The purpose of this Chapter is to:

A.

Specify how the City will implement the requirements of California Government Code Section 65915 et seq. ("State Housing Density Bonuses and Incentives Law"); and

B.

Facilitate the development of affordable housing consistent with the goals, objectives, and policies of the City's General Plan Housing Element as may be amended from time to time.

(Ord. 31298.)

A.

All terms used in this Chapter that are defined in the State Housing Density Bonuses and Incentives Law shall have meaning established by the State Housing Density Bonuses and Incentives Law, Government Code Section 65915 et seq. and all amendments and additions thereto, now or hereinafter enacted, that impose requirements applicable to the City related to the provision of housing Density Bonus(es) and Incentives.

B.

All terms used in this Chapter that are defined in Chapter 20.200 of this Code shall have the meaning established in Chapter 20.200. Where terms that are defined in the State Housing Density Bonuses and Incentives Law are inconsistent with the definitions of the same terms set forth in Chapter 20.200 of this Code, the meaning of the terms in the State Housing Density Bonuses and Incentives Law shall prevail.

C.

Whenever the following terms are used in this Chapter, they shall have the meaning established by this Section:

1.

"Applicant" means any person, firm, partnership, association, joint venture, corporation, or any entity or combination of entities who seeks a Discretionary Approval or a Ministerial Approval from the City for a Housing Development and also includes the owner of the property if the Applicant does not own the property on which the Housing Development is proposed.

2.

"Approval Authority" means the person or body within the City that is authorized to provide initial Discretionary Approval or Ministerial Approval of a Housing Development.

3.

"Density Bonus Units" means those dwelling units granted pursuant to the provisions of this Chapter that exceed the otherwise Maximum Residential Density for a Housing Development Site that are established in the City's General Plan.

4.

"Director" means the Director of Planning, Building and Code Enforcement.

5.

"Discretionary Approval" means any approval related to a Housing Development that requires the exercise of judgment or deliberation by the Approval Authority including, but not limited to, development exceptions, variances, Development Permits, general plan and specific plan approvals and amendments, zoning ordinances and amendments, and tentative maps.

6.

"Ministerial Approval" means any approval related to a Housing Development that does not require the exercise of judgement or deliberation by the Approval Authority.

7.

"Non-Restricted Unit" means any dwelling unit within a Housing Development excluding the Restricted Affordable Units.

8.

"Regulatory Agreement" means a recorded and legally binding agreement on a form approved by the City, executed by the Applicant and ensuring that the requirements of this Chapter are satisfied. A Regulatory Agreement, among other things, shall establish: the number of Density Bonus Units and Restricted Affordable Units, their size, location, terms and conditions of affordability or age restrictions for Senior Citizen Housing Development units, the identity of any Incentives and the development production schedule, and provision for the payment of the City's cost of monitoring compliance with the Regulatory Agreement and this Chapter.

9.

"Restricted Affordable Unit" means a dwelling unit within a Housing Development that will be available at an Affordable Rent or Affordable Housing Cost as defined in the State Housing Density Bonuses and Incentives Law.

10.

"State Housing Density Bonuses and Incentives Law" means Government Code Section 65915 et seq. and all amendments and additions thereto, now or hereinafter enacted, that impose requirements applicable to the City related to the provision of housing Density Bonus(es) and Incentives.

(Ord. 31298.)

A.

Density Bonuses.

1.

Density Bonus Units. The City will grant Density Bonus(es) if required by the State Housing Density Bonuses and Incentives Law when an Applicant timely requests such a Density Bonus for a Housing Development and agrees to execute and record a Regulatory Agreement providing for the construction and maintenance of Restricted Affordable Units or Senior Citizen Housing Development units as specified by the State Housing Density Bonuses and Incentives Law.

2.

Density Bonus Calculations. The number of Restricted Affordable Units and Density Bonus Units shall be calculated in accordance with State Housing Density Bonuses and Incentives Law.

3.

Density Bonus Replacement Ratio. All development approved under this Chapter which involves the replacement of units which are demolished or removed shall conform with State Housing Density Bonus and Incentives Law.

B.

Incentives.

