Albany City Zoning Code
§ 20.40
HOUSING PROVISIONS
§ 20.40.010 Purpose and Intent.
[Ord. No. 05-06; amended 9-16-2024 by Ord. No. 2024-06]
The purpose of this section is to advance the goals of the Housing Element of the Albany General Plan, specifically, to facilitate the availability of a variety of housing to meet the needs of all economic segments of the community, and to expand housing opportunities for those with special needs, including the elderly, persons with disabilities, and those experiencing homelessness. This section provides for the implementation of Housing Element policies and programs intended to promote new housing that is affordable to lower-income households and senior citizens; encourage innovative housing concepts; permit emergency and transitional housing; and assure accessibility to housing by persons with disabilities. This section also establishes implementing procedures for State Density Bonus Law, pursuant to California Government Code Sections 65915 et seq. Should anything in this section conflict with Government Code section 65915 et seq., the Government Code will prevail.
§ 20.40.020 Definitions.
[Ord. No. 05-06; amended 9-16-2024 by Ord. No. 2024-06]
Specialized terms as used in this section are defined below. Generalized terms are defined in Section 20.08, Definitions.
ADMINISTRATIVE REGULATIONS
Guidelines and procedures promulgated by the Community Development Director, which may be modified from time to time to implement the provisions of this section.
AFFORDABLE DWELLING UNIT
If the unit is for rent, means a unit for which the total monthly rent plus utilities does not exceed thirty (30%) percent of the monthly income for a lower-income household. If the unit is for sale, means a unit for which the total monthly payment, including interest, taxes, insurance, homeowner association dues, and utilities does not exceed thirty (30%) percent of the monthly income for a lower-income household.
AFFORDABLE HOUSING AGREEMENT
Means an agreement between the City and the Project Sponsor of a housing development project that includes affordable units created pursuant to subsection 20.40.030 and/or subsection 20.40.040, for the purpose of ensuring continued compliance with all applicable regulations and conditions of the City including continued affordability of such units.
BASE DENSITY
Means the greatest number of units allowed on a housing development site pursuant to the applicable zoning district or, where no density standard is provided, as set forth in the Administrative Regulations. For purposes of this section, base density and maximum allowable residential density are synonymous.
DENSITY BONUS
Means a density increase over the otherwise maximum allowable residential density.
HOUSEHOLD, LOW-INCOME
Means a household whose gross income is greater than fifty (50%) percent but no greater than eighty (80%) percent of the Alameda County median income as established by the California Department of Housing and Community Development.
HOUSEHOLD, LOWER-INCOME
Means a household whose gross income is no greater than eighty (80%) percent of the Alameda County median income as established by the California Department of Housing and Community Development; this includes classifications of low-income and very-low-income.
HOUSEHOLD, VERY-LOW-INCOME
Means a household whose gross income is no greater than fifty (50%) percent of the Alameda County median income as established by the California Department of Housing and Community Development.
HOUSING DEVELOPMENT PROJECT
Means a development project for five or more residential units, including mixed-use developments as further set forth in Government Code section 65915(i).
INCLUSIONARY HOUSING UNIT
Means a unit designated as an affordable dwelling unit for purposes of satisfying the City's inclusionary requirements under subsection 20.40.030 of this chapter.
PROJECT SPONSOR
Means any individual, person, firm, partnership, association, joint venture, corporation, entity, combination of entities or authorized representative thereof, who have applied to develop and operate, manage, and/or lease a housing project under subsection 20.40.030 and/or subsection 20.40.040 of this section.
§ 20.40.030 Inclusionary Housing.
[Ord. No. 05-06; amended 12-4-2023 by Ord. No. 2023-06; amended 9-16-2024 by Ord. No. 2024-06]
A.
Applicability. Inclusionary housing requirements shall apply to all development projects of five (5) or more dwelling units in the City, including conversions of five (5) or more existing rental units to ownership units.
B.
Calculation.
1.
The inclusionary housing unit requirement shall be determined based on the total unit count of a development project, as follows:
a.
