HomeMy WebLinkAbout02-21-2024_Open Session_Item 6_Kim, AnthonyEXECUTIVE DIRECTOR
Tessie Solorzano, Esq.
BOARD OF DIRECTORS
Erica Alfaro, Esq., President
Marvin Powell Jr., Vice
President
Rebecca Eckley, Esq.,
Secretary
Christina Perez, Treasurer
Daniel Aguilar
Goushia Farook, Esq.
Bob Garcia
Liliana Garcia Maytorena
Xingshuo Liu, Esq.
Andrew R. Morand, Esq.
Julie D. Neal, Esq.
Nithin B. Reddy, Esq.
Elaine S. Rosen, Esq.
ICLS is a non-profit
501(c)(3) corporation
IRS Tax ID 95-6124556
Donations are welcome.
Senior Line: 800.977.4257
Toll Free: 888.245.4257
InlandLegal.org
Indio
P.O. Box 10650
Indio, CA
92202-2563
Executive Office
1040 Iowa Ave., #106
Riverside, CA
92507-2106
Ontario
3500 Porsche Way, #200
Ontario, CA
91764-4941
Riverside
1040 Iowa Ave., #109
Riverside, CA
92507-2106
Victorville
15428 Civic Center Drive, Ste 175
Victorville, CA
92392
SENT VIA EMAIL ONLY TO publiccomments@sbcity.org
February 20, 2024
Mayor Helen Tran and Council of the City of San Bernardino
290 North D Street, Third Floor
San Bernardino, CA 92401
Re: Public Hearing Agenda Item No. 6: Development Code
Amendment 23-03 (Density Bonus)
Dear Mayor Tran and the Honorable Members of the San Bernardino City
Council:
We submit this public comment regarding Public Hearing Agenda Item
No. 6: Development Code Amendment 23-03 (Density Bonus)
(Amendment). We reviewed the agenda and understand that the City plans
to introduce the Amendment for a first read and ultimately adopt the
Amendment at its March 6, 2024 City Council meeting. However, as noted
below, the Amendment as it is currently drafted, fails to comply with
recent revisions to the Density Bonus Law (DBL) (Gov. Code §§65915-
65918). As such, the Amendment runs counter to the previously entered
Stipulated Judgment in Gracia, et al. v. City of San Bernardino, et al.
(CIVSB2301828) (filed February 10, 2023) (Gracia), where the City,
among other things, agreed to amend its local density bonus ordinance to
comply with the DBL. (See Stipulated Judgment, entered on September 1,
2023, ¶27, pp. 8-9, attached as Ex. 1 (Gracia Stipulated Judgment).)
Further, as part of our ongoing discussions with the City regarding its
compliance with the Gracia Stipulated Judgment, we reviewed the
Amendment as passed by the Planning Commission on December 12,
2023. Thereafter, we e-mailed the City and its attorneys on December 18,
2023, and outlined several deficiencies with the Amendment. First, the
Amendment does not have a savings clause, which we informed the City
was necessary due to frequent amendments to the DBL. Second, the
Amendment does not fully comport with recent amendments to the DBL,
including Senate Bill (SB) 713 (Stats. 2023, Ch. 784). To aid the City
with the requested changes to bring the Amendment in compliance with
SB 713, we included an annotated version of the the Planning
Commission’s December 12, 2023 Staff Report that denoted needed
changes to the Amendment. The email cited here and the annotated report
are attached to this public comment as Exhibits 2 and 3.
2
However, despite our request to the City and its counsel that it revise the Amendment to address
our concerns, the Amendment included in the packet for the February 21 meeting is the same as
the one passed by the Planning Commission on December 12, 2023. To avoid further violating
the DBL and potentially violating the Gracia Stipulated Judgment, the City Council should not
adopt the Amendment in its current form.
Therefore, we are requesting the City Council adopt a resolution to include a savings clause in
the proposed Amendment, to ensure that the Amendment complies with the DBL, as amended,
and the Gracia Stipulated Judgment and direct the City and its counsel to revise the Amendment
to bring it in compliance with the DBL as noted in our December 18 email to the City.
Sincerely,
Anthony Kim, Staff Attorney
INLAND COUNTIES LEGAL SERVICES
/s/ Ugochi Anaebere-Nicholson
Ugochi Anaebere-Nicholson
Public Interest Law Project
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
EXHIBIT 1
Form Approved for Optional Use
Judicial Council of California
POS-050/EFS-050 [Rev. February 1, 2017]
PROOF OF ELECTRONIC SERVICE
(Proof of Service/Electronic Filing and Service)
Page 1 of 1
Cal. Rules of Court, rule 2.251
www.courts.ca.gov
I am at least 18 years old.1.
2.
I electronically served the documents listed in 2 as follows:
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
(SIGNATURE OF DECLARANT)
3.
My residence or business address is (specify):
My electronic service address is (specify):
I electronically served the following documents (exact titles):
The documents served are listed in an attachment. (Form POS-050(D)/EFS-050(D) may be used for this purpose.)
The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment.
(Form POS-050(P)/EFS-050(P) may be used for this purpose.)
Date:
(TYPE OR PRINT NAME OF DECLARANT)
SUPERIOR COURT OF CALIFORNIA, COUNTY OF
BRANCH NAME:
CITY AND ZIP CODE:
STREET ADDRESS:
MAILING ADDRESS:
DEFENDANT/RESPONDENT:
PLAINTIFF/PETITIONER:
FOR COURT USE ONLY
CASE NUMBER:
DEPARTMENT:
JUDICIAL OFFICER:
PROOF OF ELECTRONIC SERVICE
POS-050/EFS-050
ATTORNEY OR PARTY WITHOUT ATTORNEY:
STATE:ZIP CODE:CITY:
STREET ADDRESS:
FIRM NAME:
NAME:
STATE BAR NO:
TELEPHONE NO.:FAX NO. :
E-MAIL ADDRESS:
ATTORNEY FOR (name):
b.
c.
b.
a.
Print this form Save this form Clear this form
For your protection and privacy, please press the Clear
This Form button after you have printed the form.
286032
ANTHONY KIM, ELENA CASTILLO, TESSIE SOLORZANO
INLAND COUNTIES LEGAL SERVICES, INC. 3500 PORSCHE WAY, SUITE 200
ONTARIO CA 91764
(951) 320-7509 (951) 398-4945akim@icls.org
PROMISE GRACIA, NADINE FIERRO, and SIBYLLE BARTZ
CIVSB2301828
JUDGE KHYMBERLI S. APALOO
S25
SAN BERNARDINO 247 WEST THIRD STREET
SAME AS ABOVE
SAN BERNARDINO 92415-0210
SAN BERNARDINO DISTRICT - CIVIL DIVISION
PROMISE GRACIA, NADINE FIERRO, and SIBYLLE BARTZ
CITY OF SAN BERNARDINO and SAN BERNARDINO CITY COUNCIL
3500 PORSCHE WAY, SUITE 200, ONTARIO, CA 91764
knavarro@icls.org
STIPULATED FINAL JUDGMENT AND ORDER
a. Name of person served:
KAREN NAVARRO
ALBERT MALDONADO
On behalf of (name or names of parties represented, if person served is an attorney):CITY OF SAN BERNARDINO and SAN BERNARDINO CITY COUNCIL
Electronic service address of person served :
Albert.Maldonado@bbklaw.com
On (date): 10/06/2023
(SEE ATTACHMENT "A" FOR ADDITIONAL COUNSEL) EXHIBIT 1
Form Approved for Optional Use
Judicial Council of California
POS-050/EFS-050 [Rev. February 1, 2017]
PROOF OF ELECTRONIC SERVICE
(Proof of Service/Electronic Filing and Service)
Page 1 of 1
Cal. Rules of Court, rule 2.251
www.courts.ca.gov
I am at least 18 years old.1.
2.
I electronically served the documents listed in 2 as follows:
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
(SIGNATURE OF DECLARANT)
3.
My residence or business address is (specify):
My electronic service address is (specify):
I electronically served the following documents (exact titles):
The documents served are listed in an attachment. (Form POS-050(D)/EFS-050(D) may be used for this purpose.)
The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment.
(Form POS-050(P)/EFS-050(P) may be used for this purpose.)
Date:
(TYPE OR PRINT NAME OF DECLARANT)
SUPERIOR COURT OF CALIFORNIA, COUNTY OF
BRANCH NAME:
CITY AND ZIP CODE:
STREET ADDRESS:
MAILING ADDRESS:
DEFENDANT/RESPONDENT:
PLAINTIFF/PETITIONER:
FOR COURT USE ONLY
CASE NUMBER:
DEPARTMENT:
JUDICIAL OFFICER:
PROOF OF ELECTRONIC SERVICE
POS-050/EFS-050
ATTORNEY OR PARTY WITHOUT ATTORNEY:
STATE:ZIP CODE:CITY:
STREET ADDRESS:
FIRM NAME:
NAME:
STATE BAR NO:
TELEPHONE NO.:FAX NO. :
E-MAIL ADDRESS:
ATTORNEY FOR (name):
a.
b.
c.
b.
a.
Print this form Save this form Clear this form
For your protection and privacy, please press the Clear
This Form button after you have printed the form.
