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Home My WebLink AboutOB 6 DENSITY BONUS 11-07-88OLD BUSINESS NO. 6 11-7-88 DATE: October 20, 1988 'Inter.-Com FROM: $ UIIJ ECT: . THE HONORABLE MEMBEI~ OF THE CITY COUNCIL CITY ATTO~EY DENSITY BONUS POLICY The City Council has requested our opinion on the issue of adopting a density bonus policy pursuant to Government Code Sections 65915 - 65918. The density bonus policy was recommended to the City Council by the Planning Commission which proposed the adoption of Resolution No. 2518. The Planning Commission's action was prompted by the fact that a developer in the community had approached the planning staff about constructing low and moderate-income housing that would qualify under the Government Code for a density bonus. Since the Planning Commission's resolution'was adopted, that developer has indicated to the City that it .no longer wishes to pursue that type of development. Thus, for the. time being, the City is not' faced with acting on a housing development proposal that would trigger the density bonus requirements of the Government Code. .. CITY ATTORNEY Government Code Section 65915 requires the City to establish procedures to comply with the density bonus provisions. .However, the law does not specify that these procedures be established by a certain period of time. Nevertheless, we note that once. a developer submits a preliminary proposal (it need not be a formal application for an entitlement), the City is required to respond in writing within 90 dax_s as to how it will comply with the provisions of the Government Code. In our opinion, it is advisable to establish policy guidelines, which may take the form of the resolution proposed by the Planning Commission, or any desired modification thereof, so that a uniform approach is available in the event a developer submits a proposal. The City can thus devote the 90-day period to evaluating that proposal in conjunction with the policy guidelines to develop a written response. It is our recommendation that the proposed City response be reviewed both by the Planning Commission and City Council, and that fly approved by the City Council. -! '1i t/ / ~. ~. ' ' ~ "/ ~' '~/"~ ~'~ ~ LOIS E. JEFFREY ~ DEPUTY CITY ATTORNEY LEJ:lw:R:10/20/88(62) . cc: WH CS COD"-' ime fo~ cations, - ' local .~ents to ~sition. 11 of the ye been .he legal ,,eney W ;sion, or for, the f a local ,r not to etlon of ~ty, and ties asa suant to m of the :on file~ nditional ~position housing o attack, or other ays after w to the .lidity or at, ers of unlawful ~uant to ~n of the ,n of the ~ section, 3roved or exactions ~lopmenL ther local 67L § 1; ]endment GOVERNMENT CODE CHAPTER 4.3. DENSITY BONUSES AND OTHER INCENTIVES § 65915.5 ~ection ' 6§91§.5. Conversion of apar~men~ to condominium project; eligibility; procedure. Bui~in~ ~ ~nin~ in ~ffomm. Wiiimm Fulton (19~) 4 ~l.~r ~o. 12, p. 36. ~ ~915. ~ment with deveio~ de~it~ ~nus or other incentives; prelimina~ develo~ ment propel; numar of ~nu~ ~it~ (a) When a develo~r of ho~ a~s ~ cons~ct at l~t ~ 2~ ~r~nt of the ~l uni~ of a hous~ development for ~ns ~d families of low or m~e~ income, ~ defined in Sec~on f ~e H~i~ and Safe~ ~e, or ~ 10 ~ent of ~e ~l uni~ of a housin~ development for ~ ....... ~-*:-~;~ Section ~79 5 of ~e Health and Safe~ ~de, we~income ~ousenoms, ~ ueu.~ -~ · - · l°we~mc°~ ...... -: ..... ~,~ ~f a housi~ ~ ~s~en~ as d?~ea m ~ 51.~f the Civil ~ a a~, count, or c or (2) p~de o~er ineen~ves of ~uivalent financ~l value. ~) A develo~r ~y submit ~ a ci~, count, or ci~ and eoun~ a p~limina~ pro~sal for the development of honsin~ pu~uant W ~h sec~on p~or W the submit~l of any focal reques~ for ~ene~l p~n amendment, zonin~ ~mendmen~, or subdivision map approvals. The city, count, or ~ and ~un~ shall, ~in ~0 days of ~eipt of a ~t~n pro~sal, notify ~e housin~ develo~r in ~ of ~e ~nner in which it ~ll comply ~ this set,on. ~e ci~, count, or ci~ and eoun~ s~l es~bl~h p~edu~ for ~nl out this s~on, which shall include le~sla~ve ~dy approval of ~e m~ns of compl~ ~ this s~tion. (c) For ~e pu~ses of ~ c~p~r, "densi~ ~nus" m~ a densi~ inc~e of at le~t 25 ~nt of ~e o~e~e m~imum allowable ~siden~] de~i~ under ~e appli~ble zoninl ordi- n~ ~d ~nd ~ element of ~e ~ene~l p~. The de~i~ ~n~ shall not ~ included when de~m~ ~e numar of ho~in~ uni~ which ~ ~l W 10 or 25 ~ent of ~e w~L The densi~ ~n~ s~l &ppiy W ho~ developmen~ co~is~ of five or more dwel~n~ uni~. (d) H · develo~r ~ W cons~ct ~ ~ ~nt of ~e ~ uni~ for ~o~ and families of low or m~em~ ~me ~d 10 ~ent of ~e wml uni~ for lowe~ineome households, ~e develo~r ~ en~ W only one densi~ ~nus ~der ~ ~on al~outh ~e city, ci~ and count, or county ~y, at i~ ~c~on, ~nt mo~ ~an one densi~ ~nus. (~end~ by S~.1~, c ~, ~ 1; S~.1~, c. 1~, ~ 2.) ~ti~ ~ff~ of s~.lg~, c. 1333, ~ no~e under Civ. C. ~ ~ 65~1~.f. ~nve~ion of apa~men~ W condominium proj~ eli~bilit~; proc~ure (a) ~en an applier for appwval W conve~ ap~en~ W a eondom~ium p~jeet p~de at le~t ~ ~ent of ~e w~l uni~ of ~e pro~sed condominium p~ject w pe~ons and families of low or m~e~ income ~ defied in S~on ~ of ~e Heal~ ~d Safe~ ~de, or ~ent of ~e wml uni~ of ~e p~sed condo~ium p~j~t W lower income househol~ ~ defined ~ S~on ~.5 of ~e He~ ~d Sde~ ~e, ~d ~s w pay for ~e re~o~bly necessa~ admi~ve cos~ bc~ed by a ci~, count, or ci~ ~d coun~ put'ant w ~is ~c~on, ~e ci~, count, or ~i~ ~d coun~ shall eider (1) ~nt a densi~ bonus or (2) p~de o~er incentives of equivalent fmnc~l value. A ci~, count, or ci~ and coun~ ~y place such reportable eondi~ons on ~e ~n~i of a de~i~ ~nus or o~er ~cen~ves of equivalent fi~nc~l value ~ it finds ~pp~pm~, includint, but not limi~d ~, eondi~ons which ~sure continued affordabili~ of uni~ subsequent p~e~ who ~ ~o~ ~d famines of ~ow and m~e~ income or lower income ho~ehol~. ~) For pu~ses of ~ sec~on, "densi~ ~nus" m~ns ~ incre~e in uni~ of 25 ~rcent over ~e numar of append, W ~ p~vided ~thin ~e exis~n~ s~cture or s~ctu~s propos~ for conve~ion. ~tefl~ ' ' ' indl~te deletions by amendment .s~.~ 19. § 65915.5' GOVERNMENT CODE ~c) For purposes of this section, "other incentives of equivalent financial value" shall not be construed to require a city, county, or city and county to provide cash transfer payments or other monetary compensation but may include the reduction or waiver of requiremenk~ which the city, county, ~r city and county might otherwise apply as conditions of conversion approval. (d) An applicant for approval w convert apartments to a condominium project may submit to a city. county, or city and county a preliminary proposal pursuant to this section prior to the submittal of anv formal requests for subdivision map approvals. The city, county, or city and county shall, within 90'days of receipt of a written proposal, notify the applicant in writing of the manner in which it will comply with this section. The city, county, or city and county shall establish procedures for carrying out this section, which shall include legislative body approval of the means- of compliance with this section. (e)- Nothing in this section shall be construed to require a city, county, or city and county to approve a proposal to convert apartments to condominiums. (f) An applicant shall be ineligible for a density bonus or other ineentives under this section if the apartments proposed for conversion constitute a housing development for which a density bonus or other incentives were provided under Section 65915. (Added by Stats.1983, e. 634, § 2.) Ubran~ References Condominium ~8~1. C.J.S. Estates §§ 145, 146. § 65916. Direct financial contribution to housing developments through participation in costs; . term of availability Notes of Deeiaiom Term of avtihbiilty 2 1. In general ' The granting of a.density bonus or an exemption from a local ordinance provision does no~ constitute a "direct finan- cml contribution".for purposes of this section. 64 Ops. Atty. Gen.'370, 4.-29-81. 2. Term of availability Cities and counties are required to comply with 30--year use restriction provisions of Government Code sections 37364 and 65916 when they use federal community develop- men, block grant funds to provide housing affordable to persons of low and moderate income by (1) purchasing proper~y from private developer and reconveying it to him for nominal sum, or (2) purchasing an interest in the property allowing them to restrict use of it to affordable housing. 69 Ops. Arty. Gen. 223, Oct. 15, 1986. CHAPTER 4.4. INTERAGENCY REFERRALS Section 65919. 65919.1. 65919.2. 65919.3. 65919.4. 65919.5.' 65919.6. 65919.7. 65919.8. 