(A)   The purpose of this chapter is to ensure that new residential and nonresidential development projects contribute to the availability and attainment of decent, affordable housing to a broad range of households with varying income levels throughout the Town of Fairfax.

   (B)   These requirements implement the town's housing element by assisting in meeting the town's regional housing needs allocations, providing funding to facilitate affordable housing development, and affirmatively furthering fair housing by ensuring that affordable housing is constructed in all parts of the town.

   (C)   The Town Council desires to provide and maintain affordable housing opportunities through an affordable housing in-lieu fee, the funds of which will be deposited into the Affordable Housing Fund to be used in the development of affordable housing and related programs in the town. The commercial/nonresidential linkage fee requirements will assist in alleviating the impacts of the demand for new affordable housing created by new nonresidential developments.

(Ord. 884, passed 11-1-2023)

   See Chapter 17.008 (Definitions) for terms related to this chapter.

(Ord. 884, passed 11-1-2023)

   Residential development projects that include three or more dwelling units shall include the construction of inclusionary units in accordance with this chapter, unless an alternative means of compliance is permitted in accordance with this chapter.

      (1)   For-sale residential development projects shall include deed restricted, for-sale moderate-income units equal to 20 percent of the total number of dwelling units in the project. The developer may, at its discretion, provide very low-income units or low-income units instead of moderate-income units.

      (2)   As an alternative to developing for-sale inclusionary units within the residential development project as set forth above, for-sale residential development projects may satisfy the requirements of this chapter by developing rental low-income units included within the residential development equal to 20 percent of the total number of for-sale and rental units included in the residential development. The developer may create a separate legal parcel within the residential development project upon which the rental low-income units may be located. The developer may, at its discretion, provide very low-income units instead of low-income units.

   (E)   Fractional units. If in computing the total number of inclusionary units required in a residential development project, there is a fractional unit required, the applicant shall pay a housing in-lieu fee in the amount determined in accordance with § 17.140.120 of this chapter, equal to the amount calculated for that fractional unit on a per dwelling unit basis, unless the applicant elects to round up to the nearest whole number of units and provide that unit.

(Ord. 884, passed 11-1-2023)

     The requirements of this chapter do not apply to:

   (A)   The reconstruction of any structures that have been destroyed by fire, flood, earthquake or other act of nature provided that the reconstruction of the site does not increase the number of residential units by three or more.

   (B)   Residential building additions, repairs or remodels; provided that such work does not increase the number of existing units by three or more.

   (C)   Residential development projects that have been deemed complete by the town in accordance with Government Code § 65589.5 or § 65943 as of the effective date of this chapter.

   (D)   Any accessory dwelling unit or junior accessory dwelling unit approved by the town.

   (E)   Any residential development project exempted by state law as may be amended from time to time.

(Ord. 884, passed 11-1-2023)

   (A)   For-sale inclusionary units produced pursuant to this chapter shall be legally restricted to sale to and occupancy by households of the income levels for which the units were designated for a single cumulative term of 55 years. During that term, the for-sale inclusionary units may only be sold and resold to moderate or low-income households at an affordable sales price for moderate income households.

   (B)   Rental units produced pursuant to this chapter shall be legally restricted to rental to and occupancy by households in the income level for which the inclusionary units are developed for a term of not less than 55 years. At the end of the 55-year term, the restrictions on rental of the inclusionary units may only be removed in the event that the property upon which the rental inclusionary unit or units are located is rezoned and used for a non-residential use.

   (C)   To ensure compliance with the durational requirement, affordable housing agreements, and resale restriction agreements for for-sale inclusionary units, shall be recorded in the chain of title for every inclusionary unit.

(Ord. 884, passed 11-1-2023)

   The following are alternative means of fulfilling inclusionary housing obligations:

   (A)   Payment of housing in-lieu fee. As an alternative to constructing inclusionary units as required by this chapter, all or a portion of the inclusionary housing requirement may be fulfilled through the payment of a housing in-lieu fee pursuant to an in-lieu fee schedule adopted by the town pursuant to this chapter, subject to the following:

      (1)   For-sale and rental units may pay a housing in-lieu fee.

      (2)   The housing in-lieu fee shall be paid at the time that the first building permit is obtained for the residential development.

      (3)   All in-lieu fees collected under this chapter shall be deposited in the Inclusionary Housing Fund established pursuant to this chapter.

      (1)   Off-site development of the required affordable units is permitted provided the off-site units are located within one-half mile of the market-rate development that is the subject of the inclusionary housing requirement.

      (2)   The off-site units shall not create an over-concentration of deed-restricted affordable dwelling units in any one neighborhood. For purposes of this chapter, “over concentration” is defined as more than 50 deed restricted very low or low-income dwelling units within one-quarter mile of the site of the proposed inclusionary units, or more than 200 of such units within one-half mile of the site of the proposed inclusionary units.

