The purpose of this chapter is to:

(1)

Encourage the development and availability of housing that is affordable to a broad range of households with varying income levels within the Town as mandated by Government Code § 65580;

(2)

Promote the Town's goal to add to, and preserve the existing stock of workforce housing units within the Town;

(3)

Mitigate the impacts of market rate residential and nonresidential development on the need for workforce housing in the Town through the imposition of workforce housing requirements as included in this chapter; and

(4)

Implement the goals, objectives, policies, and programs of the general plan and housing element related to workforce housing.

(Code 1990, § 17.136.010; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

New development, additions, and conversion of uses from one type to another, that are not exempt pursuant to Section 17.132.100, shall be required to mitigate housing in accordance with the options identified in Sections 17.132.040 through 17.132.080, listed below.

(Code 1990, § 17.136.020; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

(a)

Mitigation required for incremental new demand. Where a project would replace existing residential, lodging, or nonresidential uses on the project site, the project shall only be required to mitigate the incremental new demand of the proposed project (such as an increase in gross commercial or industrial square footage, the net increase in the number of lodging rooms, or the net increase in the number of market rate housing units).

(b)

Housing mitigation credit.

(1)

Credit for existing uses shall be calculated based on the housing impact mitigation fees applicable to the existing uses at the time of submittal of a complete building permit application for reconstruction, replacement, or new construction to which some or all of the credit will be applied.

(2)

Credit for the provision of housing mitigation above that required by this chapter shall be determined by the Director.

(3)

Under previous housing mitigation requirements, housing credits have been calculated based on full time equivalent employees (FTEEs) or employee housing units (EHUs). One FTEE is a full time year round employee. One EHU equals one bedroom and is calculated as 58½ percent of an FTEE. FTEE and EHU credits may be applied to mitigation requirements identified herein.

(4)

Unused credits may be sold or transferred to other properties on which a workforce housing obligation is required under this chapter.

(Code 1990, § 17.136.030; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

(a)

Fee established. The housing impact mitigation fee (housing fee) applicable to each use shall be established by resolution of the Council, in accordance with the provisions of Subsection (g) of this section.

(b)

Director determination of category. The Director shall determine the appropriate category for the development and shall calculate the amount of the housing fee based on the adopted fee schedule, based on the provisions herein.

(c)

Housing fee calculations. Housing fees shall be calculated as follows:

(1)

New residential developments:

Housing fee equals (number of new units) times (applicable housing fee for new use).

(2)

New lodging developments:

Housing fee equals (number of new rooms) times (applicable housing fee for new use).

(3)

Nonresidential developments that include new construction or addition to existing nonresidential space:

Housing fee equals (gross square feet of new nonresidential space) times (applicable fee by type of use).

(4)

Conversion of one nonresidential use, without addition of new space, to another nonresidential use:

Housing fee equals (gross square feet) times (applicable housing fee for new use) minus (gross square feet) times (applicable housing fee for prior use).

(5)

Conversion from a residential use to a nonresidential use:

Housing fee equals (gross square feet of new nonresidential use) times (applicable housing fee) minus (number of prior residential units) times (applicable housing fee).

(6)

Conversion from a lodging use to a nonresidential use:

Housing fee equals (gross square feet of new nonresidential use) times (applicable housing fee) minus (number of prior lodging rooms) times (applicable housing fee).

(d)

Individualized use determination for housing fees. The land use category for a development shall be determined by the Director based on an individualized determination only if:

(1)

a.

The adopted fee schedule so specifies; or

b.

The Director determines that insufficient generalized information is available to permit a determination that the use falls within one of the specified use categories.

(2)

Any application for a nonresidential project where an individualized fee determination is required pursuant to this section shall be accompanied by information sufficient to enable the Director to make a determination of employee generation or density. The determination of employee generation or density shall be based on: data concerning anticipated employee generation or density for the project submitted by the applicant; employment surveys or other research on similar uses submitted by the applicant or independently researched by the Director; or any other data or information the Director determines relevant. Based on the evidence submitted, the Director shall determine the most similar land use category, or shall establish a mixed fee, as appropriate.

(e)

Appeal. An applicant may appeal the Director's fee determination to the Commission according to provisions of Chapter 17.100.

(f)

Refund or rebate of housing fees based on conversion of use. No refund or rebate of housing fees previously paid shall be made in the case of conversion from one use with a higher housing fee to one with a lesser housing fee, or conversion from a non-exempt to an exempt use.

(g)

Housing fees established.

(1)

Established by Council resolution. All housing fees shall be established by resolution of the Town Council.

(2)

Methodology. Housing fees shall not exceed the cost of mitigating the impact of market rate residential and nonresidential projects on the need for workforce housing in the Town, based on an approved nexus study. Housing fees shall be established per unit for for-sale transient and non-transient residential uses; per room for lodging uses; and per gross square foot for nonresidential uses (office, retail, restaurant, and industrial).

(3)

Review and update. The Town Council shall periodically review the housing fees for various land uses, including residential, lodging and nonresidential developments and adjust the fees by resolution. At a minimum the housing fees shall be reviewed and, if appropriate, revised at the time of each housing element update. The Town Manager shall prepare a recommendation to the Council for such fee revision.

(4)

Use of housing fees. Fees collected pursuant to this chapter shall be placed in a separate fund of the Town and shall be used only for the purposes of planning for, administering, subsidizing, or developing workforce housing within the Town limits. The Council may set specific direction, consistent with this subsection, for use of these funds through the Council resolution establishing the fees.

(Code 1990, § 17.136.040; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

(a)

Applicable to residential developments. Transient and non-transient residential ownership developments, including condominiums, fractional ownership, residential ownership components of mixed-use projects, and single-family or other subdivisions may propose to provide on-site units to satisfy the housing mitigation requirement for the development. The cost to the developer of such on-site units shall not be required to exceed the amount of the applicable housing fee pursuant to Section 17.132.040 and calculated as outlined in Subsection (b)(5) of this section.

(b)

On-site unit requirements. The on-site units required to satisfy housing mitigation for a particular residential ownership development shall comply with the following:

(1)

The affordability levels of the units (stated as a proportion of area median income (AMI)) shall comply with those established by Council resolution, which shall be periodically reviewed and updated.

(2)

Such units shall be for-sale units, unless the builder/developer chooses the rental alternative specified in Section 17.132.090.

(3)

The proposed on-site units shall meet or exceed the livability and design standards described in Section 17.132.120 unless a waiver or modification to those standards has been approved by the Town.

(4)

If the total cost to the developer to mitigate on-site would result in a fraction of a dwelling unit, the proportionate share of the housing fee described in Section 17.132.040 shall be paid for the fraction.

(5)

If the total cost to the developer to mitigate on-site exceeds the amount of the applicable housing fee pursuant to Section 17.132.040, the developer shall be assigned housing mitigation credit for the additional cost consistent with Section 17.132.030(b) and according to the following:

a.

Total cost to developer (for-sale unit) equals total cost of construction of on-site units less units sales prices at target AMI levels.

b.

Total cost to developer (rental unit) equals total cost of construction of on-site units less net present values of rents at target AMI levels over 30 years based on a documented cap rate.

c.

Total cost of construction includes land cost, direct costs (e.g., labor and materials), indirect or soft costs (e.g., architecture, entitlement, marketing, etc.) specifically associated with the on-site mitigation units.

d.

The calculation of total cost shall include only those costs for meeting workforce housing amenity and design standards. The developer shall provide a pro forma document of those costs.

(c)

Application requirements. If on-site mitigation housing is proposed, the applicant shall provide the following information for Town review, prior to project approval:

(1)

Identification of the location within the project of the mitigation units.

(2)

A description and floor plan of the proposed units, including habitable square footage, number of bedrooms, living areas, and proposed resident amenities. Such information shall be provided in sufficient detail so as to permit an evaluation of the units' conformance with the livability and design criteria set forth in Section 17.132.120.

(3)

The proposed timeframe for development of the mitigation units, including number of units to be provided within each phase of multi-phase projects.

(4)

The proposed sales price, or rental price if applicable (refer to Section 17.132.090), and calculation method or basis for establishing such price).

(5)

Documentation demonstrating the cost to the developer of the provision of the on-site units through a standard pro forma statement.

(d)

Calculation of project density. On-site housing units provided pursuant to this section shall not count towards the calculation of total project density (i.e., rooms per acre or units per acre) if all of the following conditions apply:

(1)

The project fully satisfies its housing mitigation requirements on-site by providing on-site housing units consistent with the target AMI established by Council resolution;

(2)

The project is located in the downtown, Old Mammoth Road, mixed lodging/residential, or residential multifamily 2 zones, or in an area subject to a specific plan or master plan that permits such an exclusion;

(3)

The applicable floor area ratio (FAR) limit is not exceeded;

(4)

The project has not applied for or received a State or Town housing density bonus pursuant to Chapter 17.138 or 17.140; and

(5)

Findings can be made in conjunction with project approval that the total project density or intensity, considering all uses, would meet all applicable design and development standards of this Code, would not result in significant and unavoidable environmental impacts, and would be compatible with surrounding uses.

