A.

The purpose of division 16-70 is to enhance the public welfare by ensuring that residential development contributes to the attainment of the general plan housing element goals, policies and programs by:

1.

Increasing the stock of dwelling units for special needs households;

2.

Increasing the stock of dwelling units affordable by households of very low, low, or moderate-income; and

3.

Encouraging and directing, through the provision of a density bonus and other incentives, the location of projects containing substantial numbers of affordable housing units to those sites identified in the housing element as affordable housing opportunity sites.

B.

A limited amount of land remains for development of housing in the town. The housing element has identified sites where the town most desires the construction of inclusionary housing units. To ensure that remaining residentially designated land is utilized in a manner consistent with the town's housing policies and in a manner that furthers the town's strategy as set forth in the housing element, the town declares that each residential development creating two or more new lots or dwelling units shall participate in the provision of inclusionary units as set forth in this article.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

The construction of a two-family dwelling on any lawfully existing lot in the R-2 (two-family residential) zone shall not be subject to the provisions of this aticle.

B.

The subdivision of a lot into two lots, wherein no more than a combined total of two dwelling units total could be constructed under applicable zoning regulations on the resulting lots, shall not be subject to the provisions of this article.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

Any residential development creating three through six new lots or dwelling units (whichever is greater), shall make a pro rata monetary contribution to the town's in-lieu housing fund in accordance with the provisions of section 16-70.080 (amount of in-lieu housing fee). The monetary contribution shall be based on a requirement of fifteen percent of the units being affordable.

B.

Any residential development creating seven through twelve new lots or dwelling units (whichever is greater) shall:

1.

Provide ten percent of the total number of units as designed for special needs households; five percent of the total number of units must be handicapped accessible units as defined in this article.

2.

Provide fifteen percent of the total number of units as affordable by very low, low, or moderate-income households in perpetuity or for the longest term possible; a minimum of five percent shall be affordable to very low- or low-income households. When only one affordable unit is required it may be for a moderate-income household. No more than fifty percent of affordable units shall be allowed to double as special needs household units required in subsection B.1, above.

In applying the fifteen percent figure for the construction of dwelling units, any decimal fraction less than one-half may be disregarded and any decimal fraction equal to or greater than one-half shall be construed as requiring one affordable unit. For payment of in-lieu fees, the fee shall be calculated using exact decimal fractions.

C.

Any residential development creating more than twelve new lots or dwelling units (whichever is greater) shall:

1.

Provide ten percent of the total number of units as designed for special needs households; five percent of the total number of units must be handicapped accessible units as defined in this zoning ordinance.

2.

Provide twenty percent of the total number as units affordable by very low, low, or moderate-income households in perpetuity or for the longest term possible; a minimum of five percent shall be affordable to very low- or low-income households. No more than fifty percent of affordable units shall be allowed to double as special needs household units required in subsection C.1, above.

In applying the twenty percent figure for construction of dwelling units, any decimal fraction less than one-half may be disregarded and any decimal fraction equal to or greater than one-half shall be construed as requiring one affordable unit. For payment of in-lieu fees, the fee shall be calculated using exact decimal fractions.

D.

If the town finds and determines that there exists physical and/or nongovernmental constraints to the provision of on-site inclusionary units that make the payment of in-lieu fees more effective in support of affordable housing projects being constructed in less constrained locations, the town may allow payment of in-lieu fees in accordance with section 16-70.080 (amount of in-lieu housing fee).

E.

Any residential development creating two or more new lots or dwelling units (whichever is greater) shall be subject to conditions ensuring compliance with the provisions of this article. Such conditions may specify the timing of construction or purchase of inclusionary units (or payment of in-lieu fees), the number of inclusionary units and the specified affordability levels, provisions for income certification and screening of potential purchasers and/or renters of inclusionary units, and resale control mechanisms. Said conditions may require a written agreement between the applicant and the town and/or its designee, indicating the number, type, location, sales price, approximate size and construction scheduling of inclusionary units and such reasonable information as is required to determine compliance.

F.

All inclusionary units in a project shall be constructed concurrently with or prior to the construction of noninclusionary units.

G.

Inclusionary units shall be indistinguishable in exterior appearance from the noninclusionary units. An exception may, in the town's reasonable discretion, be permitted in residential developments only as an incentive or concession made under the state density bonus law, unless the project qualifies for a density bonus under section 16-70.100 (Town of Tiburon density bonus).

H.

A reduced setback, reduced parking standard, or other reduction in site development standards may, in the town's reasonable discretion, be permitted in residential developments only as an incentive or concession made under the state density bonus law, unless the project qualifies for a density bonus under section 16-70.100 (Town of Tiburon density bonus).

