Total Dwelling Units.Dwelling units other than density bonus units. (Government Code Section 65915(b)(3).)

1.Density bonuses are available to affordable housing developers per Government Code Section 65915(b)(1) which specifies that an applicant must pick one category (e.g., low income, very low income, moderate income, or senior) to calculate the bonus; there is no “mix-and-match” provision; and the following shall apply:

a.Housing developments which include a minimum affordable housing component (subsection (G) of this section);

b.Housing developments which include a minimum affordable housing component and a child care facility (subsection (H) of this section);

c.Senior citizen housing developments (subsection (I) of this section); and

d.Land donations for very low-income housing (subsection (J) of this section). Notwithstanding the above, to be eligible to receive a density bonus, a housing development must provide replacement housing consistent with Government Code Section 65915(c)(3).

2.For the purpose of calculating a density bonus, the residential units must 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. (Government Code Section 65915(i).)

1. Application Filing and Processing.When an applicant seeks a density bonus for a housing development that meets the criteria set out in subsection (G) of this section (California Government Code Section 65915) the affordable housing developer must comply with all of the following requirements:

a.File an application for a density bonus in accordance with this section and subsection (P) of this section that includes a minimum affordable housing component, in connection with the first discretionary review required for the project; however, if no discretionary approvals are required for project approval, a density bonus in and of itself is not subject to a separate discretionary approval under Government Code Section 65915(h)(5);

b.State in the application the specific affordable housing component proposed for the housing development (Government Code Section 65915(b)(2)); and

c.Enter into an agreement with the City or its designee pursuant to subsection (R) of this section to maintain and enforce the affordable housing component of the housing development. (Government Code Section 65915(c).)

2. Application Fees.Application fees shall be as set by the City Council by resolution.

a.Any reasonable documentation to establish eligibility for the concession or incentive or to demonstrate that the incentive or concession meets the definition set forth in subdivision (k) of Government Code Section 65915, and City staff determines that the study requires the expertise of a consultant or legal counsel, City staff shall estimate the cost thereof and require the applicant to pay an additional fee or make one or more deposits to pay such cost before the study or evaluation is begun. On completion of the study or evaluation and before the City Council decides the application, city staff shall determine the actual cost of the work and the difference between the actual cost and the amount paid by the applicant, and shall require the applicant to pay any deficiency or shall refund to the applicant any excess.

F. Effect of Proposal for Waiver or Reduction of Development Standards.A proposal for the waiver or reduction of development standards pursuant to subsection (N) of this section shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to California Government Code Section 65915(d).

G. Determination of Density Bonus.If the requirements of subsection (D) of this section are met, then the affordable housing developer is entitled to a density bonus pursuant to Government Code Section 65915(f) as follows:

Table 38-112.5(G)-1
Density Bonus Allowance for Housing Development Projects with
Affordable Housing Component
Household Income Category	Minimum Percent of Affordable Units	Minimum Density Bonus	Additional Density Bonus for Each 1% Increase in Affordable Units	Percent of Affordable Units for Maximum Density Bonus	Maximum Possible Density Bonus
Affordable Housing Development
Very Low Income	5%	20%	2.50%	11%	35%
Low Income	10%	20%	1.50%	20%	35%
Moderate Income (Common Interest Developments)	10%	5%	1%	40%	35%

1.As demonstrated in Table 38-112.5(G)-1, the amount of density bonus to which the applicant is entitled shall vary according to the amount by which the percentage of affordable units offered by the applicant exceeds the percentage of the minimum affordable housing component; the applicant may also elect to accept a lesser percentage of density bonus or no bonus, but still qualify for incentives (and, if necessary, waivers). (Government Code Section 65915(f).)

2.All base density, density bonus, and required number of affordable unit calculations resulting in fractional units shall be rounded up to the next whole number. (Government Code Section 65915(f)(5).)

1. Criteria.For a density bonus to be granted pursuant to subsection (H)(2) of this section for including a minimum affordable housing component with a child care facility in a housing development, all of the following must be satisfied:

a.Compliance with each requirement in subsection (D) of this section (Government Code Section 65915(h)(1));

b.The housing development must include a child care facility that will be located on the premises of, as part of, or adjacent to the housing development (Government Code Section 65915(h)(1));

c.Approval of the housing development must be conditioned to ensure that both of the following occur:

(1)The child care facility must 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 subsection (R) of this section (Government Code Section 65915(h)(2)(A));

(2)Of the children who attend the child care facility, the children of very low-income households, low-income households, or moderate-income households must equal a percentage that is equal to or greater than the percentage of dwelling units that are required under the respective minimum affordable housing component income category for which the density bonus is sought (Government Code Section 65915(h)(2)(B)); and

d.The City has not made a finding based upon substantial evidence that the community has adequate child care facilities (Government Code Section 65915(h)(3)).