(e)

In all other cases. In all other cases, total project density, inclusive of provided on-site housing units, shall not exceed the maximum density for the zone in which the project is located, except as permitted by the provisions of Chapter 17.136 or 17.140.

(Code 1990, § 17.136.050; Ord. No. 15-03, § 4c(exh. A), 6-3-2015; Ord. No. 20-02, § 4(exh. A, a.), 3-18-2020)

(a)

Off-site housing. Off-site housing units may be proposed within the Town limits to satisfy the housing mitigation requirement for the development. Off-site housing units may include any combination of new dwelling units, new dwelling units created in existing structures, or acquisition and conversion of existing market rate to below market rate (BMR) units. The cost to the developer of such off-site units, including acquisition and rehabilitation, shall not be required to exceed the amount of the applicable housing fee pursuant to Section 17.132.040, and calculated as outlined in Subsection (b)(6) of this section.

(b)

Off-site unit requirements. The off-site units required to satisfy housing mitigation for a particular development shall comply with the following:

(1)

Units that are currently serving as long-term (i.e., non-transient) rental units, may only serve to satisfy housing mitigation requirements if all applicable relocation law provisions are adhered to.

(2)

The affordability levels of the units (stated as a proportion of area median income (AMI)) shall comply with those established by Council resolution, which shall be periodically reviewed and updated.

(3)

The proposed off-site units shall meet or exceed the livability and design standards described in Section 17.132.120 to the extent feasible, unless a waiver or modification to those standards has been approved by the Town.

(4)

If the total cost to the developer to mitigate off-site would result in a fraction of a dwelling unit, the proportionate share of the housing fee described in Section 17.132.040 shall be paid for the fraction.

(5)

If the total cost to the developer to mitigate off-site exceeds the amount of the applicable housing fee pursuant to Section 17.132.040, the developer shall be assigned housing mitigation credit for the additional cost consistent with Section 17.132.030(b) and according to the following:

a.

Construction of new off-site units.

1.

Total cost to developer (for-sale unit) equals the total cost of construction of off-site units less units sales prices at target AMI levels.

2.

Total cost to developer (rental unit) equals the total cost of construction of off-site units less net present values of rents at target AMI levels over 30 years based on a documented cap rate.

3.

Total cost of construction includes land cost, direct costs (e.g., labor and materials), indirect or soft costs (e.g., architecture, entitlement, marketing, etc.) specifically associated with the off-site mitigation units.

4.

The calculation of total cost shall include only those costs for meeting workforce housing amenity and design standards. The developer shall provide a pro-forma document of those costs.

b.

Acquisition and rehabilitation of existing off-site units.

1.

Total cost to developer (existing for-sale unit) equals the total cost of acquisition and rehabilitation of off-site units less units sales prices at target AMI levels.

2.

Total cost to developer (existing rental unit) equals the total cost of acquisition and rehabilitation of off-site units less rental units net present values of rents at target AMI levels over 30 years based on a documented cap rate.

3.

Total cost of acquisition and rehabilitation includes purchase price, direct costs (e.g., labor and materials), indirect or soft costs (e.g., architecture, permits, marketing, etc.) specifically associated with the off-site mitigation units.

(6)

If the off-site housing units will not be constructed or otherwise secured concurrently with the market rate units, the builder shall propose the security to be provided to the Town to ensure the timely construction or acquisition of said units, including evidence of ownership, control or other legally-binding commitment to required sites, and evidence that funding has been secured for the off-site units. Such security shall be provided prior to issuance of any certificates of occupancy for the market rate units.

(c)

Application requirements. If off-site mitigation housing is proposed, the applicant shall provide the following information for Town review, prior to project approval:

(1)

Identification of the locations of the mitigation units.

(2)

A description and floor plan of the proposed units, including habitable square footage, number of bedrooms, living areas, and proposed resident amenities. Such information shall be provided in sufficient detail so as to permit an evaluation of the units' conformance with the livability and design criteria set forth in Section 17.132.120.

(3)

The proposed timeframe for development or acquisition and rehabilitation of the mitigation units.

(4)

The proposed sales price or rental price (if applicable refer to Section 17.132.090), and calculation method or basis for establishing such price.

(5)

Documentation demonstrating the cost to the developer of the provision of the off-site units through a standard pro forma statement.

(d)

Deed restricting existing market rate ownership units within the Town. As a condition of project approval, when the deed restriction of existing market rate units is proposed, the applicant must describe the specific units to be deed restricted. Applicants must demonstrate:

(1)

The long-term affordability of the proposed units is adequately protected, considering issues, including, but not limited to, long-term maintenance and homeowner's assessments.

(2)

The targeted income levels of the deed restricted units.

(3)

If under the jurisdiction of a homeowner's association, that the project's governing documents, if any, do not prohibit the deed restrictions.

(4)

Provisions to ensure that any units so restricted meets long-term standards for maintenance and affordability.

(e)

Additional information. The Town may request additional information about the proposed units as reasonable to make such a determination.

(Code 1990, § 17.136.060; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

(a)

Criteria for conveyance of land. The dedication of land may be proposed to satisfy the housing mitigation requirement, if it can be determined by the Town that all of the following criteria have been met:

(1)

Marketable title to the site is transferred to the Town, or an affordable housing developer or nonprofit approved by the Town, no later than the approval of a final map or issuance of first building permit, pursuant to an agreement between the market rate project developer and the Town, and such agreement is in the best interest of the Town.

(2)

The site has general plan and zoning designations that authorize residential uses.

(3)

The site is suitable for development of workforce units in terms of configuration, physical characteristics, location, access, adjacent uses, and other relevant planning and development criteria, including, but not limited to, factors such as the cost of construction or development arising from the nature, condition, or location of the site.

(4)

Infrastructure to serve the dedicated site, including, but not limited to, streets and public utilities, must be available at the property line, or will be made available prior to issuance of certification of occupancy.

(5)

Environmental review of the proposed site has been completed to allow full disclosure for the conveyance of the proposed site, including analysis of the site for the presence of hazardous materials and geological review for the presence of geologic hazards and that such hazards are or will be mitigated to the satisfaction of the Town prior to acceptance of the site by the Town.

(6)

The value of the site upon the date of conveyance is equal to or greater than the applicable housing fee for the market rate development. Fair market value shall be determined preliminarily at the time the market rate development is submitted to the Town for review. Final determination of fair market value shall be made by a licensed State appraiser prior to building permit issuance and shall be net of any real estate commission for the conveyance of the land.

(7)

If the value of the site upon the date of conveyance exceeds the amount of the applicable housing fee pursuant to Section 17.132.040, the developer shall be assigned housing mitigation credit for the different in the value of the site upon conveyance and the applicable housing fee, consistent with Section 17.132.030(b).

(b)

Disposition of land by the Town. The Town shall not be required to construct BMR units on the site dedicated to the Town, but may sell, transfer, lease, or otherwise dispose of the dedicated site in order to facilitate the construction of those units and only when a clearly demonstrable greater housing benefit would be achieved as determined by Council. Any funds collected as a result of sale, transfer, lease, or other disposition of sites dedicated to the Town shall be deposited into the Town's housing mitigation fund and the funds and interest accrued shall remain in the fund and shall be used pursuant to Section 17.132.040(g)(4).

(c)

Conveyance of development-ready lots within the project site. The builder or developer may dedicate development-ready lots within the project site in compliance with the provisions of Section 17.132.050. All such conveyed lots shall be part of an approved final subdivision map and have completed utility connections and roadway improvements at the time of conveyance so as to be development ready. Such conveyance shall be subject to the criteria in Subsection (a) of this section.

(Code 1990, § 17.136.070; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

Projects that are required to mitigate housing and propose to utilize an alternative method of mitigation not identified herein, may propose an alternate housing mitigation plan (AHMP) subject to approval by the Town, based on the following provisions:

(1)

Application. An AHMP shall be submitted at time of the application for first approval associated with the project. The application shall include:

a.

A calculation of the housing mitigation requirements generated by the project, as defined herein.

b.

A description of the proposal by which the housing mitigation requirement is to be satisfied.

c.

An analysis demonstrating that the AHMP provides housing mitigation at a similar value or cost, number and type of housing units, and level of affordability as other methods outlined in Sections 17.132.040 through 17.132.070.

d.

A description of how the AHMP is in conformance with the Town's approved housing strategy.

e.

Any other information determined relevant to the application by the Director.

(2)

Early consultation. Prior to submitting an application for an AHMP, the applicant should hold preliminary consultations with the Director to provide the applicant information and guidance.

(3)

Approval. The review authority may approve, conditionally approve, or reject any alternative proposed by a builder/developer as part of an AHMP. Approval or conditional approval shall be based on the conformance to this chapter and applicable Council resolutions, including the resolution establishing the target AMI.

