HomeMy WebLinkAbout6.1 Density Bonus Regulations
SUBJECT:
CITY CLERK
File # D~[]~-~[l2]
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: March 6, 2007
Proposed Ordinance Repealing and Replacing the Density Bonus
Regulations
Report Prepared by Jeff Baker, Senior Planner, and
Leah Peachey, City Attorney '8 Office
1) Proposed Ordinance Repealing Chapter 8.52 of the Dublin
Municipal Code and Adding Chapter 8.52 ofthe Dublin
Municipal Code (Zoning Ordinance) relating to Density Bonus
Regulations.
2) Planning Commission Resolution No. 07-07 recommending
that the City Council adopt the proposed Ordinance.
3) Planning Commission February 13, 2007 meeting Staff Report,
without attachments and minutes.
4) Planning Commission November 14, 2006 Study Session Staff
Report, without attachments and minutes.
5) Planning Commission August 8, 2006 Study Session Staff
Report, without attachments and minutes.
RECOMMENDA nON: ~ 1) Receive Staff presentation;
. 7 A N'K" 2) Open public hearing;
· (/ v v 3) Receive public testimony;
4) Close public hearing and deliberate;
5) Waive reading and INTRODUCE the Ordinance repealing
Chapter 8.52 of the Dublin Municipal Code and adding Chapter
8.52 of the Dublin Municipal Code (Zoning Ordinance) relating
to Density Bonus Regulations (Attachment 1).
ATTACHMENTS:
FINANCIAL STATEMENT:
BACKGROUND:
None.
Currently, the Dublin Zoning Ordinance (Zoning Ordinance) provides for Density Bonus Regulations in
Chapter 8.52. A density bonus is a density increase over the otherwise maximum allowable residential
density under the Zoning Ordinance and General Plan. However, the current Chapter 8.52 was adopted in
September 1997, and California density bonus law has changed significantly over the past ten years.
COpy TO: In-House Distribution
Page 1 of6
G:\P A#\2006\06-035 Density Bonus Ord Amendment\CC\CC StfRpt Density Bonus Ordinance (2).DOC
ITEM NO.
b.l
The City of Dublin's Planning Commission reviewed the proposed Ordinance at two separate Study
Sessions on November 14,2006 and August 8, 2006, in which the Commissioners and Staff worked to
improve and clarify the proposed Ordinance through minor modifications to the Ordinance. Please see the
Staff Reports for these Study Sessions for further information (Attachments 4 and 5). In addition, the
Planning Commission held a public hearing on February 13, 2007, at which time the Planning
Commission adopted a resolution recommending that the City Council adopt the proposed Ordinance (see
Attachments 2 and 3).
ANALYSIS:
The state density bonus statute, Government Code Section 65915, is a state mandate that requires cities to
grant a density bonus and certain other "concessions or incentives" when a developer agrees to construct
the requisite percentage of affordable housing units. The statute codifies the Legislature's intent to
encourage developers to provide affordable housing by awarding qualifying developments with additional
market rate units. The statute requires cities to adopt an ordinance that implements the state statute, but
leaves little discretion to the City in such implementation. Thus, the proposed Ordinance seeks to provide
the City with protections to the extent possible under the law, while complying with the state density
bonus statute.
Basic Provisions of the State Density Bonus Statute
Since its adoption in 1979, the state density bonus law has been amended frequently, adding increasing
complexity to the law. Perhaps the most effective method for describing the state statute and proposed
Ordinance is to apply the Ordinance to a hypothetical development. Thus, as each element of the
Ordinance is described, the effect on the hypothetical development will be presented in the boxes below.
Density Bonus Eligibility
To qualify for a density bonus ordinance, a developer must propose a housing development that consists
or five or more units, and includes at least one of the following within the development: 1) ten percent of
the total units in the development for lower income households; 2) five percent of the total units in the
development for very low income households; 3) a senior citizen housing development or mobilehome
park for seniors that comply with state law; or 4) ten percent ofthe total units in a common interest
development for persons and families of moderate income, provided that all units in the development are
offered to the public for purchase.
The proposed Ordinance permits an applicant to submit a preliminary proposal to the Community
Development Director, to which the City will provide a preliminary evaluation ofthe project within 90
days. Formal application for a density bonus must be made in conjunction with the application for
development. The affordable units that qualify a developer for a density bonus are subject to certain
restriction terms and regulatory agreements.
