This chapter establishes standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. The purpose of this chapter is to encourage the development and availability of affordable housing by ensuring that the addition of affordable housing units to the city's housing stock is in proportion with the overall increase in new housing units.

(Ord. 2910 § 1 (part), 2008)

As used in this chapter, the following terms shall have the following meanings:

"Adjusted for household size appropriate for the unit" means a household of one person in the case of a studio unit, two persons in the case of a one-bedroom unit, three persons in the case of a two-bedroom unit, four persons in the case of a three-bedroom unit, and five persons in the case of a four-bedroom unit.

"Affordable housing cost" means the total housing costs paid by a qualifying household, which shall not exceed the fraction of gross income specified, as follows, in accordance with Sections 50052.5 and 50053 of the Health and Safety Code:

A.

Very Low-Income Households. Thirty percent of the income of a household earning fifty percent of the Los Angeles County median income adjusted for family size appropriate for the unit.

B.

Low-Income Households. Thirty percent of the income of a household earning seventy percent of the Los Angeles County median income for for-sale units, and thirty percent of the income of a household earning sixty percent of the Los Angeles County median income for rental units, adjusted in either case for family size appropriate for the unit.

C.

Moderate Income Households. Thirty-five percent of the income of a household earning one hundred ten percent of the Los Angeles County median income for for-sale units, and thirty percent of the income of a household earning one hundred ten percent of the Los Angeles County median income for rental units, adjusted in either case for family size appropriate for the unit.

D.

In the event of a conflict between the fractions specified in this definition and those found in Sections 50052.5 and 50053 of the Health and Safety Code, the fractions specified by state law shall control.

"Developer" means any association, corporation, firm, joint venture, partnership, person, or any entity or combination of entities, which seeks city approval for all or part of a residential project.

"Director" means the director of the city of Whittier department of community development or his/her designee.

"Inclusionary unit" means a dwelling unit that will be offered for sale or rent to low or moderate-income households, at an affordable housing cost, in compliance with this chapter.

"Low-income households" means "lower income households" as that term is defined by Section 50079.5 of the Health and Safety Code.

"Low-income units, moderate-income units, and very low-income units" means inclusionary units restricted to occupancy by low, moderate, or very low-income households, respectively, at an affordable housing cost.

"Market rate units" means dwelling units in a residential project that are not inclusionary units.

"Moderate-income households" means "persons and families of low or moderate income" as that term is defined by Section 50093 of the Health and Safety Code.

"Regulations" means the regulations adopted by the city council in compliance with Section 18.11.030 for the implementation and enforcement of the provisions of this chapter.

"Regulatory agreement" means an agreement entered into between the Whittier redevelopment agency and a developer by which the developer covenants to keep certain housing units at an affordable housing cost for a specified period of time.

"Residential project" means either a project for which a tentative map is required by Section 17.04.070 of the Whittier Municipal Code, or any development project that includes apartments.

"Total housing costs" means the total monthly or annual recurring expenses required of a household to obtain shelter. For a rental unit, total housing costs shall include the monthly rent payment and utilities. For an ownership unit, total housing costs shall include the mortgage payment (principal and interest), homeowners' association dues, mortgage insurance, taxes, utilities, and any other related assessments.

"Very low-income households" means "very low income households" as that term is defined by Section 50105 of the Health and Safety Code.

(Ord. 2910 § 1 (part), 2008)

The council may by resolution establish additional regulations for the implementation of this chapter.

(Ord. 2910 § 1 (part), 2008)

The requirements of this chapter shall apply to any residential project that is comprised of or will result in seven or more dwelling units. For these purposes, any combination of two or more apartment houses shall be considered a single residential project if such apartment houses: (i) will be under the control and management of the same owner, operator, management company, or licensee, or any affiliate of any of them; (ii) are issued certificates of occupancy within one-year of each other; and (iii) are located within five hundred feet of each other.

A.

Units for Sale. If the residential project consists of units for sale, then a minimum of fifteen-percent of the total number of units in the project shall be sold to moderate-income households.

B.

Rental Units. If the residential project consists of rental units, then either:

1.

A minimum of twelve percent of the units shall be rented to moderate-income households and three percent of the units rented to low-income households; or

2.

A minimum of seven and one-half percent of the units shall be rented to very-low income households.

C.

Allowable Credits. The inclusionary unit requirements of this section may be reduced as follows:

1.