286032
ANTHONY KIM, ELENA CASTILLO, TESSIE SOLORZANO
INLAND COUNTIES LEGAL SERVICES, INC. 3500 PORSCHE WAY, SUITE 200
ONTARIO CA 91764
(951) 320-7509 (951) 398-4945akim@icls.org
PROMISE GRACIA, NADINE FIERRO, and SIBYLLE BARTZ
CIVSB2301828
JUDGE KHYMBERLI S. APALOO
S25
SAN BERNARDINO 247 WEST THIRD STREET
SAME AS ABOVE
SAN BERNARDINO 92415-0210
SAN BERNARDINO DISTRICT - CIVIL DIVISION
PROMISE GRACIA, NADINE FIERRO, and SIBYLLE BARTZ
CITY OF SAN BERNARDINO and SAN BERNARDINO CITY COUNCIL
3500 PORSCHE WAY, SUITE 200, ONTARIO, CA 91764
knavarro@icls.org
STIPULATED FINAL JUDGMENT AND ORDER
DAMIAN NORTHCUTTName of person served:
On behalf of (name or names of parties represented, if person served is an attorney):CITY OF SAN BERNARDINO and SAN BERNARDINO CITY COUNCIL
Electronic service address of person served :
Damian.Northcutt@bbklaw.com
On (date): 10/06/2023
KAREN NAVARRO
(SEE ATTACHMENT "A" FOR ADDITIONAL COUNSEL)EXHIBIT 1
EXHIBIT 2
From:Ugochi Anaebere-Nicholson
To:Albert Maldonado; Damian Northcutt; Andrew.Fausto@bbklaw.com; Mary Lanier; Travis Martin
Cc:Anthony Kim; Craig Castellanet; Vivian Anaya; Elena Castillo; Maria Delgado; June Wong Licinio; Nathalie Leudo
Subject:Gracia v, City of San Bernardino - Stipulated Judgment Compliance
Date:Monday, December 18, 2023 5:27:00 PM
Attachments:image001.png
Density Bonus Ordinance 24 01 17 (002)(ak).pdf
Good evening,
Thank you for our meeting last week where we reviewed and discussed our comments to the latest
draft of the City’s Sixth Cycle (2021-2029) Housing Element. We appreciate the opportunity to
discussed our continued concerns with the Draft and to learn about the work the City is doing to
produce a substantially compliant Element under the law.
Additionally, we were able to locate the Staff Report and proposed ordinance and attachments to
amend the City’s Density Bonus Ordinance as required by the Gracia Stipulated Judgment (Stipulated
Judgment). We are in the process of reviewing the proposed ordinance and will be in touch with
further comments, but in reviewing what the Planning Commission passed, there appears not to be
a savings clause contained in the proposed amendment, which would be needed as the Density
Bonus Law (DBL) is frequently amended, to ensure that the ordinance ultimately adopted by the City
Council complies with the Density Bonus Law and any changes to that law. Additionally, the
proposed ordinance does not fully comport with recent amendments of the DBL. See SB 713 (Stats.
2023, Ch. 784), and please see highlighted portion of December 12 Planning Commission Staff
Report, at p. 16.
Further, in checking the schedule of meetings before the Planning Commission regarding
amendments to the local density bonus and emergency shelter ordinances per the Stipulated
Judgment, it appears that the Planning Commission has cancelled its meeting of January 9, 2024.
Could you send over the dates for the Planning Commission and City Council meetings for January
and February, respectively, or link us to where we may find them.
Sincerely,
Ugochi
Ugochi Anaebere-Nicholson (she/her)
Staff Attorney
The Public Interest Law Project
449 15th Street, Suite 301
Oakland, CA 94612
Direct: 510-891-9794, x 626
Office: 510-891-9794
Fax: 510-891-9727
uanaebere-nicholson@pilpca.org
(based in Riverside, CA)
www.pilpca.org
Confidentiality Notice: E-mails from this email address normally contain confidential and privileged
material, and are for the sole use of the intended recipient. Use or distribution by an unintended
recipient is prohibited, and may be a violation of law. If you believe that you received this e-mail in
error, please do not read this e-mail or any attached items. Please delete the e-mail and all
attachments, including any copies thereof, and inform the sender immediately that you have
deleted the e-mail, all attachments, and any copies thereof. Thank you.
EXHIBIT 3
Public Hearing: Agenda Item No. 6
City of San Bernardino
Request for Planning Commission Action
Date: December 12, 2023
To: Honorable Chairperson and Planning Commissioners
From: Mary E. Lanier, Interim Agency Director of Community Development
Subject: Development Code Amendment 23-03 (Density Bonus)
Applicant
City of San Bernardino – Community Development Department
201 North E Street, 3rd Floor
San Bernardino, CA 92401
Request
The request is a City-initiated amendment to Chapter 19.04 (Residential Zones) Section
19.04.030 (Density Bonus) of the City of San Bernardino Development Code (SBMC Title
19) to update the Density Bonus section in compliance with State law.
Recommendation
The Community Development Department recommends that the Planning Commission
take the following action:
1)Recommend that the Planning Commission determine that Development
Code Amendment 23-03 is exempt under the California Environmental Qual-
ity Act (CEQA), pursuant to Section 15061(b)(3) (Common Sense Exemp-
tion), as it can be seen with certainty that approval of the project will not have
an effect on the environment; and
2)Adopt Resolution No. 2023-049 of the Planning Commission of the City of
San Bernardino, California, forwarding a recommendation to the Mayor and
City Council recommending approval of Development Code Amendment
23-03 amending Chapter 19.04 (Residential Zones) Section 19.04.030
(Density Bonus) of the City of San Bernardino Development Code (SBMC
Title 19) in order to update the Density Bonus section in compliance with
State law; and finding that Development Code Amendment 23-03 is exempt
from review under the California Environmental Quality Act.
EXHIBIT 3
Public Hearing Noticing
December 02, 2023: Display advertisement was published in the San Bernardino
Sun Newspaper, providing the nature of the request and the
date, time, and place of the Planning Commission meeting of
December 12, 2023, for Development Code Amendment 23-
03.
Background
The State and its cities have a housing shortage, especially affordable housing, which
can be described as the “housing crisis.”
The State adopted the Density Bonus Law (Gov. Code §§65915 - 65918) in 1979. The
law permits a developer to increase density on a property above the maximum set under
the City’s General Plan. In exchange for the increased density, a certain number of the
new affordable dwelling units must be reserved at rents below market rate. Qualifying
applicants can also receive reductions in required development standards. More signifi-
cant benefits are available for projects with higher affordability percentages (with unlim-
ited density available for certain transit-adjacent, 100-percent below-market rent pro-
jects).
Besides granting rights to housing and mixed-used developments to increase density, the
law provides three provisions that require the City to grant qualifying projects: 1) incen-
tives (or concessions) that provide cost reductions; 2) waivers of development standards
that would physically preclude the development of a project at the density permitted and
with the incentives granted, and; 3) reductions in parking requirements.1
Section 19.04.030(2)(D) of Chapter 19.04 – Residential Zones was enacted to comply
with the State Density Bonus Law (DBL).
Since the City’s Density Bonus section was adopted, the State has changed DBL numer-
ous times. The pace of changes at the State level has increased in recent years. For
example, in September 2020, the Governor signed a package of fifteen bills to increase
affordable housing production and reduce housing costs. Several of these bills were
aimed at increasing the incentives to build more affordable housing and more housing
near public transit. Each year, bills amending the DBL have been passed. This year, on
October 11, 2023, Governor Newsom signed 56 bills that incentivize and reduce barriers
to housing and support the development of more affordable homes. Three of these bills
amended the DBL.
As part of Housing and Community Development’s (HCD’s) October 2, 2023, letter re-
garding the City’s draft Housing Element, HCD requested a discussion of provisions of
the City’s density bonus ordinance that constitute a constraint. In the Stipulated Final
Judgement and Order submitted in Gracia et al. v. City of San Bernardino, it states that
the City will update the density bonus ordinance as required by statute and stipulation
agreement. In the meantime, the City has issued an interdepartmental memo directing
1 Density Bonus Law, What are Incentives/Concessions and Waivers, SCAG Development Streamlining Tools
EXHIBIT 3
staff to process and approve any application for a density bonus consistent with Govern-
ment Code 65915-65918. This Development Code Amendment 23-03 meets the require-
ments of State law.
Analysis
The Density Bonus Law (found in California Government Code Sections 65915 – 65918)
provides developers with powerful tools to encourage the development of affordable and
senior housing, including up to a 50% increase in project densities for most projects, de-
pending on the amount of affordable housing provided, and an 80% increase in density
for projects which are completely affordable. The Density Bonus Law is about more than
the density bonus itself, however. It is actually a larger package of incentives intended to
help make the development of affordable and senior housing economically feasible. Other
tools include reduced parking requirements, and incentives and concessions such as re-
duced setback and minimum square footage requirements. Often these other tools are
even more helpful to project economics than the density bonus itself, particularly the spe-
cial parking benefits. Sometimes these incentives are sufficient to make the project pencil
out, but for other projects financial assistance is necessary to make the project feasible.”2
At a minimum, the City must comply with State law regarding the DBL. Therefore, it is
recommended that the City adopt the Government Code Section 65915 -65918 in its en-
tirety. The City may amend the Section to allow for more significant incentives/conces-
sions, parking reductions, and density, but the City cannot recommend anything less than
State law.
Proposed Amendment
In order to ensure that the City’s Density Bonus section complies with State law, this
amendment will update 19.04.030 to match State law completely. Attachment A; Exhibit A
reflects the redline/strikeout of 19.040.030, showing the needed changes to comply with
State law. Within the redline/strikeout, the blue/strikeout reflects the three bills recently
signed by Governor Newsom on October 11, 2023 (AB 323, AB 1287, & SB 713), which
go into effect on January 1, 2024. Rather than create another amendment in January, it is
suggested that the City consider adopting these changes now so the Density Bonus section
will be entirely current.
Implementation
The amendment to the Density Bonus section will take effect 30 days following the ap-
proval of Development Code Amendment 23-03 by the Mayor and City Council.
2 Guide to the California Density Bonus Law, Jon Goetz and Tom Sakai, Revised January 2023.
EXHIBIT 3
General Plan Goals and Policies
The City of San Bernardino General Plan includes goals and policies to guide future hous-
ing development within the City, including the following:
Land Use Policy Goal 2.1.4: Provide assistance in the form of grants, loans,
home-improvement efforts, coordinated code and law enforcement, public
right-of-way maintenance and enhancement, and trash collection to help
improve San Bernardino’s residential neighborhoods. (LU-1 and LU-3)
Land Use Policy 2.4.1: Quality infill development shall be accorded a high
priority in the commitment of City resources and available funding.
Land Use Policy 2.4.2: Continue to provide special incentives and
improvement programs to revitalize deteriorated housing stock, residential
neighborhoods, major business corridors, and employment centers. (LU-3
and LU-4)
Housing Goal 3.3: Affordable Housing Assistance. Assist in the provision of
housing affordable to lower- and moderate-income households.
