This chapter provides for the preservation and maintenance of the city's affordable housing supply, as well as incentives or concessions for the development of housing that is affordable to the types of households and qualifying residents identified in section 18.228.020 of this chapter. In offering these incentives or concessions, this chapter is intended to implement the requirements of state law 1 and the goals and policies of the city's general plan housing element. (Ord. 2762, 2012)

To be eligible for a density bonus and other incentives or concessions as provided by this chapter, a proposed residential development project shall:

   A.   Consist of five (5) or more dwelling units; and

   B.   Provide for the construction of one or more of the following within the development:

      1.   Ten percent (10%) of the total units of a housing development for lower income households, as defined in Health And Safety Code section 50079.5; or

      2.   Five percent (5%) of the total units of a housing development for very low income households, as defined in Health And Safety Code section 50105; or

      3.   A senior citizen housing development as defined in Civil Code sections 51.3 and 51.12; or

      4.   Ten percent (10%) of the total dwelling units in a condominium project or in a planned development as defined in Civil Code subsection 1351(f) and (k), respectively, for persons and families of moderate income, as defined in Health And Safety Code section 50093. (Ord. 2762, 2012)

A residential development project that satisfies all relevant provisions of this chapter shall be entitled to a density bonus and one or more incentives or concessions described below. If the density bonus incentives or concessions cannot be accommodated on a parcel due to strict compliance with the provisions of this title, the city shall waive or modify development standards to accommodate the bonus units or incentives or concessions to which the development would be entitled, unless such waiver or modification would have a specific, adverse impact, as defined in Government Code section 65589.5(d)(2), upon health, safety or the physical environment, or any real property that is listed in the California register of historical resources, and for which there is no feasible method to mitigate or avoid the specific adverse impact.

   A.   Minimum Density Bonus: The density bonus granted to a residential development project shall consist of an increase over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the city's general plan as of the date of application. Such increase shall be equal to at least:

      1.   A twenty percent (20%) increase in density when the development meets the requirements of subsection 18.228.020B1, B2 or B3 of this chapter; or

      2.   A five percent (5%) increase in density, when the development meets the requirements of subsection 18.228.020B4 of this chapter.

      3.   A fifteen percent (15%) increase in density, when an applicant for a residential development donates land to the city in accordance with the requirements of Government Code section 65915(g)(1). Nothing in this subsection shall be construed to enlarge or diminish the authority of the city to require a developer to donate land as a condition of development.

      4.   The city may, at its discretion, grant a density bonus that is greater than that described in subsections 18.228.020B1, B2 and B3 of this chapter for a development that meets the requirements therein or proportionately lower than that described in subsections 18.228.020B1, B2 and B3 of this chapter for a development that does not meet the requirements therein.

   B.   Additional Density Bonus: The amount of density bonus to which the applicant is entitled shall vary according to the amount by which the percentage of affordable housing units exceeds the base percentage established in subsection 18.228.020B of this chapter. The amount of density bonus for a donation of land shall vary according to the amount by which the donation exceeds the base donation established by Government Code section 65915(h)(2).

      1.   Lower Income Households: For each one percent (1%) increase above ten percent (10%) in the percentage of units affordable to lower income households, the density bonus shall be increased by one and one-half percent (1.5%).

      2.   Very Low Income Households: For each one percent (1%) increase above five percent (5%) in the percentage of units affordable to very low income households, the density bonus shall be increased by two and one-half percent (2.5%).

      3.   Moderate Income Households: For each one percent (1%) increase above ten percent (10%) in the percentage of units affordable to moderate income households, the density bonus shall increase by one percent (1%).

      4.   Donation Of Land: For each one percent (1%) increase above the minimum ten percent (10%) land donation, the density bonus shall be increased by one percent (1%). Nothing in this subsection shall be construed to enlarge or diminish the authority of the city to require a developer to donate land as a condition of development.

The base density bonus shall not be included when determining the number of housing units that is greater than five percent (5%) or ten percent (10%) of the total development. All calculations resulting in fractional units shall be rounded up to the next whole number. In no event shall the city be required to grant more than a thirty five percent (35%) increase over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the city's general plan.

 

 

   C.   Incentives, Number: An eligible project shall receive one, two (2) or three (3) incentives as follows:

      1.   Lower Income Households: An applicant shall receive:

         a.   One incentive or concession for a project that includes at least ten percent (10%) of the total units for lower income households;

         b.   Two (2) incentives or concessions for a project that includes at least twenty percent (20%) of the total units for lower income households; and

         c.   Three (3) incentives or concessions for a project that includes at least thirty percent (30%) of the total units for lower income households.

