A.

The City of Brisbane enacts this chapter to implement the goals, objectives, and policies of the city's general plan housing element relative to administering a density bonus program to encourage the provision of housing affordable to a variety of household income levels, seniors, and persons with disabilities.

B.

This chapter is also intended to implement Sections 65915 through 65918 of the California Government Code, or successor statutes and regulations, governing density bonuses and other incentives required by such statutes or regulations.

(Ord. No. 697, § 1, 5-15-25)

A.

"Affordable housing agreement." A recorded agreement between a property owner and the city to ensure that the density bonus requirements of this chapter are satisfied.

B.

"Affordable ownership cost." The affordable ownership cost for for-sale target units shall be as specified in California Health and Safety Code Section 50052.5, as may be amended over time.

C.

"Affordable rent." The affordable rent for rental target units shall be as specified in California Health and Safety Code Section 50053, as may be amended over time.

D.

"Approving authority." The city decision-making body acting on an application for a housing development subject to the requirements of this chapter, including the city council, planning commission, or community development director.

E.

"Base density." Base density or maximum residential density shall be as defined in the state density bonus law.

F.

"Child care facility." Child care facility shall have the same meaning as defined in the state density bonus law.

G.

"City." The City of Brisbane or the Brisbane Housing Authority.

H.

"City council." The city council of the City of Brisbane as established in Title 2 of this code or the board members of the Brisbane Housing Authority

I.

"City manager." The city manager of the City of Brisbane as established in Title 2 of this code, the city manager's designee, the executive director of the Brisbane Housing Authority or the executive director's designee.

J.

"Community development director." The director of the community development department responsible for overseeing implementation of Title 17 of this code, or the community development director's designee.

K.

"Density bonus." Density bonus shall be defined by state density bonus law.

L.

"Density bonus project." Density bonus project shall mean any parcel map, subdivision map, housing development permit, design permit, building permit, or other city approval which results in a net increase of at least two (2) primary dwelling units and/or residential lots or combination thereof for which a density bonus, incentive or concession, waiver or reduction of development standards, and/or modification of parking standard is requested by the developer pursuant to state density bonus law and this chapter. A density bonus project may include, but is not limited to, new construction, conversion of existing dwelling units to condominium ownership, subdivision of land to create additional residential lots, conversion of an existing nonresidential building to residential use, and the addition of dwelling units to an existing multifamily dwelling. A density bonus project shall include units or lots intended for sale or for rent.

1.

For-Sale Density Bonus Project. A density bonus project that offers dwelling units or lots to the public for purchase.

2.

Rental Density Bonus Project. A density bonus project that offers dwelling units to be rented to tenants upon occupancy, whether or not a condominium or subdivision map is recorded as part of the project.

M.

"Development standard." A development standard shall be as defined by the state density bonus law, provided, however, the term "development standard" does not include any of the following:

1.

The permitted uses of a site;

2.

Any city fees;

3.

Affordable housing requirements;

4.

Building standards approved by the California Building Standards Commission as provided in California Health and Safety Code Section 18901 et seq.; or

5.

The requirements of Brisbane's Green Building Ordinance as set forth in Title 15, Chapter 15.80 of this code.

N.

"Domestic partner." Domestic partner means two (2) persons who have filed a declaration of domestic partnership with the California Secretary of State pursuant to Division 2.5, beginning with Section 297, of the California Family Code and such registration was in full force and effect at the time of the transfer or on the date of the transferor's death. A copy of the domestic partnership registration shall be provided to the city upon request.

O.

"Dwelling unit." Dwelling unit shall have the meaning set forth in Section 17.02.235 of this code.

1.

Density Bonus Unit. Those dwelling units granted pursuant to a density bonus requested pursuant to the provisions of this chapter and state density bonus law.

2.

Market-Rate Unit. Any dwelling unit within a density bonus project that is not a target unit.

3.

Target Unit. Any dwelling unit affordable to moderate and low income households within a density bonus project that qualify the project for a density bonus.

P.

"Eligible household." A household whose household income qualifies the household for occupancy of a target unit.

Q.

"Eligible purchaser." A household whose household income qualifies the household to purchase a for-sale target unit, or a qualified non-profit housing corporation as such term is defined in Section 714.7 of the California Civil Code or successor statute.