Housing Goal 3.4: Fair Housing Opportunity. Promote fair and equal
housing opportunities for all persons in San Bernardino.
Housing Goal 3.5: Governmental Constraints. Reduce adverse effects of
governmental actions on the production, preservation, and conservation of
housing, particularly for lower-moderate-income households.
The adoption and implementation of Development Code Amendment 23-03 is consistent
with the City’s General Plan by allowing for the development of affordable housing in a
manner consistent with State law.
2020-2025 Key Strategic Targets and Goals
Development Code Amendment 23-03 aligns with Key Target Goal No. 3: Improved Qual-
ity of Life and 4(b): Economic Growth and Development – Update the General Plan and
Development Code. Specifically, the amendment will update the Development Code for
compliance with State law. The amendment to the Development Code will ensure con-
sistency with State law.
California Environmental Quality Act
The Planning Division conducted an environmental evaluation concerning the proposed
Development Code Amendment 23-03. It concluded that the amendment is exempt from
CEQA under Section 15061(b)(3) (Common Sense Exemption) of the CEQA Guidelines
since the proposed Development Code Amendment will not create significant effects on
the environment as it establishes standards for densiy bonuses consistent with State law
EXHIBIT 3
Conclusion
Development Code Amendment 23-03 establishes compliance with State law for Density
Bonus by updating Section 19.04.030 of the City’s Development Code. Therefore, staff
recommends that the Planning Commission adopt Resolution No. 2023-049, forwarding
a recommendation of approval to the Mayor and City Council for approval of Development
Code Amendment 23-03 amending Chapter 19.04 (Residential Zones) Section 19.04.030
(Density Bonus) of the City of San Bernardino Development Code (SBMC Title 19) in
order to update the Density Bonus section in compliance with State law; and finding that
the Development Code Amendment 23-03 is exempt from review under the California
Environmental Quality Act.
Attachment
Attachment A Resolution No. 2023-049
Exhibit A Development Code Section 19.04.030(2)(D) Redline/Blue/Strikeout
EXHIBIT 3
ATTACHMENT A
Resolution No. 2023-049
EXHIBIT 3
RESOLUTION NO. 2023-049 - PC
1
RESOLUTION NO. 2023-049 - PC
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
FORWARDING A RECOMMENDATION TO THE MAYOR
AND CITY COUNCIL RECOMMENDING APPROVAL OF
DEVELOPMENT CODE AMENDMENT 23-03 AMENDING
CHAPTER 19.04 (RESIDENTIAL ZONES) SECTION
19.04.030 (DENSITY BONUS) OF THE CITY OF SAN
BERNARDINO DEVELOPMENT CODE (SBMC TITLE 19)
TO UPDATE THE DENSITY BONUS SECTION IN
COMPLIANCE WITH STATE LAW; AND FINDING THAT
DEVELOPMENT CODE AMENDMENT 23-03 IS EXEMPT
UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY
ACT.
WHEREAS, the State of California has adopted Government Code Sections 65915 –
65918 (State Density Bonus Law), which requires cities to provide density bonuses,
concessions/incentives, waivers, and parking reductions for eligible housing development; and
WHEREAS, Government Code Section 65918 provides that the State Density Bonus Law
applies to charter cities, including San Bernardino; and
WHEREAS, in recent years, in response to the State’s need for housing, the State’s
Density Bonus Law has been amended to increase affordable housing production and reduce
housing costs, requiring the City to update the Density Bonus Section of Chapter 19.04
(Residential Zones); and
WHEREAS, on October 2, 2023, the Community Development Department - Planning
Commission received a letter regarding the City’s draft Housing Element noting that the provisions
of the City’s density bonus ordinance constitute a constraint to affordable housing development;
and
WHEREAS, in a Stipulated Final Judgement and Order submitted in Gracia et al. v. City
of San Bernardino, it was stated that the City would update the density bonus ordinance as required
by statute and the stipulation agreement; and
WHEREAS, Development Code Amendment 23-03 is a City-initiated amendment to
Chapter 19.04 (Residential Zones) Section 19.04.030 (Density Bonus) of the City of San
Bernardino Development Code (SBMC Title 19) to update the Density Bonus section in
compliance with state law; and
WHEREAS, the Planning Division of the Community Development Department of the
City of San Bernardino has prepared Development Code Amendment 23-03 in compliance with
the California Government Code, consistency with the City of San Bernardino General Plan, and
compliance with the City of San Bernardino Development Code; and
EXHIBIT 3
RESOLUTION NO. 2023-049 - PC
2
WHEREAS, pursuant to requirements of the California Environmental Quality Act
(“CEQA”), the Planning Division of the Community Development Department evaluated
Development Code Amendment 23-03 and determined that it is exempt from CEQA under
15061(b)(3) of the CEQA Guidelines; and
WHEREAS, on December 2, 2023, pursuant to the requirements of Section 19.52.020
(Hearings and Appeals – Application Processing) of the City of San Bernardino Development
Code, the City gave public notice by advertising in the San Bernardino Sun, a newspaper of general
circulation within the City of San Bernardino of the holding of a public hearing at which
Development Code Amendment 23-03 would be considered; and
WHEREAS, on December 12, 2023, pursuant to the requirements of Section 19.52.040
(Hearings and Appeals – Hearing Procedures) of the City of San Bernardino Development Code,
the Planning Commission held the duly noticed public hearing at which interested persons had an
opportunity to testify in support of, or opposition to Development Code Amendment 23-03 and at
which meeting, the Planning Commission considered Development Code Amendment 23-03; and
WHEREAS, pursuant to the requirements of Section 19.42.030 (Development Code
Amendments – Commission Action on Amendments) of the City of San Bernardino Development
Code, the Planning Commission has the authority to recommend to the Mayor and City Council
the approval of the Development Code Amendment 23-03.
NOW THEREFORE, the Planning Commission of the City of San Bernardino does
hereby resolve, determine, find, and order as follows:
SECTION 1. ENVIRONMENTAL DETERMINATION:
As the decision-making body for the project, the Planning Commission has reviewed and
considered the information contained in the administrative record for Development Code
Amendment 23-03. Based upon the facts and information contained in the administrative record,
including all written and oral evidence presented to the Planning Commission, the Planning
Commission hereby recommends to the Mayor and City Council as follows:
(1) The administrative record has been completed in compliance with the California
Environmental Quality Act (“CEQA”), the State CEQA Guidelines, and the City’s Local CEQA
Guidelines and
(2) The proposed project is exempt from the requirements of the California
Environmental Quality Act (“CEQA”) under CEQA Guidelines Section 15061(b)(3), the
“common sense” rule that states that CEQA applies only to projects that have the potential for
causing a significant effect on the environment. This amendment establishes standards for the
rental of existing residential properties in areas zoned for residential use and, therefore, does not
have the potential to cause a significant effect on the environment; and
(3) The determination of CEQA exemption reflects the independent judgment of the
Planning Commission.
EXHIBIT 3
RESOLUTION NO. 2023-049 - PC
3
SECTION 2. FINDINGS FOR DEVELOPMENT CODE AMENDMENT 23-03:
Section 19.42.050 of the City of San Bernardino Development Code requires that Development
Code Amendments meet certain findings prior to approval by the Mayor and City Council.
Accordingly, the following findings are provided in support of the recommendation by the
Planning Commission for the approval of Development Code Amendment 23-03:
Finding No. 1: The proposed amendment is consistent with the General Plan.
Finding of Fact: Development Code Amendment 23-03 is consistent with the General Plan,
as follows:
Land Use Policy Goal 2.1.4: Provide assistance in the form of grants, loans,
home-improvement efforts, coordinated code and law enforcement, public
right-of-way maintenance and enhancement, and trash collection to help
improve San Bernardino’s residential neighborhoods. (LU-1 and LU-3)
Land Use Policy 2.4.1: Quality infill development shall be accorded a high
priority in the commitment of City resources and available funding.
Land Use Policy 2.4.2: Continue to provide special incentives and
improvement programs to revitalize deteriorated housing stock, residential
neighborhoods, major business corridors, and employment centers. (LU-3
and LU-4)
Housing Goal 3.3: Affordable Housing Assistance. Assist in the provision
of housing affordable to lower- and moderate-income households.
Housing Goal 3.4: Fair Housing Opportunity. Promote fair and equal
housing opportunities for all persons in San Bernardino.
Housing Goal 3.5: Governmental Constraints. Reduce adverse effects of
governmental actions on the production, preservation, and conservation of
housing, particularly for lower-moderate-income households.
The adoption and implementation of Development Code Amendment 23-03
is consistent with the City’s General Plan by allowing for the development
of affordable housing in a manner consistent with State law.
Finding No. 2: The proposed amendment would not be detrimental to the public interest,
health, safety, convenience, or welfare of the City.
Finding of Fact: The adoption and implementation of Development Code Amendment 23-03
are in the interest or furtherance of the public health, safety, convenience,
and general welfare through the establishment of regulations consistent with
State law that will further the development of affordable housing for low
and moderate-income households, seniors, and students.
EXHIBIT 3
RESOLUTION NO. 2023-049 - PC
4
SECTION 3. RECOMMENDATION FOR DEVELOPMENT CODE
AMENDMENT 23-03:
Pursuant to Section 19.42.030 (Development Code Amendments – Commission Action on
Amendments), the Planning Commission forwards the amendments to the Development Code
attached hereto as EXHIBIT “A” for approval by the Mayor and City Council.
SECTION 4. PLANNING COMMISSION ACTION:
The Planning Commission hereby takes the following action:
1. Adoption of Planning Commission Resolution No. 2023-049, forwarding a
recommendation that the Mayor and City Council:
a. Find the Exemption, pursuant to Section 15061(b)(3) of the CEQA Guidelines for
Development Code Amendment 23-03, and directing the Director of Community
Development to prepare and file with the Clerk of the County of San Bernardino a
Notice of Exemption as provided under Public Resources Code Section 2 l 152(b) and
CEQA Guidelines Section 15062; and
b. Approve Development Code Amendment 23-03 based on the Findings of Fact.
