Millbrae City Zoning Code
ARTICLE XXXIV
Affordable Housing Commercial Linkage Impact Fee
§ 10.05.3400 Purpose and intent.
The purpose of this article is to establish requirements for an affordable housing commercial linkage impact fee applicable to new commercial development projects to address the impacts of their projects on the demand for affordable housing by contributing to the supply of housing for households with extremely low, very low, low, and moderate incomes. These requirements will increase the supply of affordable housing to a broad range of households with varying income levels within the city and will help implement the city of Millbrae housing element by creating a fiscal mechanism to meet the demand for additional affordable housing created by new commercial development.
(Ord. 787 § 1)
§ 10.05.3410 Definitions.
A.
"Affordable housing commercial linkage impact fee"
means the fee paid by developers of commercial development projects to mitigate the impacts that such developments have on the demand for affordable housing in the city.
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 unit"
means a residential dwelling unit in a residential development project or mixed-use 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 those terms are defined in and as required by Article XXXIII of this chapter.
D.
"Building permit"
includes full structural building permits as well as other related permits such as grading, shoring, garage or foundation-only permits.
E.
"Commercial"
includes nonresidential or nonpublic or non-quasi-public uses including but not limited to:
1.
Hotel uses includes full-service hotels, limited-service hotels, motels, and other short-term lodging designed for stays of under thirty days.
2.
Retail, restaurants and service uses including but not limited to retail stores, commercial recreation and entertainment uses, eating and drinking establishments, personal services such as nail salons and dry cleaners, fitness facilities, gyms, service stations, auto sales, and other stores.
3.
Office uses including but not limited to a range of offices including general offices, and those specialized for accounting, medical, legal, life sciences, laboratory, technology, biotechnology, or research and development uses.
4.
Other commercial uses determined to be sufficiently similar by the community development director pursuant to MMC § 10.05.0400.
F.
"Commercial development project"
means an application for a planning permit or building permit that includes the new construction of gross square feet of space for commercial use or the conversion of residential use to commercial use. This includes mixed-use development projects which include both a commercial and a residential component. The conversion of an existing noncommercial space to commercial space is included.
G.
"Decision-making authority"
means the city staff person or body authorized to take final action, subject to appeal, on an application for a planning entitlement or building permit for a development project.
H.
"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.
I.
"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.
(Ord. 787 § 1)
§ 10.05.3420 Administration.
A.
The city council may adopt and may amend from time to time by resolution the affordable housing commercial linkage impact fees consistent with the provisions of this article. A copy of the affordable housing commercial linkage impact fees 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 director of community development or their designee is responsible for administering this article and establishing rules and regulations for this purpose. All such rules and regulations must be in written form and posted on the city's website or otherwise made publicly available. As part of the administration of this article, the director may interpret the provisions of this article.
(Ord. 787 § 1)
§ 10.05.3430 Exemptions.
The following commercial development projects are exempt from the provisions of this article:
A.
City buildings and facilities and those public facilities entitled to an exemption under law.
B.
Commercial 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 commercial 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.
C.
Commercial development projects exempted by California Government Code Section 66474.2 or 66498.1; provided, that such commercial 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.
D.
Commercial development projects on property eligible for the California property tax welfare exemption that is (1) used exclusively for charitable purposes and (2) owned or held in trust by a nonprofit corporation operating for charitable purposes with a current tax-exempt letter from the Internal Revenue Service or the Franchise Tax Board.
E.
Any structure proposed to repair or replace a commercial building that was damaged or destroyed by fire or other calamity, so long as the 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.
F.
Commercial development projects for which an application for a city of Millbrae planning entitlement has been deemed complete no later than the effective date of this article; provided, that such commercial developments shall comply with any predecessor ordinance, resolution, or policy in effect on the date the application for the development was deemed complete.
G.
Commercial 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 to the city no later than the effective date of this article.
(Ord. 787 § 1)
§ 10.05.3440 Requirements for affordable housing commercial linkage impact fee.
A.
An affordable housing commercial linkage impact fee to be paid to the city's affordable housing fund is hereby imposed on all commercial development projects, including mixed-use projects, regardless of zoning designation of the project site, unless otherwise exempted under this article or by resolution of the city council.
B.
All affordable housing commercial linkage impact fees collected under this article shall be deposited into the city's affordable housing fund, which shall be established as provided in MMC § 10.05.3360, Affordable housing fund.
C.
Payment of the affordable housing commercial linkage impact fee shall be required as a condition of approval for all development projects subject to this article.
D.
For mixed-use projects, the affordable housing commercial linkage impact fee is imposed on that portion of the project that consists of new commercial development; while the inclusionary unit requirement imposed by Article XXXIII of this chapter, including any applicable affordable housing in-lieu fees for residential projects, will apply to the residential portion of a mixed-use project.
E.
The amount of the affordable housing commercial linkage impact fee, as further described in the fee resolution, is imposed on a per square foot basis for net new gross floor area, except for visitor accommodations, as defined in MMC § 10.05.0410, where the fee is based on a per room basis. The formula below shall be used in calculating the amount of the commercial linkage fee:
1.
All affordable housing commercial linkage impact fees for commercial development projects, including new construction and conversion of a residential use to a commercial use, shall be calculated using the gross floor area of net new nonresidential space as specified in MMC § 10.05.0200, except for visitor accommodations where the fee is based on a per room basis, excluding structured or below ground parking and nonhabitable accessory structures.
2.
