The purpose of this Chapter is to implement the State Density Bonus Law (California Government Code Section 65915 et seq., as may be amended from time to time) and specify the regulatory framework for providing density bonuses and incentives, waivers, and reductions in development standards for qualifying residential housing developments that propose affordable housing as those costs are provided for in California Health and Safety Code Section 50052.5. The intent of this Chapter is to encourage and facilitate the development of affordable housing consistent with the State Density Bonus Law and to implement the goals, objectives, and policies of the Del Mar Community Plan, including the current Housing Element and Local Coastal Program.

If any portion of this Chapter conflicts with State Density Bonus Law or other applicable State law, then State law shall apply. Any ambiguities that may be found in this Chapter shall be interpreted in a manner to be consistent with State Density Bonus Law and with the City's certified Local Coastal Program.

(Ord. No. 1007, § 2, 5-6-2024)

The definitions found in the State Density Bonus Law shall apply to the terms contained in this Chapter.

(Ord. No. 1007, § 2, 5-6-2024)

A.

A proposed housing development, as that term is defined by State Density Bonus Law, shall be eligible for a density bonus and other regulatory incentives provided by State Density Bonus Law, when the applicant, through submittal of an application in accordance with Section 30.90.040, seeks and agrees to provide dwelling units for very-low, low- or moderate-income households, senior households, transitional foster youth, disabled veterans, homeless persons, or lower income students in the threshold amounts specified by State Density Bonus Law.

B.

The granting of a density bonus, concession or incentive pursuant to this Chapter shall not be interpreted, in and of itself, to require any of the following:

1.

An amendment to the Del Mar Community Plan, Del Mar Zoning Code, or Del Mar Local Coastal Program; or

2.

The waiver of a City ordinance or provisions of a City ordinance unrelated to development standards, a zoning change, study or other discretionary approval by the City.

(Ord. No. 1007, § 2, 5-6-2024)

A.

An application requesting a density bonus, concession or incentive, waiver or reduction of development standards, adjusted parking ratios, or any combination thereof, shall be filed with the City in writing, on a form approved by the Planning and Community Development Director (Director).

B.

The application shall be submitted to the City concurrently with the filing of any other entitlements required for the proposed housing development and the required application fee(s) established by City Council Resolution to recover the City's administrative costs of processing the application.

C.

The application shall contain information sufficient to allow the City to fully evaluate the request under the requirements of this Chapter and State Density Bonus Law, including, without limitation, the following minimum information:

1.

Requested Density Bonus.

a.

Summary table showing the maximum number of dwelling units permitted by the zoning and Del Mar Community Plan (excluding any density bonus units), number of proposed affordable units by income level, proposed bonus percentage, number of density bonus units proposed, total number of dwelling units proposed on the site, and resulting density in units per acre.

b.

A tentative map or preliminary site plan (drawn to scale) showing the number and location of all proposed units and designating the location of proposed affordable units and density bonus units.

c.

The zoning and Community Plan designations and Assessor's Parcel Number(s) of the housing development site.

d.

A description of all dwelling units existing on the site in the five-year period preceding the date of submittal of the application and identification of any units rented in the five-year period and whether they were rented as affordable units.

i.

If dwelling units on the site are currently rented, identify the income and household size of all residents of currently occupied units, if known.

ii.

If any dwelling units on the site were rented in the five-year period but are not currently rented, identify the income and household size of residents occupying the dwelling units when the site contained the maximum number of dwelling units, if known.

e.

Description of any recorded covenant, ordinance, or law applicable to the site that restricted rents to levels affordable to very low-income or low-income households in the five-year period preceding the date of submittal of the application.

f.

Any other information the Director reasonably determines necessary to process and evaluate the application consistent with State Density Bonus Law.

2.

Requested Concessions or Incentives. If concessions or incentives are requested pursuant to State Density Bonus Law, the application shall include the following minimum information for each concession or incentive requested, shown on a site plan (if appropriate):

a.

The applicable development standards of the base zone and overlay zones (base development standards) and the requested concession or regulatory incentive for each development standard where requested.

b.

Except where mixed-use zoning is proposed as a concession or incentive, reasonable documentation to show why any requested concession or incentive will reduce affordable housing costs or rents.

c.

If approval of mixed-use zoning is proposed, reasonable documentation that nonresidential land uses will reduce the costs of the housing development, that the nonresidential land uses are compatible with the housing development and the existing or planned development in the area where the proposed housing development will be located, and that mixed-use zoning will provide for affordable housing costs and rents.

d.

If relief from a requirement for mixed-use zoning is proposed, reasonable documentation that residential use without a commercial component is compatible with the existing and planned development in the area where the proposed housing development will be located, and that not including a proposed commercial development will provide for affordable housing costs and rents.