Five (5) or Six (6) Total Units: A payment to the "Inclusionary Housing In-lieu Fees Fund", as provided in paragraph F.4.a of this subsection. Payment shall be calculated based on the fraction of a unit that results from multiplying the total unit count by fifteen (15%) percent. If the project sponsor elects to provide one inclusionary housing unit to meet the requirement, the in-lieu fee shall not be applicable.
b.
Seven (7) Through Thirteen (13) Total Units: At least one (1) inclusionary housing unit.
c.
Fourteen (14) or More Total Units: The number of inclusionary housing units shall equal at least the result of fifteen (15%) percent of the total number of units in the development project.
2.
In calculating the numbers of inclusionary housing units to be designated for any applicable development project, any fraction of a housing unit of 0.50 or greater shall be construed as a whole unit. In the case of any fraction of a unit of less than 0.50, the applicant shall be subject to payment of a fee in-lieu of construction of the fractional unit. Such fee shall be calculated as provided in paragraph F.4.a of this section, prorated by the applicable fraction.
3.
In the case of a development project for which a density bonus is sought pursuant to California Government Code section 65915 and subsection 20.40.040 of this section, the requirement of paragraphs A and B.1-2 above shall apply to the base number of units proposed, exclusive of the units that would be added by the density bonus. Units designated for lower-income households may be counted toward satisfaction of the requirement for inclusionary housing, to the extent that such units meet all requirements of this subsection, including the requirement that units shall remain permanently restricted and affordable to the designated group.
C.
Allocation by Income Group.
1.
In development projects of ten (10) units or more, the number of inclusionary housing units shall be divided evenly between very-low-income households and low-income households. Where the number of inclusionary housing units is an odd number, the majority of the units may be provided at the low-income level with the remainder of units to be allocated to the very-low-income level.
2.
In development projects of seven (7) through nine (9) units, all inclusionary housing units may be provided at the low-income level.
D.
Inclusionary Housing Unit Requirements.
1.
Inclusionary housing units shall remain affordable in perpetuity.
2.
Housing projects that incorporate inclusionary housing units must meet the distribution and development criteria listed in subsection 20.40.050 of this section.
3.
Project sponsors of housing projects that incorporate inclusionary housing units must enter into an Affordable Housing Agreement with the City for the purpose of ensuring continuing affordability of such units. Where project approval includes a subdivision of land, execution of an Affordable Housing Agreement shall be made a condition of approval of a tentative map. The contents of the Affordable Housing Agreement will be determined by the Community Development Director and City Attorney to ensure compliance with this section. The executed agreement, or memorandum thereof, shall be recorded following approval and execution of the agreement by all parties, and prior to final map approval, or, where a map is not being processed, prior to issuance of building permits for parcels or units that are subject to the agreement. The conditions therein shall be filed and recorded on the parcel or parcels designated for construction of affordable dwelling units. The agreement shall be binding to all future owners and successors in interest.
E.
Incentives. In the interest of promoting the inclusion of housing units on-site that are affordable to lower-income households, the City may grant certain incentives for projects that exceed the minimum required number of inclusionary housing units, where it is demonstrated that the granting of such incentives is necessary to ensure the economic feasibility of a project.
1.
Applicability. Incentives shall not be applicable to secondary residential units or single-family dwellings in R-1 Single-Family Residential districts. This paragraph shall not apply to projects for which a density bonus is sought pursuant to Government Code section 65915 and subsection 20.40.040 of this section, which provide separate regulations on incentives.
2.
Required Findings for Granting Incentives. An incentive under this paragraph E may only be granted if the City makes all of the following findings:
a.
Exceptional circumstances have been demonstrated that require City assistance;
b.
Acceptable documentation has been provided as to how such incentives will increase the feasibility of inclusion of affordable units in the development project; and
c.
The project exceeds the minimum requirement for provision of inclusionary housing units.
3.
Types of Incentives. The City, at its discretion, may grant incentives including but not limited to the types listed below.
a.
Modification of Development Regulations. The City recognizes that modification to the following requirements (not listed in any order of priority) could result in financially sufficient, and actual, cost reductions that would facilitate additional inclusionary housing units. Such modifications may be made without a Variance.
1)
Setback from a street or nonresidential property line.
2)
Maximum lot coverage.