(Code 1990, § 17.136.080; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

(a)

Rental housing alternative. As an alternative to providing for-sale mitigation units on-site pursuant to Section 17.132.050, an applicant may propose to provide some or all of the mitigation units as BMR rental units restricted to occupancy by households at the target proportion of AMI. The target AMI shall be established by Council resolution. To ensure compliance with the Costa-Hawkins Rental Housing Act, Civil Code §§ 1954.50 through 1954.535, the Town may only approve such a proposal if the applicant agrees in a rent regulatory agreement with the Town to limit rents in consideration for a direct financial contribution or a form of assistance specified in Government Code § 65915.

(b)

Rental regulatory agreement provisions. The rent regulatory agreement with the Town shall include provisions for sale of workforce units, including compliance with Section 17.52.110 and relocation benefits for tenants of the workforce units if the owner of the residential project later determines to offer any workforce units in the residential project for sale. If dwelling units in the residential project are later sold at market rate, the applicant shall pay the specified housing fees described in Section 17.132.040, as applicable or other mitigation consistent with this chapter. If dwelling units are later sold at BMR, continued affordability of such units shall be ensured through deed restrictions or other documents acceptable to the Director, and include all other relevant requirements as noted in Section 17.132.130.

(Code 1990, § 17.136.090; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

The following development types are exempt from the housing mitigation requirements set forth in this chapter:

(1)

Any nonresidential development where it can be determined, by the Director, that the project would not contribute new demand for employment or housing within the community (e.g., replacement of an existing use or facility or addition of non-habitable square footage such as storage) or would generate no more than one total new employee.

(2)

Additions to single-family homes and multifamily units in any zone.

(3)

Multifamily projects of four or fewer units in the Residential Multifamily 1 Zone, where the average habitable area per unit would not exceed 1,300 square feet.

(4)

Live-work units.

(5)

Legally-permitted accessory dwelling units.

(6)

Non-transient market rate rental apartments.

(7)

Rental or for-sale units that are deed restricted to workforce housing in any zone.

(8)

Any development operated by a nonprofit or social services organization to provide food storage, meal service, or temporary shelter to the homeless.

(9)

Residential care and assisted living facilities.

(10)

Subdivision of property is exempt. Applicable housing fees shall be assessed at time of building permit issuance.

(Code 1990, § 17.136.100; Ord. No. 15-03, § 4c(exh. A), 6-3-2015; Ord. No. 2021-03, § 4(exh. B, § i.), 3-3-2021)

(a)

No Certificate of Occupancy shall be issued for any market rate unit or development subject to the requirements of this chapter until the permittee has:

(1)

Complied with housing mitigation requirements specified in Sections 17.132.040 to 17.132.070;

(2)

Received certification from the Director that the permittee has met, or made arrangements satisfactory to the Town to meet, an alternative requirement as specified in Section 17.132.080; or

(3)

Received Director approval to modify the timing requirements to accommodate phasing schedules, model variations, or other appropriate factors. At the discretion of the Director, a form of security (e.g., surety bond, cash-equivalent security, legally-binding commitment, or other form approved by the Director) may be required to approve a modification of the timing requirements.

(b)

No final inspection for occupancy for any market rate unit in a for-sale project shall be completed until the permittee has complied with Subsection (a) of this section.

(Code 1990, § 17.136.110; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

The following livability standards shall apply to all housing mitigation units developed pursuant to the requirements of this Code. The intent of these requirements is to ensure that developers of housing mitigation units build units that meet minimum standards of square footage and amenities necessary for households living and working in the Town.

(1)

Distribution of units. Housing mitigation units shall be distributed throughout a project to the extent feasible, and, where units at multiple levels of affordability are proposed, such units shall also be distributed both throughout the project and in relationship to one another to the extent feasible.

(2)

Size of units. Housing mitigation units shall meet minimum size requirements for square footage and number of rooms. It is the Town's desire to achieve comparability of average size and number of rooms of housing mitigation units and market rate units to the extent feasible.

(3)

Minimum square footage. Housing mitigation units shall meet the minimum square footage requirements, exclusive of garages, decks and balconies, as follows:

a.

A studio unit shall be no less than 450 square feet.

b.

A one bedroom unit shall be no less than 650 square feet.

c.

A two bedroom unit shall be no less than 900 square feet.

d.

A three bedroom unit shall be no less than 1,150 square feet.

e.

A four bedroom unit shall be no less than 1,350 square feet.

(4)

Amenities and design standards. Housing mitigation units shall meet minimum amenity and design standards adopted by Council resolution. These standards may be revised, as needed, to meet changing workforce housing needs and housing development practices and technologies. The amenities and design standards shall address minimum requirements for:

a.

Kitchen, bathroom, laundry, and other appliances and fixtures, including appliance and fixture energy and water efficiency standards;

b.

Minimum kitchen cabinet, closet, and other storage space;

c.

Dining area;

d.

Number and dimensions of bedrooms;

e.

Number of bathrooms, bathroom fixtures, and amenities;

f.

Sound insulation and other noise attenuation;

g.

Quality and external appearance of construction materials and finishes;

h.

Comparability of project amenities for occupants of housing mitigation units relative to market rate units (except as specified in Chapter 17.140); and

i.

Convenient access to private or common outdoor space that is provided in conformance with Section 17.52.210.

(5)

Request for waiver or modification of livability standards.

a.

A developer may submit a request for a waiver or modification of one or more of the livability standards based on site- or project-specific conditions that would make strict compliance with that standard infeasible or impractical. Specifics regarding the allowable waivers and deviations from standards shall be described in the Council resolution for amenity and design standards identified in Subsection (4) of this section. Agreement to any such concession shall be made at the discretion of the review authority.

b.

In the case of off-site units provided through acquisition and rehabilitation of existing units, particularly when such units are located within an existing larger development of market rate units, strict adherence to standards for interior room size and configuration, noise insulation, number of bathrooms, and common areas used by all residents of the project shall only be required to the extent feasible based on the existing characteristics and location of the unit being acquired. Such a determination shall be made by the Director.

(Code 1990, § 17.136.120; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

(a)

Eligibility for below market rate units (owner-occupied and rental units).

(1)

No household shall be permitted to occupy a BMR unit, or to purchase a BMR unit for owner occupancy, unless the Town or designee has approved the household's eligibility. If the Town or designee maintains a list of eligible households, households selected to occupy such units shall be first selected from that list to the extent provided in the workforce housing agreement, rent regulatory agreement, or resale restrictions.

(2)

Any household which occupies a rental BMR unit or purchases a BMR unit shall occupy that unit as its principal residence and shall not lease or sublease to a different party, unless allowed in special circumstances as documented in the deed restriction.

(b)

Continued affordability requirements (owner-occupied and rental units). Prior to the issuance of certificates of occupancy for BMR units provided in accordance with this chapter, resale restrictions, deeds of trust, rent regulatory agreements, or other documents, as appropriate, all of which must be acceptable to the Director and Town Attorney and consistent with the requirements of this chapter, shall be recorded against parcels or units having such BMR units and shall ensure that each BMR unit remains affordable to the same income level for a minimum of 55 years for rental units and a minimum of 60 years for ownership unit years. At a minimum, agreements provided in accordance with this section shall provide:

(1)

A provision to provide the Town or its qualified designee the continuing right-of-first-refusal to purchase or lease any or all of the designated dwelling units at the appraised value of the unit or the BMR value, whichever is less, subject to the resale restriction;

(2)

A covenant stating that the developer or successors-in-interest shall not assign, lease, rent, sell, sublet, or otherwise transfer any interests for the designated units without the written approval of the Town or designee;

(3)

That the Town or designee shall have the authority to enter into other agreements with the developer, or purchasers of the designated dwelling units, to ensure that the required dwelling units are continuously occupied by eligible households for the agreed to affordability period;

(4)

Provisions, in a form satisfactory to the Town, for the enforcement of owner or developer compliance. Any default or failure to comply may result in foreclosure, specific performance, or withdrawal of the Certificate of Occupancy;

(5)

That in any action taken to enforce compliance with the deed restrictions, the Town Attorney shall, if compliance is ordered by a court of competent jurisdiction, take all action that may be allowed by law to recover all of the Town's costs of action, including legal services; and

(6)

That compliance with the agreement will be monitored and enforced in compliance with the measures included in the agreement.

(c)

Initial and continued affordability; owner-occupied units. In addition to the minimum requirements set forth in Subsection (b) of this section, the developer shall agree to the following measures to ensure the initial and on-going affordability of required BMR units:

(1)

Initial sales price for below market rate units. The initial sales price of a for-sale BMR unit shall be set by the Town or designee at the time a building permit is issued for the unit, so that the eligible household will pay an affordable ownership cost. The initial sales price shall be based on the developer's estimate of homeowner's association dues, if any, the Town's assumptions for interest rates and other factors, and the methodology or formula for calculating sales prices contained in the Council resolution. The Town shall provide the developer with an estimate of the initial sales price for the BMR units at an earlier date if so requested by the developer in writing. After the building permit is issued, the initial sales price may be adjusted by the Town due to changes in market factors upon written request by the developer no less than 90 days prior to marketing of the BMR units.