R.

"First approval." The first of the following approvals to occur with respect to a density bonus project: subdivision approval, housing development permit, building permit or any other permit or approval under the this Code.

S.

"Household income." Household income shall be the gross income of the household as calculated pursuant to Title 25 California Code of Regulations, § 6914, as amended, or its successor. regulation The household income categories addressed in this chapter shall be defined as follows:

1.

Lower Income Household. A household whose income does not exceed the lower income limits applicable to San Mateo County, as published annually by the State of California pursuant to California Code of Regulations, Title 25, Section 6932, as may be amended over time.

2.

Moderate Income Household. A household whose income does not exceed the moderate income limits applicable to San Mateo County, as published annually by the State of California pursuant to California Code of Regulations, Title 25, Section 6932, as may be amended over time.

3.

Very Low Income Household. A very low income household shall be as defined by California Health and Safety Code Section 50105, as may be amended over time.

4.

Extremely Low Income Household. An extremely low income household shall be as defined by Section 50106 of the California Health and Safety Code or successor statute.

T.

"Housing authority." "Housing authority" shall mean the Brisbane Housing Authority, as established by resolution of the city council. For the purposes of this have the same meaning as "city."

U.

"Incentives or concessions." incentives or concessions shall be as defined in the state density bonus law.

V.

"Maximum residential density." Maximum residential density or base density shall be as defined in state density bonus law.

W.

"Modified parking standards." Modifications to the parking standards that would otherwise apply to a density bonus project under Chapter 17.34 of this code, as described in the state density bonus law.

X.

"Resale restriction agreement." A resale restriction agreement shall mean an agreement, covenant, deed of trust, or other document, approved by the city council, which is executed by the property owner and recorded against each target unit to insure that such unit remains affordable for the applicable term.

Y.

"Specific adverse impact." A "specific adverse impact" shall have the same meaning as the meaning provided in the Government Code Section 65589.5, as may be amended from time to time, or successor provisions.

Z.

"State density bonus law." State density bonus law shall mean Sections 65915 through 65918 of the California Government Code, as may be amended from time to time, or successor statutes

AA.

"Waiver or reduction of development standard." Waiver or reduction of development standard shall be as defined in the state density bonus law.

(Ord. No. 697, § 1, 5-15-25)

A.

The city shall grant density bonuses, incentives and concessions, waivers or reductions in development standards, and/or modified parking standards requested by applicants in accordance with the provisions of the state density bonus law and the procedures set forth in this chapter.

1.

The city may deny a request for incentives or concessions only as provided by the state density bonus law.

2.

The city may deny a request for a waiver or reduction of a development standard only as provided by the state density bonus law.

B.

A developer of a project containing between two (2) to four (4) dwelling units or lots may request approval of a density bonus as shown in Table 17.29.030. The decision making body shall waive or reduce any development standard that may preclude development of such a project as set forth in subsection A. of this Section 17.29.030.

Table 17.29.030

C.

A developer of a density bonus project that exceeds the qualifications for a density bonus per state density bonus law may request that the city grant one additional incentive or concession above the maximum number prescribed by state density bonus law, as applicable to the project.

D.

A developer of a density bonus project may request city council approval of one additional incentive or concession if the density bonus project includes family-sized target units (units with three (3) or more bedrooms) designed and dedicated for use by low- to extremely low-income households.

E.

Inclusionary units provided in compliance with Chapter 17.31 may be counted as target units for the purposes of calculating a density bonus if they meet requirements for target units established under state density bonus law.

F.

The decision making body for any density bonus project shall be the decision making body specified for the first approval. The city council shall be the decision-making body for any density bonus projects that include requests of incentives or concessions or waivers of development standards that otherwise require city council approval under this chapter or other chapters of this code.

G.

Notwithstanding that an applicant may request direct financial assistance, including that for purchasers of target units, which shall require approval of the city council, nothing in this Section 17.29.030 requires the city to provide direct financial incentives for the housing development, including but not limited to providing to the applicant publicly owned land.

H.

In accordance with the state density bonus law, neither the granting of a concession or incentive, waiver or reduction in development standards, nor the granting of a density bonus, shall be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval.

