The purpose of this section is to provide a means for granting density bonuses and incentives in compliance with Government Code Sections 65915 through 65917. This section provides density bonuses and incentives for projects that are affordable to very low, low, and moderate income households and projects restricted to occupancy by senior citizens. (Ord. No. 765 § 2 (Exh. A) (part))

44-3.40.010 Definitions.

Unless otherwise specified in this section or unless the context plainly requires otherwise, the words and phrases used in this shall have the meanings defined by this chapter and the meanings attributed to them in Government Code Section 65915 et seq.

A. “Project” or “development” as used in this section, means either a project with five or more residential units, including projects to substantially rehabilitate existing residential units as defined by Government Code Section 65863.4 where the rehabilitation would result in a net increase in residential units.

B. “Density bonus” means a density increase over the otherwise maximum allowable residential density as of the date of application by the applicant to the County.

C. “Affordable housing unit” means any extremely low, very low, low, or moderate income unit created pursuant to this section.

D. “Senior housing unit” means any housing unit restricted to occupancy by a senior citizen household pursuant to this chapter.

E. “Extremely low income households” means persons and families earning less than 30 percent of the area median income adjusted for household size and whose incomes do not exceed the qualifying limits for very low income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, per Section 50106 of the Health and Safety Code.

F. “Very low income households” means persons and families earning less than 50 percent of the area median income adjusted for household size and whose incomes do not exceed the qualifying limits for very low income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, per Section 50105 of the Health and Safety Code.

G. “Low” or “Lower income households” means persons and families earning less than 80 percent of the area median income adjusted for household size and whose incomes do not exceed the qualifying limits for very low income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, per Section 50079.5 of the Health and Safety Code.

H. “Moderate income households” means persons and families whose income exceeds the amount established for low income households and is less than 120 percent of area median income per Section 50093 of the Health and Safety Code.

I. “Child care facility” is defined as means a child day care facility other than a family day care home. (Ord. No. 765 § 2 (Exh. A) (part))

44-3.40.020 Eligibility for Density Bonus and Incentives.

The provisions of this section shall apply to the following types of projects that meet the following affordability and/or age requirements.

A. Types of Projects. The provisions of this section shall apply to:

1. New residential projects, including projects with a mix of residential and other uses, of 5 or more dwelling units, regardless of the type of dwelling units proposed;

2. Renovation of one or more multi-family residential structures containing at least 5 units so as to result in a net increase the number of residential units.

3. Development that will change the use of an existing building from nonresidential to residential and that will provide at least 5 residential units.

4. Developments that include the conversion of at least 5 residential rental units to ownership housing.

B. Affordability and Age Requirements. In order for a project to receive a density bonus, incentives, and/or concessions under this section, the project shall meet one of the following requirements:

1. A minimum of 10 percent of the dwelling units are for low income households; or

2. A minimum of 5 percent of the dwelling units are for very low or extremely low income households; or

3. A minimum of 10 percent of the total dwelling units in a common interest development, as defined in Civil Code Section 1351, are for households of moderate income, provided that all units are offered to the public for purchase.

4. A senior citizen project or a mobile home park that limits residency based on age requirements for housing older persons in compliance with Civil Code Sections 51.2, 51.3, 798.76, or 799.5. Senior citizen projects shall be restricted to occupancy by senior citizens in perpetuity.

5. Length of Affordability. Extremely low, very low, and low income units shall be affordable to eligible households for a minimum period of 30 years, beginning at the initial occupancy of each affordable housing unit, or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. Projects that provide moderate income units in a common interest development shall ensure the initial occupancy of the unit by a moderate income household and the occupancy and resale of the unit shall be governed by an affordable housing agreement. (Ord. No. 765 § 2 (Exh. A) (part))

44-3.40.030 Amount and Calculation of Density Bonus.

A project that complies with the eligibility requirements of Section 44-3.40.020 shall be entitled to a density bonus. The applicant shall elect whether the density bonus shall be awarded on the basis of paragraph A, B, C, D, E, or F of this subsection. The applicant may request a smaller density bonus.