      2.   Very Low Income Households: An applicant shall receive:

         a.   One incentive or concession for a project that includes at least five percent (5%) of the total units for very low income households;

         b.   Two (2) incentives or concessions for a project that includes at least ten percent (10%) of the total units for very low income households; and

         c.   Three (3) incentives or concessions for a project that includes at least fifteen percent (15%) of the total units for very low income households.

      3.   Moderate Income Households: An applicant shall receive:

         a.   One incentive or concession for a project that includes at least ten percent (10%) of the total units for persons and families of moderate income in a condominium or planned development;

         b.   Two (2) incentives or concessions for a project that includes at least twenty percent (20%) of the total units for persons and families of moderate income in a condominium or planned development; and

         c.   Three (3) incentives or concessions for a project that includes at least thirty percent (30%) of the total units for persons and families of moderate income in a condominium or planned development.

   D.   Incentives And Concessions, Description: A project that is eligible to receive incentives or concessions pursuant to subsection C of this section shall be entitled to at least one of the following incentives or concessions identified in Government Code section 65915:

      1.   A reduction in site development standards (e.g., coverage, setback, zero lot line and/or reduced parcel sizes), or a modification of zoning requirements or architectural design requirements that exceed the minimum standards approved by the California building standards commission.

      2.   Approval of mixed use zoning in conjunction with the housing project if nonresidential land uses would reduce the cost of the housing project, and the nonresidential land uses would be compatible with the housing project and adjoining development.

      3.   Other regulatory incentives or concessions proposed by the developer or the city that would result in identifiable, financially sufficient and actual cost reductions.

      4.   A reduction in the number of required parking spaces, upon request by the applicant. For a one bedroom unit, one parking space is required; for two (2) and three (3) bedroom units, two (2) parking spaces are required and for four (4) or more bedroom units, two and one-half (21/2) parking spaces are required.

Nothing in this section shall be construed to require the city to provide, or limit the city's ability to provide, direct financial incentives for housing development, including the provision of publicly owned land by the city or the waiver of fees and dedication requirements.

   E.   Limitations And Exceptions:

      1.   To receive incentives or concessions as described in subsections C and D of this section, an applicant must submit a proposal to the city requesting the specific incentives or concessions that the applicant desires.

      2.   The city shall grant the incentives or concessions requested by the applicant pursuant to subsection E1 of this section and required pursuant to subsection C of this section, unless the city makes a written finding, based upon substantial evidence, of either of the following:

         a.   The incentive or concession is not required in order to provide for affordable housing costs, as defined in Health And Safety Code section 50052.5; or

         b.   The incentive or concession would have a specific adverse impact as defined in Government Code section 65589.5(d)(2), upon public health and safety or the physical environment, or on any real property that is listed in the California 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.

      3.   The city's granting of an incentive or concession shall not be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval.

      4.   Nothing in this section shall be interpreted to require the city to waive or reduce development standards or to grant an incentive or concession that would have a specific, adverse impact upon health, safety or the physical environment for which there is no feasible method to mitigate or avoid the specific adverse impact; nor shall this subsection require the city to waive or reduce development standards or to grant an incentive or concession that would have an adverse impact on any real property that is listed in the California register of historical resources. (Ord. 2762, 2012)

   A.   Written Covenant: Before the issuance of a building permit for any dwelling unit in a development for which density bonus units have been awarded or incentives or concessions have been received, the developer shall identify the restricted units and shall enter into a written covenant with the city to guarantee one or both of the following, as applicable:

      1.   Lower And Very Low Income Households; Continued Affordability: The continued affordability and availability of the lower and very low income units shall be for a minimum of thirty (30) years, as required by state law 1 . Those units targeted for lower income households, as defined in Health And Safety Code section 50105, shall be affordable at a rent that does not exceed thirty percent (30%) of fifty percent (50%) of the area median income.

      2.   Moderate Income Households; Equity Sharing: The initial occupant of any moderate income unit in a condominium or planned development shall be a person or family of moderate income, as required by state law 2 . 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. The city shall recapture its proportionate share of appreciation, which shall be equal to the percentage by which the initial sale price to the moderate income person or family was less than the fair market value of the home at the time of initial sale. The city shall spend recaptured funds within three (3) years for any purposes to promote homeownership, as described in Health And Safety Code section 33334.2(e).