(2)

Resale restrictions. Documents to ensure continued affordability shall be recorded against the property in accordance with the provisions of Subsections (a) and (b) of this section, and the following concerning resale restrictions:

a.

Terms and conditions concerning the resale of the units shall be specified as necessary to ensure their continuing affordability. Such requirements may include, but are not limited to:

1.

Limits on resale price, based on an appropriate calculation method.

2.

Provisions offering units for resale to the Town or designee, or which limit resale to households determined to be eligible for workforce units by the Town in compliance with this section.

3.

Monitoring requirements for resale of units, including required notice of intent to sell in a timely manner before the unit is intended to be marketed.

b.

The Town reserves the right to modify or waive recorded resale restrictions at the time of resale, as warranted, based on residential real estate market conditions or economic hardship on the part of the BMR homeowner. A BMR homeowner may request a modification or waiver of resale restrictions by completing a modification/waiver request form provided by the Town.

(d)

Initial and continued affordability; rental units.

(1)

Initial rents for below market rate units. The initial rent of BMR units shall be set by the Town or designee at least 30 days prior to the marketing of the BMR unit, so that the eligible households will pay an affordable rent in accordance with the established affordability level. The initial rent shall be based on the Town's assumptions for utility costs and the methodology or formula for calculating rents contained in the Council resolution. The Town shall provide the developer with an estimate of the initial rent for the BMR units at an earlier date upon written request.

(2)

Rent regulatory agreement. A rent regulatory agreement acceptable to the Town shall be recorded against the residential development prior to issuance of Certificate of Occupancy. Such an agreement shall reflect the limitations on rents required by this chapter, the provisions of Subsection (a) of this section, and the minimum requirements outlined below:

a.

Nondiscrimination. When selecting tenants, the owners of BMR units shall follow all fair-housing laws, rules, regulations and guidelines. The owner shall apply the same rental terms and conditions to tenants of BMR units as are applied to all other tenants, except as required to comply with this chapter (for example, rent levels and income requirements) or with other applicable government subsidy programs.

b.

Move-in costs. Total deposits, including security deposits, required of households occupying a BMR unit shall be limited as mandated by State law applicable at the time of leasing or renting.

c.

Reporting requirements.

1.

The owner (or their designated agent) shall be required to submit an annual report summarizing the occupancy of each BMR unit for the year, demonstrating the continuing eligibility of each tenant, and the rent charged for each BMR unit. The Town or designee may require additional information to confirm household income and rents charged for the unit if it determines necessary.

2.

The Town or designee shall maintain the right to periodically audit the information supplied to the Town for the annual report if deemed necessary to ensure compliance with this chapter.

d.

The owners of any BMR unit shall agree to cooperate with any audit or reporting requirements conducted by the Town or designee, State agencies, Federal agencies, or their designees.

e.

Provisions concerning changes in tenant income, where, after moving into a unit a tenant's household income would exceed the specified limit for that unit. It is anticipated that these provisions would comply with the United States Department of Housing and Urban Development's requirements for annual income recertification.

(Code 1990, § 17.136.130; Ord. No. 15-03, § 4c(exh. A), 6-3-2015)

(a)

Increase the supply of housing available to the workforce and encourage the development of units that are restricted to a range of affordability levels for persons working and living in the region;

(b)

Promote the Town's goal to add to, and preserve, the existing stock of workforce housing units within the Town; and

(c)

Maintain the physical condition and deed restriction of units produced through the provisions of this chapter over time.

(Code 1990, § 17.138.010; Ord. No. 20-02, § 4(exh. A, e.), 3-18-2020)

(a)

Project types. The following types of development projects shall be eligible for the Town Density Bonus Program:

(1)

New multifamily residential projects that are located within a zoning district that allows multifamily residential uses and have a base density of two or more dwelling units, regardless of the type of dwelling unit proposed (e.g., apartments, condominiums, etc.).

(2)

Rehabilitation or additions to existing multifamily residential structures that are located within a zoning district that allows multifamily residential uses and results in a net increase to the number of available residential units. Rehabilitation and addition projects shall be subject to the following:

a.

Any existing deed restricted units that are demolished as part of the project rehabilitation or addition shall be replaced with an equivalent deed restricted unit and the replacement unit shall remain subject to the existing deed restriction.

b.

An existing apartment complex that is proposed to be converted to condominiums as part of a project pursuant to this chapter shall comply with Section 17.52.110.

(b)

State Density Bonus not available. Density bonuses granted pursuant to the provisions of this chapter shall only be available to projects that do not use the State Density Bonus.

(c)

Housing mitigation requirements. Multifamily residential projects that receive a density bonus pursuant to this chapter shall be required to mitigate their housing impacts for the non-deed restricted units in a manner consistent with the housing mitigation options identified in Chapter 17.132, unless the units are otherwise exempt pursuant to Section 17.132.100.

(Code 1990, § 17.138.020; Ord. No. 20-02, § 4(exh. A, e.), 3-18-2020)

(a)

Administrative responsibility. The requirements and procedures of this chapter shall be administered by the Department. The Council shall, by resolution, adopt a Town Density Bonus Program Policy that:

(1)

Establishes the percentages used in the eligibility points schedule for the Town Density Bonus;

(2)

Establishes the affordability levels and the eligibility requirements for each affordability level used in the eligibility points schedule for the Town density bonus;

(3)

Establishes the timeframe for the periodic review of the Town Density Bonus Program required by Subsection (b) of this section; and

(4)

Establishes the ownership unit and rental unit occupancy restrictions for the workforce housing units. The policy may be changed or modified only by resolution of the Council.

(b)

Periodic review. The Town Density Bonus Program shall be subject to periodic review by the Council to consider the impacts of the program and examine the cumulative impacts on the Town's housing supply.

(c)

Calculations. The following apply to the calculations used in the Town Density Bonus Program:

(1)

Unit types. When used in this chapter. The term "base density units" means the number of units that are equal to the maximum allowable density under the applicable zone and "density bonus units" are those units that exceed the maximum allowable density under the applicable zone.

(2)

Parcel size. The parcel size used in the calculation of the base density shall be verified by the Department through a review of a record of survey or a review of the recorded deed.

(3)

Base density calculation. When the base density calculations result in a fraction or decimal (acreage multiplied by allowed density does not result in a whole number) and the fraction or decimal exceeds 66 percent of a unit, it shall be rounded up to the next higher whole number. When the fraction or decimal is 66 percent or less, it shall be rounded down to the next lower whole number. The base density shall be rounded either up or down based on the calculations described above prior to the determination of the maximum number of density bonus units that a project is eligible for.

(4)

Deed restricted units calculation. When the calculation for the required number of base density units that need to be restricted to qualify for the desired density bonus results in a fractional number and the fraction or decimal is equal to or greater than 50 percent of a unit, it shall be rounded up to the next higher whole number and when the fraction or decimal is less than 60 percent of a unit, it shall be rounded down to the next lower whole number.

(d)

Permit requirements.

(1)

A request for a density bonus, as described in this chapter, shall require use permit approval in compliance with Chapter 17.68. The use permit requirement does not apply to multifamily residential projects that meet all of the eligibility criteria for the streamlined ministerial approval process authorized by Government Code § 65913.4 and are instead subject to the streamlined multifamily review process established by the Department in compliance with Government Code § 65913.4.

(2)

All multifamily residential projects of three units or more, inclusive of the base density units and the density bonus units, are subject to the design review requirements specified in Chapter 17.88.

(3)

All multifamily residential projects are subject to the development and operational standards for multifamily residential projects specified in Section 17.52.210.

(4)

The granting of a density bonus and incentives or concessions pursuant to this chapter shall not be interpreted, in and of itself, to require a general plan amendment, Zoning Map amendment, title amendment, or other discretionary approval.

(e)

Application requirements.

(1)

Application filing. The applicant shall file with the Department the use permit application for a density bonus and other incentives or concessions in compliance with this chapter either before, or concurrent with, other required discretionary project approvals (i.e., tentative map, design review, variance, etc.).

(2)

Application contents. An application shall include all of the following information in addition to the standard use permit requirements:

a.

A detailed development plan and description of the proposed project, including, but not limited to, information on the number, type, size, tenure, number of bedrooms, and proposed deed restriction level for each and every unit within the development;

b.

The type of density bonus incentive or concession requested, of those listed in Section 17.136.050(a), and an explanation as to why the incentive or concession is the minimum departure from the requirements of the chapter necessary to make the project feasible;

c.