In calculating the affordable housing commercial linkage impact fee, a credit shall be given for the square footage of commercial uses that were constructed with the benefit of city approvals and permits on the same parcel as the new commercial project and are demolished no more than one year prior to the issuance of a building permit for the new commercial development project.
F.
All fees shall be paid prior to issuance of the first building permit for the project, at the rate in effect at the time payment is made. The fees shall be calculated based on the fee in effect as established by resolution adopted by the city council at the time the fee is paid. For phased projects, the amount due shall be paid on a pro rata basis across 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.
G.
On July 1st of each year after the enactment of the fees, the affordable housing commercial linkage impact fees 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.
H.
Area Standard Wage Agreement. Commercial development projects where the developer voluntarily enters into an area standard wage agreement to pay "area standard wages," which are defined as the general prevailing wage determinations for San Mateo County as made by the State of California Director of the Department of Industrial Relations, may be entitled to a partial credit of the applicable commercial linkage fee. The amount of any credit and terms of any agreement may be established by resolution of the city council.
(Ord. 787 § 1)
§ 10.05.3450 Alternatives to the payment of the affordable housing commercial linkage impact fee.
A.
As an alternative to compliance with the basic provisions included in MMC § 10.05.3440, developers of commercial development projects may propose the construction of affordable units on site or an alternative mitigation program proposed by the developer and the community development director, such as the provision of off-site affordable units, donation of land for the construction of affordable units, or purchase of existing units for conversion to affordable units.
1.
The city council may adopt, by resolution, the percentage of affordable units needed to mitigate the impact of commercial development projects on the need for affordable housing.
2.
Any affordable rental or for-sale units proposed as an alternative to the payment of the affordable housing commercial linkage fee shall be subject to the requirements described in Article XXXIII of this chapter and in the city's Affordable Housing Requirements and Program Regulations as adopted by resolution of the city council.
B.
If the developer seeks an alternative to the payment of the affordable housing commercial linkage impact fee, then the application for the first approval of a commercial development project for which the alternative is sought shall include an affordable housing plan as specified in the Affordable Housing Requirements and Program Regulations that describes how the alternative will comply with the provisions of this article. No affordable housing plan is required if the developer proposes only to pay the affordable housing commercial linkage impact fee.
1.
Development projects requesting an alternative to payment of the affordable housing commercial linkage impact fee require that an affordable housing plan be submitted in conformance with this article and the Affordable Housing Requirements and Program Regulations prior to the application being deemed complete.
2.
The affordable housing plan shall be processed concurrently with all other permits required for the commercial development project. Before approving the affordable housing plan, the decision-making body shall find that the affordable housing plan conforms to this article and the Affordable Housing Requirements and Program Regulations. A condition shall be attached to the first approval of any commercial development project to require recordation of an affordable housing agreement, as described in Article XXXIII of this chapter, prior to the approval of any final or parcel map or building permit for the development project.
3.
The approved affordable housing plan may be amended prior to the issuance of any building permit for the commercial development project. A request for a minor modification of an approved affordable housing plan may be granted by the community development director if the modification is substantially in compliance with the original affordable housing plan and conditions of approval. Other modifications to the affordable housing plan shall be approved by the same body that approved the original affordable housing plan.
4.
An affordable housing agreement, as described in Article XXXIII of this chapter, acceptable to the community development director or designee and city attorney, shall be recorded against the commercial development project prior to the approval of any final subdivision or parcel map or issuance of any building permit, whichever occurs first. The affordable housing agreement shall specify the number, type, location, size, and phasing of all affordable units, provisions for income certification, and screening of potential purchasers or renters of units, and resale control mechanisms, consistent with the approved affordable housing plan, as determined by the community development director or designee.
C.
The decision-making body may approve, or conditionally approve, an affordable housing plan that proposes on-site construction of affordable units if the decision-making body determines, based on substantial evidence, that:
1.
The proposed affordable units comply with the Affordable Housing Requirements and Program Regulations, including that the affordable units be made available for occupancy concurrently with the market rate units or occupancy of commercial use; and
2.
The affordable units will mitigate the impact of the project on the need for affordable housing as adopted by city council resolution.
D.
If a developer proposes off-site affordable housing units or any other alternative in the affordable housing plan, the decision-making body may approve such a proposal if it finds that the proposal satisfies all of the following conditions in addition to the conditions required under subsection C of this section:
1.
Financing, or a viable financing plan, is in place for the proposed affordable units;
2.
The proposed location is suitable for the proposed affordable housing, is consistent with the housing element, general plan, and zoning, and will not tend to cause or contribute to residential segregation; and
3.
The off-site affordable units will be available for occupancy concurrently or prior to the commercial development project.
(Ord. 787 § 1)
§ 10.05.3460 Impact fee waiver or modification.
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 an impact fee waiver or modification shall be submitted concurrently with the development 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 development 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.
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)
§ 10.05.3470 Enforcement.
A.
Payment of the affordable housing commercial linkage impact fee is the obligation of the developer of a project. The city may institute any appropriate legal actions or proceedings necessary to ensure compliance herewith, including, but not limited to, actions to revoke, deny, or suspend any permit or development approval.
B.
The city attorney shall be authorized to enforce the provisions of this article and any affordable housing agreements, and all other covenants or restrictions placed on affordable units, by civil action and any other proceeding or method permitted by law.
C.
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 commercial development project shall be issued, including, without limitation, a final inspection or certificate of occupancy, until all applicable requirements of this article have been satisfied.
D.
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)
