Millbrae City Zoning Code
ARTICLE XXXIII
Affordable Housing On-site And In-lieu Fee Requirements
§ 10.05.3300 Purpose and intent.
The purpose of this article is to establish requirements for the provision of inclusionary affordable housing designated as deed restricted for very low, low, and moderate income households in conjunction with new development projects in the city of Millbrae. These requirements will mitigate the impacts of residential projects on the need for affordable housing by increasing the supply of affordable housing to a broad range of households with varying income levels within the city and will implement the city of Millbrae housing element. This article will also establish the requirement for an affordable housing in-lieu fee on residential development projects consisting of four to nine units, or when the calculation of the affordable units in development projects of ten or more units results in a fractional unit of less than one-half. The fee is to be contributed to the city's affordable housing fund and used to fund the development of affordable housing and related programs in the city of Millbrae.
(Ord. 787 § 1)
§ 10.05.3310 Definitions.
A. "Affordable housing agreement"
means the agreement between the city and an applicant governing how the applicant will comply with the requirements of this article and the Affordable Housing Requirements and Program Regulations adopted by the city council.
B. "Affordable housing fund"
means the fund designated by the city to maintain and account for all monies received pursuant to this article.
C. "Affordable housing in-lieu fees"
means the fee paid by developers of residential development projects to mitigate the impacts that such developments have on the demand for affordable housing, which may be paid for fractional unit requirements and by developers of residential development projects with four to nine units.
D. "Affordable Housing Requirements and Program Regulations"
means the requirements adopted by the city council for implementation and administration of this article.
E. "Affordable rent"1. 2. 3. 4.
means the total monthly housing expenses for a rental affordable unit not exceeding the rents specified by Section 50053 of the California Health and Safety Code and California Code of Regulations Title 25, Sections 6910 through 6924. The city may permit alternative criteria, when necessary, to be consistent with pertinent state and federal statutes and regulations governing publicly assisted rental housing. As used in this article, "affordable rent" shall include the total of monthly payments by the tenant for all of the following:
Use and occupancy of the affordable unit and land and all facilities associated with the affordable unit, including but not limited to parking (whether unbundled or not), bicycle storage, storage lockers, and use of all common areas;
Any additional separately charged fees or service charges assessed by the owner, other than security deposits;
An allowance for utilities paid by the tenant as established by the San Mateo County Housing Authority which may be updated from time to time, including garbage collection, sewer, water, electricity, gas, and other heating, cooking, and refrigeration fuel, but not telephone service, cable TV or Wi-Fi/internet; and
Any other interest, taxes, fees or charges for use of the land or affordable unit or associated facilities and assessed by a public or private entity other than the owner, and paid by the tenant.
F. "Affordable ownership cost"
means the maximum purchase price that will be affordable to the specified households at the specified income levels, calculated in accordance with Health and Safety Code Section 50052.5. The affordable sales price shall include a reasonable down payment, and monthly housing payments (including interest, principal, mortgage insurance, property taxes, homeowners insurance, homeowners' association dues, property maintenance and repairs, and a reasonable allowance for utilities), all as determined by the city.
G. "Affordable unit"
means a residential dwelling unit in a residential development project that is occupied by, or available to, moderate, low, very low or extremely low income households at an affordable rent or an affordable ownership cost as required by this article.
H. "Area median income"
means the median income applicable to San Mateo County, adjusted for household size, as published periodically in the California Code of Regulations, Title 25, Section 6932, or its successor provision, or as established by the city of Millbrae in the event that such median income figures are no longer published periodically in the California Code of Regulations.
I. "Building permit"
includes full structural building permits as well as other related permits such as grading, shoring, garage or foundation-only permits.
J. "Common ownership or control"
means property owned or controlled by the same person, persons, or entity, or by separate entities in which any shareholder, partner, member, or family member of an investor of the entity owns ten percent or more of the interest in the property.
K. "Decision-making authority"
means the city staff person or body authorized to approve or deny an application for a planning entitlement or building permit for a development project.
L. "Developer"
means the person(s) or legal entity(ies), who also may be the property owner(s), who is seeking development project entitlements or permits from the city or developing a particular development project in the city.
M. "Extremely low income households"
means households with incomes no greater than the maximum income for extremely low income households applicable to San Mateo County as defined in California Health and Safety Code Section 50106, published annually by the city for each household size, by the California Department of Housing and Community Development (HCD) in California Code of Regulations Title 25, Section 6932 (or its successor provision).
N. "For-sale unit"
means a residential dwelling unit that may be sold individually in conformance with the Subdivision Map Act including condominiums. For-sale units also include units that are converted from rental units to for-sale units.
O. "Household"
means one person living alone or two or more persons sharing residency in one dwelling unit.
P. "Inclusionary unit"
is an affordable unit required by this article.
Q. "Low income households"
means households with incomes no greater than the maximum income for low income households applicable to San Mateo County as defined in California Health and Safety Section 50079.5 and published annually for each household size, by the California Department of Housing and Community Development (HCD) in California Code of Regulations Title 25, Section 6932 (or its successor provision).