(Ord. No. 697, § 1, 5-15-25)

A.

Application Processing. Applications for density bonuses, incentives, concessions, waivers or reductions in development standards, and/or modifications of parking standards pursuant to the state density bonus law and this chapter shall be processed in concert with and by the same decision-making body, as any other planning entitlement applications that the density bonus project may require., except where otherwise indicated in Section 17.29.030.

B.

Contents of Application. Applications shall be filed with the community development director on such form as the director shall prescribe. In addition to the submittal requirements for any other planning entitlement applications or permit approvals the project requires, the application shall include the following information and supporting materials:

1.

Current title report(s) for all properties proposed for development, prepared within at least six (6) months of application submittal.

2.

A letter signed by the present owner(s) stating what density bonus, incentives and concessions, waivers or modifications of development standards, and/or parking modification are being requested from the city.

3.

In the case of a condominium conversion request, such information required by Chapter 17.30 of this title.

4.

A statement describing whether the density bonus project is proposed on any property that has one of the following conditions. If any of the below conditions exist on the property, the application must identify how such units will be replaced in the density bonus project. Such replacement units shall not be counted as target units when calculating the density bonus, unless the density bonus project is one hundred percent (100%) affordable.

a.

Includes a parcel or parcels on which rental dwelling units are presently located that are subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very low income or if rental dwelling units have been vacated or demolished in the five-year period preceding the application that were at the time subject to a recorded covenant, ordinance or law that restricted rents to levels affordable to persons and families of very low or lower income;

b.

Includes a parcel or parcels on which rental dwelling units have been subject to any other form of rent or price control through a public agency's exercise of its police power;

c.

Includes a parcel or parcels on which rental dwelling units are presently occupied by low or very low income households.

5.

A detailed vicinity map showing the project location and such details as the location of the nearest commercial retail, transit stop, potential employment locations, park or recreation facilities or other social or community service facilities.

6.

A project data table showing the total number of dwelling units proposed on the site and off site, as applicable, including the number of target units and density bonus units, and the project's conformance to all objective development standards.

7.

Site plan(s) with accurately dimensioned property lines showing existing and proposed structures and their uses, adjacent structures and their uses, setbacks, adjacent streets, easements, existing and proposed utilities, existing and proposed driveways, and internal circulation and parking.

8.

Floor plans of all existing and proposed structures (with the use of each room/space labeled) and designating target units, as appropriate.

9.

Roof plans.

10.

Elevations of all sides of the existing and/or proposed structures, identifying colors and materials, and showing the height of structure(s) measured per the definition of building height in Chapter 17.02 of this title and UBC type of construction. Cross-sections may also be required based upon the complexity of the design.

11.

Existing and proposed parking facilities, including the dimensions of parking spaces, number and location of spaces designated as compact or handicapped spaces, and a calculation of the number of parking spaces required by this title or any other applicable regulations;

12.

An affordable housing plan that contains all of the following, as applicable to the request:

a.

The number, type, tenure, household income categories, number of bedrooms and baths, approximate location, size, and design (including finishes and features) of all density bonus units;

b.

The number, type, tenure, affordability level, number of bedrooms and baths, approximate location, size, and design (including finishes and features) of all target units;

c.

Construction phasing of target units in relation to market-rate units, if applicable, and overall construction schedule. If the developer proposes to construct the target units in separate phases from the market-rate unit construction, the affordable housing plan shall specify the security to be provided to the city to ensure that the target units will be constructed, and explain how the proposed phasing would provide greater public benefit than providing the target units concurrently with the market-rate units;

d.

Preliminary marketing plan, indicating general approach to marketing target units in compliance with all fair housing laws. The final marketing plan may be deferred to prior to first building permit issuance, subject to community development director approval, including the manner in which target units will be offered to the public in a nondiscriminatory and equitable manner and the method of marketing target units after initial occupancy is secured;

e.

A financing mechanism, the particulars and the amount of which shall be determined by the city at the time the affordable housing plan is approved, to cover the city's costs for the on-going administration and monitoring of the affordability provisions applicable to the target units, except where prohibited by state law.

13.