3)
Setback from a residential property line, except where a daylight plane is required.
b.
Other potential incentives that the City may consider on a case-by-case basis include:
1)
Reduction of any architectural design standards or guidelines that exceed minimum building standards established by local or state building standard codes.
2)
Assistance in design and/or construction of project-related public improvements, such as fronting curbs, sidewalks and tree planting.
3)
Deferral, reduction or waiver of City fees, to be determined on a project-by-project basis, with the requirement that the project comply with legal requirements regarding prevailing wage.
4)
Alternatives to on-site provision of inclusionary housing units, as described in paragraph F. below.
F.
Alternatives to On-Site Provision of Inclusionary Housing Units. Upon finding that production of inclusionary housing units on a project site is not feasible due to the size of the project, the physical conditions of the site, or a demonstrated inability of the sponsor to secure financing of the inclusionary housing units, the City may approve one or a combination of the alternative means of meeting the inclusionary housing unit requirement as stated in the following paragraphs 1 through 5. (See subsection 20.40.040 for specific provisions pertaining to density bonus projects.)
1.
Off-Site Location. Circumstances may arise in which the public interest would be served by allowing some or all of the inclusionary housing units associated with a development project to be produced and operated at a separate, detached development site. Such a site shall be considered as part of a single development project for purposes of this section, and the project sponsor shall be subject to the same requirements as if the inclusionary housing units were provided on the principal development site. This paragraph shall apply only where the principal and detached sites are located within zoning districts in which multi-family housing is a permitted or conditionally permitted use.
2.
Land Dedication. An applicant may dedicate land to the City or to a nonprofit housing developer in lieu of actual construction of required inclusionary housing units, for the purpose of development of an equivalent number of affordable units.
3.
Conversion. Conversion of existing market-rate housing to affordable units. Such units may be located off of the site of the project seeking approval. Where this alternative is employed, the value of the conversion project shall be equal to the cost of construction of the number of inclusionary housing units that are not constructed as part of the development project that generates the inclusionary requirement.
4.
In-Lieu Payment.
a.
An in-lieu fee shall be equal to the difference between the fair market value of an inclusionary unit and the ability of a household in the target income group to afford the rental or purchase price, as determined by the City at the time of issuance of a building permit for the development project. Procedures for the assessment, collection and adjustment of in-lieu fees shall be established by resolution of the City Council.
b.
The City may allow payment of a fee by the sponsor of a development project, in lieu of providing some or all of the required fifteen (15%) percent affordable inclusionary housing units, upon finding that production of the units on the particular site is not feasible due to the size of the project, or the physical conditions of the site, or a demonstrated inability of the sponsor to secure financing, from private or public sources, of the inclusionary housing units.
c.
If a development project is approved for payment of an in-lieu fee, the fee must be paid for each dwelling unit approved for such payment, at the time of issuance of a building permit for the development project.
d.
Fees collected by the City in lieu of inclusionary housing units shall be deposited into a fund known as the "Inclusionary Housing In-Lieu Fees Fund", the use of which shall be committed to the purpose of assisting the provision of housing for very-low- and low-income households. The use of the funds may include, but shall not be limited to land write downs, contributions to nonprofit organizations for housing construction, mortgage assistance for very-low- and low-income households, and the operation of transitional housing.
5.
Other. The City may approve alternative methods of compliance with the inclusionary housing requirement if the applicant demonstrates that the intent of this subsection will be met by any such method. Any alternative to construction of the required number of inclusionary housing units, or any combination of alternative methods of meeting the requirement, shall provide a value equal to the amount that would be calculated for an in-lieu fee according to paragraph 4.a above.
§ 20.40.040 Density Bonus.
[Ord. No. 05-06; Ord. No. 2014-11 § 6; Ord. No. 2018-04; amended 12-4-2023 by Ord. No. 2023-06; amended 9-16-2024 by Ord. No. 2024-06]
The City will facilitate the production of housing units for eligible households in accordance with California Government Code section 65915 et seq. and the procedures and standards provided in this section.
A.