R. "Market rate unit"
means a dwelling unit in a residential development project which is not an affordable unit.
S. "Moderate income households"
means households with incomes no greater than the maximum income limits for moderate income households in San Mateo County, as defined in California Health and Safety Code Section 50093 and published annually for each household size by the California Department of Housing and Community Development (HCD) in California Code of Regulations Title 25, Section 6932 (or its successor provision).
T. "Planning entitlement"
means any discretionary approval of a development project, including, without limitation, a general or specific plan adoption or amendment, rezoning, tentative subdivision map, parcel map, conditional use permit, variances, or design review.
U. "Rental unit"
means a dwelling unit that is intended to be offered for rent or lease and that cannot be sold individually in conformance with the Subdivision Map Act.
V. "Residential development project"
means an application for a planning permit or building permit at one location to create one or more additional dwelling units, convert nonresidential uses to dwelling units, subdivide a parcel to create one or more separately transferable parcels intended for residential development, or implement a condominium conversion, including development constructed at one time and in phases. "One location" includes all adjacent parcels of land under common ownership or control, the property lines of which are contiguous at any point, or the property lines of which are separated only by a public or private street, road, or other public or private right-of-way, or separated only by the lands owned or controlled by the developer.
W. "Very low income households"
means households with incomes no greater than the maximum income limit for very low income households applicable to San Mateo County, as defined in California Health and Safety Code Section 50105 and published annually for each household size by the California Department of Housing and Community Development (HCD) in California Code of Regulations Title 25, Section 6932 (or its successor provision).
(Ord. 787 § 1)
§ 10.05.3320 Administration.
A.
The city council shall adopt and may amend from time to time by resolution the Affordable Housing Requirements and Program Regulations consistent with the provisions of this article and the housing element for the purpose of carrying out the administration of this article. A copy of the Affordable Housing Requirements and Program Regulations shall be on file and available for public examination in the office of the city clerk and posted on the city's website.
B.
The community development director or designee is responsible for administering this article. As part of the administration of this article, the director may:
1.
Interpret the provisions of this article and the Affordable Housing Requirements and Program Regulations.
2.
Develop, publish and from time to time update or amend operational procedures and requirements, such as rules for determining the number of required inclusionary units, pricing (based on county and state guidelines), tenant eligibility, occupancy requirements, application processes, wait list management, income verification requirements, annual recertification, rejection of ineligible applicants and eligibility termination.
(Ord. 787 § 1)
§ 10.05.3330 Exemptions.
The following residential development projects are exempt from the provisions of this article:
A.
Residential development projects which are developed in accordance with the terms of a development agreement adopted by ordinance pursuant to the authority and provisions of California Government Code Section 65864 et seq., and that is executed prior to the effective date of the ordinance codified in this chapter; provided, that such residential development projects shall comply with any affordable housing requirements included in the development agreement or any predecessor ordinance in effect on the date the development agreement was executed.
B.
Residential development projects exempted by California Government Code Section 66474.2 or 66498.1; provided, that such residential development projects shall comply with any predecessor ordinance, resolution, or policy in effect on the date the application for the development was deemed substantially complete.
C.
Residential development projects exempted by California Government Code Section 65589.5(o) or successor provision; provided, that such residential developments shall comply with any predecessor ordinance, resolution, or policy in effect on the date that a preliminary application for the development containing all of the information required by Government Code Section 65941.1 was submitted to the city.
D.
Any structure proposed to repair or replace a building that was damaged or destroyed by fire or other calamity, so long as the total number of units, square footage and land use of the building remains the same, and construction of the replacement building begins within one year of the damage's occurrence.
E.
Residential development project consisting of three or fewer net new residential dwelling units, accessory dwelling units, or junior accessory dwelling units.
F.
Residential development projects for which a complete city of Millbrae housing development preliminary application has been filed no later than the effective date of this article; provided, that such residential developments shall comply with any predecessor ordinance, resolution, or policy in effect on the date the application for the development was deemed complete.
G.
Residential development projects for which an application for a city of Millbrae housing development planning entitlement has been deemed complete no later than the effective date of this article; provided, that such residential developments shall comply with any predecessor ordinance, resolution, or policy in effect on the date the application for the development was deemed complete.
H.
Residential development projects not subject to a planning entitlement where a complete and adequate building permit application for the vertical (including the "structural" or "above ground" construction) has been submitted the city no later than the effective date of this article.
(Ord. 787 § 1)
§ 10.05.3340 Inclusionary housing requirements.
A.
Developers of residential development projects must comply with the requirements set forth in this article and in the Affordable Housing Requirements and Program Regulations. Residential development projects (including mixed-use projects containing residential units) of ten or more units shall provide on-site inclusionary units in compliance with the percentages and specific income levels contained in the Affordable Housing Requirements and Program Regulations, unless otherwise exempted under this article or in the Affordable Housing Requirements and Program Regulations. Residential development projects comprised of rental units may utilize alternative means of compliance as provided in the Affordable Housing Requirements and Program Regulations. To the extent permitted by law, the city's objective is to obtain actual inclusionary units within each development rather than off-site units or land dedication.