65919.9. 65919.10. 65919.11. 65919.12. Definitions. Procedure and comment on referrals. Map of planning review area. Referring proposed actions to affected cities or counties. Notice; proposed actions. Review and comment by affected cities or counties. Comments and recommendations of affected cities or counties; consideration. Modification and referral back of proposed actions. Review of, comment and recommendations on modification; time. Comments and recommendations of affected cities or counties on modifications. Zoning ordinance changes; referrals; exemption. Procedural noncompliance; validity of proposed actions. Duration of chapter. Chapter ~.~ was adde'd by Stats. 1983, c. 850, § 2. .Repeal Chapter ~.~ is repealed by § 65919.12 on Jan. 1, 1990. X~'brary References Zoning and Planning ~131 et seq. C.J.S. Zoning and Land Planning §§ 12, 14, 16. Underline Indicates changea or additions by amendment 20 GOVERNMENT CODE § 65919. Definitions As used in this chapter the fol (a) "Affected city" means a cit~ (b) ~'Affected terriWry" means which is the subject on one.or m (c) "Pr0p~sed action", means a or to adopt or amend a zoning o became effective immediately p~ Section 65858. (d) "Planning review area" me ~ of a city or couflty. A pi: whichev~'r of the following inclu ~beyond the territory described (1) The area included within ti (2) A radius of one mile outsid within the sphere of influence o; (3) An area which is agreed (Added by Stats.1983, c. 860, § ' 1 .So in enrolled bill. Library Refernnees Words and Phrases (Perm. Fsi.) § 65919.1. Procedure and eom A county and a city may agre city to the county of proposed ac of that agreement, the procedur (Added by Stats.1983, c. 860, §: § 65919.2. Map of planning re A city which desires referral pursuant to this chapter shall fi appropriate document which indi planning review area. (Added by Stats.1983, c. 860, § § 65919.3. Referring proposed Except as otherwise provide~ proposed action, the county shal council acts on a proposed actior with the procedure set forth in (Added by Stats.1983, c. 860, § § 65919.4. Notice; proposed a (a) Not later than the date th county planning commission, th action. (b1 Not later than the date th planning eommission~ the eit~. (c) The information in the not of public hearing. The notifica~ first-class mail or by hand deli Asterisks * ' ' Indicate delet e? ~tal. ,er- ' is the ore by lant rllllt the -- tlenr nee. wel- de a rak- aid .sing e of nent der- the and droll oun- E no into ~'qui- ,'lop- ,. Div. I DENSITY BONUSES & INCENTIVES § 65918 § 65916. Direct financial contribution to housing developments through participation in costs; term of availability Where there is a direct financial contribution to a housing devel- opment pursuant to Section 65915 through participation in cost of in- frastructure, write-down of land costs, or subsidizing the cost of con- struction, the city, county, or city and county shall assure continued availability for low- and moderate-income units for 30 years. When appropriate, the agreement provided for in Section 65915 shall speci- fy the mechanisms and procedures necessary to carry out this sec- tion: (Added by Stats.1979, c. 1207, p. 4748, § 10, eff. Oct. 2, 1979.) Notes of Decisions I. In general The granting of a (lensity bonus or an exemption from a lo(.al ordimm('e l)rovi- sion does not constitute a "direct financial contribution" for purposes of this section. /)40i)s.Atty. Oen. 370, 4-.'29-~$1. § 65917. Oensity bonuses and other, incentives; legislative intent In enacting this chapter it is the intent of the Legislature that the density bonus or other incentives offered by the city, county, or city and county pursuant to this chapter shall contribute significantly to the economic feasibility of low- and moderate-income housing in proposed housing developments. (Added by Stats.1979, c. 1207, p. 4748, § 10, eff. Oct. 2, 1979. Amended by Stats.1982, c. 1263, § 3, eff. Sept. 29,, 1989,.) Historical Note The l.q,~2 amendment substituted "(lensi- ment"; and ty bonus or other incentives" for "agree- "contribute". inserted "shall" prior to § 65918. Charter cities; application of chapter The provisions of this chapter.shall apply to charter cities. (Added by Stats.1979, c. 1207, p. 4748, § 10, elf. Oct. 2, 1979.) 123