      (1)   The land dedicated shall be zoned to allow residential use;

      (2)   The land shall be of sufficient size to accommodate the required units;

      (3)   The applicant shall provide evidence satisfactory to the town that the property does not contain any hazardous materials at the time of conveyance; shall disclose whether any hazardous materials were previously found on the property; and if hazardous materials were previously remediated from the property, the applicant shall provide evidence satisfactory to the town that such hazardous materials were remediated in accordance with all applicable laws and regulations;

      (4)   The land shall be fully improved with access infrastructure, adjacent utilities, and grading; and

      (5)   A non-profit shall enter into an agreement with the town to construct the units within an agreed upon time period and the units constructed shall be subject to the affordability covenant as set forth in § 17.140.050.

   (D)   The alternative means of compliance set forth herein are intended to implement the town's authority to promote the development of affordable housing, in accordance with Cal. Gov’t Code § 65850(g), and shall not be considered or construed as an ad hoc exaction, a mandated fee required to develop a specific property, or a fee imposed to offset the development impacts of a specific project.

(Ord. 884, passed 11-1-2023)

   Unless otherwise specified by the Town Council, inclusionary units shall be developed in a manner consistent with the following requirements:

      (1)   Inclusionary units shall be reasonably dispersed throughout a residential development and not clustered in a specific portion of the development, and the location of the inclusionary units within a residential development shall be designated before issuance of the first building permit for the residential development.

      (2)   Inclusionary units shall be built concurrently with the market rate units in the residential development. The inclusionary units may be constructed in phases if the market rate units are constructed in phases, provided that the percentage of inclusionary units developed in each phase shall be equivalent to or greater than the total percentage of inclusionary units to be developed as part of the residential development until such time that all the inclusionary units have been built.

      (3)   Inclusionary units shall be comparable in infrastructure (including sewer, water and other utilities), construction quality and exterior design to the market-rate units.

      (4)   The bedroom mix for the inclusionary units shall be proportional to the bedroom mix of the market rate units, but the inclusionary units may be smaller in square footage than the market rate units.

      (5)   The interior finishes and features for the inclusionary units shall be comparable to the base level interior finishes for the market-rate units, and the appliance packages in the inclusionary units shall be the same as the appliance packages provided in the base level market rate units.

      (6)   Residents and tenants of Inclusionary Units located within the Residential Development shall be provided the same rights and access to common amenities in the development project as residents and tenants occupying market-rate units.

      (1)   The off-site inclusionary units shall be constructed concurrently with the market rate units in the residential development that triggered the requirements for the inclusionary units. if the market rate units are constructed in phases, then the off-site inclusionary units shall be constructed prior to or concurrently with the first phase of the market rate residential development. Construction of the second phase of the market rate units shall not commence until the required off-site inclusionary units are completed.

      (2)   Off-site inclusionary units shall be comparable in infrastructure (including sewer, water and other utilities), construction quality and exterior design to the market-rate units.

      (3)   The bedroom mix for the off-site inclusionary units shall be proportional to the bedroom mix of the market rate units, but the off-site inclusionary units may be smaller in square footage than the market rate units.

      (4)   The interior finishes and features for the off-site inclusionary units shall be comparable to the base level interior finishes for the market-rate units, and the appliance packages in the off-site inclusionary units shall be the same as the appliance packages provided in the base level market rate units.

(Ord. 884, passed 11-1-2023)

   (A)   No residential development subject to this chapter shall be approved or deemed approved without approval of an inclusionary housing plan as provided herein.

      (1)   Whether the residential development is for-sale or rental;

      (2)   How the inclusionary housing requirement will be satisfied pursuant to this chapter;

      (3)   The number, unit type, tenure, number of bedrooms, approximate location, size and design, construction and completion schedule of all inclusionary units;

      (4)   For off-site development of inclusionary units, such information as is required to demonstrate compliance with § 17.140.070;

      (5)   Phasing of inclusionary units in relation to market rate units;

      (6)   The amount of in-lieu fees to be paid by applicant, if applicable.

      (7)   Provide a plan for collecting sufficient reserves for the ongoing repair and maintenance of below-market rate rental units which shall not compromise the affordability of the below-market rate rental units.

      (8)   Any other information reasonably requested by the Town Manager to assist with evaluation of the plan under the requirements of this chapter.

      (9)   Acknowledgement that an instrument as specified by the town restricting the inclusionary unit(s) as affordable shall be recorded against every inclusionary unit for required affordability for 55 years and that a recordable affordable housing agreement shall be entered into by the applicant and any other necessary party, and/or that all required in-lieu fees shall be paid at the time set forth in this chapter.