3.

Requested Waivers or Reductions of Development Standards. If waivers or reductions of development standards are requested pursuant to State Density Bonus Law, the application shall include the following minimum information for each waiver requested, shown on a site plan (if appropriate):

a.

The applicable development standards of the base zone and overlay zones (base development standards) and the requested waiver or reduction of standards for each base development standard where requested.

b.

Reasonable documentation that the development standards for which a waiver or reduction of a development standard is requested will have the effect of physically precluding the construction of a development at the densities or with the concessions or incentives permitted by California Government Code Section 65915.

4.

Requested Adjusted Parking Ratios. If adjusted parking ratios are requested pursuant to State Density Bonus Law, the application shall include a table showing parking proposed under State Density Bonus Law in compliance with Government Code Section 65915(p) and Section 30.90.090, and reasonable documentation that the project is eligible for the requested parking reduction.

5.

Donation of Land. If a density bonus is requested for the donation of land to the City, the application shall include the location of the land to be dedicated, proof of site control, proof of any debt associated with the land, and reasonable documentation that the requirements of Government Code Section 65915(g) can be met.

6.

Childcare Facility. If a density bonus or incentive is requested for a childcare facility in a housing development pursuant to Government Code Section 65915(h), the application shall include reasonable documentation that the requirements of Government Code Section 65915(h) can be met.

7.

Condominium Conversion. If a density bonus or incentive is requested for a condominium conversion of five or more units, the application shall include reasonable documentation that the requirements of Government Code Section 65915.5 and Del Mar Municipal Code Chapter 24.21 (Condominium Conversions) can be met.

8.

Commercial Development Bonus. If a "development bonus," as defined by State Density Bonus Law, is requested for a commercial development project, the application shall include reasonable documentation that the requirements of Government Code Section 65915.7 can be met, which includes (where applicable) an agreement between the developer and a partnered affordable housing organization that allows for a contribution of affordable housing through a joint project or two separate projects encompassing affordable housing.

(Ord. No. 1007, § 2, 5-6-2024)

A.

State Density Bonus Law provides that it shall not be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Public Resources Code Section 30000 et seq.), and further provides that the granting of a density bonus, concession or incentive shall not be interpreted, in and of itself, to require a Local Coastal Program amendment.

B.

The requested density bonus and any requested incentive or concession, waiver or reduction of development standards, adjusted parking ratios, or any combination thereof, shall be consistent with the policies of the certified Local Coastal Program and shall have no significant adverse impacts to coastal resources or the environment, including but not limited to, preservation of public access to the shoreline, and protections for public scenic views, environmentally sensitive habitat areas, and public health and safety in coastal hazard areas.

C.

For the purposes of Section 30.90.050:

1.

"Coastal resources" means any resource which is afforded protection under the policies of Chapter 3 of the California Coastal Act (Public Resources Code Section 30200 et seq.), including but not limited to, public access, marine and other aquatic resources, environmentally sensitive habitat, and the visual quality of coastal areas.

2.

"Environment" as defined by Public Resources Code Sections 21060.5 and 21083 means the physical conditions which exist within the area which will be affected by a proposed project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historical or aesthetic significance. The area involved shall be the area in which significant effects would occur either directly or indirectly as a result of the project. The environment includes both natural and human-made conditions.

(Ord. No. 1007, § 2, 5-6-2024)

A.

The City shall process an application within 30 calendar days after receiving the application and shall notify the applicant in writing whether or not the application is deemed complete in a manner consistent with Government Code Section 65943. If additional time is required for the City to review an application, the City shall inform the applicant in writing of the reason for the additional time necessary to review the application.

B.

If the City notifies the applicant that the application is deemed complete pursuant to Section 30.90.060(A), the City shall also provide the applicant with the following determinations, which shall be based on the development project at the time the application is deemed complete, and may be adjusted by the City based on any changes to the project during the course of development:

1.

The amount of density bonus for which the applicant may be eligible;

2.

If an adjusted parking ratio is requested, the parking ratio for which the applicant may be eligible; and

3.

If an incentive or concession, or waiver or reduction of development standards has been requested, whether the applicant has provided adequate information for the City to make a determination as to those incentives, concessions, waivers, or reductions in development standards and if adequate information has not been provided, a list of what necessary information is required.

C.

To ensure that an application for housing development conforms with the provisions of State Density Bonus Law and the Coastal Act, the record of decision shall state whether the application conforms to the following requirements under State law, as applicable:

1.