Very Low-Income Units in Lieu of Low-Income Units. If very low-income units are provided in lieu of the required low-income units, then the project shall receive a credit of one and one-half affordable units for each unit actually provided.

2.

Very Low-Income Units in Lieu of Moderate-Income Units. If very low-income units are provided in lieu of required moderate-income units, then the project shall receive a credit of two units for each unit actually provided.

3.

Low-Income Units in Lieu of Moderate-Income Units. If low-income units are provided in lieu of required moderate-income units, then the project shall receive a credit of one and one-half units for each unit actually provided.

D.

Rounding of Quantities in Calculations. In calculating the required number of inclusionary units, fractional units of 0.75 or above shall be rounded-up to a whole unit if the residential project consists of less than twenty units; and fractional units of 0.50 or above shall be rounded-up to a whole unit if the project consists of twenty-one units or more.

E.

Displacement of Existing Inclusionary Units. Notwithstanding any other provision of this chapter, any project subject to this chapter that results in the displacement of very low, low, and/or moderate income household(s) shall be required to provide on-site inclusionary units as required by this section.

F.

The requirements of this chapter shall apply to all developers and their agents, successors-in-interest, and assigns proposing a residential project within the scope of subsection A of this section. All inclusionary units required by this chapter shall be sold or rented in compliance with this chapter and the city's regulations for the implementation of this chapter.

G.

Exempt Projects. The following are exempt from the requirements of this chapter:

1.

Residential project for which a development application has been deemed complete on or before the effective date of this chapter;

2.

Residential projects subject to any development agreement that expressly provides for an exclusion to this chapter or provides for a different amount of inclusionary units from that specified by this chapter; and

3.

Residential projects for which the Whittier redevelopment agency has executed a regulatory agreement, provided that the regulatory agreement is effective at the time the residential project would otherwise be required to comply with the requirements of this chapter, and there is no uncured breach of the regulatory agreement before issuance of a certificate of occupancy for the project.

(Ord. 2910 § 1 (part), 2008)

The primary means of complying with the requirements of this chapter shall be the provision of on-site inclusionary units in accordance with Section 18.11.040. A developer may only satisfy the requirements of this chapter by means of an alternative to on-site inclusionary units in accordance with the requirements and procedures set forth in this section.

A.

Off-site Units. Upon application by the developer and at the discretion of the city council, a developer may satisfy the inclusionary unit requirements for a project, in whole or in part, by any combination of the following:

1.

Constructing or substantially rehabilitating the required number of units at an off-site location within the city. For purposes of providing off-site units, "substantially rehabilitating" means rehabilitating a dwelling unit that has substantial building and/or other code violations, and has been vacant for at least ninety days, such that the unit is returned to the city's housing supply as decent, safe, and sanitary housing, and the cost of the work exceeds twenty-five percent of the market value of the unit after rehabilitation.

2.

Purchasing affordable housing covenants for units in existing multifamily projects within the city. All such units shall be: (i) reasonably dispersed throughout the multifamily project; (ii) located in an area or areas of the city, as approved by the director; (iii) proportional in the number of bedrooms and location to the market rate units included in the developer's residential project; and (iv) comparable to the market rate units included in the residential project in terms of design, materials, finished quality, and appearance.

B.

In Lieu Fee. Upon application by the developer and at the discretion of the city council, the developer may satisfy the inclusionary unit requirements for the project, in whole or in part, by payment of a fee in lieu of constructing some or all of the required units. The city council may grant such an application if substantial evidence supports a finding that the cost of providing inclusionary units on-site would substantially exceed the amount of the applicable in-lieu fee.

1.

Calculation of Fee. The amount of the fees allowed by this section shall be calculated in accordance with the methodology set forth in the regulations adopted for the implementation of this chapter.

2.

Timing of Payment. The developer shall pay any in-lieu fees allowed by this section in full before issuance of a building permit for any portion of the residential project, including any nonresidential portions of a mixed-use development.

3.

Housing Trust Fund. Fees collected in compliance with this section shall be deposited in the affordable housing trust fund.

(Ord. 2910 § 1 (part), 2008)

A.

Submittal and Execution. The developer shall comply with the following requirements at the times and in compliance with the standards and procedures in the city's regulations for the implementation of this chapter:

1.