2. Density Bonus Allowance.If the requirements of subsection (H)(1) of this section are met, then an applicant for a housing development with an affordable housing component and child care facility is entitled to:

a.A density bonus pursuant to subsection (G) of this section; and

b.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. (Government Code Section 65915(h)(1)(A).)

I. Density Bonus for Senior Citizen Housing Development.An applicant for a senior citizen housing development or a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Civil Code Sections 798.76 or 799.5 is entitled to a density bonus of twenty percent (20%) of the number of senior citizen housing development units. (Government Code Sections 65915(b)(1)(C) and (f)(3).)

1. Criteria.For a density bonus for a qualified land donation to be granted pursuant to subsection (J)(2) of this section all of the requirements of this section must be met.

a.The applicant must be applying for a tentative subdivision map, parcel map, or other residential development approval. (Government Code Section 65915(g)(1).)

b.The applicant must agree to donate and transfer qualified land which is land that meets both of the following criteria:

(1)The developable acreage and zoning classification of the land being transferred must be sufficient to permit construction of units affordable to very low-income households in an amount not less than ten percent (10%) of the number of residential units of the proposed development pursuant to Government Code Section 65915(g)(2)(B); and

(2)The transferred land must be at least 1 acre in size or of sufficient size to permit development of at least 40 units, have the appropriate General Plan land use designation, be appropriately zoned with appropriate development standards for development at the density described in Government Code Section 65583.2(c)(3), and is or will be served by adequate public facilities and infrastructure (Government Code Section 65915(g)(2)(C).).

c.The qualified land must be transferred to the City or to a housing developer approved by the City. The City may require the applicant to identify and transfer the land to an approved housing developer. (Government Code Section 65915(g)(2)(F).)

d.The qualified land must have all of the permits and approvals, other than building permits, necessary for the development of the very low-income housing affordable units on the qualified land, not later than the date of approval of the final subdivision map, parcel map, or residential development application filed. However, the City may subject the proposed development to subsequent design review to the extent authorized by Government Code Section 65583.2(i) if the design is not reviewed by the City prior to the time of transfer. (Government Code Section 65915(g)(2)(D).)

e.The qualified land must be donated and transferred no later than the date of approval of the final subdivision map, parcel map, or residential development application. (Government Code Section 65915(g)(2)(A).)

f.The qualified land and the affordable units must be subject to a deed restriction ensuring continued affordability of the units consistent with subsection (R) of this section, which must be recorded against the qualified land at the time of the transfer. (Government Code Section 65915(g)(2)(E).)

g.The qualified land must be within the boundary of the proposed development or, if the City agrees, within one-quarter mile of the boundary of the proposed development. (Government Code Section 65915(g)(2)(G).)

h.A proposed source of funding for the very low-income household units must be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application. (Government Code Section 65915(g)(2)(H).)

2. Density Bonus Allowance for Qualified Land Donation for Very Low-Income Housing.If the requirements of this subsection are satisfied, the applicant shall be entitled to at least a fifteen percent (15%) increase above the otherwise maximum allowable residential density for the entire development, as follows (Government Code Section 65915(g)(1)):

Table 38-112.5(J)-1
Density Bonus Allowances for Qualified Land Donation Projects
Household Income Category	Minimum Percentage of Very Low-Income Units	Density Bonus	Additional Density Bonus for Each 1% Increase in Very Low-Income Units	Maximum Possible Density Bonus
Very Low-Income Housing	10% of entire development	15%	1%	35% (max. combined)

3.All density calculations resulting in fractional units shall be rounded up to the next whole number. (Government Code Section 65915(g)(2).)

1.Government Code Sections 65915(d), (j), (k), and (l) govern the following provisions regarding affordable housing incentives.

