HomeMy WebLinkAbout01 UPDATE DENSITY BONUS LAW - ORD 1372 01-05-10TUSTIN Agenda Item ~
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AGENDA O
Finance Director N/A
BUILDING OUR FUTURE
HONORING OUR PAST
MEETING DATE: JANUARY 5, 2010
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT: ORDINANCE NO. 1372 (CODE AMENDMENT 09-006), AMENDING
SECTION 9111 THROUGH 9142 OF THE TUSTIN CITY CODE TO
UPDATE DENSITY BONUS LAW IN ACCORDANCE WITH STATE LAW
SUMMARY:
Assembly Bill 2280 ("AB 2280") made the following changes to the State's density
bonus law, which is set forth in Government Code Section 65915:
1. Increased the time by which a city may utilize funds that are recaptured from the
resale of affordable housing units;
2. Amended the definition of "development standards";
3. Amended the definition of "maximum allowable residential density" to be based
not only on zoning, but also on the general plan land use densities in certain
cases;
4. Added clarifying language with respect to density bonuses for developments with
senior housing units;
5. Provided that before a local agency may grant density bonuses in excess of
those set forth in State law, it must first adopt a local ordinance enabling it to do
so.
Code Amendment 09-006 amends Section 9111 through 9142 of the Tustin City Code
to update density bonus law in accordance with State law. On December 8, 2009, the
Planning Commission adopted Resolution No. 4128 recommending that the City
Council adopts Ordinance No. 1372 approving Code Amendment 09-006.
RECOMMENDATION
That the City Council introduce and have first reading of Ordinance No. 1372 (Code
Amendment 09-006), amending Section 9111 through 9142 of the Tustin City Code to
update density bonus law in accordance with State law.
FISCAL IMPACT:
Ordinance No. 1372 is aCity-initiated project. There are no direct fiscal impacts
anticipated as a result of adopting this ordinance.
City Council Report
Ordinance No. 1372
Page 2
BACKGROUND:
Assembly Bill 2280 ("AB 2280") made the changes to the State's density bonus law,
which is set forth in Government Code Section 65915. The changes to prior density
bonus law as set forth in AB 2280 are provided below:
1. Time to Utilize Recaptured Funds is Increased From Three to Five Years
Density bonus law enables cities and counties to require owners in owner-occupied
affordable units to enter into equity sharing agreements requiring that when the unit is
sold, the owner retains the value of any improvements, down payment, and a
proportionate share of the appreciation. The local agency then recaptures any initial
subsidy and its share of appreciation for use in certain programs that promote home
ownership (Health and Safety Code Section 33334.2). Prior law required that funds
recaptured by local agencies be used within three years. AB 2280 extends the period in
which the recaptured funds must be used from three (3) years to five (5) years.
2. Definition of "Development Standards" is Amended
Density bonus law requires cities and counties to grant a specified number of incentives
or concessions, as described in Government Code Section 65915(d), when an applicant
for a housing development seeks and agrees to reserve certain percentages as
affordable housing units. In addition, the law provides a mechanism for applicants to
seek a waiver of certain development standards that could preclude the development of
an affordable housing project. AB 2280 amended the definition of "development
standard" to include 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."
Additionally, the law, as amended, limits the type of waivable development standards to
those that "physically" preclude density bonus development. For example, development
standards that might preclude construction because they are cost-prohibitive may not
meet the definition of "development standards" eligible for a waiver in that the applicant
no longer has to show that the waiver or modification is necessary to make the units
economically feasible (deletion of Government Code Section 65915(f)).
Furthermore, requests for waivers of development standards no longer entitle an
applicant to a reduction or increase in incentives or concessions under density bonus
law.
Neither development standard waivers, concessions, nor incentives need be granted if it
is contrary to state or federal law.
City Council Report
Ordinance No. 1372
Page 3
3. Definition of "Maximum Allowable Residential Density" is Amended
Under prior density bonus law, the maximum allowable residential density was defined
to mean the "density allowed under the zoning ordinance, or if a range of density is
permitted, means the maximum allowable density for the specific zoning range
applicable to the project." AB 2280, however, broadens the definition to consider not
only the zoning ordinance, but also the density that might be allowed by the land use
element of the general plan. Further, "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."