Density Bonus Calculation
As the developer increases the percentage of affordable units beyond the threshold requirements above,
the density bonus percentage similarly increases. The increments of affordable unit percentages and
resultant density bonus percentages are set forth in the proposed Ordinance in a user-friendly table format.
However, in no event may the City be required to grant a density bonus in excess of 35 percent. On the
other hand, the state statute provides that the City may grant a density bonus in excess of the statutory
requirements, at its discretion.
Page 2 of6
STEP 1: Density Bonus Calculation
Developer proposes a 100-unit development, which will contain 15 units for lower income households, or
15% lower income units.
Pursuant to the table in Section 8.52.040.A.l, Developer receives a Density Bonus of27.5%. Where a
density calculation results in fractional units, the fractional unit will be rounded up.
Development Profile:
Total of 128 units [100 base proposal + 28 density bonus], which contains:
15 lower-income units pursuant to the Density Bonus Regulations.
Effects of the City's Inclusionary Zoning Regulations
The Inclusionary Zoning Regulations (Chapter 8.68) require all new residential development projects of
20 units or more to construct 12.5 percent of the total number of dwelling units within the development as
affordable units. (s 8.68.030.A.) Alternatively, the Inclusionary Zoning Regulations permit the applicant
to pay a fee in-lieu of constructing up to 40 percent of the affordable units that the developer would
otherwise be required to construct. (s 8.68.040.A.)
The Inclusionary Zoning Regulations establish a mandate to provide affordable housing, with which all
developers must comply. Conversely, the Density Bonus Regulations establish a mechanism for
developers to voluntarily provide affordable housing, with which developers may choose to comply.
Thus, the proposed Ordinance provides that the affordable units constructed by a developer pursuant to
the Inclusionary Zoning Regulations do not count towards a Density Bonus award.
Similarly, because the Legislature intended the density bonus statute to provide an "award" to a developer
and to give the developer an incentive to construct affordable housing, the City's Inclusionary Zoning
Regulations must be applied to the developer's original proposed development-and not to the
development as augmented by the Density Bonus Regulations.
STEP 2: Application of Inclusionarv Zonin2 Re2ulations
Developer's 100-unit development must include 12.5% affordable units pursuant to the Inclusionary
Zoning Regulations.
Applying the 12.5% to the 100-unit proposed development results in 12.5 units of affordable housing.
However, the Inclusionary Zoning Regulations provide that fractions of 0.50 or less shall be disregarded.
The Inclusionary Zoning Regulations require the Developer to construct 12 affordable units, assuming that
the Developer constructs all the units, as opposed to paying an in-lieu fee.
Development Profile:
Total of 128 units [100 base proposal + 28 density bonus], which contains:
15 lower-income units pursuant to the Density Bonus Regulations and
12 affordable units pursuant to the Inclusionary Zoning Regulations.
Page 3 of6
Concessions or Incentives
In addition to the density bonus award, the state statute provides for the award of certain "concessions or
incentives" to applicants of eligible housing developments. A "concession or incentive" is defined in
Section 8.52.050.B to include: 1) a reduction in site development standards, such as a reduced setback or
lot line adjustment, that results in identifiable, financially sufficient and actual cost reductions; 2) approval
of mixed use zoning with a housing project if it reduces the cost ofthe housing project and is compatible
with existing and planned development; and 3) other regulatory concessions or incentives proposed by the
applicant that result in identifiable, financially sufficient and actual cost reductions.
Applicants are eligible to receive one, two or three concessions or incentives, depending on the percentage
of affordable housing units proposed by the applicant. Formal application for the concessions or
incentives must be made in conjunction with the application for development, and must include: 1) a
written statement specifying the concession or incentive requested; and 2) a project financial report (pro
forma) to allow the City to evaluate whether the concession or incentive results in identifiable, financially
sufficient and actual cost reductions, or reduces the cost of the housing project, as appropriate.
STEP 3: Concessions or Incentives
Developer proposes a development that will contain 15% lower-income units.
Developer is eligible for one concession or incentive based on the proposal of 15% lower-income units.
Developer requests a concession or incentive of a waiver of the height limit development standard that
would otherwise be applicable to the proposed development.
Development Profile:
Total of 128 units [100 base proposal + 28 density bonus], which contains:
15 lower-income units pursuant to the Density Bonus Regulations; and
12 affordable units pursuant to the Inclusionary Zoning Regulations.
A waiver of the height limit that would otherwise be applicable to the development.