2. Qualifications for Incentives.Subject to subsection (M) of this section, all of the following applicable requirements must be satisfied to be granted an incentive(s) pursuant to this subsection (K)(2):

a.The applicant for an incentive must qualify for a density bonus pursuant to subsection (D) of this section. (Government Code Section 65915(d)(1).)

b.A specific written proposal for an incentive(s) must be submitted with the application for a density bonus. (Government Code Sections 65915(b)(1) and (d)(1).)

c.The applicant must establish that each requested incentive would result in identifiable, financially sufficient, and actual cost reductions for the qualified housing development. (Government Code Sections 65915(k)(1) and (3).)

d.If an incentive(s) pursuant to subsection (K)(3)(b) of this section is sought, the applicant must establish that requirements of that section are met. (Government Code Section 65915(k)(2).)

e.If an additional incentive for a child care facility is sought pursuant to subsection (L)(2) of this section, the applicant must establish that requirements of that section are met. (Government Code Section 65915(h)(1)(B).)

f.The granting of an incentive shall not be interpreted, in and of itself, to require a General Plan amendment, zoning change, or other discretionary approval. (Government Code Section 65915(j).) An incentive is applicable only to the project for which it is granted. An applicant for an incentive may request a meeting with the City Manager or designee and, if requested, the City Manager or designee will meet with the applicant to discuss the proposal. (Government Code Section 65915(d)(1).)

3. Types of Incentives.For the purposes of this section, “incentive” means any of the following:

a.A reduction in site development standards or a modification of Development Code requirements or design guidelines 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. (Government Code Section 65915(k)(1).)

b.Approval of mixed-use zoning in conjunction with the qualified housing development if commercial, office, industrial, or other land uses will reduce the cost of the qualified housing development and if the commercial, office, industrial, or other land uses are compatible with the qualified housing development and the existing or planned development in the area where the proposed qualified housing development will be located. (Government Code Section 65915(k)(2).)

c.Other regulatory incentives proposed by the affordable housing developer or the City that result in identifiable, financially sufficient, and actual cost reductions. (Government Code Section 65915(k)(3).)

d.Nothing in this section limits or requires the provision of direct financial incentives by the City for the qualified housing development, including the provision of publicly owned land, or the waiver of fees or dedication requirements. (Government Code Section 65915(l).)

1.Subject to subsection (M) of this section, the applicant who meets the requirements of subsection (K)(1) of this section shall receive the following number of incentives described below and as shown in Table 38-112.5(L)-1.

a.One incentive for qualified housing development projects that include at least ten percent (10%) of the total units for low-income households, at least five percent (5%) for very low-income households, or at least ten percent (10%) for persons and families of moderate-income households in a common interest development. (Government Code Section 65915(d)(2)(A).)

b.Two incentives for qualified housing development projects that include at least twenty percent (20%) of the total units for low-income households, at least ten percent (10%) for very low-income households, or at least twenty percent (20%) for persons and families of moderate-income households in a common interest development. (Government Code Section 65915(d)(2)(B).)

c.Three incentives for qualified housing development projects that include at least thirty percent (30%) of the total units for low-income households, at least fifteen percent (15%) for very low-income households, or at least thirty percent (30%) for persons and families of moderate-income households in a common interest development. (Government Code Section 65915(d)(2)(C).)

2.A qualified housing development proposal that includes a child care facility shall be granted an additional incentive that contributes significantly to the economic feasibility of the construction of the child care facility. (Government Code Section 65915(h)(1)(B).)

Table 38-112.5(L)-1
Incentive Allowances for Qualified Housing Developments
Income Category	Minimum % of Affordable Units
Very Low Income	5%	10%	15%
Low Income	10%	20%	30%
Common Interest Development (Moderate Income)	10%	20%	30%
Incentives Allowed	1	2	3

1.Except as otherwise provided in this section or by State law, if the requirements of subsection (K) of this section are met, the City shall grant the incentive(s) that are authorized by subsections (K)(3) and (L) of this section unless a written finding, based upon substantial evidence, is made with respect to any of the following, in which case the City may refuse to grant the incentive(s):

a.The incentive is not required in order to provide affordable housing costs or affordable rents for the affordable units subject to the qualified housing development application. (Government Code Section 65915(d)(1)(A).)

b.The incentive would have a specific, adverse impact, as defined in Government Code Section 65589.5(d)(2), upon the 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. (Government Code Section 65915(d)(1)(B); Government Code Section 65915(d)(3).)

c.The incentive would be contrary to State or Federal law. (Government Code Section 65915(d)(1)(C).)

