A.

Rental and owner-occupied housing in the city has become steadily more expensive. Housing costs have gone up faster than incomes for many groups in the community.

B.

Many persons who work in the city, who have grown up or have family ties in the city, who already live in the city but must move due to increasing housing costs, or who wish to live in the city for other reasons, cannot afford housing in the city.

C.

Federal and state government programs do not provide nearly enough affordable housing opportunities or subsidies to satisfy the housing needs of moderate, lower or very low income households.

D.

Rising land prices have been a key factor in preventing development of new affordable housing. New housing construction in the city which does not include inclusionary units aggravates the existing shortage of affordable housing by absorbing the supply of available residential land. This reduces the supply of land for affordable housing and increases the price of remaining residential land. Providing the inclusionary units required by this chapter will help to ensure that part of the city's remaining developable land is used to provide affordable housing.

E.

The city wishes to retain an economically balanced community, with housing available to very low income, lower income and moderate income households. The city's general plan implements the established policy of the State of California that each community should foster an adequate supply of housing for households at all economic levels.

F.

An economically balanced community is only possible if part of the new housing built in the city is affordable to households with limited incomes. Requiring builders of new housing to include some housing affordable to households at a range of incomes is fair, not only because new development without inclusionary units contributes to the shortage of affordable housing, but also because zoning and other ordinances concerning new housing in the city should be consistent with the community's goal to foster an adequate supply of housing for households at all economic levels.

G.

In enacting this chapter it is also the intent of the City of Brisbane to implement the goals, objectives, and policies of the city's general plan housing element, which encourages the provision of housing affordable to a variety of household income levels, seniors, and persons with disabilities, and identifies an inclusionary housing policy one method to encourage the development of affordable housing.

(Ord. No. 697, § 2, 5-15-25)

A.

"Affordable housing agreement." A recorded agreement between a property owner and the city to ensure that the inclusionary housing 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.

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

F.

"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.

G.

"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.

H.

"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.

I.

"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.

J.

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

1.

Inclusionary Unit. Dwelling unit within a housing development that is required by Section 17.31.030 of this chapter to be rented at affordable rents or sold at an affordable ownership cost to specified households. Inclusionary units may be considered target units as that term is defined in Chapter 17.29 of this code.

2.

Market-Rate Unit. Any unit within a housing development that is not an inclusionary unit.

K.

"Eligible household." A household whose household income qualifies the household for occupancy of inclusionary units provided under this chapter.

L.

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

M.

"First approval." The first of the following approvals to occur with respect to an inclusionary housing development: subdivision approval, housing development permit, building permit or any other permit or approval under this code.

N.

"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. 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.

O.

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

P.

"Inclusionary housing development." Any parcel map, subdivision map, use permit, building permit, or other city approval which results in a net increase of at least five (5) or more primary dwelling units and/or residential lots or combination thereof intended for sale or for rent. An inclusionary housing development project may include, but is not limited to, new construction, conversion of existing dwelling units to condominium ownership, creation of residential lots, conversion of an existing nonresidential building to residential use, and the addition of primary dwelling units to an existing multifamily dwelling.

1.

For-Sale Inclusionary Housing Development. An inclusionary housing development, or portion thereof, where the dwelling units or lots are offered to the public for purchase.

2.

Rental Inclusionary Housing Development. An inclusionary housing development, or portion thereof, comprised of dwelling units which are intended to be rented, or are actually offered for rent, to tenants upon completion, whether or not a condominium or subdivision map is recorded as part of the housing development.

Q.

"Resale restriction agreement." 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 inclusionary unit to insure that such unit remains affordable for the applicable term.

(Ord. No. 697, § 2, 5-15-25)

A.

Applicability. The inclusionary requirements established in this section shall apply to all inclusionary housing development projects with five (5) or more primary dwelling units or residential lots, except for the following:

1.

Housing development projects that are developed pursuant to the terms of a development agreement, provided that such housing development projects shall comply with any affordable housing requirements included in the development agreement.

2.