Description of any requested density bonuses, incentives, concessions, waivers or modifications of development standards, and/or modified parking standards and documentation of eligibility for the request(s), including a description of the base density without the requested density bonus, the number and location of all target units qualifying the project for a density bonus, the level of affordability of the target units, and identification of the density bonus units.

a.

For all requested incentives and concessions, reasonable documentation demonstrating eligibility for the incentive or concession or to demonstrate that the incentive or concession meets the definition set forth in the state density bonus law. For requests to allow mixed- use zoning in conjunction with the density bonus project, the application shall additionally include documentation demonstrating that the proposed commercial, office, industrial, or other land uses will reduce the cost of the density bonus project development and that the commercial, office, industrial, or other land uses are compatible with the density bonus project and the existing or planned development in the area where the proposed project will be located. The cost of reviewing any documentation submitted in support of a request for a concession or incentive, including but not limited to the cost to the city of hiring a consultant to review the documentation, shall be borne by the applicant.

b.

For all requested waivers or reductions of development standards, written evidence that (i) the development standards for which a waiver or reduction is requested will physically preclude the construction of the housing development at the densities or with the incentives or concessions permitted by this chapter; (ii) the waiver or reduction would not have a specific, adverse impact, or, if a specific, adverse impact would occur, that the impact could feasibly be mitigated or avoided; (iii) the waiver or reduction would not have an adverse impact on any real property that is listed in the California Register of Historical Resources; and (iv) the waiver or reduction would not be contrary to any state or federal law.

c.

If a density bonus, incentive or concession is requested for a land donation, the application shall show the location of the land to be dedicated and provide evidence that each of the conditions for such land donation set forth in the state density bonus law will be met.

d.

If a density bonus, incentive or concession is requested for a child care facility, the application shall show the location and square footage of the child care facility and describe how all requirements of the state density bonus law for such density bonus, incentive or concession are met by the application.

B.

Application Fee. The application shall be accompanied by the payment of a fee in such amount as established from time to time by resolution of the city council. In addition, the applicant shall also deposit such amounts as the community development director may require from time to time to cover the cost of any environmental or legal review, geotechnical and engineering reports, review of green building documentation, and such other studies that may be required by the city in connection with the processing of the application or related planning entitlements.

C.

Newly Constructed Condominiums. In addition to the information listed in this section, an application for a density bonus project for newly constructed condominiums, as defined in Section 17.30.020.A of this title, shall also include the materials set forth in Section 17.30.040.

D.

Streamlined Housing Development Projects. Density bonus projects that are streamlined housing development projects, as defined in Chapter 17.02 of this title, shall include additional supporting documentation to demonstrate eligibility as set forth on a form prescribed by the city.

(Ord. No. 697, § 1, 5-15-25)

A.

Applicability. Recordation of an affordable housing agreement shall be made a condition of the first approval for all density bonus projects to ensure implementation of all requirements of this chapter. The affordable housing agreement shall be recorded prior to, or concurrently with, the final subdivision or parcel map, or, where the housing development does not include a map, prior to issuance of a building permit for any structure in the housing development. The affordable housing agreement shall run with the land and bind all future owners and successors in interest.

B.

The affordable housing agreement shall be in a form provided by the city and shall include the following, without limitation:

1.

All information provided in the affordable housing plan pursuant to Section 17.29.040 of this chapter.

2.

The household income categories of the target units, consistent with the requirements of the state density bonus law.

3.

Continued affordability of the target units, as follows:

a.

For-Sale Target Units. The affordable housing agreement shall require that a resale restriction agreement, in a form approved by the city, be recorded against each for-sale target unit when the target unit is first transferred to an eligible purchaser. The resale restriction agreement shall provide that target units in for-sale density bonus projects shall remain affordable in perpetuity and that the affordability provisions be applicable to any subsequent transferees or successors in interest. The resale restriction agreement shall also provide that the for-sale target unit shall not be rented.

b.

Rental Target Units. The affordable housing agreement shall be recorded against each rental density bonus project containing rental target units to ensure that the target units remain affordable in perpetuity. Rental target units that are later converted to for-sale units, e.g., converted to condominiums, and then sold shall be sold as for-sale target units and the requirements of subparagraph a of paragraph 2 of subsection C of this section shall apply.

4.