I.

The interior amenity level of the inclusionary units shall be generally the same as that of the noninclusionary units. Any reduction of interior amenity level for inclusionary units may, in the town's reasonable discretion, be permitted only as an incentive or concession made under the state density bonus law, unless the project qualifies for a density bonus under section 16-70.100 (Town of Tiburon density bonus).

J.

The square footage of the inclusionary units shall be generally the same as that of the noninclusionary units. Any reduction of square footage for inclusionary units may, in the town's reasonable discretion, be permitted only as an incentive or concession made under the state density bonus law, unless the project qualifies for a density bonus under section 16-70.100 (Town of Tiburon density bonus).

K.

A residential development qualifying for a density bonus under provisions of section 16-70.100 (Town of Tiburon density bonus) shall receive the highest priority and efforts will be made by staff and decision-makers to:

1.

Provide technical assistance to potential affordable housing developers in processing requirements, including community involvement;

2.

Consider project funding and timing needs in the processing and review of the application; and

3.

Provide the fastest turnaround time possible in determining application completeness.

These measures shall each constitute an incentive or concession under any other circumstances.

L.

The town shall waive or reduce certain application and development fees for the inclusionary units in a proposed development if the project qualifies for a density bonus under provisions of section 16-70.100 (Town of Tiburon density bonus). Waiver or reduction of fees shall constitute an incentive or concession under any other circumstances.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

The housing authority shall be the agency designated to administer inclusionary housing programs on behalf of the town, except as provided in subsection B., below.

B.

If so designated by resolution of the council, another agency or entity may assume all roles and responsibilities of the housing authority as set forth in this article.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

Affordable rental units shall be offered at rent levels not exceeding the maximum rent affordable by the very low, low, or moderate-income household restriction placed on that unit, as determined by the housing authority.

B.

The town may contract with the housing authority or other entity to monitor the developer and/or management agent's compliance with the requirements established for special needs eligibility and/or rent levels and income eligibility for the inclusionary rental units. The developer or owner shall retain final discretion in the selection of tenants, provided that unless specific preferences have been established for a residential development by resolution of the council, the same rental terms and conditions are applied to tenants of inclusionary units as are applied to tenants of noninclusionary units in the development, except as to special needs eligibility and rent levels and income, or as required to comply with government subsidy programs.

C.

The town may contract with the housing authority or other entity to require guarantees, to enter into recorded agreements with developers, and to take other appropriate steps necessary to ensure that the required inclusionary rental units are provided and that they are rented to the appropriate special needs and/or eligible income households.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

Inclusionary ownership units designated for very low, low, or moderate-income households shall be sold at prices affordable to the requisite income and/or special needs households as determined by the housing authority. The inclusionary unit sales prices and the parameters used to calculate the sales prices shall be determined by the housing authority.

B.

The applicant shall be required, for a period of not less than one hundred twenty days from the date of the town's issuance of an occupancy permit for the inclusionary units, to offer to the housing authority (or individuals selected and qualified by the housing authority), the town, or a party designated by the town, all inclusionary units required by this article, for sale to eligible purchasers. Sale and resale restrictions will be removed from the units in the event the housing authority, the town, or a town designee does not, within such one hundred twenty days, complete the sale to an eligible purchaser, or elect to purchase the units for subsequent sale to an eligible purchaser. The housing authority shall advise all prospective purchasers of the resale restrictions applicable to inclusionary units.

C.

Upon written notification of the availability of inclusionary units by the developer to the housing authority one hundred twenty days prior to the anticipated completion of the inclusionary units, the housing authority shall advertise the inclusionary units to the general public and shall seek and screen qualified purchasers through a process involving applications and interviews. Where necessary, the housing authority shall hold a lottery to select purchasers. Unless specific preferences have been established for a residential development by resolution of the council, the same terms and conditions (except special needs and/or income eligibility) shall apply to purchasers of inclusionary units as are applied to purchasers of noninclusionary units in the development.

D.

Every purchaser of an inclusionary unit shall acknowledge in a form acceptable to the town that the unit is being purchased for the purchaser's primary residence and that continuous owner-occupancy is a condition of eligibility under the program. The housing authority shall verify this acknowledgement.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

The town shall require the following resale controls in order to maintain the availability of inclusionary units in perpetuity or for the longest term possible:

A.

The resale price of an inclusionary unit shall be limited to the lowest of:

1.

The purchase price plus an increase based on the percentage increase in the Consumer Price Index for the San Francisco Bay Area for all urban consumers since the date of purchase;

2.