Housing development tentative maps or vesting tentative maps exempted by Government Code Section 66474.2 or 66498.1, provided that such maps shall comply with any predecessor ordinance in effect on the date the application for the map was deemed complete.

B.

Inclusionary Requirements. Unless an alternative is elected pursuant to Section 17.31.050 of this chapter, the following inclusionary requirements shall apply to for-sale and rental housing development projects:

1.

For-sale Developments. A for-sale inclusionary housing development shall provide the following inclusionary lots or units:

a.

A for-sale housing development with five (5) to ten (10) primary dwelling units or lots must provide fifteen percent (15%) of the proposed units at affordable ownership costs for moderate income households.

b.

A for-sale housing development of eleven (11) or more primary dwelling units or lots must provide ten percent (10%) of the units or lots at affordable ownership costs for moderate income households and five percent (5%) of the units or lots at affordable ownership costs for lower income households.

2.

Rental Developments. A rental inclusionary housing development with five (5) or more primary dwelling units must provide fifteen percent (15%) of the units at affordable rents to very low income households.

C.

Calculation of Inclusionary Requirement. For purposes of calculating the number of inclusionary units required by this section, any calculations resulting in fractional units of one-half or greater shall be rounded to the next larger integer. If the calculation of the required total number of inclusionary units results in a fraction of less than one-half, the fractional amount shall be provided to the city through payment of an in-lieu fee established by the city council. For density bonus projects per Chapter 17.29, density bonus units shall not be counted when determining the minimum inclusionary housing requirement.

D.

Contemporaneous construction of five (5) or more primary dwelling units on a lot, or on contiguous lots for which there is evidence of common ownership or control, even though not covered by the same city land use approval, shall also be considered a single housing development. Construction shall be considered contemporaneous if any building permits are issued within five (5) years following the date of completion of any earlier construction.

E.

If an inclusionary housing development requests a density bonus pursuant to Chapter 17.29 of this title, inclusionary units may be considered target units for purposes of qualifying for a density bonus only if such inclusionary units meet all of the applicable requirements for target units in Chapter 17.29 of this title and state density bonus law.

(Ord. No. 697, § 2, 5-15-25)

The following incentives shall apply to all inclusionary housing developments that provide one or more inclusionary units in accordance with the provisions of this chapter:

A.

Single-family detached inclusionary units may be constructed on smaller lots than the market-rate units in the same housing development, but the lots may be no smaller than the minimum standard for the applicable zoning district, except as may be modified by an eligible density bonus request pursuant to Chapter 17.29 of this title or other provisions of this code that address reduction of minimum lot sizes.

B.

The square footage of the inclusionary units should be comparable to the market-rate units in the same residential development. However, at the discretion of the community development director, smaller units may be provided, as long as the total inclusionary square footage provided remains comparable, yielding additional units.

C.

Inclusionary units may have different finishes and features than market-rate units, including but not limited to interior finishes, fixtures, or appliances, than market-rate units in the same residential development, as long as the finishes and features are durable and of good quality, as determined by the community development director.

(Ord. No. 697, § 2, 5-15-25)

A.

An applicant for a rental inclusionary housing development, or an applicant for a for-sale inclusionary housing development of fifteen (15) or fewer primary dwellings or lots may, at the sole discretion of the applicant, elect to pay an in-lieu fee as established by resolution of the city council, for each required inclusionary unit to the Brisbane Housing Authority's Low and Moderate Income Housing Fund, instead of constructing the inclusionary units within the residential development. The in-lieu fee shall be paid prior to issuance of the building permit, unless applicable State law requires an different payment timing.

B.

An applicant for a rental or for-sale housing development may request city council approval of one or more of the following as an alternative to constructing the inclusionary units within the housing development or paying an in-lieu fee, which request shall be described within the affordable housing plan for inclusionary units prepared pursuant to Section 17.31.060 of this chapter. City council approval of such a request shall be based on findings that 1) the outcome for the city is superior in terms of the number and affordability of affordable units that would be created, or 2) construction of the required inclusionary units within the market-rate development would be infeasible or present unreasonable hardship in light of such factors as project size, site constraints, market competition, price and product type disparity, applicant capability, and financial subsidies available. Evidence must be submitted with the affordable housing plan required by Section 17.31.060 of this chapter.