Child Care Facility
If the developer proposes a housing development that receives a density bonus as described above and, in
addition, constructs a child care facility within the development, the developer is eligible for an additional
density bonus or additional concession or incentive. The additional density bonus award will be an
amount of residential space that is equal to or greater than the square feet of the child care facility, which
the applicant shall use to contract additional unites) of a size not less than the average size of units within
the development. The concession or incentive must contribute significantly to the economic feasibility of
the construction of the child care facility.
Operation of the child care facility is subject to certain restrictions. The child care facility must remain in
operation as long as the units qualifying the developer for a density bonus are restricted (i.e. 30 years, see
Section 8.52.020.0). To ensure such operation, the applicant must submit a financial report (pro forma)
and security as required by the Community Development Director, such as cash deposit or letter of credit.
Page 4 of6
The City need not grant the additional award for construction of a child care facility if it finds that the
community is already served by adequate child care facilities.
STEP 4: Child Care Facility Bonus
Developer constructs a child care facility of 2,800 square feet. The average size of the units within the
development is 1,400 square feet.
The developer may construct 2 additional units.
Development Profile:
Total of 130 units [100 base proposal + 28 densitybonus+ 2 child care facility bonus], which contains:
15 lower-income units pursuant to the Density Bonus Regulations; and
12 affordable units pursuant to the Inclusionary Zoning Regulations.
A waiver of the height limit that would otherwise be applicable to the development.
Proposed Ordinance Provisions Implementing the State Density Bonus Statute
As discussed above, the City is limited in its application of the state density bonus statute. However, the
proposed Ordinance includes the following provisions to serve the City and Staff in the implementation of
the density bonus law:
.
Inclusionary Zoning Regulations. The Ordinance prohibits developers from applying any
affordable units constructed pursuant to the City's Inclusionary Zoning Regulations towards a
density bonus or a concession or incentive.
Development Impact Fees and CEQA. The Ordinance provides that housing developments that
qualify for a density bonus are not exempt from the payment of development impact fees or
compliance with the California Environmental Quality Act (CEQA).
Banking of Density Bonus Awards or Concessions or Incentives. The Ordinance prohibits the
transfer, credit or application of any density bonus or concession or incentive to a housing
development other than the development for which the bonus or concession or incentive was
awarded.
Pro Forma Requiredfor Concessions and Incentives. The Ordinance requires applicants, for a
concession or incentive, to provide a financial report (pro forma) to evaluate whether the
development is eligible for the requested concession or incentive. Examples of concession or
incentives include a parking reduction, increase in height limitations, or reduced setbacks. If the
City retains a consultant to review the pro forma, the applicant must pay for the consultant.
Payment of Processing Costs by Applicant. Where an applicant requests approval of mixed-use
zoning as a concession or incentive and such approval required an amendment to the General Plan
and/or a specific plan, the applicant must pay all processing and preparation costs associated with
such amendment.
Child Care Facilities. The Ordinance provides that any additional density bonus granted for the
construction of a child care facility must be used towards the construction of additional unites) of a
size not less that the average size of the units in the housing development. In addition, the
Ordinance requires an applicant to provide a pro forma for the proposed child care facility, which
is subject to the approval of the Community Development Director. Finally, the applicant must
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.
.
.
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Page 5 of6
submit security, as required by the Community Development Director, such as a cash deposit,
bond, or letter of credit, to ensure the child care facility remains operational for 30 years.
· Application Procedure. The applicant may submit a preliminary proposal for a density bonus
request prior to the submittal of a formal project application, which the City will evaluate. Formal
application for a density bonus and any concessions or incentives must be made in conjunction
with a development application.
· Restriction Agreements. The Ordinance requires applicants to enter into agreements to ensure
rental units will be set at an affordable rent, and to ensure owner-occupied units are subject to the
same Resale Restriction and Option to Purchase Agreement used by the City's inclusionary zoning
program.
· Enforcement. The Ordinance provides that the City Manager may suspend or revoke any building
permit or approval upon finding a violation of the Ordinance. In addition, the City Manager may
take legal action to recover any excess rent charged to tenants of restricted units.
The above provisions secure protections for the City to the extent possible under state law.
