Applicability. This section shall apply to conditional use permits, conditional development permits, planned development permits, subdivision approvals, architectural control approvals, variance approvals, and building permits for any residential development project of five (5) or more units. This section also applies to condominium conversions.

Requirements. For residential development projects of less than twenty (20) units, the developer shall provide not less than ten percent (10%) of the units at below market rates to very low-, low- and moderate-income households. For residential development projects of twenty (20) or more units, the developer shall provide not less than fifteen percent (15%) of the units at below market rates to very low‑, low- and moderate-income households. If the number of units required for a residential development project includes a fraction of a unit, the developer shall provide either a whole unit or a prorata in lieu payment on account of such fraction as determined in the below market rate housing program guidelines. The requirements of this section may be met through the provision of on-site or off-site below market rate units as determined by the housing commission and the reviewing body (i.e., planning commission or city council).

Review Process. As part of an application for an applicable residential development project, the developer shall submit a below market rate housing agreement. The agreement shall set forth the developer's plan to meet the requirements of this section. The agreement shall be reviewed by the housing commission and forwarded with a recommendation to the reviewing body for the application request. The reviewing body shall act on the agreement prior to or concurrently with the action on the application request. No building permit or other land use authorization may be issued or approved unless the requirements of this section have been met.

Applicability. This section shall apply to conditional use permits, conditional development permits, planned development permits, subdivision approvals, architectural control approvals, variance approvals, and building permits for any commercial development project or the construction of such project or any portion thereof which includes any new square footage or any square footage that is converted from an exempt use to a non-exempt use or from a Group B (all other commercial/industrial uses) use to a Group A (office/R&D) use.

Exemptions. The following uses are exempt from this section:

Requirements. The developer shall mitigate the demand for affordable housing created by the commercial development project. The below market rate housing program guidelines provides various alternatives for mitigation. A commercial development project may be required to provide below market rate housing on site (if allowed by the zoning district) or off site. If it is not feasible to provide below market rate housing units, the developer shall pay an in-lieu fee prior to issuance of a building permit as follows:

The in-lieu fee shall be adjusted annually on the first of July, in accordance with the guidelines.

Review Process. As part of an application for a commercial development project, the developer shall submit a below market rate housing agreement. The agreement shall set forth the developer's plan to meet the requirements of this section. The agreement shall be reviewed by the housing commission and forwarded with a recommendation to the reviewing body (i.e., planning commission or city council) for the application request. The reviewing body shall act on the agreement prior to or concurrently with the action on the application request. No building permit or other land use authorization may be issued or approved unless the requirements of this section have been met.

Generally. The provisions of this section shall apply only to housing developments and mixed-use developments that include housing that provide one (1) or more below market rate units in accordance with the provisions of this chapter. This section is intended as an alternative to the State Density Bonus Law, the enabling ordinance for which is set forth in Chapter 16.97 of the Menlo Park Municipal Code. Housing developments and mixed-use projects including housing may elect to utilize the bonuses and incentives under this chapter or Chapter 16.97, but not both.

Density and FAR bonuses. For each below market rate unit provided under the below market rate housing program, a developer shall be permitted to build one (1) additional market rate unit and, in the case of a subdivision, to create a legal lot or condominium unit for such additional unit. In addition, a developer shall be permitted to increase the floor area associated with the residential development project by an amount that corresponds to the increase in allowable density. Requests for density bonuses of a maximum of fifteen percent (15%) are subject to approval of the reviewing body (i.e., planning commission or city council) associated with the required application.

Incentives. The following incentives may be requested, if applicable:

For purposes of this chapter, new residential and commercial development projects on contiguous properties and that are submitted by the same applicant, are under common ownership, and/or under common control shall be treated as one (1) development project.

An applicant for a development project shall not avoid the BMR requirements of this chapter by submitting piecemeal applications. At the time of the application for first approval for a development project, the applicant shall identify all contiguous property under common ownership or common control. The applicant shall not be required to contribute BMR units or pay in-lieu fees based on common ownership or control of the contiguous property at the time of the application for first approval; however, the applicant shall be required to include the contiguous property under common ownership or control in its below market rate housing agreement. The agreement shall be recorded against the development project and all contiguous property under common ownership or control and shall require compliance with this chapter upon development of each contiguous property under common ownership or control at such time as there are development project applications on such properties that would authorize the application of the BMR requirements contained in this chapter to the initial development project and the subsequent development project on the contiguous property under common ownership or control.

As part of the initial application submittal for a residential or nonresidential project to which this chapter is applicable, a developer may request that the requirements of this chapter be waived or modified by the city council, based upon a showing that applying the requirements of this chapter would result in an unconstitutional taking of property or would result in any other unconstitutional result.

The request for a waiver or modification shall set forth in detail the factual and legal basis for the request.

Any request for a waiver or modification shall be reviewed and considered at the same time as the project application.

The waiver or modification may be approved only to the extent necessary to avoid an unconstitutional result, based upon legal advice provided by or at the behest of the city attorney, after adoption of written findings, based on legal analysis and substantial evidence.