1.

Off-Site Construction. The applicant may request to construct some or all of the inclusionary units at a location within the city outside of the housing development site. Off-site construction alternatives include alternatives where parcelization of the subject property is required to create a separate parcel. Off-site inclusionary units shall be located on sites that are compatible with adjacent land uses, appropriately zoned for the intended residential development, and are in proximity to or will provide access to employment opportunities, urban services, major roads or other public transit facilities.

2.

Off-Site Preservation. The applicant may request to create inclusionary units off-site through the purchase and conversion of existing market-rate units to affordable units, either by the applicant or by a not-for-profit entity. The total square footage must, at minimum, equal the square footage that would have been expected on-site, at affordability levels that meet or exceed the on-site requirements. The off-site units must be purchased prior to the building permit for the inclusionary housing development. The off-site preservation option must be approved by the city council, and the community development director may set requirements related to the rehabilitation and condition of the property and the protection and/or temporary relocation of existing tenants.

3.

Dedication of Land. The applicant may dedicate land within the city that is suitable for affordable housing development to the city or to the designee of the city. The value of the land shall be not less than the sum of the in-lieu fee that would be due under Section 17.31.050 of this chapter. The valuation of any land offered in-lieu shall be determined by an appraisal made by an appraiser mutually agreed upon by the city and the applicant. Costs associated with the appraisal shall be borne by the applicant. The timing of the land dedication shall be at or before the first approval of the inclusionary housing development. Factors considered by the council may include but are not limited to general location, access to transit, buildability, current zoning, and the number of units that could be built at the location.

4.

Funding of Affordable or Special Needs Housing Project. The applicant may make a contribution to a special needs housing project or facility (shelter, transitional housing, or similar) in the city in an amount equivalent to the in-lieu fee payment due under subsection A. of this Section 17.31.050. The contribution must be made prior to receipt of the building permit for the inclusionary housing development.

5.

In-Lieu Fee for Certain For-Sale Developments. An applicant for a for-sale inclusionary housing development of more than fifteen (15) primary dwelling units or lots may request council approval to pay an in-lieu fee payment rather than construct affordable units with the project.

(Ord. No. 697, § 2, 5-15-25)

A.

An affordable housing plan for inclusionary units shall be submitted as part of the application for first approval of any inclusionary housing development, except where payment of an in-lieu fee is elected by the applicant pursuant to Section 17.31.050.A of this chapter. No application for a first approval may be deemed complete unless an affordable housing plan, if required, is submitted conforming to the provisions of this chapter.

B.

If the applicant has requested a density bonus pursuant to Chapter 17.29 of this code, the affordable housing plan required under this section shall be combined with the affordable housing plan for target units required pursuant to Section 17.29.040 of this code.

C.

The affordable housing plan for inclusionary units shall include the following information:

1.

For housing developments proposing to construct the inclusionary units within the development, the affordable housing plan shall specify, at the same level of detail as the application for the housing development:

a.

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

b.

Construction phasing of inclusionary units in relation to market-rate units and overall construction schedule. If the developer proposes to construct the inclusionary 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 inclusionary units will be constructed, and explain how the proposed phasing would provide greater public benefit than providing the inclusionary units concurrently with the market-rate units;

c.

Preliminary marketing plan indicating general approach to marketing inclusionary units. 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 inclusionary units will be offered to the public in a nondiscriminatory and equitable manner and the method of marketing inclusionary units after initial occupancy is secured;

d.

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 inclusionary units, except where prohibited by state law.

2.

If an applicant requests city council approval of alternatives to constructing the inclusionary units within a housing development pursuant to Section 17.31.050.B of this chapter, the affordable housing plan shall describe the requested alternatives.

3.