d.The community has adequate child care facilities, in which case the additional incentive for a child care facility pursuant to subsection (L)(2) of this section may be denied. (Government Code Section 65915(h)(3).)

a. Application.To qualify for a waiver or reduction of one or more development standards, the applicant must submit a written application (together with an application for a qualified housing development) that states the specific development standard(s) sought to be modified or waived and the basis of the request. (Government Code Section 65915(e)(1).) An applicant for a waiver or modification of development standard(s) pursuant to this section may request a meeting with the City Manager or designee to review the proposal. If requested, the City Manager or designee shall meet with the applicant (Government Code Section 65915(e)(1)). An application for the waiver or reduction of development standard(s) pursuant to this section shall neither reduce nor increase the number of incentives to which the applicant is entitled pursuant to subsection (K) of this section. (Government Code Section 65915(e)(2).)

b. Findings.All of the following findings must be made for each waiver or reduction requested:

(1)The development standard for which a waiver or reduction is requested will have the effect of physically precluding the construction of the proposed qualified housing development at the densities or with the incentives permitted under this section. (Government Code Section 65915(e)(1).)

(2)The requested waiver or reduction of a development standard will not have a specific, adverse impact, as defined in Government Code Section 65589.5(d)(2), upon the health, safety, or physical environment or, if such a specific, adverse impact exists, there is a feasible method to satisfactorily mitigate or avoid the specific, adverse impact. (Government Code Section 65915(e)(1).)

(3)The requested waiver or reduction of a development standard will not have an adverse impact on any real property that is listed in the California Register of Historical Resources. (Government Code Section 65915(e)(1).)

(4)The requested waiver or reduction of a development standard is not contrary to State or Federal law. (Government Code Section 65915(e)(1).)

c. Granting Application for Waiver or Modification of Development Standards.If the requirements of subsection (N)(1) of this section are satisfied, the application for waiver or modification of development standard(s) shall be granted. If the requirements of subsection (N)(1) of this section are satisfied, the City shall not apply a development standard that will have the effect of physically precluding the construction of a qualified housing development at the densities or with the incentives permitted by this section. (Government Code Section 65915(e)(1).)

1. Requirements for Parking Standard Modifications.Parking standard modifications pursuant to subsection (O)(2) of this section are available only for qualified housing developments. An application for parking standard modifications stating the specific modification requested pursuant to subsection (O)(2) or (3) of this section must be submitted with the qualified housing development application. (Government Code Section 65915(p)(3).)

2. Parking Standard Modifications.If the requirements of subsection (O)(1) of this section are met, the vehicular parking ratio, inclusive of handicapped and guest parking, shall not exceed the following ratios (Government Code Section 65915(p)(1)), except where noted under subsection (O)(3) of this section:

a.Zero to one bedroom: one on-site parking space.

b.Two to three bedrooms: two on-site parking spaces.

c.Four and more bedrooms: two and one-half on-site parking spaces.

3. Exceptions.Upon request of the applicant, the following maximum parking standards shall apply, inclusive of handicap and guest parking, to the entire housing development subject to this section, as required by Government Code Section 65915(p)(2):

a.A maximum of 0.5 parking spaces per bedroom shall apply when all of the following conditions apply:

(1)The development includes the maximum percentage of low- or very low-income units provided for in subsection (G) of this section, Density Bonus Allowance for Housing Development with Affordable Housing Component.

(2)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.

(3)There is unobstructed access to the major transit stop from the development. 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.

b.A maximum of 0.5 parking spaces per unit shall apply when all of the following conditions apply:

(1)The 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.

(2)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.

c.A maximum of 0.5 parking spaces per unit shall apply when all of the following conditions apply:

(2)The development is for individuals who are 62 years of age or older which complies with Sections 51.2 and 51.3 of the Civil Code.

(3)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.

d.A maximum of 0.3 parking spaces per unit shall apply when all of the following conditions apply:

(2)The development is a special needs housing development, as defined in Section 51312 of the Health and Safety Code.

(3)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 the qualified housing development is other than a whole number, the number shall be rounded up to the next whole number. For purposes of this section, “on-site parking” may be provided through tandem parking or uncovered parking, but not through on-street parking. (Government Code Section 65915(p)(2).)

5.Except as otherwise provided in this subsection (O), all other provisions of Article 18 (Off-Street Parking and Loading Regulations) applicable to residential development apply.