B.
Inclusionary units that satisfy the requirements of this article may be counted toward the number of affordable units required to qualify for a density bonus under California Government Code Sections 65915 through 65918. To be eligible, the affordable units shall meet all of the applicable requirements of California Government Code Section 65915 and the requirements for inclusionary units adopted in this article and in the Affordable Housing Requirements and Program Regulations.
C.
An affordable housing agreement acceptable to the city attorney shall be recorded against the residential development project before approval of any final or parcel map, or issuance of any building permit for the residential development project, whichever occurs first. The affordable housing agreement shall comply with the Affordable Housing Requirements and Program Regulations.
(Ord. 787 § 1)
§ 10.05.3350 Requirements for affordable housing in-lieu fee.
A.
An affordable housing in-lieu fee to be paid to the city's affordable housing fund may be imposed on residential development projects (including mixed-use projects containing residential units) as established by resolution adopted by the city council, and may be amended from time to time by the council.
B.
Payment of the affordable housing in-lieu fee shall be added as a condition of approval for any residential development projects required to pay the affordable housing in-lieu fee.
C.
For mixed-use projects, any applicable affordable housing in-lieu fee will be imposed on that portion of the project that consists of new residential development; the affordable housing commercial linkage impact fee in Article XXXIV of this chapter will apply to the commercial portion of a mixed-use project.
D.
Timing of Payment. All fees shall be paid prior to issuance of the first building permit for the project. The fees shall be calculated based on the fee in effect as established by city council resolution at the time the fee is paid, unless otherwise required by state law. A developer may pay all or a portion of the fee owed at any time prior to issuance of the building permit, at the rate in effect at the time payment is made. For phased projects, the amount due shall be paid on a pro rata basis based on the ratio of the square footage of the phase being constructed to the entire square footage of the approved development, and each portion shall be paid prior to the issuance of any building permit for each phase.
E.
On July 1st of each year after the enactment of the affordable housing in-lieu fee, the fee shall be automatically adjusted in accordance with the change in the Engineering Construction Cost Index for San Francisco, California, as most recently published by Engineering News-Record, for the elapsed time period from the previous July 1st.
(Ord. 787 § 1)
§ 10.05.3360 Affordable housing fund.
An affordable housing fund is established to receive all housing impact fees and other funds collected under this article and Article XXXIV of this chapter which shall be deposited into the city's affordable housing fund.
A.
All affordable housing in-lieu fees collected under this article shall be deposited into the city's affordable housing fund. The monies in the affordable housing fund and all earnings from investment of the moneys in the affordable housing fund shall be expended exclusively to increase and improve the supply of housing affordable to extremely low income, very low income, lower income, and moderate income households in the city, consistent with the goals and policies contained in the city's housing element and Affordable Housing Requirements and Program Regulations, and for administration and compliance monitoring of the affordable housing program.
B.
The fund shall be administered by the finance director, who may develop procedures to implement the purposes of the fund consistent with the requirements of this article and subject to any adopted budget of the city and generally applicable accounting and procurement processes.
(Ord. 787 § 1)
§ 10.05.3370 Waiver.
A.
As part of an application for a planning entitlement, a developer may request that the requirements of this article be waived or modified by the decision-making body, based upon a showing that applying the requirements of this article would result in an unconstitutional taking of property or would result in any other unconstitutional result.
1.
Any request for a waiver or modification of the provisions of this article shall be submitted concurrently with the planning entitlement application(s). The developer shall set forth in detail, the factual and legal basis for the claim, including all supporting technical documentation.
2.
Any request for a waiver or modification based on this section shall be reviewed and considered at the same time as the planning entitlement application(s). The city council may, from time to time, establish by resolution, a processing fee for review of any request for modification.
B.
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 the adoption of written findings based on legal analysis and the evidence. If a waiver or modification is granted, any change in the project shall invalidate the waiver or modification, and a new application shall be required for a waiver or modification pursuant to this section.
(Ord. 787 § 1)
§ 10.05.3380 Enforcement.
A.
The city attorney is authorized to enforce the provisions of this article and all affordable housing agreements, regulatory agreements, and all other covenants or restrictions placed on inclusionary units, by civil action and any other proceeding or method permitted by law. Failure or refusal to comply with the Affordable Housing Requirements and Program Regulations promulgated under this article shall be deemed a violation of this article.
B.
Failure of any official or agency to fulfill the requirements of this article shall not excuse any developer or owner from the requirements of this article. No permit, license, map, or other approval or entitlement for a residential project shall be issued, including without limitation, a final inspection or certificate of occupancy, until all applicable requirements of this section have been satisfied.
C.
The remedies provided for in this article shall be cumulative and not exclusive and shall not preclude the city from any other remedy or relief to which it otherwise would be entitled under law or equity.
(Ord. 787 § 1)