SECTION 5. SEVERABILITY:
If any provision of this Resolution or the application thereof to any person or circumstance is held
invalid, such invalidity shall not affect other provisions or applications, and to this end, the
provisions of this Resolution are declared to be severable.
SECTION 6. CUSTODIAN OF RECORDS:
The location and custodian of the documents and any other material, which constitute the record
of proceedings upon which the Planning Commission based its decision, is as follows: Genoveva
Rocha, City Clerk, 201 North E Street (Building A), 909-384-5002.
PASSED, APPROVED AND ADOPTED this 12th day of December 2023.
Monique Guerrero, Chairperson
San Bernardino Planning Commission
ATTEST:
Mary E. Lanier, Planning Commission Secretary
City of San Bernardino, California
EXHIBIT 3
RESOLUTION NO. 2023-049 - PC
5
CERTIFICATION:
I, Jennifer Meamber, Recording Secretary of the Planning Commission of the City of San
Bernardino, California, do hereby certify that the foregoing Resolution No. 2023-049 - PC, was
duly adopted by the Planning Commission of the City of San Bernardino, California, at a regular
meeting thereof held on the 12th day of December 2023, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Jennifer Meamber, Recording Secretary
City of San Bernardino, California
EXHIBIT 3
EXHIBIT A
Development Code Section 19.04.030
(Density Bonus)
19.04.030(2) shall be modified to read as follows:
D. DENSITY BONUS
1. Purpose
The purpose of this Chapter is to:
a. Establish procedures for implementing State Density Bonus requirements, as set
forth in California Government Code Sections 65915, and
b. Facilitate the development of affordable housing consistent with the goals,
objectives, and policies of the Housing Element of the City's General Plan.
c. This Chapter establishes incentives available to developers to produce housing
affordable to very-low, low and moderate-income households, transitional foster
youth, disabled veterans, homeless persons, lower-income students, and senior
citizens, consistent with State Density Bonus law.
2. Government Code 65915 – 65918
a.
(1) When an applicant seeks a density bonus for a housing development within,
or for the donation of land for housing within, the City shall comply with
this section. The City shall adopt an ordinance that specifies how
compliance with this section will be implemented. Except as otherwise
provided in subdivision(s), failure to adopt an ordinance shall not relieve
the City from complying with this section.
(2) The City shall not condition the submission, review, or approval of an
application pursuant to this chapter on the preparation of an additional
report or study that is not otherwise required by state law, including this
section. This subdivision does not prohibit the City from requiring an
applicant to provide reasonable documentation to establish eligibility for a
requested density bonus, incentives or concessions, as described in
subdivision (b)(d), waivers or reductions of development standards, as
described in subdivision (e), and parking ratios, as described in subdivision
(p).
(3) In order to provide for the expeditious processing of a density bonus
application, the City shall do all of the following:
(A) Adopt procedures and timelines for processing a density bonus
application.
(B) Provide a list of all documents and information required to be
submitted with the density bonus application in order for the density
EXHIBIT 3
EXHIBIT A
bonus application to be deemed complete. This list shall be consistent
with this chapter.
(C) Notify the applicant for a density bonus whether the application is
complete in a manner consistent with the timelines specified in
Government Code Section 65943.
(D)
(i) If the City notifies the applicant that the application is deemed
complete pursuant to subparagraph (C), provide the applicant
with a determination as to the following matters:
(I) The amount of density bonus calculated pursuant to
subdivision (f), for which the applicant is eligible.
(II) If the applicant requests a parking ratio pursuant to
subdivision (p), the parking ratio for which the applicant is
eligible.
(III) If the applicant requests incentives or concessions pursuant
to subdivision (d) or waivers or reductions of development
standards pursuant to subdivision (e), whether the
applicant has provided adequate information for the City
to decide as to those incentives, concessions, or waivers,
or reductions of development standards.
(ii) Any determination required by this subparagraph shall be based
on the development project at the time the application is deemed
complete. The City shall adjust the amount of density bonus and
parking ratios awarded pursuant to this section based on any
changes to the project during the course of development.
b.
(1) The City shall grant one density bonus, the amount of which shall be as
specified in subdivision (f), and, if requested by the applicant and consistent
with the applicable requirements of this section, incentives or concessions,
as described in subdivision (d), waivers or reductions of development
standards, as described in subdivision (e), and parking ratios, as described
in subdivision (p), if an applicant for a housing development seeks and
agrees to construct a housing development, excluding any units permitted
by the density bonus awarded pursuant to this section, that will contain at
least any one of the following:
(A) Ten percent of the total units of a housing development, including a
shared housing building development, for rental or sale to lower
income households, as defined in Section 50079.5 of the Health and
Safety Code.
(B) Five percent of the total units of a housing development, including a
shared housing building development, for rental or sale to very low-
EXHIBIT 3
EXHIBIT A
income households, as defined in Section 50105 of the Health and
Safety Code.
(C) A senior citizen housing development, as defined in Sections 51.3 and
51.12 of the Civil Code, or a mobilehome park that limits residency
based on age requirements for housing for older persons pursuant to
Section 798.76 or 799.5 of the Civil Code. For pur poses of this
subparagraph, “development” includes a shared housing building
development.
(D) Ten percent of the total dwelling units of a housing development are
sold to persons and families of moderate income, as defined in Section
50093 of the Health and Safety Code, provided that all units in the
development are offered to the public for purchase.
(E) Ten percent of the total units of a housing development for transitional
foster youth, as defined in Section 66025.9 of the Education Code,
disabled veterans, as defined in Section 18541, or homeless persons,
as defined in the federal McKinney-Vento Homeless Assistance Act
(42 U.S.C. Sec. 11301 et seq.). The units described in this
subparagraph are shall be subject to a recorded affordability restriction
of 55 years and shall be provided at the same affordability level as
very low-income units.
(F)
(i) Twenty percent of the total units for lower income students in a
student housing development that meets the following
requirements:
(I) All units in the student housing development shallwill be
used exclusively for undergraduate, graduate, or
professional students enrolled full time at an institution of
higher education accredited by the Western Association of
Schools and Colleges or the Accrediting Commission for
Community and Junior Colleges. In order to be eligible
under this subclause, the developer shall, as a condition of
receiving a certificate of occupancy, provide evidence to
the City that the developer has entered into an operating
agreement or master lease with one or more institutions of
higher education for the institution or institutions to
occupy all units of the student housing development with
students from that institution or institutions. An operating
agreement or master lease entered into pursuant to this
subclause is not violated or breached if, in any subsequent
year, there are insufficientnot sufficient students enrolled
in an institution of higher education to fill all units in the
student housing development.
EXHIBIT 3
EXHIBIT A
(II) The applicable 20-percent units shallwill be used for lower
income students.
(III) The rent provided in the applicable units of the
development for lower income students shall be calculated
at 30 percent of 65 percent of the area median income for
a single-room occupancy unit type.
(IV) The development shallwill provide priority for the
applicable affordable units for lower income students
experiencing homelessness. A homeless service provider,
as defined in paragraph (3) of subdivision (e) of Section
103577 of the Health and Safety Code, or institution of
higher education that has knowledge of a person’s
homeless status may verify a person’s status as homeless
for purposes of this subclause.
(ii) For purposes of calculating a density bonus granted pursuant to
this subparagraph, the term “unit” as used in this section means
one rental bed and its pro rata share of associated common area
facilities. The units described in this subparagraph areshall be
subject to a recorded affordability restriction of 55 years.
(G) One hundred percent of all units in the development, including total
units and density bonus units, but exclusive of a manager’s unit or
units, are for lower income households, as defined by Section 50079.5
of the Health and Safety Code, except that up to 20 percent of the units
in the development, including total units and density bonus units, may
be for moderate-income households, as defined in Section 50053 of
the Health and Safety Code. For purposes of this subparagraph,
“development” includes a shared housing building development.
(2) For purposes of calculating the amount of the density bonus pursuant to
subdivision (f), an applicant who requests a density bonus pursuant to this
subdivision shall elect whether the bonus shall be awarded on the basis of
subparagraph (A), (B), (C), (D), (E), (F), or (G) of paragraph (1).
c.
(1)
(A) An applicant shall agree to, and the City shall ensure, the continued
affordability of all very low and low-income rental units that qualified
the applicant for the award of the density bonus for 55 years or a
longer period of time if required by the construction or mortgage
financing assistance program, mortgage insurance program, or rental
subsidy program.
(B)
EXHIBIT 3
EXHIBIT A
(i)Except as otherwise provided in clause (ii), rents for the lower
income density bonus units shall be set at an affordable rent, as
defined in Section 50053 of the Health and Safety Code.
(ii)For housing developments meeting the criteria of subparagraph
(G) of paragraph (1) of subdivision (b), rents for all units in the
development, including both base density and density bonus
units, shall be as follows:
(I)The rent for at least 20 percent of the units in the
development shall be set at an affordable rent, as defined
in Section 50053 of the Health and Safety Code.
(II)The rent for the remaining units in the development shall
be set at an amount consistent with the maximum rent
levels for lower income households, as those rents and
incomes are determined by the California Tax Credit
Allocation Committee.
(2)
(A)An applicant shall agree to ensure, and the City shall ensure, that a
for-sale unit that qualified the applicant for the award of the density
bonus meets either of the following conditions:
(i)The unit is initially occupied by a person or family of very low,
low, or moderate income, as required, and it is offered at an
affordable housing cost, as that cost is defined in Section
50052.5 of the Health and Safety Code and is subject to an equity
sharing agreement.
(ii)The unit is purchased by a qualified nonprofit housing
corporation pursuant to a recorded contract that satisfies all of
the requirements specified in paragraph (10) of subdivision (a)
of Section 402.1 of the Revenue and Taxation Code and that
includes all of the following:
(I)A repurchase option that requires a subsequent purchaser
of the property that desires to resell or convey the property
to offer the qualified nonprofit corporation the right to
repurchase the property prior to selling or conveying that
property to any other purchaser.
(II)An equity sharing agreement.