6.An applicant may request additional parking incentives beyond those provided in this section if applied for pursuant to subsection (K) of this section. (Government Code Section 65915(p)(3).)

7.Notwithstanding allowances in subsection (O)(3) of this section, if the City or an independent consultant has conducted an area-wide or jurisdiction-wide parking study in the last seven years, then the City may impose a higher vehicular parking ratio not to exceed the ratio described in subsection (O)(2) of this section, based on 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 shall pay the costs of any new study. The City shall make findings, based on a parking study completed in conformity with this subsection, supporting the need for the higher parking ratio.

1. Project Design and Phasing.Projects seeking an affordable housing benefit pursuant to this section must comply with the following requirements, unless otherwise specified in writing by the City Manager or designee:

a. Location/Dispersal of Units.Affordable units shall be reasonably dispersed throughout the development where feasible and shall contain on average the same (or greater) number of bedrooms per unit as the market-rate units.

b. Phasing.If a project is to be developed in phases, each phase must contain the same or substantially similar proportion of affordable units and market-rate units.

c. Exterior Appearance.The exterior appearance and quality of the affordable units must be similar to the market-rate units. The exterior materials and improvements of the affordable units must be similar to, and architecturally compatible with, the market-rate units.

2. Application Requirements.An application for one or more affordable housing benefits must be submitted as follows:

a.Each affordable housing benefit requested must be specifically stated in writing on the application form provided by the City.

b.The application must include the information and documents necessary to establish that the requirements of this section are satisfied for each affordable housing benefit requested, including:

(1)For density bonus requests, that the requirements of subsection (D) of this section are met;

(2)For incentive requests, that the requirements of subsection (K) of this section are met;

(3)For development standard waiver or modification requests, that the requirements of subsection (N) of this section are met; and/or

(4)For parking standard modification requests, that the requirements of subsection (O) of this section are met.

c.The application must be submitted concurrently with a complete application for a qualified housing development and shall be processed consistent with the State Permit Streamlining Act.

d.The application must include a site plan that complies with and includes the following:

(1)For senior citizen housing development projects, the number and location of proposed total units and density bonus units.

(2)For all qualified housing development projects other than senior citizen housing development projects, the number and location of proposed total units, affordable units, and density bonus units. The density bonus units shall be permitted in geographic areas of the qualified housing development other than the areas where the affordable units are located. (Government Code Section 65915(i).)

(3)The location, design, and phasing criteria required by subsection (P)(1) of this section, including any proposed development standard(s) modifications or waivers pursuant to subsection (N) of this section.

e.The application for a qualified housing development must state the level of affordability of the affordable units and include a proposal for compliance with subsection (R) of this section for ensuring affordability.

f.If a density bonus is requested for a qualified land donation pursuant to subsection (J) of this section, the application must show the location of the qualified land in addition to including sufficient information to establish that each requirement in subsection (J) of this section has been met.

g.If an additional density bonus or incentive is requested for a child care facility pursuant to subsections (H) and/or (L)(2) of this section the application shall show the location and square footage of the child care facility and include sufficient information to establish that each requirement in subsections (H) and/or (L)(2) of this section has been met.

3.An application for an affordable housing benefit under this section will not be processed until all of the provisions of this section are complied with as determined by the City Manager or designee, and shall be processed concurrently with the application for the qualified housing development project for which the affordable housing benefit is sought. Prior to the submittal of an application for a qualified housing development, an applicant may submit to the City Manager or designee a preliminary proposal for affordable housing benefits. The City Manager or designee shall, within 90 days of receipt of a written proposal, notify the applicant of the City Manager or designee’s preliminary response and schedule a meeting with the applicant to discuss the proposal and the City Manager or designee’s preliminary response.

1.The decision-making body for the underlying qualified housing development application is authorized to approve or deny an application for an affordable housing benefit in accordance with this section.

a. Affordable Housing Benefit Determinations.An application for an affordable housing benefit shall be granted if the requirements of this section are satisfied unless:

(1)The application is for an incentive for which a finding is made in accordance with subsection (M) of this section; or

(2)The underlying application for the qualified housing development is not approved independent of and without consideration of the application for the affordable housing benefit.

b. Affordable Housing Benefit Compliance Provisions.To ensure compliance with this section and State law, approval of an application for an affordable housing benefit may be subject to, without limitation:

(1)The imposition of conditions of approval to the qualified housing development, including imposition of fees necessary to monitor and enforce the provisions of this section;

(2)An affordable housing agreement pursuant to subsection (R) of this section; and

(3)Recorded deed restriction implementing conditions of approval and/or contractual or legally mandated provisions.

c.A decision regarding an affordable housing benefit application is subject to the appeal provisions of Article 27.