A. Bonus for Units for Very Low Income Households. For developments that include 5 percent of the total dwelling units for very low income households, the density bonus shall be calculated as follows:

B. Bonus for Units for Low Income Households. For developments that include 10 percent of the total dwelling units for low income households, the density bonus shall be calculated as follows:

C. Bonus for Units for Moderate Income Households. For developments that include 10 percent of the total dwelling units in a common interest development for households of moderate income, the density bonus shall be calculated as follows:

D. Bonus for Senior Citizen Housing. For an eligible senior citizen project, the density bonus shall be 20 percent of senior citizen housing units.

E. Bonus for Land Donation. When an applicant for a residential development agrees to donate land to the County for very low income households, the applicant shall be entitled to a density bonus for the entire market rate development, provided that nothing in this section shall be construed to affect the authority of the County to require a developer to donate land as a condition of development.

1. The applicant shall be entitled to a density bonus increase above the maximum allowed residential density for the entire market-rate residential development. The Density Bonus for land dedication shall be in addition to any other density bonus allowed by this chapter, up to a maximum total density bonus of 35 percent. The density bonus for land donation shall be calculated as follows:

2. Eligibility for Land Donation Bonus. An applicant shall be eligible for the increased Density Bonus described in this section if all of the following conditions are met:

a. The applicant donates and transfers the land to the County no later than date of approval by the County of the final subdivision map, parcel map, or residential development that is the subject of the density bonus.

b. The developable acreage and zoning classification of the land being transferred are sufficient to permit construction of units affordable to very low income households in an amount not less than 10 percent of the number of market-rate residential units of the proposed development.

c. The transferred land: I) is at least one acre in size or of sufficient size to permit development of at least 40 units; ii) has the appropriate General Plan designation and is appropriately zoned for development of very low income housing; iii) is or will be served by adequate public facilities and infrastructure for the development of very low income housing; iv) has appropriate zoning and development standards to make the development of the very low income housing units feasible; and v) has all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units, except that the County may subject the proposed development to subsequent design review, if the design is not reviewed by the County prior to the transfer.

d. The transferred land and very low income housing units shall be subject to a deed restriction, which shall be recorded on the property upon dedication, ensuring affordability consistent with Section 44-3.40.020(B)(5).

e. The land is transferred to the County or to a housing developer approved by the County.

f. The transferred land is within the proposed development or, if approved by the County, within one-quarter mile of the boundary of the proposed development.

g. A proposed source of funding for the development of very low income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application.

F. Bonus for Condominium Conversions. When a development is the conversion of an existing apartment complex to a condominium complex and the applicant agrees to make at least 33 percent of the total units of the development affordable to moderate income households for 30 years, or 15 percent of the total units of the proposed development affordable to lower income households for 30 years, and agrees to pay for the administrative costs incurred by the County to process the application and to monitor the continued affordability and habitability of the affordable housing units, the County shall either:

1. Grant a density bonus of 25 percent, or

2. Provide other incentives of equivalent financial value as determined by the County.

An applicant shall be ineligible for a density bonus or other incentive(s) under this section if the apartments proposed for conversion are part of a project for which a density bonus or other incentive(s) were previously provided under this chapter or Government Code Section 65819 et seq.

G. Bonus for Projects with a Child Care Facility. When an applicant proposes to construct a development that conforms to the requirements of Section 44-3.40.020 and includes a child care facility located on the premises, or as part of, or adjacent to, the development, the County shall grant either of the following:

1. An additional density bonus of 5 percent provided that the total density bonus for the project does not exceed 35 percent. The density bonus is an amount of square feet of residential space that is equal to or greater than the amount of square feet in the child care facility and shall not exceed a maximum of 5 square feet of floor area of new structures for each 1 square foot of floor area contained in the child care facility; or

2. An additional incentive or concession designated by the County that contributes significantly to the economic feasibility of the construction of the child care facility. This incentive or concession is in addition to the number of incentives the project may be granted under Section 44-3.40.040(A).

