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HomeMy WebLinkAbout13 LEGISLATIVE REPORT AB 2280 AGENDA REPORT MEETING DATE: MAY 20, 2008 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: LEGISLATIVE REPORT - AB 2280 SUMMARY: Assembly Bill 2280 (Saldana and Calballero) would amend the existing density bonus law by clarifying the intent of the law and rectifying some issues associated with current law. A copy of the bill is included as Attachment A to this report. RECOMMENDATION: That the City Council take a position to support AB 2280 and direct staff to transmit the attached letter of support to Senators Saldana and Calballero. FISCAL IMPACT: There are no significant fiscal impacts associated with this action. DISCUSSION: Assembly Bill 2280 would amend the existing density bonus law by clarifying and rectifying issues associated with current law. AB 2280 would amend the following: • The bill would require, for qualifying senior citizen housing developments, as defined, that 100 percent of the units in the development be for senior citizens. • The bill would require the City to grant concession or incentive requested by the applicant under the existing law unless the City makes written findings based upon substantial evidence that the concession or incentives would be contrary to state or federal law. • The bill would revise the percentage of lower income, very low income, and moderate income households required for qualification for incentives and concessions (increase 10 percent across the board to the threshold of affordable units which must be built to get the local incentives or concessions). • The bill would delete a requirement that an applicant for a waiver or reduction of development standards show that the waiver or modification is necessary to make proposed housing units economically feasible. Instead the bill proposes to City Council Report AB 2280 May 20, 2008 Page 2 allow waiver or modification when the applicable development standards will have the effect of physically precluding the construction of affordable housing. • The bill would require, as a condition for the granting of a density bonus to a developer in exchange for donating land to a city for very low income housing, that the local agency identify a source of funding for the very low income units. • The bill would specify that, for the purposes of the provisions of existing law, a concession or incentive does not include elimination or modification of the public review process for development. Staff recommends that the City Council take a position to support AB 2280 based on the above proposed amendments. Justina Willkom Senior Planner Elizabeth A. Binsack Community Development Director Attachments: A. AB 2280 B. Draft Letter of Support ATTACHMENT A Assembly Bill 2280 AMENDED IN ASSEMBLY MAY 6, 2008 CALIFORNIA LEGISLATURE-200]-OH REGULAR SESSION ASSEMBLY BILL No. 2280 Introduced by Assembly Members Saldana and Caballero February 21, 2008 An act to amend Section 65915 of the Government Code, relating to housing. LEGISLATIVE COUNSEL'S DIGEST AB 2280, as amended, Saldana. Density bonus. The Planning and Zoning Law requires, when a developer of housing proposes a housing development within the jurisdiction of the local government, that the city, county, or city and county provide the developer with a density bonus and other incentives or concessions for the production of lower income housing units or the donation of land within the development if the developer, among other things, agrees to construct a specified percentage of units for low-, very low, or moderate-income households or qualifying residents. This bill would require, for qualifying senior citizen housing developments, as defined, that 100% of the units in the development be for senior citizens. concession. The bill would require a city, county, or city and county to grant a concession or incentive requested by the applicant under existing law unless the city, county, or city and county makes a written finding, 98 AB 2280 - 2 - based upon substantial evidence, that, among other things, the concession or incentive would be contrary to state or federal law. The bill would revise the percentage of lower income, very low income, and moderate income households required for qualification for incentives and concessions. The bill would delete a requirement that an applicant for a waiver or reduction of development standards show that the waiver or modification is necessary to make proposed housing units economically feasible. The bill would require, as a condition for the granting of a density bonus to a developer in exchange for donating land to a city, county, or city and county for very low income housing, that the local agency identify-and approve a source of funding for the very low income units. The bill would specify that, for the purposes of these provisions of existing law, a concession or incentive does not include elimination or modification of the public review process for development. Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. The people of the State of California do enact as follows: 1 SECTION 1. Section 65915 of the Government Code is 2 amended to read: 3 65915. (a) A city, county, or city and county shall comply 4 with the provisions of this section. An applicant may seek a density 5 bonus for a housing development with five or more units. An 6 application for a density bonus may be submitted only when the 7 application for the initial discretionary approval for the housing 8 ~ development is submitted. A city, county, and city or 9 county shall grant a density bonus in accordance with the 10 provisions of this section and, when a density bonus is requested, 11 shall also provide the applicant incentives or concessions for the 12 production of housing units and child care facilities as prescribed 13 in this section. All cities, counties, or cities and counties shall adopt 14 an ordinance that specifies how compliance with this section will 15 be implemented. 