ENVIRONMENTAL REVIEW:
The California Environmental Quality Act (CEQA), together with the State guidelines and City
environmental regulations require that certain projects be reviewed for environmental impacts. At its
February 13, 2007 meeting, the Planning Commission found that the proposed Ordinance is not a
"project" within the meaning of Section 15378 of the State CEQA Guidelines, because it has no potential
for resulting in physical change in the environment, directly or ultimately. Notwithstanding the adoption
of this Ordinance, individual projects shall not be exempt from compliance with CEQA.
CONCLUSION:
The proposed Ordinance fulfills the current statutory requirements of the state density bonus law, while
providing the City with as much protection as possible in implementing this state law. In the absence of
such an ordinance, developers could request a density bonus and concessions or incentives in accordance
with the state statue, and the City would forgo the protections provided in the proposed Ordinance.
RECOMMENDATION:
Staff recommends that the City Council: 1) Receive Staff presentation; 2) Open public hearing; 3) Receive
public testimony; 4) Close public hearing and deliberate; 5) Waive reading and INTRODUCE the
Ordinance Repealing Chapter 8.52 of the Dublin Municipal Code and Adding Chapter 8.52 of the Dublin
Municipal Code (Zoning Ordinance) relating to Density Bonus Regulations (Attachment 1).
Page 6 of6
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ORDINANCE NO. XX - 07
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********************************************
REPEALING CHAPTER 8.52 OF THE DUBLIN MUNICIPAL CODE
AND ADDING CHAPTER 8.52 OF THE DUBLIN MUNICPAL CODE (ZONING ORDINANCE)
RELATING TO DENSITY BONUS REGULATIONS
P A 06-035
The City Council of the City of Dublin does hereby ordain as follows:
Section 1.
repealed.
Repeal of Chapter 8.52: Chapter 8.52 of the Dublin Municipal Code is hereby
Section 2. Addition of Chapter 8.52. Chapter 8.52 ofthe Dublin Municipal Code is hereby
added to read as follows:
CHAPTER 8.52
DENSITY BONUS REGULATIONS
8.52.010
Purpose. The purpose ofthis Chapter is to:
A. provide for the preservation and maintenance of the City's affordable housing supply through the
state-mandated density bonus program, including incentives for the development of housing that is
affordable to the types of households and qualifying residents identified in Section 8.52.030.
B. encourage developers to include very low, lower and moderate income housing units in their
proposed housing developments, as well as housing for seniors and child care facilities.
C. implement the requirements of state law (Government Code section 65915 et seq.) and the goals
and policies ofthe City's housing element.
8.52.020
follows:
Definitions. As used in this Chapter, each of the following terms shall be defined as
A. "Affordable Housing Cost" means the annual housing cost, including principal and interest on a
mortgage loan, including any rehabilitation loans, and any loan insurance fees associated
therewith; property taxes and assessments; fire and casualty insurance covering replacement value
of property improvements; property maintenance and repairs; a reasonable utilities allowance
including garbage collection, sewer, water, electricity, gas, and other heating, cooking, and
refrigeration fuels, but not including telephone service, with such utilities allowance taking into
consideration the cost of an adequate level of service; homeowner association fees; and space rent
if the house is situated on rented land, which shall not exceed:
1. For Very Low Income Households the product of 30 percent times 50 percent of the Area
Median Income adjusted for family size appropriate for the unit.
2. For Lower Income Households the product of30 percent times 70 percent ofthe Area
Median Income adjusted for family size appropriate for the unit.
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3. For Persons and Families of Moderate Income the product of 35 percent times 110 percent
of the Area Median Income adjusted for family size appropriate for the unit, and shall not
be less than 28 percent times the gross income ofthe household.
B. "Affordable Rent" means the annual rent, including a reasonable utility allowance, which shall
not exceed:
1. For Very Low Income Households the product of30 percent times 50 percent ofthe Area
Median Income adjusted for family size appropriate for the unit.
2. For Lower Income Households the product of30 percent times 60 percent ofthe Area
Median Income adjusted for family size appropriate for the unit.
3. For Persons and Families of Moderate Income the product of30 percent times 110 percent
of the Area Median Income adjusted for family size appropriate for the unit.
C. "Applicant" means any person, firm, partnership, association, joint venture, corporation, or any
entity or combination of entities that seeks city real property development permits or approvals.
D. "Area Median Income" is the median income level for Alameda County, as published by the
California Department of Housing and Community Development in the California Code of
Regulations.
E. "Child Care Facility" means a child day care facility other than a family day care home, including,
but not limited to, infant centers, preschools, extended day care facilities, and schoolage child care
centers.