(III)Affordability restrictions on the sale and conveyance of the
property that ensure that the property will be preserved for
lower income housing for at least 45 years for owner-
occupied housing units and will be sold or resold only to
persons or families of very low, low, or moderate income,
as defined in Section 50052.5 of the Health and Safety
Code.
EXHIBIT 3
Completely changed in SB 713:
(I) The nonprofit corporation has a determination
letter from the Internal Revenue Service
affirming its tax-exempt status pursuant to
Section 501(c)(3) of the Internal Revenue Code
and is not a private foundation as that term is
defined in Section 509 of the Internal Revenue
Code.
(II) The nonprofit corporation is based in
California.
(III) All of the board members of the nonprofit
corporation have their primary residence in
California.
(IV) The primary activity of the nonprofit
corporation is the development and preservation
of affordable home ownership housing in
California that incorporates within their contracts
for initial purchase a repurchase option that
requires a subsequent purchaser of the property
that desires to resell or convey the property to
offer the qualified nonprofit corporation the right
to repurchase the property prior to selling or
conveying that property to any other purchaser
pursuant to an equity sharing agreement or
affordability restrictions on the sale and
conveyance of the property that ensure that the
property will be preserved for lower income
housing for at least 45 years for owner-occupied
housing units and will be sold or resold only to
persons or families of very low, low, or moderate
income, as defined in Section 50052.5 of the
Health and Safety Code.
Missing "sold to", in final SB 713.
Missing from AB 323: "If the unit is not
purchased by an income-qualified person
or family within 180 days after the
issuance of the certificate of occupancy,
the..."
EXHIBIT A
(B)For purposes of this paragraph, a “qualified nonprofit housing
corporation” is a nonprofit housing corporation organized pursuant to
Section 501(c)(3) of the Internal Revenue Code that has received a
welfare exemption under Section 214.15 of the Revenue and Taxation
Code for properties intended to be sold to low-income families who
participate in a special no-interest loan program.
(C)The local government shall enforce an equity sharing agreement
required pursuant to clause (i) or (ii) of subparagraph (A) unless it is
in conflict with the requirements of another public funding source or
law or may defer to the recapture provisions of the public funding
source. The following apply to the equity sharing agreement:
(i)Upon resale, the seller of the unit shall retain the value of any
improvements, the downpayment, and the seller’s proportionate
share of appreciation.
(ii)Except as provided in clause (v), the local government shall
recapture any initial subsidy, as defined in clause (iii), and its
proportionate share of appreciation, as defined in clause (iv),
which amount shall be used within five years for any of the
purposes described in subdivision (e) of Section 33334.2 of the
Health and Safety Code that promote homeownership.
(iii)For purposes of this subdivision, the local government’s initial
subsidy shall be equal to the fair market value of the home at the
time of initial sale minus the initial sale price to the moderate-
income household, plus the amount of any downpayment
assistance or mortgage assistance. If upon resale the market
value is lower than the initial market value, then the value at the
time of the resale shall be used as the initial market value.
(iv)For purposes of this subdivision, the local government’s
proportionate share of appreciation shall be equal to the ratio of
the local government’s initial subsidy to the fair market value of
the home at the time of initial sale.
(v)If the unit is purchased or developed by a qualified nonprofit
housing corporation pursuant to clause (ii) of subparagraph (A)
the local government may enter into a contract with the qualified
nonprofit housing corporation under which the qualified
nonprofit housing corporation would recapture any initial
subsidy and its proportionate share of appreciation if the
qualified nonprofit housing corporation is required to use 100
percent of the proceeds to promote homeownership for lower
income households as defined by Section 50079.5 of the Health
and Safety Code Section 50079.5 within the jurisdiction of the
local government.
EXHIBIT 3
EXHIBIT A
(3)
(A) An applicant shall be ineligible for a density bonus or any other
incentives or concessions under this section if the housing
development is proposed on any property that includes a parcel or
parcels on which rental dwelling units are or, if the dwelling units have
been vacated or demolished in the five-year period preceding the
application, have been subject to a recorded covenant, ordinance, or
law that restricts rents to levels affordable to persons and families of
lower or very low income; subject to any other form of rent or price
control through a public entity’s valid exercise of its police power; or
occupied by lower or very low income households, unless the
proposed housing development replaces those units, and either of the
following applies:
(i) The proposed housing development, inclusive of the units
replaced pursuant to this paragraph, contains affordable units at
the percentages set forth in subdivision (b).
(ii) Each unit in the development, exclusive of a manager’s unit or
units, is affordable to, and occupied by, either a lower or very
low income household.
(B) For the purposes of this paragraph, “replace” shall mean either of the
following:
(i) If any dwelling units described in subparagraph (A) are occupied
on the date of application, the proposed housing development
shall provide at least the same number of units of equivalent size
to be made available at affordable rent or affordable housing cost
to, and occupied by, persons and families in the same or lower
income category as those households in occupancy. If the
income category of the household in occupancy is not known, it
shall be rebuttably presumed that lower income renter
households occupied these units in the same proportion of lower
income renter households to all renter households within the
jurisdiction, as determined by the most recently available data
from the United States Department of Housing and Urban
Development’s Comprehensive Housing Affordability Strategy
database. For unoccupied dwelling units described in
subparagraph (A) in a development with occupied units, the
proposed housing development shall provide units of equivalent
size to be made available at affordable rent or affordable housing
cost to, and occupied by, persons and families in the same or
lower income category as the last household in occupancy. If the
income category of the last household in occupancy is not
known, it shall be rebuttably presumed that lower income renter
households occupied these units in the same proportion of lower
income renter households to all renter households within the
EXHIBIT 3
EXHIBIT A
jurisdiction, as determined by the most recently available data
from the United States Department of Housing and Urban
Development’s Comprehensive Housing Affordability Strategy
database. All replacement calculations resulting in fractional
units shall be rounded up to the next whole number. If the
replacement units will be rental dwelling units, these units shall
be subject to a recorded affordability restriction for at least 55
years. If the proposed development is for-sale units, the units
replaced shall be subject to paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been
vacated or demolished within the five-year period preceding the
application, the proposed housing development shall provide at
least the same number of units of equivalent size as existed at
the highpoint of those units in the five-year period preceding the
application to be made available at affordable rent or affordable
housing cost to, and occupied by, persons and families in the
same or lower income category as those persons and families in
occupancy at that time, if known. If the incomes of the persons
and families in occupancy at the highpoint is not known, it shall
be rebuttably presumed that low-income and very low income
renter households occupied these units in the same proportion of
low-income and very low income renter households to all renter
households within the jurisdiction, as determined by the most
recently available data from the United States Department of
Housing and Urban Development’s Comprehensive Housing
Affordability Strategy database. All replacement calculations
resulting in fractional units shall be rounded up to the next whole
number. If the replacement units will be rental dwelling units,
these units shall be subject to a recorded affordability restriction
for at least 55 years. If the proposed development is for-sale
units, the units replaced shall be subject to paragraph (2).
(C) Notwithstanding subparagraph (B), for any dwelling unit described in
subparagraph (A) that is or was, within the five- year period preceding
the application, subject to a form of rent or price control through a
local government’s valid exercise of its police power and that is or
was occupied by persons or families above lower income, the City
may do either of the following:
(i) Require that the replacement units be made available at
affordable rent or affordable housing cost to, and occupied by,
low-income persons or families. If the replacement units will be
rental dwelling units, these units shall be subject to a recorded
affordability restriction for at least 55 years. If the proposed
development is for-sale units, the units replaced shall be subject
to paragraph (2).
EXHIBIT 3
EXHIBIT A
(ii) Require that the units be replaced in compliance with the
jurisdiction’s rent or price control ordinance, provided that each
unit described in subparagraph (A) is replaced. Unless otherwise
required by the jurisdiction’s rent or price control ordinance,
these units shall not be subject to a recorded affordability
restriction.
(D) For purposes of this paragraph, “equivalent size” means that the
replacement units contain at least the same total number of bedrooms
as the units being replaced.
(E) Subparagraph (A) does not apply to an applicant seeking a density
bonus for a proposed housing development if the applicant’s
application was submitted to, or processed by, the City before January
1, 2015.
d.
(1) An applicant for a density bonus pursuant to subdivision (b) may submit
to the City a proposal for the specific incentives or concessions that the
applicant requests pursuant to this section and may request a meeting with
the City. The City shall grant the concession or incentive requested by the
applicant unless the City makes a written finding, based upon substantial
evidence, of any of the following:
(A) The concession or incentive does not result in identifiable and actual
cost reductions, consistent with subdivision (k), to provide for
affordable housing costs, as defined in Section 50052.5 of the Health
and Safety Code, or for rents for the targeted units to be set as
specified in subdivision (c).
(B) The concession or incentive would have a specific, adverse impact, as
defined in paragraph (2) of subdivision (d) of Section 65589.5, upon
public health and safety 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-
income and moderate-income households.
(C) The concession or incentive would be contrary to state or federal law.
(2) The applicant shall receive the following number of incentives or
concessions:
(A) One incentive or concession for projects that include at least 10
percent of the total units for lower income households, at least 5
percent for very low-income households, or at least 10 percent for
persons and families of moderate income in a development in which
the units are for sale.
(B) Two incentives or concessions for projects that include at least 17
percent of the total units for lower income households, at least 10
EXHIBIT 3
EXHIBIT A
percent for very low-income households, or at least 20 percent for
persons and families of moderate income in a development in which
the units are for sale.
(C) Three incentives or concessions for projects that include at least 24
percent of the total units for lower income households, at least 15
percent for very low-income households, or at least 30 percent for
persons and families of moderate income in a development in which
the units are for sale.
(D) Five Four incentives or concessions for a project meeting the criteria
of subparagraph (G) of paragraph (1) of subdivision (b). If the project
is located within one-half mile of a major transit stop or is located in
a very low vehicle travel area in a designated county, the applicant
shall also receive a height increase of up to three additional stories, or
33 feet.
(E) One incentive or concession for projects that include at least 20
percent of the total units for lower income students in a student
housing development.