H. Calculation of Density Bonus.

1. All density calculations resulting in fractional units shall be rounded up to the next whole number.

2. For the purposes of this chapter “total dwelling units” does not include units added by a density bonus awarded pursuant to this section or any other density bonus allowed by the County or State law.

3. If the site of a development proposal that requests a density bonus is located in two or more General Plan designations or zoning classifications, the number of dwelling units permitted in the development is the sum of the dwelling units permitted in each of the zones. The permitted number of dwelling units may be distributed within the development without regard to the zoning boundaries.

4. If the applicant desires to develop a density bonus project available to a mix of income levels or age groups, the project may combine its allowed density bonus, based on calculations approved by the Director, to a maximum density bonus of 35 percent.

5. The density bonus shall be based on “maximum allowable residential density” which means the density allowed under the zoning ordinance and land use element of the general plan, or if a range of density is permitted, means the maximum allowable density for the specific zoning range and land use element of the general plan applicable to the project. Where the density allowed under the zoning ordinance is inconsistent with the density allowed under the land use element of the general plan, the general plan density shall prevail.

6. For the purpose of calculating a density bonus, the residential units shall be on contiguous sites that are the subject of one development application, but do not have to be based upon individual subdivision maps or parcels. The density bonus shall be permitted in geographic areas of the project other than the areas where the units for the lower income households are located. (Ord. No. 765 § 2 (Exh. A) (part))

44-3.40.040 Incentives and Concessions.

When an applicant seeks a density bonus or seeks to donate land for housing, the County shall provide the applicant with incentives or concessions for the production of housing units. These incentives are also applicable to child care facilities as described under Section 44-3.50. The applicant must request a density bonus on their project application, as described in Article 44-1, identifying the specific incentives or concessions that the applicant requests.

A. Number of Incentives. The County shall grant the following number of incentives, except as provided in Section 44-3.50(A):

1. One incentive or concession for a project that includes: at least 10 percent of the total units affordable to low income households, at least 5 percent of the total units affordable to very low income households, or at least 10 percent of the total units affordable to households of moderate income in a common interest development; or

2. Two incentives or concessions for a project that includes: at least 20 percent of the total units affordable to low income households, at least 10 percent of the total units affordable to very low income households, at least 5 percent of the total units affordable to extremely low income households, or at least 20 percent of the total units affordable to households of moderate income in a common interest development; or,

3. A total of three incentives or concessions for a project that includes: at least 30 percent of the total units affordable to low income households, at least 15 percent of the total units affordable to very low income households, or at least 30 percent of the total units affordable to households of moderate income in a common interest development.

4. One additional incentive for a project that is affordable to low income households and provides any of the following: at least 25 percent of the units as 3- or 4- bedroom units, at least 25 percent of the units accommodate disabled persons and are set-aside for occupancy by disabled persons, or at least 10 percent of the units are affordable to extremely low income households.

5. Any combination of the above incentives shall not exceed three incentives per project.

B. Types of Incentives or Concessions. For the purposes of this chapter, “incentive” or “concession means any of the following:

1. A reduction in the site development standards that results in identifiable, financially sufficient, and actual cost reductions. The reduction may include, but is not limited to:

a. Reduced minimum lot size,

b. Reduced minimum lot width,

c. Reduced minimum setback,

d. Increased maximum building height,

e. Reduced on-site open-space requirement,

f. Increased maximum lot coverage,

g. Increased floor area ratio, or

h. Reduced parking requirement.

2. A reduction in architectural design requirements that exceeds the minimum building standards approved by the California Building Standards Commission in compliance with Health and Safety Code Section 18901 et seq., that would otherwise be required, that results in identifiable, financially sufficient, and actual cost reductions.

3. Approval of mixed use development in conjunction with the proposed development if non-residential uses will reduce the development cost of the residential portion of the proposed development, and if the non-residential uses are compatible with the proposed development and with existing or planned development in the area.