F. "Common Interest Development" shall have the meaning given that term by Civil Code Section
1351.
G. "Concessions or Incentives" means those concessions and incentives set out in Section
8.52.050.B.
H. "Density Bonus" means a density increase over the otherwise maximum allowable residential
density under the Zoning Ordinance and General Plan as of the date of application.
1. EXAMPLE: Thus, for illustrative purposes, a twenty percent (20%) Density Bonus on a
one acre parcel with a general plan land use designation and zoning permitting a maximum
of 20 units per acre would allow 24 units rather than the 20 units that would be permitted
without the Density Bonus.
1. "Development Standard" includes site or construction conditions that apply to a residential
development pursuant to any ordinance, general plan element, specific plan, charter amendment,
or other local condition, law, policy, resolution, or regulation.
J. "Housing Development" shall have the meaning given that term by subdivision (j) of Government
Code Section 65915.
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K. "Lower Income Household" means persons and families whose gross incomes are more than 50%
ofthe median income but do not exceed 80% of the Area Median Income, adjusted for family size.
L. "Persons and Families of Moderate Income" means persons and families whose gross incomes are
more than 80% of the Area Median Income but do not exceed 120% of the median income,
adjusted for family sized.
M. "Restricted Mobilehome Park" means a mobilehome park that limits residency based on age
requirements for housing for older persons pursuant to Civil Code Sections 798.76 or 799.5.
N. "Restricted Unit" means a unit that is counted toward qualifying the applicant for a Density Bonus
pursuant to this Chapter.
O. "Restriction Term" means a period of30 years or such longer period if required by the
construction or mortgage financing assistance program, mortgage insurance program, or rental
subsidy program. With respect to rental units, the Restriction Term shall commence from the date
the release of occupancy is issued. With respect to owner-occupied units, the Restriction Term
shall commence from the initial date of sale.
P. "Senior Citizen Housing Development" shall have the meaning given that term by Civil Code
Sections 51.3 and 51.12.
Q. "Unit" means a dwelling designed and intended for occupancy by one household.
R. "Very Low Income Household" means persons and families whose gross incomes are 50% or less
of the Area Median Income, adjusted for family size.
8.52.030
Eligibility for Bonus.
A. Any Affordable Unites) required or otherwise proposed to be constructed pursuant to an
Applicant's obligations under Chapter 8.68 ofthe Dublin Municipal Code (Inclusionary Zoning
Regulations), including any Affordable Unites) for which an Applicant receives a credit pursuant
to section 8.68.060, shall not be counted towards the eligibility of a proposed Housing
Development for a Density Bonus or Concession or Incentive.
B. Any Housing Development that qualifies for a Density Bonus pursuant to section 8.52.030.C,
including all Restricted Units and Density Bonus units, shall not be exempt from: 1) the payment
of development impact fees; and 2) compliance with the California Environmental Quality Act.
C. In order to qualify for a Density Bonus and other Concessions or Incentives as provided by this
Chapter, a proposed Housing Development shall:
1. Consist of five or more units; and
2. Propose to include at least one of the following within the Housing Development:
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a. Ten percent (10%) of the total units of a Housing Development for Lower Income
Households; or
b. Five percent (5%) of the total units ofa Housing Development for Very Low
Income Households; or
c. A Senior Citizen Housing Development or Restricted Mobilehome Park; or
d. Ten percent (10%) of the total units in a common interest development for Persons
and Families of Moderate Income, provided that all units in the development are
offered to the public for purchase.
D. For the purposes of calculating the Density Bonus pursuant to section 8.52.040, the applicant shall
elect upon which basis set forth in section 8.52.030.C.2 the Density Bonus shall be awarded.
E. Any Density Bonus awarded pursuant to section 8.52.040 and/or Concession or Incentive awarded
pursuant to section 8.52.050 shall apply only to the Housing Development for which the Density
Bonus and/or Concession or Incentive is awarded. In no event may an Applicant transfer, credit or
apply any Density Bonus or Concession or Incentive to a Housing Development other than the
Housing Development for which the Density Bonus or Concession or Incentive is awarded.
8.52.040
Density Bonus Calculation.
A. The amount of the Density Bonus for Housing Developments meeting the criteria set forth in
Section 8.52.030 shall be calculated as set forth in this Section.