The affordable housing agreement shall specify that no household shall be permitted to begin occupancy of a target unit unless the community development director has approved the household's eligibility.

5.

Affordable housing agreements for land dedication, child care facilities, and condominium conversions shall ensure the continued compliance with all conditions included in state density bonus law.

6.

Affordable housing agreements for senior citizen housing developments shall provide that units in the residential development shall be occupied by senior citizens or other persons eligible to reside in such a project as established by the state density bonus law.

7.

The affordable housing agreement shall include provisions requiring maintenance of records to demonstrate continued compliance with this chapter over long-term operation of the density bonus project.

8.

The affordable housing agreement shall include a description of remedies for breach of the affordable housing agreement by either party. The city may identify tenants or qualified purchasers as third party beneficiaries under the agreement.

C.

The affordable housing agreement shall include any other provisions determined necessary by the city attorney to ensure implementation and compliance with the state density bonus law and this chapter.

(Ord. No. 697, § 1, 5-15-25)

A.

No permit, license, subdivision map, or other approval or entitlement for a density bonus project shall be issued, including without limitation a final inspection for occupancy, until all requirements applicable to the density bonus project at such time pursuant to this chapter have been satisfied.

1.

Except where authorized by the approved affordable housing plan pursuant to Section 17.29.040, no building permit shall be issued for any market rate unit until the permittee has obtained permits for target units sufficient to meet the requirements of Section 17.29.030 of this chapter, and, if the project includes inclusionary housing units pursuant to Chapter 17.31 of this code. No final inspection for occupancy for any market-rate unit shall be completed until the permittee has constructed the target units required by Section 17.29.030 of this chapter, unless so authorized in the approved affordable housing plan.

2.

The time requirements set forth in this section for issuance of building permits for market-rate units and for final inspections for occupancy for market-rate units may be modified to accommodate phasing schedules, model variations, or other factors in a density bonus project within the submitted affordable housing plan pursuant to Section 17.29.030 of this chapter, if the city determines this will provide greater public benefit and an affordable housing agreement pursuant to Section 17.29.050 of this chapter has been approved by the decision making body for the first approval for the density bonus project.

B.

Conditions to carry out the purposes of this chapter shall be imposed on the first approval for a density bonus project.

C.

The city attorney is authorized to enforce the provisions of this chapter and all affordable housing agreements, regulatory agreements, resale controls, deeds of trust, or similar documents placed on target units, by civil action and any other proceeding or method permitted by law.

D.

The city manager is authorized to execute any agreement and any related documents following approval such agreement by the community development director and the city attorney.

E.

Failure of any official or agency to fulfill the requirements of this chapter shall not excuse any applicant or owner from the requirements of this chapter.

F.

The remedies provided for herein shall be cumulative and not exclusive and shall not preclude the city from any other remedy or relief to which it otherwise would be entitled under law or equity.

G.

Any target unit that is sold or rented in violation of the affordability requirements established in the approved affordable housing agreement or resale restriction agreement shall be replaced at a one-to-one ratio. The means of replacement shall be wholly subject to the discretion of the city manager.

H.

A request for a minor modification of an approved affordable housing plan may be granted by the community development director if the modification is substantially in compliance with the original affordable housing plan and conditions of approval for the density bonus project. A minor modification is technical in nature, as opposed to substantive or material. Substantive or material changes to the affordable housing plan shall be processed in the same manner as the original plan.

I.

The city shall prepare guidelines to further implement this chapter. These guidelines shall include, but are not limited to, the following:

1.

The form and contents of the affordable housing agreement and any resale restriction, including provisions for successors in interest and other ownership transfers for for-sale target units;

2.

The form and contents of the final marketing plan and resident selection process;

3.

Procedures for setting rents and sales prices for the target units;

4.

Procedures for qualifying tenant households and prospective purchaser households of target units, including but not limited to household income verification and any preferences;

5.

Compliance and monitoring procedures to assure that affordability restrictions are maintained;

6.

Resale and subordination procedures for for-sale target units;

7.

The establishment of any fees to recoup the city's costs for the ongoing administration and monitoring of the affordability provisions of the target units, except where prohibited by state law.

(Ord. No. 697, § 1, 5-15-25)