That the housing development provides the housing required by State Density Bonus Law to be eligible for the density bonus and any requested incentive or concession, waiver or reduction of development standards, adjusted parking ratios, or any combination thereof, including the replacement of units rented or formerly rented to very low-income and low-income households as required by Government Code Section 65915(c)(3).

2.

If an incentive or concession is requested, that any requested incentive will result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in Health and Safety Code Section 50052.5, or for affordable rents, as defined in Health and Safety Code Section 50053; except that, if a mixed-use development is requested, the application must instead meet all of the requirements of Government Code Section 65915(k)(2).

3.

If a waiver or reduction of development standards is requested, that the housing development project is eligible for a waiver, and the development standards for which a waiver is requested would have the effect of physically precluding the construction of the housing development at the densities or with the concessions or incentives permitted by State Density Bonus Law.

4.

If parking reductions are requested, that the housing development is eligible for any requested parking reductions under Government Code Section 65915(p).

5.

If the density bonus is based, all or in part, on donation of land, that all requirements in Government Code Section 65915(g) have been met.

6.

If the density bonus or incentive is based, all or in part, on the inclusion of a childcare facility, that all requirements in Government Code Section 65915(h) have been met.

7.

If the density bonus or incentive is based, all or in part, on the inclusion of a condominium conversion, that the requirements in Government Code Section 65915.5 and Del Mar Municipal Code Chapter 24.21 (Condominium Conversions) have been met.

8.

That the requested density bonus, and any requested incentive or concession, waiver or reduction of development standards, adjusted parking ratios, or any combination thereof, is consistent with all applicable requirements of the certified Local Coastal Program.

D.

The City shall grant an incentive or concession requested by the applicant unless it makes a written finding to deny, based upon substantial evidence, of any of the following:

1.

That the incentive or concession does not result in identifiable and actual cost reductions consistent with State Density Bonus Law to provide for affordable housing costs, as defined in Health and Safety Code Section 50052.5, or for affordable rents, as defined in Health and Safety Code Section 50053; or

2.

That the requested incentive or concession would have a specific, adverse impact upon public health or safety or on any real property listed in the California Register of Historic Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the housing development unaffordable to low- and moderate-income households. For purposes of this subsection, "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the housing development was deemed complete, as defined in Government Code Section 65589.5(d)(2); or

3.

That the incentive or concession would be contrary to State or Federal law.

E.

The City shall grant the waiver or reduction of development standards requested by the applicant unless it makes a written finding to deny, based upon substantial evidence, of any of the following:

1.

That the waiver or reduction would have a specific, adverse impact upon health, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. For purposes of this subsection, "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the housing development was deemed complete, as defined in Government Code Section 65589.5(d)(2); or

2.

That the waiver or reduction of development standards would have an adverse impact on any real property listed in the California Register of Historic Resources; or

3.

That the requested waiver would be contrary to State or Federal law.

F.

The City may deny a density bonus or incentive for a childcare facility if it makes a written finding, based on substantial evidence, that the community has adequate childcare facilities.

(Ord. No. 1007, § 2, 5-6-2024)

A.

An applicant seeking a density bonus for a housing development shall enter into an affordable housing agreement with the City, on a form approved by the City, to ensure the continued affordability of the units pursuant to State Density Bonus Law. Following execution of the agreement by all parties, the completed agreement shall be recorded by the applicant as a deed restriction against the property on which the project will be located. The agreement shall run with the land and be binding on all future owners and successors in interest of the property. The approval and recordation of the agreement shall take place prior to final map approval, or where a map is not processed, prior to issuance of any building permit for the property on which the project will be located.

B.

For rental projects, the affordable housing requirement shall require the continued affordability of all rental units that qualified the applicant for the receipt of the density bonus, incentive or concession, waiver or reduction of development standards, or adjusted parking ratio for a minimum of 55 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program; shall identify the type, size and location of each affordable unit; shall specify the eligible occupants; and shall specify phasing of the affordable units in relocation to the market-rate units. Rents for the lower income units shall be set at an affordable rent as defined by State Density Bonus Law.

C.

For for-sale projects, the affordable housing requirement shall require that, the initial purchasers of those for-sale units that qualified the applicant for the receipt of the density bonus, incentive or concession, waiver or reduction of development standards, or adjusted parking ratio, are persons and households of lower or moderate income, as applicable, or if not purchased by lower or moderate income households within 180 days after the issuance of the certificate of occupancy, then pursuant to Government Code Section 65915(c), the units will be purchased by a qualified non-profit housing corporation as defined by State Density Bonus Law; and that the units will then be offered at an affordable housing cost, as that cost is defined in Health and Safety Code Section 50052.5. The City shall enforce an equity sharing agreement consistent with State Density Bonus Law unless it is in conflict with the requirements of another public funding source or law.