If more than one incentive or concession is requested in compliance with Section 17.136.050(b), the type of additional incentive or concession requested, of those listed in Section 17.136.050(a), together with a statement as to why the project is eligible for the additional incentives or concessions. Eligibility for the additional incentive or concession may be shown by establishing that the project will either:

1.

Provide a greater number of deed restricted units than otherwise required;

2.

Provide a greater or longer term deed restriction than otherwise required; or

3.

Meet other applicable housing element goals or policies;

d.

Any alternative incentive or concession being requested in compliance with Section 17.136.050(c), together with a statement as to why the alternative incentive or concession is necessary. The request shall demonstrate that due to the particular characteristics of the project site, the alternative incentive or concession is necessary to make the project feasible;

e.

A snow storage management plan if requesting a reduction in the required snow storage areas in compliance with Section 17.136.050(d);

f.

Evidence of the parcel size to allow for the determination of the base density;

g.

Any other information deemed necessary by the Director to allow a complete evaluation of the application;

h.

A written waiver of any rights granted under the State Density Bonus Law.

(f)

Amenity and design standards. Units built under the Town's Density Bonus Program shall meet the minimum amenity and design standards, as adopted by Council resolution, as it may be amended from time to time.

(g)

Transient rentals prohibited. Transient rentals (i.e., rental of a unit for a term of 30 days or less) shall be prohibited for all units within a project that receives a density bonus pursuant to this chapter. This prohibition is inclusive of the base density units and the density bonus units. The Town shall require the recordation of a deed restriction that runs in perpetuity prohibiting transient rentals as a condition for granting a density bonus pursuant to this chapter.

(Code 1990, § 17.138.030; Ord. No. 20-02, § 4(exh. A, e.), 3-18-2020)

The amount of a residential density bonus a project is eligible for shall be determined in accordance with this section. The foundation of the Town Density Bonus Program is that projects will earn points through the provision of deed restricted workforce housing units and the amount of points required for the desired density bonus is based on the size of the density bonus requested. The larger the density bonus request (up to a maximum of twice the allowed density), the more workforce housing that a project must provide to receive the bonus.

(1)

Determination of bonuses. Projects identified as eligible project types in Section 17.136.020(a) shall be eligible for a residential density bonus, up to a maximum of twice the allowed density, in accordance with the following procedures:

a.

Eligibility points required. The number of eligibility points required, up to a maximum of 100, for the desired density bonus is calculated according to the following formula. If the eligibility points calculation results in a number that is not a factor of five, the number of points required shall be rounded up to the next multiple of five.

((Bonus Requested)/(Bonus Increment)) times 100 equals points required

(Rounded up to the next multiple of five if the calculation results in a number that is not a factor of five.)

For example, a project with a base site density of four units that wants to build a six-unit project would be required to generate 50 points to obtain the two-unit density bonus.

((6 - 4)/(8 - 4)) x 100 equals 50 points

Variables used in the eligibility points calculation:

1.

Bonus requested: The amount of residential density requested for the project above the maximum base site density (i.e., the maximum base site density subtracted from the total number of units requested).

2.

Bonus increment: The difference between the maximum density with the bonus allowed and the maximum base site density (i.e., the maximum base site density subtracted from the maximum site density with the bonus).

b.

Application of the eligibility points. All of the eligibility point requirements shall be fulfilled by deed restricting to workforce housing a percentage of the base density units that is proportional to the density bonus requested. The required percentages that correspond to the eligibility points for each affordability level shall be established in the eligibility points schedule for the Town Density Bonus adopted by Council resolution in the Town Density Bonus Program Policy.

1.

Project proponents have the option to select which affordability level the units are restricted to; however, the percentage of units required to be deed restricted shall increase as the affordability level decreases.

2.

For example, to generate the 50 points required for the desired density bonus from the above example, the project would be required to deed restrict the percentage of base density units specified in one of the affordability level columns to the right of the 50 eligibility points awarded row in the eligibility points schedule for the Town Density Bonus adopted by Council resolution in the Town Density Bonus Program Policy.

(2)

Income level categories. The affordability level categories used in the eligibility points schedule for the Town Density Bonus shall be established by Council resolution and be periodically reviewed and updated. the affordability level categories can range from low-income households (i.e., households earning 80 percent or below of the AMI) to occupant restricted households (i.e., required to be their principal place of residence and be employed in either Mono or Inyo County, or be retired). Additional affordability levels that are in between low-income households and occupant restricted households may be established by the Council. The eligibility requirements for each affordability level shall be established by Council resolution in the Town Density Bonus Program Policy, as it may be amended from time to time.

(Code 1990, § 17.138.040; Ord. No. 20-02, § 4(exh. A, e.), 3-18-2020)

(a)

Allowed incentives and concessions. Multifamily residential projects that receive a density bonus pursuant to this chapter shall be eligible to receive one of the following incentives or concessions:

(1)

An increase in the allowable lot coverage;

(2)

Up to a 20 percent reduction in setbacks;

(3)

Up to a 25 percent reduction of the required number of guest parking spaces;

(4)

Up to a ten percent increase in the maximum permitted structure height;

(5)

A reduction or elimination of one of the multifamily residential development and operational standards specified in Section 17.52.210; or

(6)

Approval of mixed-use zoning not otherwise allowed by this chapter in conjunction with the housing development if nonresidential land uses will reduce the cost of the housing development, and the nonresidential land uses are compatible with the housing project and the existing or planned development in the area where the project will be located.

(b)

Additional incentives or concessions. The review authority may grant two or more incentives or concessions under this subsection if the applicant demonstrates that the project will either:

(1)

Provide a greater number of deed restricted units than otherwise required;

(2)

Provide a greater or longer term deed restriction than otherwise required; or

(3)

Meet other applicable housing element goals or policies.

(c)

Alternative incentives or concessions. An applicant eligible for an incentive or concession under this subsection may submit a request for an incentive or concession different than those specified above if the incentive or concession will result in identifiable, financially sufficient, and actual cost reductions, subject to review and approval by the review authority.

(d)

Snow storage. Multifamily residential projects that receive a density bonus pursuant to this chapter shall be eligible for a reduction of the required snow storage areas if the property owner commits to haul on-site snow from the property to an approved off-site snow storage area in accordance with Section 17.36.110(2)c.1, as it may be amended from time to time, provided that the interim snow storage areas do not interfere with any of the required parking areas. The allowance for snow hauling shall not be considered to be an incentive or concession for the purposes of this subsection. The commitment to haul on-site snow shall be in the form of a recorded document mutually agreed to between the property owner and the Town.

(Code 1990, § 17.138.050; Ord. No. 20-02, § 4(exh. A, e.), 3-18-2020)

(a)

Required findings. In addition to the use permit findings required by Section 17.68.050, a use permit for a project receiving a Town Density Bonus pursuant to this chapter shall be approved only if all of the following additional findings can be made:

(1)

The proposed project will generate a sufficient number of eligibility points required for the bonus amount requested.

(2)

The proposed project is compatible with the surrounding neighborhood with regards to building scale, form, materials, and street orientation.

(3)

The incentive or concession is required in order to make the project feasible and the incentive or concession requested is the minimum departure from the requirements of this chapter necessary to make the housing project feasible.

(b)

Required conditions of approval. In addition to any other required conditions of approval, all of the following conditions shall apply to all use permits that are granted for a project receiving a Town Density Bonus pursuant to this chapter:

(1)

Before a Certificate of Occupancy is issued for a project, the applicant shall certify to the Director that the eligibility points upon which the project's residential density bonus was based have been achieved. To satisfy this condition, evidence shall be provided that a workforce housing agreement that is consistent with Section 17.136.090 has been recorded against the property and that the required number of deed restrictions at the agreed upon affordability level have been recorded against the property. The Town shall be named as a party in the workforce housing agreement and shall have the right to enforce all subsequent deed restrictions.

(2)

Before a Certificate of Occupancy is issued for a project, the applicant shall provide evidence to the Town that transient rentals are prohibited for all units within the development. Evidence shall consist of a deed or use restriction satisfactory to the Town prohibiting transient rentals that has been recorded against all units within the development.

(3)

The total number of deed restricted units required for the density bonus shall not be reduced or otherwise eliminated without the approval of the review authority. To grant such approval, the review authority must find that there is a corresponding reduction in density.

(Code 1990, § 17.138.060; Ord. No. 20-02, § 4(exh. A, e.), 3-18-2020)

Each workforce housing ownership unit that qualified the project for a density bonus and other incentives or concessions pursuant to this chapter shall comply with all of the requirements of this section.

(1)

Ownership unit occupancy requirements.

a.

Eligibility requirements. Except as provided in Subsection (1)a.3 of this section, a workforce housing ownership unit shall be sold, and to the extent required by Subsection (3) of this section, resold, only to a household certified by the Town, or designee, as meeting the eligibility requirements designated by the terms of the project approval, and which also comply with all of the following requirements:

1.