      (1)   In the event that the residential development project requires discretionary approvals in order to be developed, the inclusionary housing plan shall be considered with the application for such inclusionary approvals by the entity responsible for reviewing such discretionary approvals and may be appealed in accordance with the appeals procedures established for such approvals.

      (2)   In the event that the residential development project does not require discretionary approvals in order to be developed, the inclusionary housing plan shall be considered by the Town Manager and shall be approved prior to the issuance of any ministerial permits required for the project. The Town Manager's decision is final unless a written appeal is filed with the Town Clerk's office within ten days from the date of issuance of the Town Manager's decision under this title. In the event of an appeal, the Town Council's decision shall be final.

       (3)   Notwithstanding the foregoing, in the event the applicant desires to comply with this chapter by means of a method that specifically requires Town Council approval pursuant to this title, the inclusionary housing plan shall be considered by the Town Council either prior to or concurrently with consideration by the required decision-making body for the approvals required for the residential development project.

   (D)   The forms of the affordable housing agreement and any related declarations, resale restrictions, deeds of trust, and other documents authorized by this chapter shall be in a general form as prescribed by the town and shall be approved by the Town Manager and approved as to form by the Town Attorney prior to being executed with respect to any residential development project subject to this chapter.

      (1)   An affordable housing agreement in a form approved by the town shall be recorded against inclusionary units or the residential development project in its entirety, as deemed appropriate by the Town Manager in consultation with the Town Attorney, prior to the issuance of any building permit for the residential development. the affordable housing agreement shall ensure that the applicant develops the required inclusionary housing units and complies with all other terms of the approved inclusionary housing plan and this chapter.

      (2)   Resale restrictions, deeds of trust, and/or other documents as deemed necessary or appropriate by the Town Manager shall be recorded against for-sale inclusionary units for required affordability for 55 years to ensure the continued affordability of the for-sale inclusionary units in compliance with this chapter.

   (F)   Building permits: The Town shall not issue a building permit for a residential development project subject to the requirements of this chapter without an affordable housing agreement executed by the owner, the applicant (if not the owner) and the Town Manager, and approved as to form by the Town Attorney, and recorded against the property, or payment of in-lieu fees in accordance with this chapter.

(Ord. 884, passed 11-1-2023)

      (2)   No rental. Owner is expressly prohibited from leasing or renting the inclusionary unit unless the town has given its prior written consent to such lease or rental on the basis of a demonstrated hardship by the owner.

(Ord. 884, passed 11-1-2023)

   (D)   Annual report. The owner shall submit an annual report summarizing the occupancy of each rental inclusionary unit for the year. The town may require additional information if deemed necessary. The owner shall obtain and review documents that demonstrate the prospective renter's total income, such as income tax returns or W-2s for the previous calendar year, and submit such information on a form approved by the town.

(Ord. 884, passed 11-1-2023)

   (A)   Affordable housing in-lieu fees are hereby established for residential development projects and mixed use projects with a residential component. The amount of said fees shall be established by Town Council Resolution, as may be amended from time to time. The amount of fees shall not exceed the cost of mitigating the impact residential development projects on the need for affordable housing in the Town of Fairfax.

   (B)   All such fees shall be deposited in the affordable housing fund described in § 17.140.130 herein.

   (C)   Payment of fees shall be due prior to the issuance of the first building permit for the project. Fees shall be calculated based on the fee schedule in effect at the time the building permit is issued, unless state law specifies that the town shall use a fee schedule in effect at an earlier date.

(Ord. 884, passed 11-1-2023)

   (A)   Affordable Housing commercial/ nonresidential linkage fees (fees) are hereby established for commercial/nonresidential development projects. The amount of said fees shall be established by Town Council Resolution, as may be amended from time to time. The amount of fees shall not exceed the cost of mitigating the impact of commercial/nonresidential development projects on the need for affordable housing in the Town of Fairfax.

   (B)   All such fees shall be deposited in the Affordable Housing Fund described in § 17.140.110 herein.

   (C)   Payment of fees shall be due prior to the issuance of the first building permit for the project. Fees shall be calculated based on the fee schedule in effect at the time the building permit is issued, unless state law specifies that the town shall use a fee schedule in effect at an earlier date.

      (1)   Projects adding less than 5,000 square feet of net new square footage.

      (2)   Town buildings and facilities and those public facilities entitled to an exemption under law.

      (3)   Projects that have established a vested right not to be subject to this section.

      (4)   The Town Council waives the commercial/nonresidential linkage fee pursuant to § 17.140.130.

(Ord. 884, passed 11-1-2023)

   An Affordable Housing Fund is hereby established to receive all housing impact and other applicable fees and funds.