1. Affordable Housing Benefit Agreement Required.After City Council approval of a request of affordable housing benefits, the developer shall be required to enter into an agreement with the City to provide very low-, low-, and moderate-income housing. This housing incentive agreement shall include, but not be limited to, the following provisions:

a.The proportion of the total units that will be affordable by persons and families of low or moderate incomes and the number of these units by number of bedrooms shall be specified.

b.A commitment that the affordable for-sale units will remain available to and permanently affordable to persons and families of low or moderate income.

c.A commitment that the affordable rental units will remain available to and affordable for a period of 55 years to persons and families of low or moderate income. (Government Code Section 65915(c).)

d.A requirement that the units affordable by persons and families of low or moderate income be identified on building plans submitted for architectural review and described in the application for an affordable housing benefit.

e.A requirement that resale controls be included as a deed restriction to ensure continued affordability.

f.A description of the specific incentives that the City will make available to the developer and any condition pertaining to them.

g.A description of standards for qualifying household incomes or other qualifying criteria, such as age, standards for maximum rents, or sales prices.

h.A description of the person responsible for certifying tenant or owner incomes.

i.A description of procedures by which vacancies will be filled and units sold.

j.A requirement for completion of an annual report and establishment of monitoring fees.

k.A description of restrictions imposed on lower-income affordable units on sale or transfer and methods of enforcing such restrictions.

2. General Requirements.No density bonus pursuant to subsection (D) of this section shall be granted unless and until the affordable housing developer, or its designee approved in writing by the City Manager or designee, enters into an affordable housing benefit agreement with the City or its designee pursuant to and in compliance with this section. (Government Code Section 65915(c).) The agreements shall be in the form provided by the City which shall contain terms and conditions mandated by, or necessary to implement, State law and this section. The City Manager or designee may designate a qualified administrator or entity to administer the provisions of this section on behalf of the City. The affordable housing benefit agreement shall be recorded prior to, or concurrently with, final map or parcel map recordation or, where the qualified housing development does not include a map or parcel map, prior to issuance of a building permit for any structure on the site. The City Manager or designee is hereby authorized to enter into the agreements authorized by this section on behalf of the City upon approval of the agreements by City Attorney for legal form and sufficiency.

a. Rental Units.Rents for the low-income and very low-income affordable units that qualified the housing development for the density bonus pursuant to subsection (D) of this section shall be set and maintained at an affordable rent. (Government Code Section 65915(c)(1).) The agreement shall set rents for the lower-income density bonus units at an affordable rent as defined in Health and Safety Code Section 50053.

b. For-Sale Units.Owner-occupied low-income and very low-income affordable units that qualified the housing development for the density bonus pursuant to subsection (D) of this section shall be available at an affordable housing cost. (Government Code Section 65915(c)(1).) The agreement shall require that owner-occupied units be made available at an affordable housing cost as defined in Health and Safety Code Section 50052.5.

c. Senior Units.At least 20 percent of the senior citizen housing development units are maintained and available for rent or sale to senior citizens as defined in Civil Code Section 51.3. (Government Code Section 65915(f)(3).)

a.The affordable housing developer of a qualified housing development based upon the inclusion of moderate-income affordable units in a common interest development must enter into an agreement with the City ensuring that:

(1)The initial occupants of the moderate-income affordable units that are directly related to the receipt of the density bonus are persons and families of a moderate-income household.

(2)The units are offered at an affordable housing cost. (Government Code Section 65915(c)(2).)

b. Minimum Affordable Housing Component and Child Care Facility.If an additional density bonus or incentive is granted because a child care facility is included in the qualified housing development, the affordable housing agreement shall also include the affordable housing developer’s obligations pursuant to subsection (H)(1)(c) of this section for maintaining a child care facility, if not otherwise addressed through conditions of approval.