1.

An applicant proposing a density bonus shall be entitled to incentives as described in this Section for any development for which a written agreement and a deed of trust securing the agreement is entered into by the applicant and the City of San José. The City shall process an incentive requested by an applicant as set forth in this Section.

2.

The number of incentives that may be requested shall be based upon the number the applicant is entitled to pursuant to Government Code Section 65915 and as granted in the permit. Each deviation from a specific requirement of the Municipal Code or General Plan shall be treated as a separate incentive or concession.

C.

Waivers. An Applicant may apply for a waiver or modification of Development Standards that will have the effect of physically precluding the construction of a Housing Development at the densities or with the incentives permitted by the State Housing Density Bonus Incentives and Law.

(Ord. 31298.)

A.

Concurrent Construction. Restricted Affordable Units shall be constructed concurrently with Non-Restricted Units unless both the City and the Applicant agree within the Regulatory Agreement to an alternative schedule for construction.

B.

Design Standards. Restricted Affordable Units shall be built on-Site and be dispersed within the Housing Development, except as approved by the City and expressly permitted in the Regulatory Agreement.

1.

The design, square footage, appearance and general quality of the Restricted Affordable Units shall be compatible with the design of the Non-Restricted Units in the Housing Development.

2.

In order to achieve compatibility, Restricted Affordable Units shall be located so as not to create a geographic concentration of Restricted Affordable Units within the Housing Development;

3.

The quality of exterior design and overall quality of construction of the Restricted Affordable Units shall be consistent with the exterior design of all Non-Restricted Units in the Housing Development;

4.

The design, square footage, appearance, finishes, features and general quality of the Restricted Affordable Units shall be functionally equivalent to the Non-Restricted Units;

5.

Restricted Affordable Units shall have functionally equivalent parking to Non-Restricted Units; and

6.

Except as may be modified pursuant to a Regulatory Agreement, shall meet all Site, design, and construction standards included in Title 17 (Buildings and Construction), Title 19 (Subdivisions), and Title 20 (Zoning) of this Code, and shall also comply with all design guidelines included in applicable specific plans or otherwise adopted by the City Council, and all administrative regulations adopted pursuant to Section 20.190.110 for the implementation of this Chapter 20.190.

(Ord. 31298.)

A.

General. Any Density Bonus, incentive, waiver, or modification sought by an Applicant shall be made pursuant to this Chapter.

B.

Timing of Application.

1.

An application for a Density Bonus, incentive, waiver or modification of Development Standard shall be submitted to the Approval Authority and processed by the Approval Authority concurrently with the following requests for Discretionary Approval or Ministerial Approval:

a.

The first application for a Development Permit for a Housing Development;

b.

An application for subdivision map approval for a Housing Development; or

c.

An application for Ministerial Approval pursuant to Section 20.195.040.

2.

In the event that a resubmittal of a development permit application or ministerial approval is required based on feedback from the initial submittal, an applicant may submit a new or revised application for Density Bonus, incentive, waiver or modification which addresses noncompliance which was identified during the initial review period.

3.

No application or Density Bonus, incentive, waiver, or modification of Development Standard shall be deemed received until the following have been provided:

a.

All fees for the application as set forth in the schedule of fees established by resolution of the City Council have been paid. No fee shall be deemed received until any negotiable instrument has been cleared and funds deposited on the City's account.

b.

All documents specified in this Chapter or on the application form have been filed.

C.

Application process and information to be submitted.

1.

The application shall be on a form prescribed by the Director and shall include the following information:

a.

A brief description of the proposed Housing Development, including the total number of dwelling units, Restricted Affordable Units, and Density Bonus Units proposed.

b.

The current zoning district(s) and general plan land use designation(s) and assessor's parcel number(s) of the project Site, and a description of any Density Bonus, Incentive, or waiver/modification requested.

c.

A vicinity map and preliminary Site plan, drawn to scale, including building footprints, driveway, and parking layout.

d.

A Site plan showing location of Non-Restricted Units, Restricted Affordable Units, and Density Bonus Units within the proposed Housing Development.

e.