98 3 - AB 2280 1 (b) (1) A city, county, or city and county shall grant one density 2 bonus, the amount of which shall be as specified in subdivision 3 (f), and, if a density bonus is requested, incentives or concessions, 4 as described in subdivision (d), when an applicant for a housing 5 development voluntarily agrees to construct a housing 6 development, excluding any units permitted by the density bonus 7 awarded pursuant to this section, that will contain at least any one 8 of the following: 9 (A) Ten percent of the total units of a housing development for 10 lower income households, as defined in Section 50079.5 of the 11 Health and Safety Code. 12 (B) Five percent of the total units of a housing development for 13 very low income households, as defined in Section 50105 of the 14 Health and Safety Code. 15 (C) One hundred percent of the total units of a housing 16 development are a senior citizen housing development as defined 17 in Sections 51.3 and 51.12 of the Civil Code, or mobilehome park 18 that limits residency based on age requirements for housing for 19 older persons pursuant to Section 798.76 or 799.5 of the Civil 20 Code. 21 (D) Ten percent of the total dwelling units in a common interest 22 development as defined in Section 1351 of the Civil Code for 23 persons and families of moderate income, as defined in Section 24 50093 of the Health and Safety Code, provided that all units in the 25 development are offered to the public for purchase. 26 (2) For purposes of calculating the amount of the density bonus 27 pursuant to subdivision (f), the applicant who requests a density 28 bonus pursuant to this subdivision shall elect whether the bonus 29 shall be awarded on the basis of subparagraph (A), (B), (C), or (D) 30 of paragraph (1). 31 (3) For the purposes of this section, "total units" or "total 32 dwelling units" does not include units added by a density bonus 33 awarded pursuant to this section or any local law granting a greater 34 density bonus. 35 (c) (1) An applicant shall agree to, and the city, county, or city 36 and county shall ensure, continued affordability of all low- and 37 very low income units that qualified the applicant for the award 38 of the density bonus for 30 years or a longer period of time if 39 required by the construction or mortgage financing assistance 40 program, mortgage insurance program, or rental subsidy program. 98 AB 2280 4 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. Owner-occupied units shall be available at an affordable housing cost as defined in Section 50052.5 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 the moderate-income units that are directly related to the receipt of the density bonus in the common interest development, as defined in Section 1351 of the Civil Code, are persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code, 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 anequity-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 homeownership. (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. (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, 98 - 5 - AB 2280 county, or city and county. A proposal shall be submitted concurrently with the application for a density bonus. 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 20 percent of the total units for lower income households, at least 15 percent for very low income households, or at least 20 percent for persons and families of moderate income in a common interest development. (B) Two incentives or concessions for projects that include at least 30 percent of the total units for lower income households, at least 20 percent for very low income households, or at least 30 percent for persons and families of moderate income in a common interest development. (C) Three incentives or concessions for projects that include at least 40 percent of the total units for lower income households, at least 25 percent for very low income households, or at least 40 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 98 AB 2280 -6- 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) 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 98 - 7 - AB 2280 contrary to state or federal law. The waiver or reduction of development standards shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. However, if the housing development for which a waiver or reduction of development standards is requested requires a discretionary approval, any request for the waiver or reduction shall be reviewed concurrently with the required discretionary approval. (f) For the purposes of this chapter, "density bonus" means a density increase over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the general plan 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 Income Units Percentage Density Bonus 5 20 6 22.5 98 AB 2280 8 Percentage Very Low Income Units Percentage Density Bonus 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. (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-Income Units 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Percentage Density Bonus 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 98 - 9 - AB 2280 Percentage Moderate-Income Units Percentage Density Bonus 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. However, if the housing development for which a density bonus is requested requires a discretionary approval, any request for the density bonus for that housing development shall be reviewed concurrently with the required 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 under the applicable zoning ordinance and land use element of the general plan for the entire development, as follows: Percentage Very Low Income Percentage Density Bonus 10 15 11 16 12 17 13 18 14 19 15 20 16 21 17 22 18 23 19 24 20 2s 21 26 22 27 23 28 98 AB 2280 -10- Percentage Very Low Income Percentage Density Bonus 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 sized or of sufficient size to permit development of at least 40 units, has the appropriate general plan designation, is appropriately zoned for development at the density described in~is-s~tbd~sien 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 98 11- AB 2280 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 98 AB 2280 -12- 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 a 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 1351 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. 