1.Requirements for density bonus or incentive for condominium conversion projects.

a.Applicant to convert apartments to a condominium project agrees to provide at least:

(1)Thirty-three percent (33%) of the total units of the proposed condominium project to persons and families of moderate-income households, or

(2)Fifteen percent (15%) of the total units of the proposed condominium project to persons and families of low-income households.

b.If applicant agrees to pay for the reasonably necessary administrative costs incurred by the City pursuant to this section, the City shall either:

(1)Grant a density bonus; or

(2)Provide other incentives of equivalent financial value. (Government Code Section 65915.5(a).)

2. Definition of Density Bonus for Condominium Conversion Projects.If the requirements of subsection (S)(1) of this section are met, then the condominium conversion project will be entitled to an increase in units of twenty-five percent (25%) over the number of apartments, to be provided within the existing structure(s) proposed for conversion from apartments to condominiums. (Government Code Section 65915.5(b).)

3. Pre-Submittal Preliminary Proposals for Density Bonus or Incentive for Condominium Conversion Projects.Prior to the submittal of a formal request for subdivision map approval or other application for necessary discretionary approvals, an applicant to convert apartments to a condominium project may submit to the City Manager or designee a preliminary proposal for density bonus or other incentives of equivalent financial value. The City Manager or designee shall, within 90 days of receipt of a written proposal, notify the applicant of the City Manager or designee’s preliminary response and schedule a meeting with the applicant to discuss the proposal and the City Manager or designee’s preliminary response. (Government Code Section 65915.5(d).)

4. Application for Density Bonus or Incentives for Condominium Conversion Projects.An applicant must submit a completed application provided by the City for a density bonus or for other incentives of equivalent financial value. The application must be submitted concurrently with the application for the condominium conversion project. The application must include the following:

a.All information and documentation necessary to establish that the requirements of subsection (S)(1) of this section are met;

b.The proposal for a density bonus or the proposal for other incentives of equivalent financial value;

c.Site plans demonstrating the location of the units to be converted, the affordable units, the market-rate units, and the density bonus units in the condominium conversion project; and

d.Any other information and documentation requested by the City to determine if the requirements of subsection (S)(1) of this section are met.

5.Both the application for a density bonus or other incentives of equivalent financial value and the application for the condominium conversion must be complete before the application for a density bonus or other incentives of equivalent financial value will be considered.

(1)If the requirements of subsection (S)(1) of this section are met, the decision-making body for the condominium conversion project application is authorized to grant an application for a density bonus or other incentives of equivalent financial value, subject to subsection (S)(6)(b) of this section.

(2)Reasonable conditions may be placed on the granting of a density bonus or other incentives of equivalent financial value that are found appropriate, including but not limited to entering into an affordable housing agreement pursuant to subsection (R) of this section which ensures continued affordability of units to subsequent purchasers who are persons and families of moderate-income or low-income households. (Government Code Section 65915.5(a).)

b. Ineligibility.An applicant shall be ineligible for a density bonus or other incentives of equivalent financial value if the apartments proposed for conversion constitute a qualified housing development for which a density bonus as defined in this section or other incentives were provided. (Government Code Section 65915.5(f).)

c. Decision on Condominium Conversion Project.Nothing in this section shall be construed to require the City to approve a proposal to convert apartments to condominiums. (Government Code Section 65915.5(e).)

1. Occupancy.Prior to occupancy of an affordable unit, the household’s eligibility for occupancy of the affordable unit must be demonstrated to the City. This provision applies throughout the restricted time periods pursuant to subsection (R) of this section and applies to any change in ownership or tenancy of the affordable unit.

2. Ongoing Compliance.Upon request, the affordable housing developer must show that the affordable units are continually in compliance with this section and the terms of the affordable housing agreement. Upon 30-day notice, the City may perform an audit to determine compliance with this section and the terms of any agreement or restriction.

3. Enforcement.The City has the authority to enforce the provisions of this section, the terms of affordable housing agreements, deed restrictions, covenants, resale restrictions, promissory notes, deed of trust, conditions of approval, permit conditions, and any other requirements placed on the affordable units or the approval of the qualified housing development. In addition to the enforcement powers granted in this section, the City may, at its discretion, take any other enforcement action permitted by law, including those authorized by City ordinances. Such enforcement actions may include, but are not limited to, a civil action for specific performance of the restrictions and agreement(s), damages for breach of contract, restitution, and injunctive relief. The remedies provided for herein shall be cumulative and not exclusive and shall not preclude the City from seeking any other remedy or relief to which it otherwise would be entitled under law or equity. (Ord. 3554 § 13, 2016)