4. Expedited project processing. The project will receive expedited project processing, which will include:

a. Mandatory Pre-Development Review Meeting. An applicant requesting expedited project processing must participate in a mandatory pre-development review meeting prior to submittal of the project application, and must pay all applicable pre-development meeting fees.

b. The review period(s) to determine completeness of the project application will be reduced from 30 calendar days to 25 calendar days.

c. Upon completion of project processing, including completion of the environmental document, if necessary, at the applicant’s request the County will schedule the project for a public hearing, if required, and for project consideration by the decision-making body.

5. Other regulatory incentives or concessions proposed by the applicant or the County that result in identifiable, financially sufficient, and actual cost reductions.

6. A direct financial contribution, waiver of fees, or reduction of fees, when financially feasible, at the sole discretion of the Board of Supervisors. Nothing in this chapter shall be construed to require the provision of direct financial incentives for the development, including the provision of publicly owned land by the County or other waiver of fees or dedication requirements. (Ord. No. 765 § 2 (Exh. A) (part))

44-3.40.050 Maximum Parking Standards.

A. Upon the request of the applicant, a project shall be required to comply with the following parking standards:

1. Zero to one bedroom: one on-site parking space.

2. Two to three bedrooms: two on-site parking spaces.

3. Four and more bedrooms: two and one-half on-site parking spaces.

B. If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number.

C. For purposes of this section, a development may provide “on-site parking” through tandem parking or uncovered parking, but not through on-street parking.

D. This subdivision shall only apply at the specific written request of the applicant to a development that meets the requirements the criteria of Section 44-3.40.020. An applicant may request parking incentives or concessions beyond those provided in this subdivision pursuant to Section 44-3.40. (Ord. No. 765 § 2 (Exh. A) (part))

44-3.40.060 Processing of Density Bonus, Incentives, and Concessions.

A. Application. In order to receive a density bonus, concessions, and/or incentives pursuant to this section, an Applicant must submit to the County a density bonus request which will be treated as part of the development application. At any time during the review process, the Director may require from the applicant additional information reasonably necessary to clarify and supplement the application or to determine the development’s consistency with the requirements of this section. The density bonus request shall include the following:

1. A description of the project, including the total number of proposed market rate units, affordable housing units, and/or senior housing units;

2. The zoning and General Plan designations and assessor’s parcel number(s) of the project site;

3. A vicinity map and preliminary site plan, drawn to scale, including building footprints, driveways and parking layout;

4. A description of the concessions or incentives requested;

5. If an additional incentive(s) is requested, the application shall describe why the additional incentive(s) is necessary to provide the affordable housing units;

6. The draft Affordable Housing Plan meeting the requirements described in Paragraph B of this section; and

7. Any other information reasonably requested by the County to aid in the implementation of this section.

B. Affordable Housing Plan. An applicant shall submit an affordable housing plan as part of the density bonus request. The affordable housing unit plan shall include the following:

1. The location, structure (attached, semi-attached, or detached), proposed tenure (sale or rental), and size of proposed market-rate, and affordable housing units and the proposed tenure and size of non-residential uses included in the development.

2. A floor or site plan depicting the location of the affordable housing units and a floor plan describing the size of the affordable housing units in square feet;

3. The income level to which each affordable housing unit will be made affordable;

4. Draft of the documents to be used to assure that the units remain affordable for the desired term, such as resale and rental restrictions, deed of trust, and rights of first refusal and other documents;

5. For phased developments, a phasing plan that provides for the timely development of affordable housing units in proportion to other housing units in each proposed phase of development as required by this section;

6. A marketing plan that describes how the applicant will inform the public, and those within the appropriate income groups, of the availability of affordable housing units;

7. A financial report (pro forma) to evaluate: i) whether the concessions or incentives sought would result in identifiable, financially sufficient, and actual cost reductions and ii) whether the concessions or incentives sought would reduce the cost of the project; and

8. Any other information reasonably requested by the Director to assist with evaluation of the Affordable Housing Plan or density bonus request.