The purchaser shall be a qualified household, as that term is defined in the Town Density Bonus Program Policy.

2.

The purchaser shall be a qualified resident, as that term is defined in the Town Density Bonus Program Policy and shall occupy the unit as the purchaser's principal place of residence and may not rent the unit in its entirety to another party, except as provided in Section 17.136.080(1)a.3.

3.

In the event that the purchaser no longer resides in the unit as their principal place of residence or the unit is owned as an investment property for rental purposes, the workforce housing ownership unit shall then be considered to be a workforce housing rental unit and be subject to the requirements specified in Section 17.136.080. Transition from an ownership unit to a rental unit shall require prior approval from the Town, or designee.

b.

Buyer certification and selection. Workforce housing units shall be sold, and to the extent required by Subsection (3) of this section, resold, only to households certified by the Town, or designee, as satisfying the eligibility requirements specified in Subsection (1)a of this section, and in compliance with all of the following requirements:

1.

Initial buyers eligible to purchase workforce housing units shall be selected by the developer, as that term is defined in the Town Density Bonus Program Policy, in compliance with a marketing plan approved, in advance, by the Town, or designee. developer shall use commercially reasonable efforts to market the units to qualified residents. Prior to initial marketing of the units, developer shall provide the Town copies of its marketing and outreach plan which the Town shall approve or disapprove within 30 days of receipt. Subsequent buyers shall be verified by the Town, or designee, that they are in compliance with the approved marketing plan and the Town Density Bonus Program Policy.

2.

The marketing plan shall identify and detail the process to be used for the marketing and sale of the workforce housing units to qualified households.

c.

Preferences. Preferences in the sale of workforce housing units shall be given first to persons currently employed in either Mono or Inyo County that meet the qualified resident criteria specified in the Town Density Bonus Program Policy, and then to current Mono or Inyo County residents, to the extent allowed by law.

(2)

Ownership units; sales price restrictions. Workforce housing ownership units that are restricted to a specific affordability level in the terms of the project approval shall be offered at sales prices that are considered affordable to the specified affordability level, as those affordability levels are defined in the Town Density Bonus Program Policy. The Town, or designee, shall establish the maximum sales prices for each of these income categories based upon the income limits that the State Department of Housing and Community Development (HCD) issues annually for the County.

(3)

Workforce housing agreement required.

a.

The Town shall record a workforce housing agreement consistent with the terms in Section 17.136.090 with the qualified resident concurrently with the recording of each grant deed transferring title to a workforce housing unit subject to this section to a qualified household. The workforce housing agreement shall provide the Town, for the term specified in Subsection (3)d of this section, with a first right to purchase the unit upon resale.

b.

The workforce housing agreement shall permit the Town to assign its rights to purchase the units under that agreement to a qualified household to purchase the unit.

c.

In all cases where the Town exercises its rights to purchase the units, the units shall be conveyed to, or purchased by, a qualified household in compliance with the designation of the unit in the project approvals and as determined by the Town in compliance with the Town Density Bonus Program Policy.

d.

The workforce housing agreement for each unit shall reserve the unit for purchase by the Town or its assignee and for resale only to qualified households, as defined by this section and the project approvals, for a minimum of 55 years, or for a longer period if required by the project approvals. A new term shall commence on the recording date of each new workforce housing agreement recorded concurrently with a grant deed transferring title of the designated unit to a qualified household.

(4)

Administrative fees. The Town, or designee, may collect an administrative fee, as the Town may establish from time to time, at close of escrow of the sale and resale of each workforce housing ownership unit, to recover the costs of its obligations under this section.

(Code 1990, § 17.138.070; Ord. No. 20-02, § 4(exh. A, e.), 3-18-2020)

Each workforce housing rental unit that qualified the project for a density bonus and other incentives or concessions pursuant to this chapter shall comply with all of the requirements of this section.

(1)

Rental unit, occupancy requirements.

a.

Eligibility requirements. A workforce housing rental unit shall be rented only to a household certified by the Town, or designee, as meeting the eligibility requirements designated by the terms of the project approval, and which also comply with all of the following requirements:

1.

The unit shall be rented by a qualified household, as that term is defined in the Town Density Bonus Program policy.

2.

At least one occupant of the unit shall be a qualified resident, as that term is defined in the Town Density Bonus Program Policy and shall occupy the unit as said occupant's principal place of residence.

3.

If the workforce housing rental unit is restricted to a specific affordability level in the terms of the project approvals, the annual household income, adjusted for household size, shall be required to be equal to or less than the income limits established in the Town Density Bonus Program Policy for the applicable affordability level.

b.

Tenant certification and selection. Workforce housing rental units shall be rented only to households certified by the Town, or designee, as satisfying the eligibility requirements specified in Subsection (1)a of this section. Developer, as that term is defined in the Town Density Bonus Program Policy, shall use commercially reasonable efforts to market the units to qualified residents. Prior to initial marketing of the units, developer shall provide the Town copies of it marketing and outreach plan which the Town shall approve or disapprove within 30 days of receipt. The marketing plan shall identify and detail the process to be used for the marketing of the workforce housing rental units to qualified residents.

c.

Preferences. Preference in the rental of workforce housing units shall be given first to persons currently employed in either Mono or Inyo County that meet the qualified resident criteria specified in the Town Density Bonus Program Policy, and then to current Mono or Inyo County residents, to the extent allowed by law.

(2)

Workforce housing rental unit restrictions. Each workforce housing rental unit that is restricted to a specific affordability level in the terms of the project approval shall be offered at a rent level that is considered affordable to the specified affordability level as defined in the Town Density Bonus Program Policy. The maximum rental rates shall be established annually by the Town, or designee, based upon the income limits that the State Department of Housing and Community Development (HCD) issues annually for the County. A utility allowance will be deducted from the maximum affordable rent so that the monthly housing costs (rent, plus tenant-paid utilities) do not exceed 30 percent of the area median income for the specified affordability level, as established by HCD, adjusted for assumed household size.

(3)

Term of rental restrictions. Each required workforce housing unit shall be reserved for qualified households for a minimum of 55 years, or for a longer period if required by the project approvals. The rental restriction term shall commence on the date of issuance of the Certificate of Occupancy for the workforce housing unit.

(4)

Rental unit monitoring. The Town, or designee, shall monitor the rental of workforce housing units for compliance with the workforce housing agreement and the provisions of this chapter. On an annual basis, the Town, or designee, may collect a monitoring fee, as the Town may establish from time to time, from the owner for the monitoring of each rental unit subject to the workforce housing agreement, to recover the costs of its obligations under this section.

(Code 1990, § 17.138.080; Ord. No. 20-02, § 4(exh. A, e.), 3-18-2020)

(a)

Agreement required. The obligations assumed by an applicant or property owner in exchange for the density bonus in compliance with this chapter shall be secured by a recorded workforce housing agreement executed by the property owner and the Town and recorded before the recordation of a final map or issuance of the first building permit for the designated dwelling units, whichever occurs first. The agreement shall be in a form approved by the Department and Town Attorney and shall be consistent with any construction or mortgage financing assistance program, mortgage insurance program, rental subsidy program, or other similar grant program requirements or terms. The agreement shall be binding on all future owners, developers, or successors-in-interest for the specified term.

(b)

Agreement contents. A workforce housing agreement shall contain provisions that implement all requirements of this chapter, as applicable to the specific project. The agreement shall also include the following provisions, or any additional requirements required by the review authority:

(1)

Occupancy standards. The agreement shall include provisions that specify:

a.

If restricted to a specific affordability level, the income eligibility criteria for defining housing unit affordability;

b.

If restricted to a specific affordability level, the actual affordable sales prices or rents for affordable units, as determined by the Town, or designee, in accordance with this chapter. The agreement shall also provide that the Town may from time to time revise the sales prices and rent limits in response to changes in income limits, monthly housing costs, and the real estate market. Monthly housing costs for workforce housing ownership units shall include mortgage payments, property taxes, homeowners insurance and, as applicable, homeowner's association dues and primary mortgage insurance. Monthly housing costs for workforce housing rental units shall include the rent, plus any tenant-paid utilities;

c.

Criteria for the certification and selection of buyers or renters, as applicable.

(2)

Sale, resale, and rental restrictions. The agreement shall include provisions that specify:

a.

A guarantee of sale or rent to qualified households, as that term is defined by the Town Density Bonus Program Policy, and continued availability of all units designated as workforce housing units for a minimum of 55 years, or for a longer term if required by the project approvals;

b.

For units that will be workforce housing ownership units, a provision restricting the sale of the workforce housing ownership unit to qualified households, as that term is defined by the Town Density Bonus Program Policy;

c.

For units that will be purchased as investment properties for rental purposes, a provision restricting the rental of the unit to qualified households, as that term is defined by the Town Density Bonus Program Policy; and

d.