   B.   Recordation Of Agreement: The terms and conditions of the covenant shall run with the land which is to be developed, shall be binding upon the successors in interest of the developer, and shall be recorded in the official records of the county of San Bernardino. In addition to the requirements described in subsection A of this section, the agreement shall include the following provisions:

      1.   The developer shall give the city a continuing right of refusal to purchase or lease any or all of the designated units at the fair market value;

      2.   The deeds to the designated units shall contain a covenant stating that the developer shall not sell, rent, lease, sublet, assign or otherwise transfer any interests for the same without the written approval of the city confirming that the sales or rental price of the units is consistent with the limits established for lower, very low and moderate income households, which shall be related to the consumer price index; and

      3.   The city shall have the authority to enter into other agreements with the developer, or purchasers of the dwelling units, as may be necessary to ensure that the lower and very low income units are continuously occupied by eligible households. (Ord. 2762, 2012)

   A.   Location/Dispersal Of Units: The location of affordable units within the qualifying project shall be at the discretion of the city with the goal to integrate the units into the overall project. However, the affordable units shall be reasonably dispersed throughout the development where feasible, shall contain on average the same number of bedrooms as the nonaffordable units, and shall be compatible with the design or use of the remaining units in terms of appearance, materials and finish quality.

   B.   Alternative Development Site: Circumstances may arise in which the public interest would be served by allowing some or all of the affordable units associated with one housing development to be produced and operated at an alternative development site. Where the owner/developer and the city form an agreement, the resulting linked developments shall be considered a single housing development for the purposes of this chapter. Under these circumstances, the owner/developer shall be subject to the same requirements of this chapter for the affordable units to be provided on the alternative site. (Ord. 2762, 2012)

   A.   When an applicant proposes to construct an eligible residential development project as defined in section 18.228.020 of this chapter, and includes a childcare facility that will be located on the premises of, as part of, or adjacent to, the project, the city shall grant either of the following:

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

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

   B.   The city shall require, as a condition of approving the housing development, that the following occur:

      1.   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 pursuant to section 18.228.040 of this chapter.

      2.   Of the children who attend the childcare facility, the children of very low, lower and moderate income households shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very low, lower or moderate income households pursuant to subsection 18.228.020B of this chapter.

   C.   Notwithstanding subsections A and B of this section, the city shall not be required to provide a density bonus or incentive for a childcare facility if it finds, based upon substantial evidence, that the community has adequate childcare facilities. (Ord. 2762, 2012)

   A.   Permit Required: Requests for affordable units shall require approval of a planned residential development permit in compliance with chapter 18.144 of this title.

   B.   Initial Review Of Bonus Request: The city shall notify the developer within ninety (90) days of the filing of the development plan permit application whether the development project qualifies for the additional density.

   C.   Criteria To Be Considered: Criteria to be considered in analyzing a requested density bonus shall include whether the applicant has agreed to construct a development that meets the requirements of section 18.228.020 of this chapter. Criteria to be considered in analyzing a requested incentive shall include whether an incentive or concession has a specific adverse impact upon health, safety or the physical environment, and whether there is no feasible method to eliminate or mitigate such specific adverse impact.

   D.   Findings For Approval: The approval of a density bonus shall require the following findings to be made in a positive manner:

      1.   The development project would not be a hazard or nuisance to the city at large or establish a use or development inconsistent with the goals and policies of the city's general plan;

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

      3.   Adequate evidence exists to ensure that the development of the property would result in the provision of affordable housing in a manner consistent with the purpose and intent of this chapter;

      4.   In the event that the city does not grant at least one financial concession or incentive as defined in state law 1 in addition to the density bonus, that additional concessions or incentives are not necessary to ensure affordable housing costs; and

      5.   There are sufficient provisions to guarantee that the lower and very low income units would remain affordable in the future.

   E.   Development Standards: In no case may the city apply any development standard that would have the effect of precluding the construction of a development meeting the criteria of subsection 18.228.020B of this chapter at the densities or with the incentives or concessions permitted by this chapter. An applicant may submit to the city a proposal for the waiver or reduction of development standards. The applicant must show that the waiver or modification is necessary to make the affordable housing units economically feasible. (Ord. 2762, 2012)

An applicant may initiate judicial proceedings if the city refuses to grant a requested density bonus, incentive, or concession. If a court finds that the refusal to grant a requested density bonus, incentive, or concession is in violation of this chapter or Government Code section 65915, the court shall award the plaintiff reasonable attorney fees and costs of suit. (Ord. 2762, 2012)