Density Bonus Eligibility. To qualify for a density bonus, a project sponsor for a proposed housing development shall commit to include a proportion of dwelling units that qualify the project for a density bonus under Government Code section 65915(b)(1). The project sponsor must inform the City which subsection under Government Code section 65915(b)(1) the project is seeking a density bonus under.
B.
Density Bonus Calculation. The maximum density bonus a housing development project may receive will be calculated in accordance with subsections (f), (g), (h), and (v) of Government Code section 65915.
C.
Incentives or Concessions. In addition to granting a density bonus under paragraph A above, the City will also grant incentives or concessions to qualifying housing development projects in accordance with the requirements of Government Code section 65915(d). The number of incentives or concessions a project is entitled to will be determined in accordance with Government Code section 65915(d)(2). A project is entitled to incentives and concessions regardless of the project's inclusion of density bonus units.
1.
Types of Incentives or Concessions. In accordance with, and further defined in Government Code section 65915(k), for purposes of this section, an incentive or concession means any of the following:
a.
A reduction or modification in site development or design standards that would otherwise be required that result in identifiable and actual cost reductions 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 Government Code section 65915(c).
b.
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.
c.
Other regulatory incentives or concessions proposed by the project sponsor that result in identifiable and actual cost reductions 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 Government Code section 65915(c).
2.
Findings for Denial of Incentives or Concessions. The City will grant a requested concession or incentive unless the City makes one of the findings set forth in Government Code section 65915(d)(1)(A)-(C). The City is not required to deny a proposed incentive or concession solely because it is able to make the findings for denial. Any such finding(s) shall be in writing and based upon substantial evidence.
D.
Waivers or Reductions of Development Standards.
1.
General. In accordance with Government Code section 65915(e), the project sponsor may submit to the City a proposal for waiver or reduction of any development standard that will have the effect of physically precluding the construction of a housing development project that qualifies, under paragraph A of this subsection, for a density bonus at the permitted density and with the granted concessions(s) or incentives(s). A proposal for the waiver or reduction of development standards pursuant to this paragraph D will not reduce or increase the number of incentives or concession to which the project sponsor is entitled pursuant to paragraph C above.
2.
Findings for Denial. The City is not required to waive or reduce development standards if the City finds that the waiver or reduction would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. The City is also not required to waive or reduce development standards if doing so would be contrary to state or federal law or have an adverse impact on any real property that is listed in the California Register of Historical Resources.
3.
Other. The City may work with the project sponsor and recommend changes to the requested waivers and reductions as part of the Design Review process, in order to address aspects of the project that may be of concern in the community or inconsistent with overarching principles of the General Plan, Zoning Ordinance and Design Guidelines.
E.
Affordable Housing Agreement. Project sponsors of developments employing density bonus under this subsection shall enter into an Affordable Housing Agreement with the City for the purpose of ensuring continuing compliance with applicable provisions of Government Code section 65915 and all applicable regulations and conditions of the City. Where project approval includes a subdivision of land, execution of an Affordable Housing Agreement shall be made a condition of approval of a tentative map. The contents of the Agreement shall be determined by the Community Development Director and City Attorney.
F.
Application Procedures and Review for Density Bonus Projects.
1.
General. In accordance with Government Code section 65915(j), the granting of a density bonus, incentives, concessions, waivers, and/or reductions of development standards shall not require or be interpreted, in and of itself, to require a general plan amendment, zoning change, study or other discretionary approval.
2.
Application. The granting of a density bonus, incentives, concessions, waivers, and/or reductions of development standards are exempted, by Government Code section 65915, from discretionary approvals. However, density bonus requests must accompany housing development permit applications and elements of housing development proposals may be subject to discretionary approvals or other procedures set forth in Section 20.100.
3.
Application Requirements. The Community Development Director shall create an application and list of submittal requirements for projects seeking a density bonus pursuant to this subsection and Government Code section 65915. Among other things, the application shall require project sponsors to include the information necessary to establish that the housing development project qualifies for the requested density bonus, incentives, concessions, waivers, and/or reductions of development standards.
§ 20.40.050 Distribution and Development Criteria of Affordable Units.
[Ord. No. 05-06; Ord. No. 2018-04; amended 9-16-2024 by Ord. No. 2024-06]
The following criteria shall apply to housing projects that contain affordable units created pursuant to subsections 20.40.030 and/or 20.40.040 above.