(F) Four incentives or concessions for projects that include at least 16
percent of the units for very low income households or at least 45
percent for persons and families of moderate income in a
developments in which the units are for sale.
(3) The 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 section, the court shall award the plaintiff reasonable
attorney’s fees and costs of suit. This subdivision shall not be interpreted
to require a local government to grant an incentive or concession that has a
specific, adverse impact, as defined in paragraph (2) of subdivision (d) of
Section 65589.5, upon health or safety, and for which there is no feasible
method to satisfactorily mitigate or avoid the specific, adverse impact.
This subdivision shall not be interpreted to require a local government 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. The City shall establish procedures for carrying out this section
that shall include legislative body approval of the means of compliance with
this section.
(4) The City shall bear the burden of proof for the denial of a requested
concession or incentive.
e.
(1) In no case may the City apply any development standard that will have the
effect of physically precluding the construction of a development meeting
the criteria of subdivision (b) at the densities or with the concessions or
incentives permitted by this section. Subject to paragraph (3), an applicant
EXHIBIT 3
EXHIBIT A
may submit to the City a proposal for the waiver or reduction of
development standards that will have the effect of physically precluding
the construction of a development meeting the criteria of subdivision (b)
at the densities or with the concessions or incentives permitted under this
section and may request a meeting with the City. If a court finds that the
refusal to grant a waiver or reduction of development standards is in
violation of this section, the court shall award the plaintiff reasonable
attorney’s fees and costs of suit. This subdivision shall not be interpreted
to require a local government to waive or reduce development standards
if the waiver or reduction would have a specific, adverse impact, as defined
in paragraph (2) of subdivision (d) of Section 65589.5, upon health or
safety, and for which there is no feasible method to satisfactorily mitigate
or avoid the specific, adverse impact. This subdivision shall not be
interpreted to require a local government to waive or reduce development
standards that would have an adverse impact on any real property that is
listed in the California Register of Historical Resources, or to grant any
waiver or reduction that would be contrary to state or federal law.
(2) A proposal for the waiver or reduction of development standards pursuant
to this subdivision shall neither reduce nor increase the number of incentives
or concessions to which the applicant is entitled pursuant to subdivision (d).
(3) A housing development that receives a waiver from any maximum controls
on density pursuant to clause (ii) of subparagraph (D) of paragraph (3) of
subdivision (f) shall only be eligible for a waiver or reduction of
development standards as provided in subparagraph (D) of paragraph (2) of
subdivision (d) and clause (ii) of subparagraph (D) of paragraph (3) of
subdivision (f), unless the City agrees to additional waivers or reductions of
development standards.
f. For the purposes of this chapter, “density bonus” means a density increase over
the otherwise maximum allowable gross residential density as of the date of
application by the applicant to the City, or, if elected by the applicant, a lesser
percentage of density increase, including, but not limited to, no increase in
density. The amount of density increases to which the applicant is entitled shall
vary according to the amount by which the percentage of affordable housing units
exceeds the percentage established in subdivision (b).
(1) For housing developments meeting the criteria of subparagraph (A) of
paragraph (1) of subdivision (b), the density bonus shall be calculated as
follows:
Percentage Low-Income Units Percentage Density
Bonus
10 20
11 21.5
12 23
EXHIBIT 3
EXHIBIT A
Percentage Low-Income Units Percentage Density
Bonus
13 24.5
14 26
15 27.5
16 29
17 30.5
18 32
19 33.5
20 35
21 38.75
22 42.5
23 46.25
24 50
(2) For housing developments meeting the criteria of subparagraph (B) of
paragraph (1) of subdivision (b), the density bonus shall be calculated as
follows:
Percentage Very Low-Income Units Percentage Density Bonus
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50
(3)
EXHIBIT 3
EXHIBIT A
(A) For housing developments meeting the criteria of subparagraph (C) of
paragraph (1) of subdivision (b), the density bonus shall be 20 percent
of the number of senior housing units.
(B) For housing developments meeting the criteria of subparagraph (E) of
paragraph (1) of subdivision (b), the density bonus shall be 20 percent
of the number of the type of units giving rise to a density bonus under
that subparagraph.
(C) For housing developments meeting the criteria of subparagraph (F) of
paragraph (1) of subdivision (b), the density bonus shall be 35 percent
of the student housing units.
(D) For housing developments meeting the criteria of subparagraph (G) of
paragraph (1) of subdivision (b), the following shall apply:
(i) Except as otherwise provided in clauses (ii) and (iii), the density
bonus shall be 80 percent of the number of units for lower
income households.
(ii) If the housing development is located within one-half mile of a
major transit stop, the City shall not impose any maximum
controls on density.
(iii) If the housing development is located in a very low vehicle travel
area within a designated county, the City shall not impose any
maximum controls on density.
(4) For housing developments meeting the criteria of subparagraph (D) of
paragraph (1) of subdivision (b), the density bonus shall be calculated as
follows:
Percentage Moderate-Income Units Percentage Density
Bonus
10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
EXHIBIT 3
EXHIBIT A
Percentage Moderate-Income Units Percentage Density
Bonus
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
41 38.75
42 42.5
43 46.25
44 50
(5) All density calculations resulting in fractional units shall be rounded up to
the next whole number. The granting of a density bonus shall not require,
or be interpreted, in and of itself, to require a general plan amendment, local
coastal plan amendment, zoning change, or other discretionary approval.
EXHIBIT 3
EXHIBIT A
g.
(1) When an applicant for a tentative subdivision map, parcel map, or other
residential development approval donates land to the C ity in accordance
with this subdivision, the applicant shall be entitled to a 15-percent increase
above the otherwise maximum allowable residential density for the entire
development, as follows:
Percentage Very Low Income Percentage Density
Bonus
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
18 23
19 24
20 25
21 26
22 27
23 28
24 29
25 30
26 31
27 32
28 33
29 34
30 35
(2) This increase shall be in addition to any increase in density mandated by
subdivision (b), up to a maximum combined mandated density increase of
35 percent if an applicant seeks an increase pursuant to both this subdivision
and subdivision (b). All density calculations resulting in fractional units
EXHIBIT 3
EXHIBIT A
shall be rounded up to the next whole number. Nothing in this subdivision
shall be construed to enlarge or diminish the authority of the City to require
a developer to donate land as a condition of development. An applicant
shall be eligible for the increased density bonus described in this
subdivision if all of the following conditions are met:
(A) The applicant donates and transfers the land no later than the date of
approval of the final subdivision map, parcel map, or residential
development application.
(B) The developable acreage and zoning classification of the land being
transferred are sufficient to permit construction of units affordable to
very low-income households in an amount not less than 10 percent of
the number of residential units of the proposed development.
(C) The transferred land is at least one acre in size or of sufficient size to
permit development of at least 40 units, has the appropriate general
plan designation, is appropriately zoned with appropriate
development standards for development at the density described in
paragraph (3) of subdivision (c) of Section 65583.2, and is or will be
served by adequate public facilities and infrastructure.
(D) The transferred land shall have all of the permits and approvals, other
than building permits, necessary for the development of the very low
income housing units on the transferred land, not later than the date of
approval of the final subdivision map, parcel map, or residential
development application, except that the local government may
subject the proposed development to subsequent design review to the
extent authorized by subdivision (i) of Section 65583.2 if the design
is not reviewed by the local government before the time of transfer.
(E) The transferred land and the affordable units shall be subject to a deed
restriction ensuring continued affordability of the units consistent with
paragraphs (1) and (2) of subdivision (c), which shall be recorded on
the property at the time of the transfer.
(F) The land is transferred to the local agency or to a housing developer
approved by the local agency. The local agency may require the
applicant to identify and transfer the land to the developer.
(G) The transferred land shall be within the boundary of the proposed
development or, if the local agency agrees, within one-quarter mile of
the boundary of the proposed development.
(H) A proposed source of funding for the very low-income units shall be
identified not later than the date of approval of the final subdivision
map, parcel map, or residential development application.
h.
EXHIBIT 3
EXHIBIT A
(1) When an applicant proposes to construct a housing development that
conforms to the requirements of subdivision (b) 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:
(A) 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.
(B) An additional concession or incentive that contributes significantly to
the economic feasibility of the construction of the childcare facility.
(2) The City shall require, as a condition of approving the housing
development, that the following occur:
(A) 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
subdivision (c).
(B) Of the children who attend the childcare facility, the children of very
low-income households, lower income households, or families of
moderate income shall equal a percentage that is equal to or greater
than the percentage of dwelling units that are required for very low-
income households, lower income households, or families of
moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subdivision, the City shall not be
required to provide a density bonus or concession for a childcare facility if
it finds, based upon substantial evidence, that the community has adequate
childcare facilities.
(4) “Childcare facility,” as used in this section, means a child daycare facility
other than a family daycare home, including, but not limited to, infant
centers, preschools, extended daycare facilities, and school age childcare
centers.
i. “Housing development,” as used in this section, means a development project for
five or more residential units, including mixed-use developments. For the
purposes of this section, “housing development” also includes a subdivision or
common interest development, as defined in Section 4100 of the Civil Code,
approved by the City and consists of residential units or unimproved residential
lots and either a project to substantially rehabilitate and convert an existing
commercial building to residential use or the substantial rehabilitation of an
existing multifamily dwelling, as defined in subdivision (d) of Section 65863.4,
where the result of the rehabilitation would be a net increase in available
residential units. For the purpose of calculating a density bonus, the residential
units shall be on contiguous sites that are the subject of one development
application, but do not have to be based upon individual subdivision maps or
parcels. The density bonus shall be permitted in geographic areas of the housing
EXHIBIT 3
EXHIBIT A
development other than the areas where the units for the lower income households
are located.
j.
(1) The granting of a concession or incentive shall not require or be interpreted,
in and of itself, to require a general plan amendment, local coastal plan
amendment, zoning change, study, or other discretionary approval. For
purposes of this subdivision, “study” does not include reasonable
documentation to establish eligibility for the concession or incentive or to
demonstrate that the incentive or concession meets the definition set forth
in subdivision (k). This provision is declaratory of existing law.