If the applicant requests use of different finishes and features than market-rate units as addressed in Section 17.31.040, the affordable housing plan shall describe the request.

D.

The affordable housing plan for inclusionary units shall be reviewed simultaneously with any other permit applications associated with the first approval for the inclusionary housing development.

(Ord. No. 697, § 2, 5-15-25)

A.

An applicant may request city council approval of an adjustment or reduction of the inclusionary housing requirements of this chapter if an applicant demonstrates that the requested adjustment or reduction would better implement the goals, objectives, and policies of the city's general plan housing element, which encourages the provision of housing affordable to a variety of household income levels, seniors, and persons with disabilities. The city council, in its sole discretion, will determine whether to approve the applicant's request based on the city's progress in meeting its housing goals, objectives, and policies at the time the request is made.

B.

Any request for an adjustment or reduction under this section shall be submitted concurrently with the affordable housing plan required by Section 17.31.060 of this chapter. The request for a reduction or adjustment shall set forth in detail the factual basis for the adjustment or reduction.

(Ord. No. 697, § 2, 5-15-25)

A.

Applicability. Recordation of an affordable housing agreement shall be made a condition of the first approval for all inclusionary housing developments. The affordable housing agreement shall be recorded prior to, or concurrently with, the final or parcel map, or, where the inclusionary housing development does not require a map, prior to issuance of a building permit for any structure in the inclusionary 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 Sections 17.31.060 of this chapter.

2.

The household income categories of the inclusionary units, consistent with the requirements of Section 17.31.030 of this chapter or any alternative requirements pursuant to Section 17.31.050 of this chapter.

3.

Continued affordability of the inclusionary units, as follows:

a.

For-Sale Inclusionary 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 inclusionary unit when the unit is first transferred to an eligible purchaser. The resale restriction agreement shall provide that inclusionary units in for-sale housing developments 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 inclusionary unit shall not be rented.

b.

Rental Inclusionary Units. The affordable housing agreement shall be recorded against each inclusionary housing development containing rental units to ensure that the inclusionary units remain affordable in perpetuity. Rental inclusionary units that are later converted to for-sale units, e.g., converted to condominiums, and then sold shall be sold as for-sale inclusionary units and the requirements of subparagraph a of paragraph 3 of subsection B of this section shall apply.

4.

The affordable housing agreement shall specify that no household shall be permitted to begin occupancy of an inclusionary unit unless the city or the city's designee has approved the household's eligibility.

5.

Affordable housing agreements for inclusionary housing developments intended to be occupied by households with one or more members who are sixty-two (62) years of age or older shall provide that dwelling units in the residential development shall be occupied by persons eligible to reside in such a project.

6.

The affordable housing agreement shall include provisions requiring maintenance of records to demonstrate compliance with this chapter.

7.

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

D.

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

(Ord. No. 697, § 2, 5-15-25)

A.

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;

2.

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

3.

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

4.

Procedures for qualifying tenant households and prospective purchaser households of inclusionary 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 inclusionary for-sale 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 inclusionary units, except where prohibited by state law.

B.

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

1.

No building permit shall be issued for any market-rate unit until the permittee has obtained permits for inclusionary units sufficient to meet the requirements of Section 17.31.030 of this chapter, and, if a density bonus has been requested pursuant to Chapter 17.29, Section 17.29.030 of this code. No final inspection for occupancy for any market-rate unit shall be completed until or simultaneously with construction of the inclusionary units required by Section 17.31.030 of this chapter.

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 an inclusionary housing development within the submitted affordable housing plan pursuant to Section 17.31.060 of this chapter, if the city determines this will provide greater public benefit and an affordable housing agreement pursuant to Section 17.31.080 of this chapter has been accepted by the community development director.

C.

Conditions to carry out the purposes of this chapter shall be imposed on the first approval for an inclusionary housing development and any subsequent approvals.

D.

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 inclusionary units, by civil action and any other proceeding or method permitted by law.

E.

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

F.

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.

G.

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.

(Ord. No. 697, § 2, 5-15-25)