Under prior law, a density bonus applicant could demand a density bonus based on the
highest density allowed under the zoning ordinance, whereas under the amended law,
an applicant may request that a density bonus be calculated based on the highest
density allowed under the general plan land use element.
4. Clarification of Required Density Bonus as 20 percent of the Number of Senior
Housing Units not 20 percent of the Total Number of Units Within the
Development
AB 2280 adds language which states that density bonuses based on senior housing
developments must be based on the number of senior housing units, not the total
number of units in the development. This change clarifies that the required density
bonus must be based on the number of affordable senior housing units, not the total
number of units within the development.
5. Cities and Counties are Allowed to Grant Greater Density Bonuses, but Only if
Permitted by Local Ordinance
Density bonus law states that it shall not be construed to prohibit a local agency from
granting density bonuses greater than those required under State law. AB 2280
stipulates, however, that a local agency must include such latitude in a local ordinance
in order to grant a greater density. The amendment does not require a local agency to
provide for a greater density than under State law but does make the tool available to
those agencies that wish to do so.
ENVIRONMENTAL ANALYSIS
The proposed amendment is not considered a "project" subject to the California
Environmental Quality Act ("CEQA").
CITY ATTORNEY REVIEW
The City Attorney has reviewed the content and form of Code Amendment 09-006
(Ordinance No. 1372).
City Council Report
Ordinance No. 1372
Page 4
A homas, AICP Elizabeth A. Binsac
Senor Planner Director of Community Development
Attachments: A. Planning Commission Resolution No. 4128
B. Ordinance No. 1372
C. Assembly Bill 2280 (AB 2280)
ATTACHMENT A
Planning Commission Resolution No. 4128
RESOLUTION NO. 4128
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE
CITY COUNCIL APPROVE ORDINANCE NO. 1372 (CODE
AMENDMENT 09-006) AMENDING SECTION 9111 THROUGH
9142 OF THE TUSTIN CITY CODE TO UPDATE DENSITY
BONUS LAW IN ACCORDANCE WITH STATE LAW.
The Planning Commission does hereby resolve as follows:
The Planning Commission finds and determines as follows:
A. That the proposed amendment to the Tustin City Code is necessary to remain
consistent with numerous changes to the State's density bonus law, which is set
forth in Government Code Section 65915;
B. That proposed Ordinance No. 1372 (Code Amendment 09-006) is regulatory in
nature and would provide for consistency with State Law;
C. That the City of Tustin has a substantial interest in ensuring that Tustin City
Codes are clear, concise, and updated when needed;
D. That proposed Ordinance No. 1372 (Code Amendment 09-006) is not considered
a "project' subject to the terms of the California Environmental Quality Act (CEQA~
and is therefore exempt from further environmental analysis;
E. That on December 8, 2009, the Planning Commission held the duly noticed
public hearing at which interested persons had an opportunity to testify in support
of, or opposition to, Ordinance No. 1372 (Code Amendment 09-006) and at
which the Planning Commission considered such Code Amendment;
G. That proposed Ordinance No. 1372 (Code Amendment 09-006) is consistent with
the goals, policies, and general plan land use programs specified in the Tustin
General Plan for the City of Tustin in that Code Amendment 09-006 will provide
specific procedures in density bonus law within the Zoning Code. Code
Amendment 09-006 complies with the General Plan, including the following land
use goals and policies:
LU Goal 1: Provide for a well balanced land use pattern that accommodates
existing and future needs for housing, commercial and industrial
land, open space and community facilities and services, while
maintaining a healthy, diversified economy adequate to provide
future City services.
LU Goal 2: Ensure that future land use decisions are the result of sound and
comprehensive planning.
LU Goal 3: Ensure that new development is compatible with surrounding land
uses in the community, the Citys circulation network, availability of
Resolution No. 4128
Page 2
public facilities, existing development constraints, and the Citys
unique characteristics and resources.
LU Goal 4: Assure a safe, healthy, and aesthetically pleasing community for
residents and businesses;
II. The Planning Commission hereby recommends that the City Council approve Ordinance
No. 1372 (Code Amendment 09-006) amending various sections of the Tustin City Code
to update density bonus law in accordance with State law.
PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular
meeting on the 8th day of December; 2009.
i
ELIZABETH A. BINSACK
Planning Commission Secretary
STATE OF CALIFORNIA
COUNTY OF ORANGE
City of Tustin
S ve
Chairperson
I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission
Secretary of the City of Tustin, California, that Resolution No. 4128 was duly passed and
adopted at a regular meeting of the Tustin Planning Commission, held on the 8th day of
December, 2009.
J~il/7-~Y?1J /Af/A ~f~~gR~~=~jF,
ELIZABETH A. BINSACK
Planning Commission Secretary
ATTACHMENT B
Ordinance No. 1372
ORDINANCE NO. 1372
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, AMENDING SECTION 9111 THROUGH
9142 (CODE AMENDMENT 09-006) OF THE TUSTIN CITY
CODE TO UPDATE DENSITY BONUS LAW IN ACCORDANCE
WITH STATE LAW
The City Council of the City of Tustin does hereby ordain as follows:
Section 1. Section 9112 of the Tustin City Code is hereby revised as follows:
"Development Standards" ^,,,~a;~ includes a site or construction conditions1
including but not limited to a height limitation, a setback requirement, or a
parking ratio that apply to a residential development pursuant to any ordinance,
general plan element, specific plan, or other local condition, law, policy,
resolution, or regulation.
"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. 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
Section 9121.
"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 with the
exception of the MCAS Tustin Specific Plan; which exclud+ages the density
bonus allowed by this Chapter.
Section 2. Section 9121(a)(3) of the Tustin City Code is hereby revised as follows:
(3) Senior citizen housing development or 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. For housing developments
meeting such criteria, the density bonus shall be 20 percent of the number of
senior housing units; or
Section 3. Section 9121(a)(6) of the Tustin City Code is hereby added as follows:
(6) 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.
Ordinance No. 1372
Page 2
Section 4. Section 9121(b) of the Tustin City Code is hereby revised as follows:
(b) When an applicant for a tentative subdivision map, parcel map, or other
residential development approval donates land to the City as provided for in
this subsection, the City shall grant a density bonus, the amount of which
shall be as specified in Section 9122. This increase shall be in addition to any
increase in density mandated by subsection (a), into a maximum combined
mandated density increase of thirty-five (35) percent if an applicant seeks
both the increase required pursuant to this subsection and subsection (a). All
density calculations resulting in fractional units shall be rounded up to the
next whole number. Nothing in this subsection shall be construed to enlarge
or diminish the authority of the City 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 subsection if all of the following conditions are
met:
(1) 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.
(2) 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 ten
(10) percent of the number of residential units of the proposed
development.
(3) The transferred land is at least one (1) acre in size or of sufficient size to
permit development of at least forty (40) units, has the appropriate
general plan designation, is appropriately zoned at the density described
in paragraph (3) of subdivision (c) of Government Code Section 65583.2
for development of affordable housing on land suitable for residential
development, and is or will be served by adequate public facilities and
infrastructure. The land shall have appropriate zoning and development
standards to make the development of affordable units feasible. No later
than the date of approval of the final subdivision map, parcel map, or of
the residential development, 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, except that the la Ci_t~r may subject the proposed
development to subsequent design review to the extent authorized by
subdivision (i) of Government Code Section 65583.2 if the design is not
reviewed by the City prior to the time of transfer.
(4) The transferred land and the affordable units shall be subject to a deed
restriction ensuring continued affordability of the units consistent with
subsections 9131(d) and (e) which shall be recorded on the property at
the time of dedication.
(5) The land is 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 the developer.
Ordinance No. 1372
Page 3
(6) The transferred land shall be within the boundary of the proposed
development or, if the City agrees, within one-quarter (1/4) mile of the
boundary of the proposed development.
(7) 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.
Section 5. Section 9123(a)(3) of the Tustin City Code is hereby added as follows:
(3) The concession or incentive would be contrary to state of federal law.
Section 6. Section 9123(c) of the Tustin City Code is hereby revised as follows:
(c) Incentives or concessions may include the following:
1. A reduction of site development standards or a modification of zoning
code requirements or architectural design requirements that exceed
the minimum building standards approved by the Mate California
Building Standards Commission as provided in Part 2.5
(commencing with Section 18901) of Division 13 of the Health and
Safety Code, which result in identifiable, financially sufficient, and
actual costs reductions, including but not limited to:
a) Reduced minimum lot size.
b) Reduced minimum setbacks.
c) Reduced minimum street standards such as reduced minimum
street width.
d) Increased maximum lot coverage.
e) Increased building height.
fl Reduced ratio of vehicular parking spaces that would otherwise
be required.