The purchase price plus an increase, based on the percentage increase in the median income since the date of purchase; or

3.

The fair-market value.

B.

Ownership inclusionary units being sold shall be offered to the housing authority or its assignee, at the price determined according to subsection A. above, for a period of one hundred twenty days from the date a notification of intent to sell is given by the first purchaser or subsequent purchaser(s). Ownership inclusionary units shall be resold only to very low, low, or moderate-income households as determined to be eligible for inclusionary units by the housing authority. The seller shall not levy or charge any additional fees in connection with the sale, nor shall any "finder's fee" or other consideration be allowed on resale other than customary real estate commissions and closing costs.

C.

At the time of purchase, the owners of any inclusionary unit shall execute a resale and refinancing restriction agreement and option to purchase and a deed of trust provided by the housing authority, stating the restrictions imposed in compliance with this article, including, but not limited to, all applicable resale controls and occupancy restrictions. The resale and refinancing restriction agreement and option to purchase and the deed of trust shall be recorded in the office of the Marin County Recorder and shall explicitly provide the housing authority and the town the right to enforce the declaration of restrictions.

D.

The housing authority shall be responsible for monitoring and facilitating the resale of inclusionary units. Any abuse in the resale provisions shall be referred to the town for action.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

In-lieu housing fees shall be calculated on the basis of the difference between the affordable purchase price of a dwelling unit for which a moderate-income four-person family earning eighty percent of median income can qualify, and the estimated cost of constructing a market rate unit of appropriate size, to be determined by the town. The town's in-lieu housing fee shall be revised periodically by the director and shall be based on current fixed-rate mortgage rates, median incomes, construction costs and site/land development costs as determined by the town. The total in-lieu fee shall be calculated by multiplying the required number of inclusionary units (including exact fractions of a unit) by the per-unit in-lieu housing fee (see table 7-1).

B.

The in-lieu housing fee shall constitute a lien on the property. The recorded lien notice shall include a provision for foreclosure under power of sale in case of default.

C.

Unless otherwise specified in conditions of project approval, the payment of in-lieu housing fees shall be at the time of issuance of the first building permit associated with the project, or as otherwise required by state law.

Table 7-1
Example Housing In-Lieu Fee Calculation¹

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 548 N.S, § 2(K), 3-5-2014)

A.

Revenues raised by payment of housing in-lieu fees shall be placed in a segregated town-wide housing in-lieu fund.

B.

Revenues collected, including interest earned, under the provisions of this article shall be used for the following purposes:

1.

Design and construction of permanently affordable units; and

2.

Other actions that would directly preserve, conserve, rehabilitate, or increase the supply of affordable units in the town.

C.

The town shall comply with reporting requirements that may be set forth in Government Code Section 66000, or successor sections, to the extent that such provisions apply.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

Residential developments located within an affordable housing overlay (AHO) zone, as set forth in subsections 16-29.020.C. (NC/AHO [neighborhood commercial/affordable housing overlay] zone), and qualifying for a town density bonus therein, shall be offered the substantial incentives in section 16-29.050 (affordable housing overlay zones development incentives) as set forth therein. Such density bonus is exclusive of, and shall not be combined with, a density bonus in compliance with section 16-70.110 (state-mandated density bonus).

B.

In compliance with the general plan policies, the town may grant a density bonus sufficient to allow the reestablishment of developments containing affordable housing units when such developments are destroyed by fire, earthquake, or similar disaster, even when such reestablishment exceeds current maximum general plan densities.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 605 N.S, § 11, 6-21-2023)

A.

In compliance with Government Code Section 65915 et seq., or successor sections thereto, the town shall provide a density bonus for a qualifying housing development, as defined therein.

B.

Applicants who voluntarily agree to develop a housing development that complies with the affordability requirements referenced in subsection A above, may submit to the town a proposal for the specific incentive(s) or concession(s) described in subsections 16-70.030.G through L or otherwise provided by applicable state law. A proposal shall be submitted concurrently with the application for a density bonus. The town shall award the incentive(s) or concession(s) requested by the applicant in compliance with state law requirements unless any of the following written findings is made based upon substantial evidence:

1.

The incentive is not required in order to provide for affordable housing costs, or is not required for rents for targeted units to be set as specified in applicable state law; and

2.

The incentive would have a specific adverse impact, as defined by applicable state law, 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; and

3.

The concession or incentive would be contrary to state or federal law.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

Any person aggrieved by the denial, conditioning, suspension or revocation of a building or occupancy permit or other development permit in compliance with provisions of this article, may appeal such action or determination to the council in compliance with division 16-66 (appeals).

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)