1. For Housing Developments meeting the criteria set forth in Section 8.52.030.C.2.a, the
Density Bonus shall be calculated as follows:
Lower-Income Units %
10
11
12
13
14
15
16
17
18
19
20
Densit Bonus %
20
21.5
23
24.5
26
27.5
29
30.5
32
33.5
35
2. For Housing Developments meeting the criteria set forth in Section 8.52.030.C.2.b, the
Density Bonus shall be calculated as follows:
Ver Low-Income Units %
5
6
7
Densit Bonus %
20
22.5
25
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8
9
10
11
27.5
30
32.5
35
3. For Housing Developments meeting the criteria set forth in Section 8.52.030.C.2.c, the
Density Bonus shall be 20 percent (20%).
4. For Housing Developments meeting the criteria set forth in Section 8.52.030.C.2.d, the
Density Bonus shall be calculated as follows:
Moderate-Income Units % Density Bonus %
10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
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
B. In determining the percentage of total units in a project for Lower Income Households, units for
Very Low Income Households, or units in a common interest development for Persons and
Families of Moderate Income, no rounding shall be employed.
1. EXAMPLE: If a 200 unit project contains 21 lower income units (or 10.5% lower
income), the Density Bonus would be calculated based on 10% lower income units and not
11 % lower income units. Therefore, the Density Bonus is 20%.
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C. Where density calculations result in fractional units, the fractional unit shall be treated as a unit.
1.
EXAMPLE: Thus, for illustrative purposes, the number of additional units authorized by
virtue of a Density Bonus in a 201 unit proj ect containing 22 lower income units (or 11 %)
would be calculated as follows. The Density Bonus is for a project with 11 % lower
income units is 21.5%. The number of additional units to which the applicant is entitled by
virtue of the Density Bonus would be calculated by multiplying 201 by 0.215 for a product
of 43.215. After rounding up pursuant to this subsection C, the Applicant would be
allowed an additional 44 units for a total of 245 units.
8.52.050
Concessions or Incentives.
A. An Applicant for a Housing Development that meets the criteria set forth in Section 8.52.030,
upon specific application, shall be entitled to the number of Concessions or Incentives set forth in
8.52.050.D, unless the City makes a written finding, based upon substantial evidence, of either of
the following:
1. 1;'he Concession or Incentive is not required in order to provide for Affordable Housing
Costs or for Affordable Rent for the Restricted Units.
2. The Concession or Incentive would have a specific adverse impact, as defined in Health &
Safety Code Section 65589.5, upon public health and safety or the physical environment or
on any real property that is listed in the California Register of Historical Resources and for
which there is no feasible method to satisfactorily mitigate or avoid the specific adverse
impact without rendering the development unaffordable to very low-, lower- and moderate-
income households.
B. A Concession or Incentive granted pursuant to this Section may be anyone of the following:
1. A reduction in the site Development Standards that exceed the minimum building
standards approved by the California Building Standards Commission that results in
identifiable, financially sufficient, and actual cost reductions (e.g., coverage, setback, zero
lot line and/or reduced parcel sizes, and/or parking requirements), or
2. Approval of mixed-use zoning in conjunction with the housing project if nonresidential
land uses would reduce the cost ofthe housing project, and the nonresidential land uses
would be compatible with the housing project and existing or planned development in the
area where the proposed Housing Development is located. If approval of mixed-use
zoning requires an amendment to the General Plan and/or to a specific plan, the Applicant
shall apply for such amendment(s) separately and in compliance with Chapter 8.120, and
shall pay all processing and preparation costs associated with such amendment(s).
3. Other regulatory Concessions or Incentives proposed by the Applicant or the City that
would result in identifiable, financially sufficient, and actual cost reductions.
C. A project which provides Restricted Units may be entitled to priority processing. Upon certifying
that the application is complete and eligible for priority processing, a project would be
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immediately assigned to planning staff. The project would be processed by City staff in advance
of all non-priority items.
D. The number of Concessions or Incentives to which a Housing Development that meets the criteria
set forth in Section 8.52.030 shall be as follows.
1. One Concession or Incentive for Housing Developments that include:
a. at least 10 percent of the total units for Lower Income Households; or
b. at least 5 percent for Very Low Income Households; or
c. at least 10 percent for Persons and Families of Moderate Income in a common
interest development.
2. Two Concessions or Incentives for projects that include:
a. at least 20 percent of the total units for Lower Income Households; or
b. at least 10 percent for Very Low Income Households; or
c. at least 20 percent for Persons and Families of Moderate Income in a common
interest development.