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, including the
City's General Plan, where the proposed housing project will be
located; or
3. Other regulatory incentives or concessions proposed by the applicant
or the City that result in identifiable, financially sufficient, and actual
cost reductions.
4. The granting of a concession or incentive shall not be interpreted, in
and of itself, to require a general plan amendment, zoning change, or
other discretionary approval. This provision is declatory of existing
law.
Section 7. Section 9124(a) of the Tustin City Code is hereby revised as follows:
(a) An Applicant may submit to the City a proposal for the waiver or
reduction of development standards and may request a meeting with the
Ordinance No. 1372
Page 4
City.
. A proposal
for the waiver or reduction of development standards pursuant to this
section shall neither reduce nor increase the number of incentives or
concessions to which the applicant is entitled pursuant to Section 9123.
Section 8. Section 9131(d) of the Tustin City Code is hereby revised as follows:
(d) An applicant shall agree to, and the City shall ensure, continued
affordability of all low- and very low income units that qualified the
applicant for the award of the density bonus for at least thirty (30) 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 target 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.
Section 9. Section 9131(e) of the Tustin City Code is hereby revised as follows:
(e) An applicant shall agree to, and the City 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 City 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:
(1) 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 local government shall recapture any
initial subsidy and its proportionate share of appreciation, which shall
then be used within hr~ five 5 years for any of the purposes
described in subdivision (e) of Section 33334.2 of the Health and
Safety Code that promote homeownership.
(2) For purposes of this subsection, the City'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 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.
(3) For purposes of this subdivision, the City's proportionate share of
appreciation shall be equal to the ratio of the initial subsidy to the fair
market value of the home at the time of initial sale.
Ordinance No. 1372
Page 5
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this
5th day of January, 2010.
JERRY AMANTE
MAYOR
PAMELA STOKER
CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
ORDINANCE NO. 1372
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council of the
City of Tustin is five; that the above and foregoing Ordinance No. 1372 was duly and regularly
introduced and read at the regular meeting of the City Council held on the 5th day of January,
2010, and was given its second reading, passed and adopted at a regular meeting of the City
Council held on the day of , 2010, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
PAMELA STOKER
City Clerk
Published:
ATTACHMENT C
Assembly Bill (AB) 2280
Assembly Bill No. 2280
CHAPTER 454
An act to amend Section 65915 of the Government Code, relating to
housing.
[Approved by Governor September 27, 2008. Filed with
Secretary of State September 27, 2008.]
LEGISLATIVE COUNSEL'S DIGEST
AB 2280, 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 impose certain procedures on the application for a density
bonus and other incentives or concessions.
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, based upon
substantial evidence, that, among other things, the concession or incentive
would be contrary to state or federal law.
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 a source
of funding for the very low income units.
The people of the State of California do enact as follows:
SECTION 1. Section 65915 of the Government Code is amended to
read:
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,
92
Ch. 454 - 2 -
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 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 1351 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), the 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, continued affordability of all low- and very low income
units that qualified the applicant for the award of the density bonus for 30
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.
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
9z
- 3 - Ch. 454
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.
(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.
92
Ch. 454 - 4
(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.
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(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 Income Units Percentage Density Bonus
$ 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:
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Ch. 454
-6-
Percentage Moderate-Income Units Percentage Density Bonus
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 Income
]0
11
12
Percentage Density Bonus
IS
16
17
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- 7 - Ch. 454
Percentage Very Low Income Percentage Density Bonus
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,
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Ch. 454 - 8 -
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 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.
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(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. 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) 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:
(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.
(~ 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
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Ch. 454 -10 -
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) Upon the request of the developer, no city, county, or city and
county shall require a vehicular parking ratio, inclusive of handicapped and
guest parking, of a development meeting the criteria of subdivision (b), 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) 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
"onsite parking" through tandem parking or uncovered parking, but not
through onstreet parking.
(3) This subdivision shall apply to a development that meets the
requirements of subdivision (b) 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).
O
92