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) 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. (k) For the purposes of this chapter, concession or incentive means any of the following, but does not include elimination or modification of the public review process: (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 98 -13 - AB 2280 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 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. (~ 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) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act (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 site or construction conditions, such as height limitations, setback requirements, floor area ratios, onsite open space requirements, and parking ratios, that apply to a residential development pursuant to any ordinance, general plan element, specific plan, or other local condition, law, policy, resolution, or regulation, the application of which would physically preclude the construction of the housing development at the density allowed pursuant to this section. (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 98 AB 2280 -14 - 1 maximum allowable density for the specific zoning range and land 2 use element of the general plan applicable to the project. 3 (p) (1) Upon the request of the developer, no city, county, or 4 city and county shall require a vehicular parking ratio, inclusive 5 of handicapped and guest parking, of a development meeting the 6 criteria of subdivision (b), that exceeds the following ratios: 7 (A) Zero to one bedrooms: one onsite parking space. 8 (B) Two to three bedrooms: two onsite parking spaces. 9 (C) Four and more bedrooms: two and one-half parking spaces. 10 (2) If the total number of parking spaces required for a 11 development is other than a whole number, the number shall be 12 rounded up to the next whole number. For purposes of this 13 subdivision, a development may provide "onsite parking" through 14 tandem parking or uncovered parking, but not through onstreet 15 parking. 16 (3) This subdivision shall apply to a development that meets 17 the requirements of subdivision (b) but only at the request of the 18 applicant. An applicant may request a waiver of parking pursuant 19 to subdivision (d), in addition to the request made pursuant to this 20 subdivision. O 98 ATTACHMENT B Draft Letter of Support AB 2280 City of Tustin May 21, 2008 May 21, 2008 Assembly Member Lori Saldana State Capitol, Room 5150 Sacramento, CA 95814 RE: NOTICE OF SUPPORT FOR AB 2280 (SALDANA AND CABALLERO) - DENSITY BONUS Dear Assembly Member Saldana: The City of Tustin is in support of your measure, AB 2280, which clarifies the density bonus law in several important ways. Over the past several years a number of well-intentioned bills have amended Government Code Section 65915 related to density bonus law. Unfortunately, these changes have created extensive confusion for local planners and city attorneys whose task is to interpret and implement that law. These changes have tipped the scale away from sound community planning towards favoring large developers that seek to avoid community building standards designed to make our cities and neighborhoods enjoyable, livable communities. AB 2280 firmly clarifies matters of existing law where a local community does not have an inclusionary ordinance or where the developer agrees to include affordable units over and above the inclusionary ordinance, as articulated in legislative history. Local agencies and developers alike have found this provision confusing, and this clarification will help resolve some local disputes. In addition, developers have used the density bonus law to waive basic building standards by including a miniscule amount of affordable units. AB 2280 would require more affordable units to be built before a developer can waive compliance with an ordinance of community interest. Furthermore, AB 2280 also clarifies that any request for additional waivers of development standards must be to resolve issues related only to physical hindrances to construction and not economic hindrances. This change would focus on the physical impact of making the project fit, as designed, on the parcel. The City of Tustin believes that recent changes have created an imbalance in public policy relating to project development and also believes that AB 2280 is the commonsense approach to an equitable balance. For all of these reasons, the City of Tustin is in support of AB 2280. Sincerely, Jerry Amante Mayor As 2280 City of Tustin May 21, 2008 Cc: Senator Ackerman Senator Correa Senator Margett Assembly Member DeVore Assembly Member Duvall Assembly Member Solorio Assembly Member Spitzer Assembly Member Van Tran Assembly Member Walters Ryan Eisberg, Consultant, State Republican Caucus Josh Rosa, Governor's Office of Planning and Research Bill Higgins, League of California Cities Orange County City Managers Anya Lawler, Senior Consultant, Assembly Local Government Committee William Weber, Consultant, Assembly Republican Caucus S:\Cdd\LEG[SLATIONS\AB 2280.doc