D.

Where a density bonus, incentive or concession, waiver or reduction of development standards, or adjusted parking ratio is provided for a market-rate senior housing development, the applicant shall enter into a restrictive covenant with the City, running with the land, in a form approved by the City, requiring the housing development to be operated as "housing for older persons" consistent with State and Federal fair housing laws.

E.

The affordable housing agreement shall also include the following information:

1.

The number of units approved for the housing development, including the number and type of affordable and density bonus units;

2.

The location, unit size(s) (square footage), and number of bedrooms of affordable units;

3.

Schedule for production of affordable units;

4.

Incentives or concessions or waiver or reduction of development standards provided by the City;

5.

Where applicable, limits on tenure and conditions governing the initial sale of the affordable units;

6.

Where applicable, tenure and conditions establishing rules and procedures for qualifying tenants, setting rental rates, filling vacancies, and operating and maintaining units for affordable rental dwelling units;

7.

Compliance with State and Federal laws;

8.

Prohibition against discrimination;

9.

Indemnification of City;

10.

City's right to inspect units and documents;

11.

Remedies; and

12.

Any additional information or documentation that may be required by the City.

(Ord. No. 1007, § 2, 5-6-2024)

A.

In determining the total number of units to be granted, each component of any density calculation, including base density and bonus density, resulting in fractional units shall be separately rounded up to the next whole number.

B.

When calculating the number of affordable units needed for a given density bonus, any fractions of affordable dwelling units shall be rounded up to the next whole number.

C.

Each housing development is entitled to only one density bonus for the life of that development. If a housing development qualifies for a density bonus under more than one category, the applicant shall identify the category under which the density bonus is requested to be granted.

D.

The density bonus units shall not be included when determining the number of affordable units required to qualify a housing development for a density bonus pursuant to State Density Bonus Law.

E.

The applicant may elect to accept a lesser percentage of density bonus than the housing development is entitled, or no density bonus, but no reduction will be permitted in the percentages of required affordable units contained in Government Code Section 65915, subdivisions (b), (c), and (f). Regardless of the number of affordable units, no housing development shall be entitled to a density bonus higher than what is authorized under State Density Bonus Law.

(Ord. No. 1007, § 2, 5-6-2024)

A.

Incentives are those defined by State Density Bonus Law. The number of incentives that may be requested shall be based upon the number the applicant is entitled to pursuant to State Density Bonus Law.

B.

If a housing development is eligible for a density bonus pursuant to State Density Bonus Law, the applicant may request an on-site vehicular parking ratio specified in Government Code Section 65915(p).

C.

Nothing in this Chapter requires the provision of direct financial incentives for the housing development, including but not limited to, the provision of financial subsidies, publicly owned land, fee waivers, or the waiver of dedication requirements. The City, at its sole discretion, may choose to provide such direct financial incentives.

(Ord. No. 1007, § 2, 5-6-2024)

A.

Building permits and final inspections or certificates of occupancy shall be issued concurrently for the market-rate units and affordable units.

B.

Affordable units shall be comparable in exterior appearance and overall quality of construction to market-rate units in the same housing development and be consistent with the City's design review objective standards. Interior finishes and amenities may differ from those provided in the market- rate units, but neither the workmanship nor the products may be of substandard or inferior quality.

C.

To comply with fair housing laws, the affordable units shall contain the same or more proportional mix of bedroom sizes as the market-rate units.

D.

In mixed-income buildings, the occupants of the affordable units shall have the same access to the common entrances and to the common areas, parking, and amenities of the project as the occupants of the market-rate housing units, and the affordable units shall be located throughout the building and not isolated on one floor or to an area on a specific floor.

(Ord. No. 1007, § 2, 5-6-2024)

The regulations of this Chapter, including the terms of any density bonus housing agreement or documents prepared to administer the affordability and eligibility requirements, shall be enforced according to the provisions in Del Mar Municipal Code Chapter 1.08.

(Ord. No. 1007, § 2, 5-6-2024)

A.

An appeal by an applicant or interested person seeking City Council review of a determination made pursuant to this Chapter shall be filed in accordance with Del Mar Municipal Code Chapter 1.12.

B.

An applicant may also elect to initiate judicial proceedings to contest the City's denial of an application for a density bonus, incentive or concession, as authorized under State Density Bonus Law.

(Ord. No. 1007, § 2, 5-6-2024)

Should a court of competent jurisdiction determine that these regulations are void or if certain terms or provisions are voided, then those regulations shall either become void in their entirety or where the courts have determined that certain terms or provisions are void by operation of the law, then those terms and provisions shall have no force or effect.

(Ord. No. 1007, § 2, 5-6-2024)