C. The granting of a density bonus, incentive, and/or concession shall not be interpreted, in and of itself, to require a General Plan amendment, zoning change, or other discretionary approval.

D. Approval Authority. The entity with approval authority for the administrative permit, minor use permit, subdivision map, parcel map, or other primary entitlement requested by the applicant shall consider the requested density bonus, incentives, and concessions.

E. Affordable Housing Agreement. Applicants, including the property owner, receiving a density bonus, incentives, and/or concessions pursuant to this section shall enter into an affordable housing agreement with the County.

1. Condition of Approval. An affordable housing agreement shall be a condition of approval for all residential developments subject to this chapter and shall be recorded as a restriction on any residential development on which the affordable and/or senior housing units will be constructed.

2. Timing. The affordable housing agreement shall be recorded prior to or concurrently with final parcel map or final subdivision map approval, or, where the residential development does not include a map, prior to issuance of a building permit for any structure in the residential development. The affordable housing agreement shall run with the land and bind all future owners and successors in interest.

3. Duration. The affordable housing agreement shall be binding on all future owners and successors in interest for the applicable affordability period, which shall begin at the initial occupancy, of each affordable housing unit. Senior projects shall be restricted to occupancy by senior citizens in perpetuity.

4. Contents. The affordable housing agreement shall address the occupancy, affordability, resale, and other restrictions identified at Government Code Section 65915(c) and shall include the following, at a minimum without limitation:

a. The total number of units approved for the residential development and the number, location, and level of affordability of the affordable and senior units.

b. Standards for determining affordable rent or affordable ownership cost for the affordable units.

c. The location, unit size in square feet, and number of bedrooms of the affordable and senior units.

d. Provisions to ensure initial and continuing affordability, including the execution and recordation of subsequent agreements.

e. A schedule for completion and occupancy of affordable and senior units in relation to construction of market rate units.

f. A description of remedies for breach of the agreement by either party. The County may identify tenants or qualified purchasers as third party beneficiaries under the agreement.

g. Procedures for qualifying tenants and prospective purchasers of affordable and senior units.

h. Provisions requiring maintenance of records to demonstrate compliance with this chapter.

i. Provisions requiring fair housing practices, as defined by the California Fair Employment and Housing Act (Government Code Section 12900 et.seq.) in the marketing, rental, or sale of any affordable housing unit.

j. Other provisions to ensure implementation and compliance with this chapter.

F. Child Care Facility Agreement. Applicants, including the property owner, receiving a density bonus, incentives, and/or concessions for a child care facility pursuant to this section shall enter into an affordable housing agreement with the County. The County shall require a child care facility agreement as a condition of approving the development. The agreement shall include the following conditions governing the use and operation of the child care facility during the use restriction period:

1. The child care facility shall remain in operation as long as or longer than the time period during which the affordable housing units are required to remain affordable pursuant to the affordable housing agreement; and

2. Of the children who attend the child care facility, the children of very low income households, low income households, moderate income households shall equal a percentage that is equal to or greater than the percentage of dwelling units that are made affordable to very low income households, low income households, or moderate income households pursuant to the affordable housing agreement.

3. If the developer uses the space allocated for the child care facility for purposes other than for a child care facility, an assessment based on the square footage of the project shall be levied and collected by the County. The assessment shall be consistent with the market value of the space. If the developer fails to have the space allocated for the child care facility within three years, from the date upon which the first temporary certificate of occupancy is granted, an assessment based on the square footage of the project shall be levied and collected by the County. The assessment shall be consistent with the market value of the space. If the assessment is levied against a consortium of developers, the assessment shall be charged to each developer in an amount equal to the developer’s percentage square feet participation. Funds collected pursuant to this requirement shall be deposited by the County into a special account to be used for child care services or child care facilities.

4. Once the child care facility has been established, the facility shall not be closed, undergo change in use, or be reduced in physical size unless the County makes a finding that the need for child care is no longer present, or is not present to the same degree as it was at the time the facility was established.