Level of affordability of the Restricted Affordable Units and proposed method to ensure affordability.

f.

If the modification or waiver of a Development Standard is requested, an explanation of how the Development Standard would have the effect of physically precluding the construction of a Housing Development at the densities or with the incentives permitted by this Chapter. Additionally, the applicant must provide a reference or citation for the source of each development standard which they are requesting to modify.

g.

If an incentive is requested, a brief explanation as to the actual cost reduction achieved through the incentive and how the cost reduction would result in identifiable and actual cost reductions to provide for Affordable Housing Costs or Affordable Rents for the Restricted Affordable Units. For incentives, the Application must include:

(1)

Reasonable documentation that each requested Incentive will result in identifiable and actual reductions to provide the Restricted Affordable Units. Such evidence may include the submittal of the project pro forma to the Approving Authority, providing evidence that the requested Incentives would result in identifiable, financially sufficient, and actual cost reductions.

(2)

The cost documentation shall include all the following items:

a)

The actual cost reduction achieved through the Incentive;

b)

Evidence that the cost reduction will result in identifiable and actual reductions to provide the Restricted Affordable Units; and

c)

Such other information as may be requested by the Director of the Planning, Building and Code Enforcement Department or the Director of the Housing Department, or their designee(s), which additional financial information may include, but is not limited to, information regarding capital costs, equity investment, debt service, projected revenues, operating expenses, and such other information as either Director deems necessary to allow the Approving Authority to evaluate the financial information submitted by the Applicant.

d)

If the application is for approval of Mixed Use where Mixed Use would not otherwise be allowable, evidence that the proposed non-residential use will reduce the cost of the Housing Development, and that the non-residential use is compatible with the proposed Housing Development and other existing or planned development in the area where the proposed Housing Development will be located.

2.

If an incentive, waiver or modification of Development Standard is requested, submittal of information sufficient to allow the Approving Authority to assess whether any requested incentive, waiver or modification of Development Standard will have a specific adverse impact

3.

If an incentive, waiver or modification of Development Standard is requested, submittal of environmental information sufficient to allow the Approving Authority to assess whether any requested incentive, waiver or modification of Development Standard would have a specific adverse impact upon the public health or safety, as defined in paragraph (2) of subdivision (d) of Government Code Section 65589.5, and to analyze whether there are feasible potential methods to satisfactorily mitigate or avoid the specific adverse impact without rendering the Housing Development unaffordable to Low- and Moderate-Income households. Submittal of such environmental information as is required for a project subject to the California Environmental Quality Act ("CEQA"), Public Resources Code Section 21000 et seq., and the CEQA Guidelines shall be submitted in satisfaction of this requirement, even if the Housing Development would otherwise be exempt from CEQA.

4.

If a waiver or modification of a Development Standard is requested, submittal of evidence that the Development Standard for which the waiver is requested will have the effect of physically precluding the construction of the Housing Development with the Density Bonus and Incentives requested

5.

If a Density Bonus or incentive is requested for a land donation, the application shall identify the location of the land to be dedicated and shall include proof of Site control and evidence that all of the conditions for a land transfer Density Bonus that are specified in the State Housing Density Bonuses and Incentives Law will be met.

6.

If a Density Bonus or incentive is requested for a Child Care Facility, the application shall identify the location and square footage of the Child Care Facility and include evidence that all of the conditions for a Child Care Facility Density Bonus or incentive that are specified in the State Housing Density Bonuses and Incentives Law will be met.

7.

If a Density Bonus or incentive is requested for a condominium conversion, the Applicant shall provide evidence that all of the conditions for a condominium conversion Density Bonus that are specified in the State Housing Density Bonuses and Incentives Law will be met.

(Ord. 31298.)

A.

General. An application for a Density Bonus, incentive, waiver or modification of Development Standards shall be acted upon by the Approval Authority. The granting of a Density Bonus, incentive, waiver or modification of Development Standards shall not be deemed approval of the entire project, nor to affect or constrain the exercise of discretion for any subsequent approval that may be required for the project. No application shall be accepted for a Density Bonus for a Site on which a prior Density Bonus has been approved, unless the Applicant waives any right to proceed with the project as approved with the prior Density Bonus.