(2) Except as provided in subdivisions (d) and (e), the granting of a density
bonus shall not require or be interpreted to require the waiver of a local
ordinance or provisions of a local ordinance unrelated to development
standards.
k. For the purposes of this chapter, concession or incentive means any of the
following:
(1) A reduction in site development standards or a modification of zoning code
requirements or architectural design requirements that exceed the minimum
building standards approved by the California Building Standards
Commission as provided in Part 2.5 (commencing with Section 18901) of
Division 13 of the Health and Safety Code, including, but not limited to, a
reduction in setback and square footage requirements and in the ratio of
vehicular parking spaces that would otherwise be required that results in
identifiable and actual cost reductions, to provide for affordable housing
costs, as defined in Section 50052.5 of the Health and Safety Code, or for
rents for the targeted units to be set as specified in subdivision (c).
(2) Approval of mixed-use zoning in conjunction with the housing project if
commercial, office, industrial, or other land uses will reduce the cost of the
housing development and if the commercial, office, industrial, or other land
uses are compatible with the housing project and the existing or planned
development in the area where the proposed housing project will be located.
(3) Other regulatory incentives or concessions proposed by the developer or the
City that result in identifiable and actual cost reductions to provide for
affordable housing costs, as defined in Section 50052.5 of the Health and
Safety Code, or for rents for the targeted units to be set as specified in
subdivision (c).
l. Subdivision (k) does not limit or require the provision of direct financial
incentives for the housing development, including the provision of publicly
owned land, by the City, or the waiver of fees or dedication requirements.
m. This section does not supersede or in any way alter or lessen the effect or
application of the California Coastal Act of 1976 (Division 20 (commencing with
Section 30000) of the Public Resources Code). Any density bonus, concessions,
EXHIBIT 3
EXHIBIT A
incentives, waivers or reductions of development standards, and parking ratios to
which the applicant is entitled under this section shall be permitted in a manner
that is consistent with this section and Division 20 (commencing with Section
30000) of the Public Resources Code.
n. If permitted by local ordinance, nothing in this section shall be construed to
prohibit the City from granting a density bonus greater than what is described in
this section for a development that meets the requirements of this section or from
granting a proportionately lower density bonus than what is required by this
section for developments that do not meet the requirements of this section.
o. For purposes of this section, the following definitions shall apply:
(1) “Designated county” includes the Counties of Alameda, Contra Costa, Los
Angeles, Marin, Napa, Orange, Riverside, Sacramento, San Bernardino,
San Diego, San Francisco, San Mateo, Santa Barbara, Santa Clara, Solano,
Sonoma, and Ventura, and the City and County of San Francsico.
(2) “Development standard” includes a site or construction condition,
including, but not limited to, a height limitation, a setback requirement, a
floor area ratio, an onsite open-space requirement, a minimum lot area per
unit requirement, or a parking ratio that applies to a residential development
pursuant to any ordinance, general plan element, specific plan, charter, or
other local condition, law, policy, resolution, or regulation.
(3) “Located within one-half mile of a major transit stop” means that any point
on a proposed development, for which an applicant seeks a density bonus,
other incentives or concessions, waivers or reductions of development
standards, or a vehicular parking ratio pursuant to this section, is within
one-half mile of any point on the property on which a major transit stop is
located, including any parking lot owned by the transit authority or other
local agency operating the major transit stop.
(4) “Lower income student” means a student who has a household income
and asset level that does not exceed the level for Cal Grant A or Cal Grant
B award recipients as set forth in paragraph (1) of subdivision (k) of Section
69432.7 of the Education Code. The eligibility of a student to occupy a unit
for lower income students under this section shall be verified by an
affidavit, award letter, or letter of eligibility provided by the institution of
higher education in which the student is enrolled or by the California
Student Aid Commission that the student receives or is eligible for financial
aid, including an institutional grant or fee waiver from the college or
university, the California Student Aid Commission, or the federal
government.
(5) “Major transit stop” has the same meaning as defined in subdivision (b) of
Section 21155 of the Public Resources Code.
(6) “Maximum allowable residential density” or “base density” means the
greatestmaximum number of units allowed under the zoning ordinance,
specific plan, or land use element of the general plan, or, if a range of density
EXHIBIT 3
EXHIBIT A
is permitted, means the greatestmaximum number of units allowed by the
specific zoning range, specific plan, or land use element of the general plan
applicable to the project. If the density allowed under the zoning ordinance
is inconsistent with the density allowed under the land use element of the
general plan or specific plan, the greater shall prevail. Density shall be
determined using dwelling units per acre. However, if the applicable zoning
ordinance, specific plan, or land use element of the general plan does not
provide a dwelling-units-per-acre standard for density, then the local agency
shall calculate the number of units by:
(A) Estimating the realistic development capacity of the site based on the
objective development standards applicable to the project, including,
but not limited to, floor area ratio, site coverage, maximum building
height and number of stories, building setbacks and stepbacks, public
and private open-space requirements, minimum percentage or square
footage of any nonresidential component, and parking requirements,
unless not required for the base project. Parking requirements shall
include considerations regarding number of spaces, location, design,
type, and circulation. A developer may provide a base density study
and the local agency shall accept it, provided that it includes all
applicable objective development standards.
(B) Maintaining the same average unit size and other project details
relevant to the base density study, excepting those that may be
modified by waiver or concession to accommodate the bonus units, in
the proposed project as in the study.
(7)
(A)
(i) “Shared housing building” means a residential or mixed-use
structure, with five or more shared housing units and one or
more common kitchens and dining areas designed for permanent
residence of more than 30 days by its tenants. The kitchens and
dining areas within the shared housing building shall be able to
adequately accommodate all residents. If a local ordinance
further restricts the attributes of a shared housing building
beyond the requirements established in this section, the local
definition shall apply to the extent that it does not conflict with
the requirements of this section.
(ii) “shared housing building” may include other dwelling units that
are not shared housing units, provided that those dwelling units
do not occupy more than 25 percent of the floor area of the
shared housing building. A shared housing building may include
100 percent shared housing units.
(B) “Shared housing unit” means one or more habitable rooms, not within
another dwelling unit, that includes a bathroom, sink, refrigerator, and
EXHIBIT 3
EXHIBIT A
microwave, is used for permanent residence, that meets the “minimum
room area” specified in Section R304 of the California Residential
Code (Part 2.5 of Title 24 of the California Code of Regulations) and
complies with the definition of “guestroom” in Section R202 of the
California Residential Code. If a local ordinance further restricts the
attributes of a shared housing building beyond the requirements
established in this section, the local definition shall apply to the extent
that it does not conflict with the requirements of this section.
(8)
(A) “Total units” or “total dwelling units” means a calculation of the
number of units that:
(i) Excludes a unit added by a density bonus awarded pursuant to
this section or any local law granting a greater density bonus.
(ii) Includes a unit designated to satisfy an inclusionary zoning
requirement of the City.
(B) For purposes of calculating a density bonus granted pursuant to this
section for a shared housing building, “unit” means one shared
housing unit and its pro rata share of associated common area
facilities.
(9) “Very low vehicle travel area” means an urbanized area, as designated by
the United States Census Bureau, where the existing residential
development generates vehicle miles traveled per capita that is below 85
percent of either regional vehicle miles traveled per capita or city vehicle
miles traveled per capita. For purposes of this paragraph, “area” may
include a travel analysis zone, hexagon, or grid. For the purposes of
determining “regional vehicle miles traveled per capita” pursuant to this
paragraph, a “region” is the entirety of incorporated and unincorporated
areas governed by a multicounty or single-county metropolitan planning
organization, or the entirety of the incorporated and unincorporated areas of
an individual county that is not part of a metropolitan planning organization.
p.
(1) Except as provided in paragraphs (2), (3), and (4), upon the request of the
developer, the City shall not require a vehicular parking ratio, inclusive of
parking for persons with a disability and guests, of a development meeting
the criteria of subdivisions (b) and (c), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: one and one-half onsite parking spaces.
(C) Four and more bedrooms: two and one-half parking spaces.
(2)
(A) Notwithstanding paragraph (1), if a development includes at least 20
percent low-income units for housing developments meeting the
EXHIBIT 3
EXHIBIT A
criteria of subparagraph (A) of paragraph (1) of subdivision (b) or at
least 11 percent very low income units for housing developments
meeting the criteria of subparagraph (B) of paragraph (1) of
subdivision (b), is located within one-half mile of a major transit stop,
and there is unobstructed access to the major transit stop from the
development, then, upon the request of the developer, the C ity shall
not impose a vehicular parking ratio, inclusive of parking for persons
with a disability and guests, that exceeds 0.5 spaces per unit.
Notwithstanding paragraph (1), if a development includes at least 40
percent moderate-income units for housing developments meeting
the criteria of subparagraph (D) of paragraph (1) of subdivision (b),
is located within one-half mile of a major transit stop, as defined in
subdivision (b) of Section 21155 of the Public Resources Code, and
the residents of the development have unobstructed access to the
major transit stop from the development then, upon the request of the
developer, the City shall not impose a vehicular parking ratio,
inclusive of parking for persons with a disability and guests, that
exceeds 0.5 spaces per bedroom.
(B) For purposes of this subdivision, “unobstructed access to the major
transit stop” means a resident is able to access the major transit stop
without encountering natural or constructed impediments. For
purposes of this subparagraph, “natural or constructed impediments”
includes, but is not limited to, freeways, rivers, mountains, and bodies
of water, but does not include residential structures, shopping centers,
parking lots, or rails used for transit.
(3) Notwithstanding paragraph (1), if a development meets the criteria of
subparagraph (G) of paragraph (1) of subdivision (b), then, upon the request
of the developer, the City shall not impose vehicular parking standards if
the development meets any of the following criteria:
(A) The development is located within one-half mile of a major transit
stop and there is unobstructed access to the major transit stop from
the development.
(B) The development is a for-rent housing development for individuals
who are 55 years of age or older that complies with Sections 51.2
and 51.3 of the Civil Code and the development has either paratransit
service or unobstructed access, within one-half mile, to fixed bus
route service that operates at least eight times per day.