Inclusionary Housing Plan. The developer shall submit an inclusionary housing plan, in a form specified by the director, detailing how the provisions of this chapter will be implemented for the proposed residential project. If the inclusionary housing plan includes alternatives to on-site units, then the inclusionary housing plan shall be subject to the review and approval of the city council. All other inclusionary housing plans shall be subject to the approval of the director, subject to appeal to the city council. Any such appeal shall be filed within fifteen days of the director's decision.

2.

Housing Agreement. The developer shall execute and cause to be recorded an inclusionary housing agreement. The inclusionary housing agreement shall be a legally binding agreement between the developer and the city, in a form and substance satisfactory to the director and the city attorney, and containing those provisions necessary to ensure that the requirements of this chapter are satisfied, whether through the provision of inclusionary units or through an approved alternative method.

B.

Discretionary Approvals. No discretionary approval shall be issued for a residential project subject to this chapter until the developer has submitted an inclusionary housing plan.

C.

Issuance of Building Permit. No building permit shall be issued for a residential project subject to this chapter unless the director has approved the inclusionary housing plan, and any required inclusionary housing agreement has been recorded.

D.

Issuance of Certificate of Occupancy. A certificate of occupancy shall not be issued for a residential project subject to this chapter unless the approved inclusionary housing plan has been fully implemented.

(Ord. 2910 § 1 (part), 2008)

A.

Location within project, relationship to noninclusionary units. All inclusionary units shall be:

1.

Reasonably dispersed throughout the residential project;

2.

Proportional, in number of bedrooms, and location, to the market rate units;

3.

Comparable to the market rate units included in the residential project in terms of design, materials, finished quality, and appearance; and

4.

Permitted the same access to project amenities and recreational facilities, as are market rate units.

B.

Timing of Construction. All inclusionary units in a residential project shall be constructed concurrent with, or before the construction of the market rate units. If the city approves a phased project, a proportional share of the required inclusionary units shall be provided within each phase of the residential project.

C.

Units for Sale.

1.

Time Limit for Inclusionary Restrictions. A unit for sale shall be restricted to the target income level group at the applicable affordable housing cost for a minimum of forty-five years.

2.

Certification of Purchasers. The developer and all subsequent owners of an inclusionary unit offered for sale shall certify, on a form provided by the city, the income of the purchaser.

3.

Resale Price Control. In order to maintain the availability of inclusionary units required by this chapter, the resale price of an owner occupied inclusionary unit shall be limited to the lesser of the fair market value of the unit as established by a licensed real estate agent based upon three comparable properties or the restricted resale price. For these purposes, the restricted resale price shall be the greater of either the applicable affordable housing cost or an amount equal to the sum of:

a.

The purchase price;

b.

An amount equal to ten percent of any increase in the applicable affordable housing cost since the previous sale of the unit;

c.

The adjusted amount of any capital improvements for which a building permit has been issued by the city of Whittier and a certification of occupancy or similar final certification has been filed, or other improvements which adds assessed value to the unit;

d.

Any applicable transaction fee charged by a real estate professional; and

e.

If the occupant has allowed the unit to deteriorate due to deferred maintenance, the restricted retail price shall be discounted in an amount equal to the costs necessary to bring the unit into conformity with Title 15 of the Whittier Municipal Code.

4.

Inheritance of Inclusionary Units. Upon the death of an owner of an owner-occupied inclusionary unit, title in the property may transfer to the surviving joint tenant without respect to the income-eligibility of the household. Upon the death of a sole owner or of all owners of an inclusionary unit and the inheritance of the property by one or more nonincome eligible children or stepchildren of the deceased, the property shall be sold to an income eligible household within one year of the time when the deceased's estate is settled. Inheritance of an inclusionary unit by any other nonincome eligible person or persons shall require the sale of the property to an income eligible person as soon as is feasible, but not more than one hundred eighty days after the deceased's estate is settled.

5.

Forfeiture. If an inclusionary unit for sale is sold for an amount in excess of the resale price controls required by this section, the buyer and the seller shall be jointly and severally liable to the city for the entire purchase price of the unit. Recovered funds shall be deposited into the affordable housing trust funds. Notwithstanding the foregoing, it shall be within the discretion of the city manager to allow the buyer and seller one hundred eighty days to cure any violation of the resale price controls.

D.

Rental Units.

1.

Time Limit for Inclusionary Restrictions. A rental unit shall remain restricted to the target income level group at the applicable affordable housing cost for fifty-five years.

2.

Certification of Renters. The owner of any rental inclusionary units shall certify to the director, on a form provided by the city, the income of the tenant at the time of the initial rental and annually thereafter.