A provision that the sale of a dwelling designated as a workforce housing unit shall include an assignable workforce housing agreement granting the Town, or designee, the first right of refusal to purchase the unit at the time of subsequent sale as specified in the Town Density Bonus Program Policy.

(3)

Fees. The agreement shall include a provision that the Town, or designee, receive all applicable fees as may be established by resolution of the Council from time to time, including, but not limited to, monitoring fees for rental units and administrative fees at sale and resale of ownership units subject to this chapter.

(4)

Enforcement and recovery of costs. The agreement shall include a provision that provides for enforcement of the agreement by the Town and that entitles the Town to recover reasonable attorneys' fees (including Town Attorney fees), investigation and litigation expenses, and any related staff costs associated with enforcing the agreement.

(Code 1990, § 17.138.090; Ord. No. 20-02, § 4(exh. A, e.), 3-18-2020)

As required by State law, this chapter offers density bonuses and incentives or concessions for the development of housing that is affordable to the types of households and qualifying residents identified in Section 17.140.020. This chapter is intended to implement the requirements of Government Code § 65915 et seq., or as may be amended, and the housing element of the general plan. The bonuses for affordable housing in this chapter are distinguished from, and are mutually exclusive of, other density bonuses available to projects that provide workforce housing pursuant to the Town Density Bonus Program described in Chapter 17.136. Developers may apply for a density bonus and other incentives, if eligible, pursuant to either Chapter 17.136 or this chapter, but not both.

(Code 1990, § 17.140.010; Ord. No. 14-02, § 4, 3-19-2014; Ord. No. 20-02, § 4(exh. A, b.), 3-18-2020)

In order to be eligible for a State Housing Density Bonus or other incentives or concessions as provided by this chapter, a proposed housing development shall comply with the following requirements, and satisfy all other applicable provisions of this chapter, except as provided by Section 17.140.040.

(1)

Resident requirements. A housing development proposed to qualify for a State Housing Density Bonus and incentive or concession shall be designed and constructed so that it includes at least one of the following:

a.

Five percent of the total number of proposed units are for very low-income households, as defined by the Health and Safety Code § 50105;

b.

Ten percent of the total number of proposed units are for lower income households, as defined by the Health and Safety Code § 50079.5;

c.

Ten percent of the total dwelling units in a common interest development as defined in Civil Code § 4100 are for persons and families of moderate-income, as defined in Health and Safety Code § 50093, provided that all units in the development are offered to the public for purchase; or

d.

The project is a senior citizen housing development as defined in Civil Code §§ 51.3 and 51.12 or is a mobilehome park that limits residency based on age requirements for housing older persons in compliance with Civil Code § 798.76 or 799.5.

(2)

Applicant selection of basis for bonus. For the purposes of calculating the amount of the density bonus in compliance with Section 17.140.030, the applicant who requests a density bonus shall elect whether the bonus shall be awarded on the basis of Section 17.140.030(1)a, b, c, or d.

(3)

Bonus units shall not qualify for a project. Density bonus units authorized by this chapter shall not be included when determining the number of target units required to qualify for a density bonus.

(4)

Minimum project size to qualify for density bonus. The density bonus provided by this chapter shall be available only to a housing development of five or more dwelling units.

(5)

Condominium conversion projects. A condominium conversion project for which a density bonus is requested shall comply with Government Code § 65915.5 and Section 17.52.110.

(Code 1990, § 17.140.020; Ord. No. 14-02, § 4, 3-19-2014)

The amount of a density bonus allowed in a housing development shall be determined by the Commission in compliance with this section. For the purposes of this chapter, the term "density bonus" means a density increase over the otherwise maximum allowable residential density under the applicable zone and designation of the land use element of the general plan as of the date of the application by the applicant to the Town.

(1)

Density bonus. A housing project that complies with the eligibility requirements in Section 17.140.020(1)a, b, c, or d, shall be entitled to density bonuses as follows, unless a lesser percentage is proposed by the applicant.

a.

Density bonus for very low-income households. For each one percent increase above five percent in the percentage of target units affordable to very low-income households, the density bonus shall be increased by 2.5 percent, up to a maximum of 35 percent. For example, a 20 unit project with two very low-income units (i.e., ten percent of units is very low-income) is entitled to a 32.5 percent density bonus, resulting in seven additional units.

b.

Density bonus for low-income households. For each one percent increase above ten percent in the percentage of target units affordable to low-income households, the density bonus shall be increased by 1.5 percent, up to a maximum of 35 percent. For example, a 20 unit project with three low-income units (i.e., 15 percent of units is low-income) is entitled to a 27.5 percent density bonus, resulting in six additional units.

c.

Density bonus for moderate-income units in common interest development. For a residential project that is a qualified common interest development pursuant to Section 17.140.020(1)c, for each one percent increase above ten percent in the percentage of target units for sale to moderate-income households at an affordable sales price, the density bonus shall be increased by one percent, up to a maximum of 35 percent. For example, a 20-unit project with four moderate-income units (i.e., 20 percent of units is moderate-income) is entitled to a 15 percent density bonus, resulting in three additional units.

d.

Density bonus for senior housing units. A housing development that is eligible for a bonus in compliance with the criteria in Section 17.140.020(1)d shall be entitled to a density bonus of 20 percent of the number of senior housing units.

Table 17.140.030. State Density Bonuses (State Government Code § 65915)

e.

Density bonus for land donation. A residential project may be eligible for a density bonus in return for land donation pursuant to the requirements set forth in Government Code § 65915(g).

(2)

Greater or lesser bonuses. The Town may choose to grant a density bonus greater than provided by this section for a development that meets the requirements of this section or grant a proportionately lower density bonus than required by this section for a development that does not comply with the requirements of this section.

(3)

Density bonus calculations. The calculation of a density bonus in compliance with this section that results in fractional units shall be rounded up to the next whole number, as required by Government Code § 65915(f)(5).

(4)

Requirements for amendments or discretionary approval. The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, Zoning Map amendment, title amendment, or other discretionary approval.

(5)

Location of bonus units. The developer may locate the density bonus units in areas on the project site other than where the units for the lower income households are located in the housing project.

(Code 1990, § 17.140.030; Ord. No. 14-02, § 4, 3-19-2014)

(a)

Applicant request.

(1)

The applicant may file their request concurrently with the application for project approval.

(2)

The applicant shall show that a waiver or modification of development standards is necessary to make the housing units economically feasible.

(3)

An applicant for a density bonus in compliance with this chapter may also submit to the Town a proposal for the specific incentives or concessions listed in Subsection (d) of this section, below, that the applicant requests in compliance with this section, and may request a meeting with the Director.

(b)

Commission approval. The Commission shall grant an incentive or concession request that complies with this section unless the Commission makes at least one of the following findings in writing, based upon substantial evidence:

(1)

The incentive or concession is not required in order to provide for affordable housing costs, as defined in Health and Safety Code § 50052.5, or for rents for the targeted units to be set as specified in Section 17.140.070(2);

(2)

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

(3)

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

(c)

Number of incentives or concessions. The applicant shall receive the following number of incentives or concessions:

(1)

One incentive or concession. One incentive or concession for a project that includes at least ten percent of the total units for low-income households, or at least five percent for very low-income households, or at least ten percent for persons and families of moderate-income in a common interest development.

(2)

Two incentives or concessions. Two incentives or concessions for a project that includes at least 20 percent of the total units for low-income households, or at least ten percent for very low-income households, or at least 20 percent for persons and families of moderate-income in a common interest development.

(3)

Three incentives or concessions. Three incentives or concessions for a project that includes at least 30 percent of the total units for low-income households, or at least 15 percent for very low-income households, or at least 30 percent for persons and families of moderate-income in a common interest development.

Table 17.140.040(c). State Incentives or Concessions (Government Code § 65915)

Notes:

¹ An incentive or concession may be requested only if an application is also made for a density bonus.

² Incentives may be selected from only one category (i.e., very low, low, or moderate).

(d)

Type 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 of this chapter (e.g., lot coverage, setbacks, parking requirements, building height, etc.) or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission in compliance with Health and Safety Code § 18901 et seq., that would otherwise be required, that results in identifiable, financially sufficient, and actual cost reductions;

(2)

Approval of mixed-use zoning not otherwise allowed by this chapter in conjunction with the housing development if nonresidential land uses will reduce the cost of the housing development, and the nonresidential land uses are compatible with the housing project and the existing or planned development in the area where the project will be located;

(3)

Other regulatory incentives or concessions proposed by the applicant or the Town that will result in identifiable, financially sufficient, and actual cost reductions; or

(4)

In its sole and absolute discretion, a direct financial contribution granted by the Council, including the provision of publicly owned land, the waiver of fees or dedication requirements, subsidizing the cost of construction, or participating in the cost of infrastructure.

(e)

Effect of incentive or concession. The granting of an incentive or concession shall not be interpreted, in and of itself, to require a general plan amendment, Zoning Map amendment, title amendment, or other discretionary approval.