A.
Affordable units shall be constructed concurrently with or prior to non-restricted units, unless the City and the project sponsor agree, within the required Affordable Housing Agreement, to an alternative schedule for development.
B.
Affordable units shall be dispersed throughout the project site. This requirement may be modified at the discretion of the decision-making body or the Community Development Director for ministerial projects, to facilitate the production of affordable housing in conjunction with a nonprofit affordable housing developer.
C.
Affordable units shall have, to the extent feasible, the same bedroom mix as the market-rate units in the same development, except that the project sponsor may include a higher number of bedrooms in the affordable units.
D.
The interior and exterior design and appearance of affordable units shall be the same as the housing project's market rate units in terms of appearance, materials, and finish quality.
E.
Residents of affordable units shall have access to the same common areas and amenities that are available to residents of the housing project's market-rate units.
F.
Other development criteria and requirements may be established as conditions of project approval, and all such conditions shall be incorporated into the Affordable Housing Agreement.
§ 20.40.060 Housing for Persons with Disabilities.
[Ord. No. 05-06; amended 9-16-2024 by Ord. No. 2024-06]
A.
General. The City will require that housing developments include units that are accessible and adaptable to the needs of disabled residents, as required under applicable Federal, State and City laws and all regulations and codes that are in current effect.
B.
Reasonable Accommodation.
1.
Purpose. It is the policy of the City of Albany, pursuant to the Federal Fair Housing Amendments Act of 1988 and the California Fair Employment and Housing Act, to provide people with disabilities reasonable accommodation in rules, policies, practices and procedures that may be necessary to insure equal access to housing. The purpose of this section is to provide a process by which individuals with disabilities may request reasonable accommodation in regard to relief from the various land use, zoning or building laws, rules, policies, practices and/or procedures of the City.
2.
Public Notice of Availability of Accommodation Process. The Community Development Department shall display in a prominent location a notice advising that disabled individuals may request reasonable accommodation in accordance with procedures established by this section.
3.
Application.
a.
A request for reasonable accommodation in laws, rules, policies, practices and/or procedures may be filed on an application form provided by the Community Development Department, at any time that the accommodation may be necessary to insure equal access to housing. Such application shall include the following information.
1)
Applicant's name, address and telephone number.
2)
Address of the property for which the request is made.
3)
The current use of the property.
4)
The regulation for which accommodation is requested.
5)
The basis for the claim that the applicant is considered disabled under the Fair Housing Act of 1988 as amended, and why the accommodation is necessary to make the specific housing available to the individual.
b.
If such request is related to a project that also requires another permit or approval under the zoning regulations, the applicant shall file the accommodation request together with an application for the project permit or approval.
4.
Approval Authority. The Community Development Director shall have authority to approve, approve with conditions, or deny requests for reasonable accommodations.
5.
Required Findings. Reasonable accommodation may be granted only if the Community Development Director makes all of the following findings:
a)
The housing that is the subject of the request for reasonable accommodation will be used by an individual protected under the Fair Housing Amendments Act of 1988.
b)
The requested reasonable accommodation is necessary to make housing available to an individual protected under the Act.
c)
The requested reasonable accommodation will not impose an undue financial or administrative burden on the City.
d)
The requested reasonable accommodation will not require a fundamental alteration of the zoning or building laws, policies, and/or procedures of the City.
6.
Action. The Community Development Director shall issue a written determination within thirty (30) days of receipt of an application. If the Community Development Director advises the applicant that specific additional information is required in order to reach a determination, the thirty- (30) day period shall be stayed until the applicant has provided such additional information. The written determination on the request for reasonable accommodation shall be sent to the applicant by certified mail, return receipt requested.
7.
Design Review. The Community Development Director shall have the discretion either to waive or to require a design review procedure according to Section 20.100.050. The Community Development Director may extend the thirty- (30) day period provided above by paragraph 6 as necessary to complete the design review procedure.
8.
Appeals. Any action of the Community Development Director may be appealed according to procedures established by subsection 20.100.080.
§ 20.40.070 Emergency Shelter.