3.

Forfeiture. Any lessor who leases an inclusionary unit in violation of this chapter shall be required to forfeit to the city all money so obtained. Recovered funds shall be deposited into the affordable housing trust fund.

E.

The director may require the execution and recording of whatever documents are necessary or helpful to ensure enforcement of this section; including but not limited to: promissory notes, deeds of trust, resale restrictions, rights of first refusal, options to purchase, and/or other documents, which shall be recorded against all inclusionary units.

F.

General Prohibitions.

1.

No person shall sell or rent an inclusionary unit at a price or rent in excess of the applicable affordable housing cost placed on the unit in accordance with this chapter.

2.

No person shall sell or rent an inclusionary unit to a person or persons that do not meet the income restrictions placed on the unit in accordance with this chapter.

3.

No person shall provide false or materially incomplete information to the city or to a seller or lessor of an inclusionary unit to obtain occupancy of housing for which that person is not eligible.

G.

Principal Residency Requirement.

1.

The owner or lessee of an inclusionary unit shall reside in the unit for at least ten out of every twelve months unless actively serving in the United States military. Notwithstanding this requirement, an owner or lessee may live elsewhere for a period up to six months every five years on account of hardships; including, but not limited to, medical reasons, the need to assist family member in crisis or medical need, and relocation for employment purposes.

2.

No owner or lessee of an inclusionary unit shall lease or sublease, as applicable, an inclusionary unit without the prior permission of the director.

(Ord. 2910 § 1 (part), 2008)

A.

Determination of a taking of property without just compensation. In accordance with the procedures provided by this section, a developer may request a determination as to whether the requirements of this chapter, taken together with density bonuses and any concessions or other incentives available under Chapter 18.66, would constitute a taking of property without just compensation under the California or Federal Constitutions.

1.

If an inclusionary housing plan is subject to the approval of the director, the developer may request the director to make a takings determination within fifteen days of the decision by the director to approve or disapprove the inclusionary housing plan. The developer may appeal the director's takings determination to the city council within fifteen calendar days after the date of the decision in compliance with Section 17.02.080.

2.

If an inclusionary housing plan is subject to the approval of the city council, the developer may request the city council to make a takings determination at the time it acts to approve or disapprove the inclusionary housing plan.

B.

Presumption of Facts. In making the taking recommendation or determination, the director or city council, as appropriate, shall presume each of the following facts:

1.

Application of the inclusionary housing requirement to the residential project; and

2.

Application and utilization of all density bonuses and incentives available under state and local law; and

3.

Utilization of the most cost-efficient product type for the inclusionary units that would meet the standards of this chapter; and

4.

The reasonable availability of external funding.

C.

Modifications to Reduce Obligations. If it is determined that the application of the provisions of this chapter would be a taking, the inclusionary housing plan shall be modified to reduce the obligations in the inclusionary housing component to the extent, and only to the extent necessary, to avoid a taking. If it is determined that no taking would occur though application of this chapter to the residential project, the requirements of this chapter shall remain applicable.

(Ord. 2910 § 1 (part), 2008)

A.

Any violation of this chapter constitutes a misdemeanor.

B.

Forfeiture of Funds. Any individual who sells or rents an inclusionary unit in violation of this chapter shall be required to forfeit all money so obtained. Recovered funds shall be deposited into the city's affordable housing trust fund.

C.

Legal Actions. The city may institute any appropriate legal actions or proceedings necessary to ensure compliance with this chapter, including actions:

1.

To disapprove, revoke, or suspend any permit, including a building permit, certificate of occupancy, or discretionary approval; and

2.

For injunctive relief or damages.

D.

Recovery of Costs. In any action to enforce this chapter, or an inclusionary housing agreement recorded hereunder, the city shall be entitled to recover its reasonable attorney's fees and costs.

(Ord. 2910 § 1 (part), 2008)

There is hereby established a separate fund of the city, to be known as the "Affordable Housing Trust Fund." All monies collected in compliance with Sections 18.11.050(B) (In-lieu fee), 18.11.070(C)(5), 18.11.070(D)(3) (Forfeiture), or 18.11.090 (Enforcement), above, shall be deposited in the affordable housing trust fund.

(Ord. 2910 § 1 (part), 2008)

The council may by resolution establish reasonable fees and deposits for the administration of this chapter.

(Ord. 2910 § 1 (part), 2008)