(Code 1990, § 17.140.040; Ord. No. 14-02, § 4, 3-19-2014)

(a)

Applicability. This section applies to a development that meets the requirements of 17.140.020, but only at the request of the applicant. An applicant may request additional parking incentives or concessions beyond those provided in this section in compliance with Section 17.140.040 and consistent with Chapter 17.44.

(b)

Number of parking spaces required.

(1)

At the request of the applicant, the Town shall require the following vehicular parking ratios for a project that complies with the requirements of Section 17.140.020, inclusive of handicapped and guest parking.

a.

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

b.

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

c.

Four or more bedrooms: 2½ on-site parking spaces.

(2)

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.

(3)

If, in any instance, the parking ratios listed above would result in a parking requirement greater than that established by Chapter 17.44, the lesser requirement would apply.

(c)

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

(Code 1990, § 17.140.050; Ord. No. 14-02, § 4, 3-19-2014)

A housing development that complies with the resident and project size requirements of Section 17.140.020(1) and also includes as part of that development a childcare facility other than a large or small family day care home, that will be located on the site of, as part of, or adjacent to the development, shall be subject to the following:

(1)

Additional bonus and incentive. The Town shall grant a housing development that includes a childcare facility in compliance with this section either of the following:

a.

An additional density bonus that is an amount of floor area in square feet of residential space that is equal to or greater than the floor area of the childcare facility; or

b.

An additional incentive that contributes significantly to the economic feasibility of the construction of the childcare facility.

(2)

Requirements to qualify for additional bonus and incentive. If either the density bonus or incentive is granted in compliance with Subsection (1) of this section, the Town shall require the following as a condition of approving the housing development:

a.

The childcare facility shall remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable in compliance with Section 17.140.070; and

b.

Of the children who attend the childcare facility, the children of very low-income households, lower income households, or families of moderate-income shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very low-income households, lower income households, or families of moderate-income in compliance with Section 17.140.020(1).

(3)

Bonus not required when adequate childcare facilities exist. The Town shall not be required to provide a density bonus for a childcare facility in compliance with this section if it finds, based on substantial evidence, that the community has adequate childcare facilities.

(Code 1990, § 17.140.060; Ord. No. 14-02, § 4, 3-19-2014)

The units that qualified the housing development for a density bonus and other incentives or concessions shall continue to be available as affordable units in compliance with the following requirements, as required by Government Code §§ 65915(c) and 65916.

(1)

Duration of affordability. The applicant shall agree to, and the Town shall ensure the continued availability of the units that qualified the housing development for a density bonus and other incentives or concessions, as follows:

a.

Low, very low, and moderate-income units. The continued affordability of all low-, very low-, and moderate-income qualifying units shall be maintained for 30 years, or more, if a longer period continuing affordability is required by the construction or mortgage financing assistance program, mortgage insurance program, rental subsidy program, or by Town policy or ordinance.

b.

Housing development with Town funding. Where there is a direct financial contribution to a housing development through participation in cost of infrastructure, write-down of land costs, or subsidizing the cost of construction, the Town shall ensure continued availability for low- and moderate-income units for 30 years, or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, rental subsidy program, or by Town policy or ordinance.

c.

Enforcement. Continuing affordability of units that qualified the housing development for a density bonus and other incentives or concessions shall be enforced through rent regulatory agreements, resale restrictions, deeds of trust, or other documents as appropriate and acceptable to the Director and Town Attorney, recorded against the subject unit or property except to the extent that any of the requirements therein would conflict with requirements of State law.

(2)

Unit cost requirements. The rents and owner-occupied costs charged for the housing units in the development that qualify the project for a density bonus or other incentives or concessions, shall not exceed the following amounts during the period of continued availability required by this section:

a.

Low income units. Rents for the low-income density bonus units shall be set at an affordable rent as defined in Health and Safety Code § 50053; and

b.

Owner-occupied units. Owner-occupied units shall be available at an affordable housing cost as defined in Health and Safety Code § 50052.5.

(3)

Occupancy and resale of moderate-income common interest development units. An applicant shall agree to, and the Town shall ensure that the initial occupant of moderate-income units that are directly related to the receipt of the density bonus in a common interest development as defined in Civil Code § 4100, are persons and families of moderate-income, as defined in Health and Safety Code § 50093, and that the units are offered at an affordable housing cost, as defined in Health and Safety Code § 50052.5. The Town shall enforce an equity sharing agreement unless it is in conflict with the requirements of another public funding source or law. The following requirements apply to the equity sharing agreement:

a.

Upon resale, the seller of the unit shall retain the value of any improvements, the down payment, and the seller's proportionate share of appreciation.

b.

The Town shall recapture any additional subsidy and its proportionate share of appreciation, which shall then be used within five years for any of the purposes described in Health and Safety Code § 33334.2(e) that promote home ownership. For the purposes of this section:

1.

The value of the Town's initial subsidy shall be considered equivalent to the fair market value of the home at the time of initial sale, minus the initial sale price to the moderate-income household, plus the amount of any down payment assistance or mortgage assistance. If upon resale the market value is lower than the initial market value, then the value at the time of resale shall be used as the initial market value; and

2.

The Town's proportionate share of appreciation shall be equal to the ratio of the initial subsidy to the fair market value of the home at the time of initial sale.

(Code 1990, § 17.140.070; Ord. No. 14-02, § 4, 3-19-2014)

(a)

Permit requirement. A request for a density bonus and other incentives or concessions shall require use permit approval in compliance with Chapter 17.68. In addition, the density bonus award and other incentives or concessions shall require Council approval.

(b)

Findings for approval. A density bonus and other incentives or concessions may be approved only after all of the following findings are made. It is the responsibility of the applicant to establish evidence in support of the findings for approval.

(1)

All of the findings required for use permit approval;

(2)

A finding that the residential development is eligible for the density bonus and any incentives or concessions, parking reductions, or waivers requested;

(3)

The residential development is consistent with the general plan, except as provided by this chapter for density bonuses, and other incentives and concessions;

(4)

The approved number of dwellings can be accommodated by existing and planned infrastructure capacities;

(5)

A finding that any requested incentive or concession will result in an identifiable, financially sufficient, and actual cost reduction based upon financial analysis and documentation provided, and none of the findings for denial of an incentive or concession in Section 17.140.040(b) can be made;

(6)

Adequate evidence exists to indicate that the project will provide affordable housing in a manner consistent with Government Code § 65915, or as may be amended, the purpose and intent of this chapter;

(7)

There are sufficient provisions to guarantee that the units will remain at the required affordability levels for the required time period; and

(8)

Affordable housing units would meet the required livability standards.

(Code 1990, § 17.140.080; Ord. No. 14-02, § 4, 3-19-2014)

(a)

Agreement required. Consistent with Government Code § 65917, an applicant requesting a density bonus or incentives or concessions shall agree to enter into a density bonus agreement (referred to as the "agreement") with the Town in a form approved by the Council and Town Attorney. The agreement shall be consistent with any construction or mortgage financing assistance program, mortgage insurance program, rental subsidy program, or other similar grant program requirements or terms.

(b)

Execution of agreement.

(1)

Following approval of the agreement, and execution of the agreement by all parties, the Town shall record the completed agreement on the parcels designated for the construction of designated dwelling units, at the County Recorder's office.

(2)

The approval and recordation shall take place at the same time as the final map or, where a map is not being processed, before the issuance of a building permit for the designated dwelling units.

(3)

The agreement shall be binding on all future owners, developers, or successors-in-interest for the specified term.

(Code 1990, § 17.140.090; Ord. No. 14-02, § 4, 3-19-2014)

(a)

Waiver of standards preventing the use of bonuses, incentives, or concessions.

(1)

As required by Government Code § 65915(e), the Town will not apply a development standard that will have the effect of precluding the construction of a development meeting the criteria of Section 17.140.020(1), at the densities or with the incentives or concessions allowed by this chapter.

(2)

An applicant may submit to the Town a proposal for the waiver or reduction of development and zoning standards that would have the effect of physically precluding the construction of a development utilizing a density bonus consistent with this chapter.

(3)

The applicant shall show that the waiver or reduction is necessary to make the housing units economically feasible.

(b)

Town exemption. Notwithstanding the provisions of Subsection (a) of this section, nothing in this section shall be interpreted to require the Town to:

(1)

Grant a density bonus, incentive or concession, or waive or reduce development standards, if the bonus, incentive, concession, waiver, or reduction would have a specific, adverse impact, as defined in Government Code § 65589.5(d)(2), upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact;

(2)

Grant a density bonus, incentive or concession, or waive or reduce development standards that would have an adverse impact on any real property that is listed in the State Register of Historical Resources; or

(3)

Grant a density bonus, incentive or concession, or waive or reduce a development standard that is contrary to State or Federal law.

(Code 1990, § 17.140.100; Ord. No. 14-02, § 4, 3-19-2014)