B.

Conditions of Approval. Before approving an application for a Density Bonus, incentive, waiver, or modification of Development Standards the Approval Authority must make the following findings based on evidence in the record, as applicable, that:

1.

The Housing Development is eligible for a Density Bonus and any incentives, waivers or modifications requested.

2.

If the Density Bonus is based all or in part on subsections (a) (b) or (c) below, a finding that the requirements for the applicable characteristics that are specified in the State Housing Density Bonuses and Incentives Law have been or will be met.

a.

Donation of land;

b.

Inclusion of a Child Care Facility;

c.

A Mixed-Use development;

d.

A condominium conversion

C.

Conditions for Denial.

1.

The City may deny an application for a Density Bonus, incentive, waiver, or modification pursuant to the conditions for denial set forth in the State Density Bonus and Incentives law, as amended.

(Ord. 31298.)

A.

General. Applicants for a Density Bonus, incentive, waiver or modification of Development Standards shall enter into a Regulatory Agreement with the City. The terms of the draft Regulatory Agreement shall be reviewed and revised as appropriate by the Director and the City Attorney. The final Regulatory Agreement, as approved by the City Attorney. shall be executed by the Applicant submitting an application to enter into a Regulatory Agreement that is signed by the property owner and forwarded to the Approval Authority for final approval.

B.

Timing of Agreement Approval. Approval of the Regulatory Agreement by the Approval Authority shall take place prior to the issuance of a Building Approval or Grading Approval. The Regulatory Agreement may be submitted concurrently with an application for a compliance plan.

C.

Agreement Terms and Conditions. The Regulatory Agreement shall include at a minimum all of the following:

1.

The total number of dwelling units approved for the Housing Development, including the number of Restricted Affordable Units and/or Senior Citizen Housing Development units;

2.

A description of the household income group to be accommodated by the Restricted Affordable Units, and the standards for determining the corresponding Affordable Rent or Affordable Housing Cost;

3.

The location, dwelling unit sizes (square feet), and number of bedrooms of the Restricted Affordable Units and/or Senior Citizen Housing Development units;

4.

Term of use restrictions for Restricted Affordable Units and/or Senior Citizen Housing Development units for the minimum period(s) of time, and age restrictions if applicable, specified in the State Housing Density Bonuses and Incentives Law;

5.

Requirements to ensure that the initial occupants of all for-sale units that qualified the Applicant for the award of the Density Bonus are persons and families of the appropriate income levels, as required, and that the units are offered at an Affordable Housing Cost, as that cost is defined in Section 50052.5 of the Health and Safety Code and/or meet the requirements for Senior Citizen Housing Development units as specified in the State Housing and Density Bonuses and Incentives Law. The Regulatory Agreement for for-sale Restricted Affordable Units shall include the equity sharing provisions specified in Section 65915(c)(1)(C), unless it conflicts with the requirements of another public funding source or law.

6.

A schedule for completion and occupancy of the Restricted Affordable Units and Density Bonus Units;

7.

A description of any incentive, waiver or modification of Development Standards, if any, being provided by the City;

8.

A description of remedies for breach of the Regulatory Agreement, including at the City's option, the identification of tenants or qualified purchasers as third party beneficiaries under the Regulatory Agreement;

9.

A termination provision stating that any granted Density Bonus and Incentive(s) shall terminate with the demolition, destruction or other removal of the structure receiving the Density Bonus and/or Incentive(s);

10.

A provision stating that the Regulatory Agreement shall be binding to all future owners and successors in interest; and

11.

Other provisions to ensure implementation and compliance with this Chapter.

D.

Recordation. Following execution of the Regulatory Agreement, the Regulatory Agreement shall be recorded on the property subject to the Regulatory Agreement.

(Ord. 31298.)

The Director is hereby authorized to promulgate forms, policies, and regulations for the implementation of this Chapter, including but not limited to, applications for additional incentives, waiver or modification of Development Standards, terms and conditions for the Regulatory Agreement as approved by the City Attorney, and applications for modification of the Regulatory Agreement.

(Ord. 31298.)