G. Administrative Fee. The County shall charge an Administrative Fee to applicants to cover the County’s cost of on-going enforcement of this section. The amount of the administrative fee shall be established from time-to-time by Board ordinance. Fees will be charged for costs, including staff time and materials, associated with: review and approval of applications for the project; project marketing and lease-up materials associated with the affordable housing units; and long-term compliance with the applicable provisions of this section.

H. Denial of Density Bonus, Incentives, and or Concessions for Affordable Housing. The density bonus, incentives, and/or concessions requested shall be granted unless the County denies specific incentives and/or concessions based on the entity with approval authority making any of the following written findings, based on substantial evidence:

1. The incentive or concession is not required to provide for affordable housing costs as defined in Health and Safety Code Section 50052.5, or for rents for the targeted units set as specified in this section; or

2. The incentive or concession would have a specific adverse impact, as defined in Government Code Section 65589.5(d)(2), upon public health and safety, the physical environment, or on any real property that is listed in the California Register of Historic Resources, the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rending the development unaffordable to low and moderate income households; or

3. The incentive or concession would be contrary to State or Federal law.

I. Denial of Density Bonus, Incentives, and/or Concessions for a Child Care Facility. Notwithstanding any requirement of this section, the County need not provide a density bonus, incentive, or concession for a child care facility if it finds, based upon substantial evidence, that the community has adequate child care facilities. (Ord. No. 765 § 2 (Exh. A) (part))

44-3.40.070 Design, Distribution and Timing of Development of Affordable Housing Units.

A. Affordable housing units must be constructed concurrently with market-rate units. Affordable housing units shall be integrated into the project and be comparable in infrastructure (including sewer, water and other utilities), construction quality, and exterior design to the market-rate units. The affordable housing units must also comply with the following criteria:

1. Rental Developments: Rental units shall be integrated within and reasonably dispersed throughout the project. All affordable housing units shall reflect the range and numbers of bedrooms provided in the project as a whole, and shall not be distinguished by design, construction, or materials.

2. Owner-occupied Developments: Owner-occupied units shall be integrated within the project. Affordable housing units may be smaller in size and have different interior finishes and features than market-rate units so long as the interior features are durable, of good quality and consistent with contemporary standards for new housing as determined by the Director. All affordable housing units shall reflect the range and numbers of bedrooms provided in the project as a whole, except that affordable housing units need not provide more than four bedrooms.

B. No building permits will be issued for market-rate units until permits for all affordable housing units have been obtained, unless affordable housing units are to be constructed in phases pursuant to a plan approved by the County.

C. Market-rate units will not be inspected for occupancy until all affordable housing units have been constructed, unless affordable housing units are to be constructed in phases pursuant to a plan approved by the County. (Ord. No. 765 § 2 (Exh. A) (part))

44-3.40.080 Compliance.

The provisions of this section shall apply to all agents, successors and assignees of an applicant receiving a density bonus, incentive, and/or concession pursuant to this chapter. No tentative map, use permit, special development permit or occupancy permit shall be issued for any project that has been granted a density bonus under this section unless that map or permit is exempt from or in compliance with the requirements of this chapter.

A. If the Director determines that rents in excess of those allowed by the affordable housing agreement have been charged to a tenant residing in a rental affordable housing unit, the County may take the appropriate legal action to recover, and the rental unit owner shall be obligated to pay to the tenant (or to the County in the event the tenant cannot be located), any excess rent paid.

B. If the Director determines that a sales price in excess of that allowed by the affordable housing agreement has been charged for an ownership affordable housing, the County may take the appropriate legal action to recover, and the seller of the affordable housing unit shall be obligated to pay to the purchaser (or to the County in the event the purchaser cannot be located), any excess sales costs.

(c) Failure of any official or agency to enforce the requirements of this section shall not constitute a waiver or excuse any applicant or owner from the requirements of this section. No permit, license, map, or other approval or entitlement for a residential development shall be issued, including without limitation a final inspection or certificate of occupancy, until all applicable requirements of this section have been satisfied. (Ord. No. 765 § 2 (Exh. A) (part))