   (A)   All applicable affordable housing in-lieu fees and nonresidential/commercial linkage fees collected shall be deposited into the Affordable Housing Fund. The monies deposited in the Affordable Housing Fund, with any interest earned, shall be used solely to increase and improve the supply of housing affordable to moderate, low, and very low-income households, consistent with the goals and policies contained in the town's housing element and affordable housing requirements and policies.

   (B)   The Affordable Housing Fund shall be administered by the Planning Director and the Finance Director who may develop procedures to implement said fund consistent with the requirements of this chapter and subject to any adopted budget of the town and generally acceptable accounting and procurement processes.

(Ord. 884, passed 11-1-2023)

   (A)   Request for waivers of affordable housing requirements or commercial/nonresidential linkage fees shall be made concurrent with application submittal. As part of an application for the first approval of a residential or commercial development, a builder may request that the requirements of this chapter be reduced, adjusted, or waived based upon a showing that applying the requirements of this chapter would result in an unconstitutional taking of property or would result in any other unconstitutional result. The applicant shall set forth in detail the factual and legal basis for the claim, including all supporting technical documentation, and shall bear the burden of presenting the requisite evidence to demonstrate the alleged unconstitutional result.

   (B)   The Town Council, based upon legal advice provided by or at the behest of the Town Attorney, may approve a reduction, adjustment, or waiver of the affordable housing requirement or commercial/nonresidential linkage fee if the Town Council determines that applying the requirements of this chapter would effectuate an unconstitutional taking of property or otherwise have an unconstitutional application to the property. The reduction, adjustment, or waiver may be approved only to the extent necessary to avoid an unconstitutional result after adoption of written findings, based on legal analysis and the evidence. If a reduction, adjustment, or waiver is granted, any change in the residential development or commercial and/or nonresidential project shall invalidate the reduction, adjustment, or waiver, and a new application shall be required for a reduction, adjustment, or waiver.

(Ord. 884, passed 11-1-2023)

   (A)   The Town Attorney is authorized to enforce the provisions of this chapter and all affordable housing agreements, resale restrictions, deed of trust, and other requirements placed on inclusionary units by civil action and any other proceeding or method permitted by law. The Town Attorney may, at its discretion, take such enforcement action as is authorized under this code, as well as any other action authorized by law or by any regulatory document, restriction, or agreement executed under this chapter.

   (B)   It shall be unlawful, a public nuisance, and a misdemeanor for any person/entity to sell or rent an affordable unit at a price or rent exceeding the maximum allowed under this chapter and implementing regulations, or to a household not qualified hereunder. Such person/entity shall be subject to a fine of $500 per month plus restitution of the amount charged that exceeded the maximum allowed under this chapter from the date of original noncompliance until the affordable unit is in compliance with this chapter and implementing regulations. Fine monies collected that exceed the cost of enforcement shall be deposited into the Affordable Housing Fund.

   (C)   The remedies provided herein are nonexclusive and cumulative and shall not preclude the town from any other remedy or relief to which it is entitled under law or equity.

(Ord. 884, passed 11-1-2023)

   (A)   The Town Manager is hereby given authority to initiate any administrative procedures or implementation guidelines as may be necessary to implement and carry out the purpose and intent of this chapter. Further, the Town Manager may, in the implementation of this program, develop application forms and submittal requirements reasonably related to the implementation of this chapter.

   (B)   Forms or materials needed for implementation of this chapter may be introduced and utilized by the town as the Town Manager deems may be necessary or desirable. All form changes or administrative procedures initiated by the Town Manager, and all administrative determinations or exercises of delegated authority by the Town Manager, shall be carried out in a manner consistent with, and reasonably related to, the purposes and intent of this chapter, the housing element and all other elements of the town's general plan, and the furtherance of state and local housing policies and goals, while respecting at all times the rights of property owners and applicants.

   (C)   The Town Council may adopt and may amend from time to time by resolution, implementing affordable housing requirements and program regulations consistent with the provisions of this chapter and the housing element for the purpose of carrying out the administration of this chapter. a copy of the affordable housing requirements and program regulations adopted by the Town Council shall be on file with the Town Clerk's office and made available for public examination and posted on the town's website. The affordable housing requirements and program regulations shall set forth affordable housing requirements, affordable housing in-lieu fee requirements, and commercial/nonresidential linkage fee requirements. The Planning Director or designee is responsible for administering this chapter. As part of this administration, the Director may perform the following tasks including, but not limited to: interpret the provisions of this chapter and the affordable housing requirements and program regulation and establish operational and procedural requirements such as tenant eligibility, application processes, waitlist management, and income verification requirements.

(Ord. 884, passed 11-1-2023)