[Ord. No. 05-06; Ord. No. 2014-02 § 6; amended 12-4-2023 by Ord. No. 2023-06; amended 9-16-2024 by Ord. No. 2024-06]
The purpose of this section is to provide guidelines to be used in the implementation of the Housing Element policies regarding the siting and permitting of emergency shelters, including facilities that meet the description of "Emergency Shelter" in subsection 20.16.050.E.
A.
Applicability.
1.
General. An emergency shelter may be located in the zoning district or districts where such use is listed in subsection 20.12.040, Table 1.
B.
Physical Characteristics. Applicants for approval of an emergency shelter shall demonstrate the following:
1.
The facility provides adequate living space, shower and toilet facilities and secure storage areas for its intended residents.
2.
The facility conforms to standards for sleeping rooms, as stated in codes adopted by the City and in current effect.
3.
The facility is a minimum of three hundred (300) feet from any other emergency shelter, as measured between the closest points of the property boundaries involved.
4.
The facility shall include indoor intake and waiting areas.
5.
The facility shall include adequate indoor bicycle parking for employees and residents.
6.
The facility accommodates no more than 25 beds. A shelter with more than 25 beds may be allowed with approval of a major use permit by the Planning and Zoning Commission under procedures stated in Section 20.100.030.B.2.
C.
Programmatic Characteristics. Applicants for approval of emergency shelter shall submit detailed program information, demonstrating at a minimum that:
1.
The program establishes a maximum number of days of residency per client, and accommodations are appropriate to the number of days.
2.
The program identifies a transportation system that provides its clients with a reasonable level of mobility, including but not limited to, access to social services and employment opportunities.
3.
The program provides an identified administrator, a liaison to the City and support agencies, and an on-site supervisor, all of whom have demonstrated experience in similar programs.
4.
If the program includes drug or alcohol abuse counseling, appropriate State licensing is secured.
5.
The program specifies standards, rules and operational arrangements covering on-site meal preparation or other means of providing food; expulsion procedures; and curfew times.
6.
If applicable, child care is provided on-site or arrangements are in place for child care service elsewhere, along with assurance that children will be enrolled in school during their stay in the facility.
7.
Identification of funding mechanisms sufficient to ensure compliance with required siting and programmatic criteria.
§ 20.40.080 Housing Provisions.
[Ord. No. 09-011 § 21; amended 9-16-2024 by Ord. No. 2024-06]
A.
A developer of any project subject to the requirements in this chapter may appeal to the City Council for a reduction, adjustment, or waiver of the requirements based upon the absence of any reasonable relationship or nexus between the impact of the development and either the amount of the fee charged or the inclusionary requirement.
B.
A developer subject to the requirements of this chapter who has received an approved tentative subdivision or parcel map, use permit or similar discretionary approval and who submits a new or revised tentative subdivision or parcel map, use permit or similar discretionary approval for the same property may appeal for a reduction, adjustment or waiver of the requirements with respect to the number of lots or square footage of construction previously approved.
C.
Any such appeal shall be made in writing and filed with the City Clerk not later than ten (10) calendar days before the first public hearing on any discretionary approval or permit for the development, or if no such discretionary approval or permit is required, or if the action complained of occurs after the first public hearing on such permit or approval, then the appeal shall be filed within ten (10) calendar days after payment of the fees objected to. The appeal shall set forth in detail the factual and legal basis for the claim of waiver, reduction, or adjustment. The City Council shall consider the appeal at the public hearing on the permit application or at a separate hearing within sixty (60) calendar days after the filing of substantial evidence to support the appeal including comparable technical information to support appellant's position. No waiver shall be approved by the City Council for a new tentative subdivision or parcel map, user permit or similar discretionary approval on property with an approved tentative subdivision or parcel map, use permit or similar discretionary permit unless the Council finds that the new tentative subdivision or parcel map, user permit or similar discretionary approval is superior to the approved project both in its design and its mitigation of environmental impacts. The decision of the Council shall be final. If a reduction, adjustment, or waiver is granted, any change in use within the project shall invalidate the waiver, adjustment, or reduction of the fee or inclusionary requirement.