(C) The development is either a special needs housing development, as
defined in Section 51312 of the Health and Safety Code, or a
supportive housing development, as defined in Section 50675.14
of the Health and Safety Code. A development that is a special
needs housing development shall have either paratransit service or
unobstructed access, within one-half mile, to fixed bus route
service that operates at least eight times per day.
EXHIBIT 3
EXHIBIT A
(4) If the total number of parking spaces required for a
development is other than a whole number, the number shall
be rounded up to the next whole number. For purposes of
this subdivision, a development may provide onsite parking
through tandem parking or uncovered parking, but not
through onstreet parking.
(5) This subdivision shall apply to a development that meets
the requirements of subdivisions (b) and (c), but only at
the request of the applicant. An applicant may request
parking incentives or concessions beyond those provided
in this subdivision pursuant to subdivision (d).
(6) This subdivision does not preclude the City from reducing or
eliminating a parking requirement for development projects
of any type in any location.
(7) Notwithstanding paragraphs (2) and (3), if the City or an
independent consultant has conducted an areawide or
jurisdiction wide parking study in the last seven years, then
the C ity may impose a higher vehicular parking ratio not to
exceed the ratio described in paragraph (1), based upon
substantial evidence found in the parking study, that includes,
but is not limited to, an analysis of parking availability,
differing levels of transit access, walkability access to transit
services, the potential for shared parking, the effect of parking
requirements on the cost of market- rate and subsidized
developments, and the lower rates of car ownership for low-
income and very low income individuals, including seniors and
special needs individuals. The City shall pay the costs of any
new study. The City shall make findings, based on a parking
study completed in conformity with this paragraph, supporting
the need for the higher parking ratio.
(8) A request pursuant to this subdivision shall neither reduce
nor increase the number of incentives or concessions to
which the applicant is entitled pursuant to subdivision (d).
q. Each component of any density calculation, including base density and bonus
density, resulting in fractional units shall be separately rounded up to the next
whole number. The Legislature finds and declares that this provision is
declaratory of existing law.
r. This chapter shall be interpreted liberally in favor of producing the maximum
number of total housing units.
s. Notwithstanding any other law, if the City has adopted an ordinance or a
housing program, or both an ordinance and a housing program, that incentivizes
the development of affordable housing that allows for density bonuses that
EXHIBIT 3
EXHIBIT A
exceed the density bonuses required by the version of this section effective
through December 31, 2020, the City is not required to amend or otherwise
update its ordinance or corresponding affordable housing incentive program
to comply with the amendments made to this section by the act adding this
subdivision, and is exempt from complying with the incentive and concession
calculation amendments made to this section by the act adding this subdivision
as set forth in subdivision (d), particularly subparagraphs (B) and (C) of
paragraph (2) of that subdivision, and the amendments made to the density
tables under subdivision (f).
t. When an applicant proposes to construct a housing development that conforms
to the requirements of subparagraph (A) or (B) of paragraph (1) of subdivision
(b) that is a shared housing building, the City shall not require any minimum
unit size requirements or minimum bedroom requirements that are in conflict
with paragraph (7) of subdivision (o).
u.
(1) The Legislature finds and declares that the intent behind the Density
Bonus Law is to allow public entities to reduce or even eliminate
subsidies for a particular project by allowing a developer to include more
total units in a project than would otherwise be allowed by the local zoning
ordinance in exchange for affordable units. It further reaffirms that the
intent is to cover at least some of the financing gap of affordable housing
with regulatory incentives, rather than additional public subsidy.
(2) It is therefore the intent of the Legislature to make modifications to the
Density Bonus Law by the act adding this subdivision to further
incentivize the construction of very low, low-, and moderate-income
housing units. It is further the intent of the Legislature in making these
modifications to the Density Bonus Law to ensure that any additional
benefits conferred upon a developer are balanced with the receipt of a
public benefit in the form of adequate levels of affordable housing. The
Legislature further intends that these modifications will ensure that the
Density Bonus Law creates incentives for the construction of more housing
across all areas of the state.
(v)
(1) Provided that the resulting housing development would not restrict more
than 50 percent of the total units to moderate-income, lower income, or very
low income households, a City shall grant an additional density bonus
calculated pursuant to paragraph (2) when an applicant proposes to
construct a housing development that conforms to the requirements of
paragraph (1) of subdivision (b), agrees to include additional rental or for -
sale units affordable to very low income households or moderate income
households, and meets any of the following requirements:
EXHIBIT 3
EXHIBIT A
(A) The housing development conforms to the requirements of
subparagraph (A) of paragraph (1) of subdivision (b) and provides 24
percent of the total units to lower income households.
(B) The housing development conforms to the requirements of
subparagraph (B) of paragraph (1) of subdivision (b) and provides 15
percent of the total units to very low-income households.
(C) The housing development conforms to the requirements of
subparagraph (D) of paragraph (1) of subdivision (b) and provides 44
percent of the total units to moderate-income households.
(2) A City shall grant an additional density bonus for a housing development
that meets the requirements of paragraph (1), calculated as follows:
Percentage Very Low Income Units Percentage Density Bonus
5 20
6 23.75
7 27.5
8 31.25
9 35
10 38.75
Percentage Moderate-Income Units Percentage Density Bonus
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50
EXHIBIT 3
EXHIBIT A
(3) The increase required by paragraphs (1) and (2) shall be in addition to any
increase in density granted by subdivision (b).
(4) The additional density bonus required under this subdivision shall be
calculated using the number of units excluding any density bonus awarded
by this section.
This section contains two density bonus provisions. The first entitlement is based
upon the provision of affordable housing pursuant to State Government Code
Section 65915. The second provision is intended to provide density bonus incentives
for the incorporation of on-site amenities.
1. Affordable Housing
State Government Code Section 65915 provides for the granting of a density
bonus or other incentives of equivalent financial value when a developer of
housing agrees to construct at least 1 of the following:
a. Twenty percent of the total units of a housing development for persons and
families or lower income, as defined in Section 50079.5 of the Health and
Safety Code.
b. Ten percent of the total units of a housing development for very low income
households, as defined in Section 50105 of the Health and Safety Code.
c. Fifty percent of the total dwelling units of a housing development for qualifying
residents, as defined in Section 51.2 of the Civil Code.
A request for a density bonus and regulatory concessions and/or incentives shall
require Conditional Use Permit review and be subject to the following
provisions:
a. For the purpose of this Section, "density bonus" shall mean a density increase
of 25% over the otherwise maximum allowable residential density under this
Development Code and the General Plan. When determining the number of
housing units which are to be affordable, the density bonus shall not be
included.
b. The purposes for implementing this section are as follows:
1) The City shall within 90 days of receipt of a written proposal, notify the
developer in writing of the procedures governing these provisions.
2) The Council may approve the density bonus and regulatory concessions
and/or incentives only if all of the following findings are made:
a) The developer has proven that the density bonus and adjustment of
standards is necessary to make the project economically feasible;
b) That additional adjustment of standards is not required in order for
the rents for the targeted units to be set, pursuant to Government
Code Section 65915(c); and
EXHIBIT 3
EXHIBIT A
c) The proposed project is compatible with the purpose and intent of the
General Plan and this Development Code.
c. The density bonus shall only apply to housing developments consisting of five
or more dwelling units.
d. The density bonus provision shall not apply to senior citizen and senior
congregate care housing projects that utilize the senior citizen housing
density provisions of this Development Code.
e. Prior to the issuance of a building permit for any dwelling unit in a
development for which "density bonus units" have been awarded or incentives
have been received, the developer shall submit documentation which identifies
the restricted units and shall enter into a written agreement with the City to
guarantee for 30 years their continued use and availability to low and
moderate-income households. The agreement shall extend more than 30 years
if required by the Construction or Mortgage Financing Assistance Program,
Mortgage Insurance Program, or Rental Subsidy Program. The terms and
conditions of the agreement shall run with the land which is to be developed,
shall be binding upon the successor in interest of the developer, and shall be
recorded in the Office of the San Bernardino County Recorder.
The agreement shall include the following provisions:
1) The developer shall give the City the continuing right-of-first- 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 or his/her successor in interest shall not sell, rent, lease, sublet,
assign, or otherwise transfer any interests for same without the written
approval of the City confirming that the sales price of the units is
consistent with the limits established for low- and moderate-income
households, which shall be related to the Consumer Price Index;
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
assure that the required dwelling units are continuously occupied by
eligible households.
f. "Density bonus units" shall be generally dispersed throughout a
development project and shall not differ in appearance from other units
in the development.
g. The City shall provide, in addition to a density bonus, at least 1 of the
following regulatory concessions and/or incentives to ensure that the multi-
family residential project will be developed at a reduced cost:
1) A reduction or modification of Development Code requirements which
exceed the minimum building standards approved by the State Building
Standards Commission as provided in Part 2.5 (commencing with Section
18901) of Division 123 of the Health and Safety Code, including, but not
EXHIBIT 3
EXHIBIT A
limited to, a reduction in setback and square footage requirements and in
the ratio of vehicular parking spaces that would otherwise be required.
2) Approval of mixed use development in conjunction with the multi-family
residential project if commercial, office, industrial, or other land uses will
reduce the cost of the development and if the project will be compatible
internally as well as with the existing or planned development in the area
where the proposed housing project will be located.
3) Other regulatory incentives or concessions proposed by the developer or the
City which result in identifiable cost reductions.
2. Amenities Bonus Provision
This provision allows an increase in the maximum permitted density of 15% in
only the RU, RM, RMH, RH, CO-1 & 2, CG-2, and CR-2 land use zoning
districts. Increases of up to 15% may be granted based upon the finding(s) that
any proper combination of the following amenities are provided in excess of
those required by the applicable zone:
a. Architectural features that promote upscale multi-family development;
b. Additional on-site or off-site mature landscaping which will benefit the project;
c. Additional useable open space;
d. Attached garages;
e. Additional recreational facilities (i.e., clubhouse, play area, pool/Jacuzzi, tennis
court, etc.); and
f. Day care facilities.
This amenity bonus provision shall not be used as an addition to the affordable
housing density bonus provision.
EXHIBIT 3