3. Three Concessions or Incentives for projects that include:
a. at least 30 percent of the total units for Lower Income Households; or
b. at least 15 percent for Very Low Income Households; or
c. at least 30 percent for Persons and Families of Moderate Income in a common
interest development.
E. The Applicant shall submit a project financial report (pro forma) along with the application for the
project to allow the City to evaluate: 1) whether the Concessions or Incentives sought pursuant to
Sections 8.52.050.B.l and 8.52.050.B.3 would result in identifiable, financially sufficient, and
actual cost reductions; or 2) whether the Concessions or Incentives sought pursuant to Section
8.52.050.B.2 would reduce the cost ofthe housing project. The City may retain a consultant to
review the financial report (pro forma). The cost ofthe consultant shall be borne by the Applicant
with the following exception: If the Applicant is a non profit organization, the cost of the
consultant may be paid by the City upon prior approval of the City Council.
8.52.060
General Requirements for Implementing Density Bonus Regulations.
A. Prior to the award of a Density Bonus, the Applicant shall enter into an agreement with the City,
which may be executed by the City Manager, by which the City has ensured that:
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1. For projects pursuant to Sections 8.52.030.C.2.a and 8.52.030.C.2.b, the continued
affordability of all Restricted Units constructed in the project for the Restriction Term.
a. For Restricted Units that are rental units, the agreement shall ensure that the rents
will be set at an Affordable Rent. The agreement shall further preclude tenants
from subletting or subleasing the unit. The agreement shall also require the owner
of the Restricted Unit or Restricted Units to submit an annual report to the City
Manager, in a format approved by the City, which report shall include, but not be
limited to the following information: an identification of the Restricted Units within
the project; the monthly rents charged and proposed to be charged; vacancy
information for the prior year; and the monthly income for tenants of each
Restricted Unit throughout the prior year.
b. For owner-occupied units, the agreement shall ensure that the initial sale of each
Restricted Unit shall be at a sales price that results in an Affordable Housing Cost
and shall also require that the initial purchaser of each Restricted Unit enter into a
Resale Restriction and Option to Purchase Agreement, in substantially the form
required by the City for Inclusionary Units under Chapter 8.68, which shall prohibit
the unit from being resold during the Restriction Term at a price that is higher than
Affordable Housing Cost.
2. For projects pursuant to Section 8.52.030.C.2.c, the property will be developed and
operated as a Senior Citizen Housing Development or as a Restricted Mobilehome Park.
3. For projects pursuant to Section 8.52.030.C.2.d, the initial occupant of the moderate-
income units that are directly related to the receipt of the Density Bonus are Persons and
Families of Moderate Income and that those initial occupants will be required to enter into
an equity sharing agreement with the City in accordance with subdivision (c )(2) of
Government Code section 65915.
4. The agreements shall run with the land and be recorded as a deed restriction prior to
issuance of any project building permits.
B. The agreements required by Section 8.52.060.A.l and 8.52.060.A.3 shall:
1. specify, as to the Restricted Units, the household-income classification, number, location,
size and construction scheduling of all Restricted Units and shall require Restricted Units
in a project and phases of a project to be constructed concurrently with the construction of
non-Restricted Units;
2. require the Restricted Units to be dispersed throughout the project; and
3. require the Restricted Units to include unit types identical to and in the same proportion as
the project as a whole.
C. The City Council, by resolution, may establish the amount of fees to be charged to applicants
and/or developers for administration of this Chapter.
-8-
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8.52.070
Certification of Initial Occupants of Restricted Units.
No household shall be permitted to occupy a Restricted Unit unless the City or the City's designee has
approved the household's eligibility. Potential occupants of Restricted Units will be qualified on the basis
of household income, as Lower Income Households, Very Low Income Households, or Persons and
Families of Moderate Income, or as persons eligible to occupy a Senior Citizen Housing Development or
Restricted Mobilehome Park. The Applicant shall use an equitable selection method established in
conformance with the terms of this Chapter. The selection criteria may not distinguish between adults and
children.
8.52.080
Child Care Facilities
A. When an Applicant proposes to construct a Housing Development that conforms to the
requirements of Section 8.52.030 and includes a Child Care Facility that will be located on the
premises of, as part of, or adjacent to, the development, the City shall grant either one of the
following:
1. An additional Density Bonus that is an amount of square feet of residential space that is equal
to or greater than the amount of square feet in the Child Care Facility. The Applicant shall use
any Density Bonus granted pursuant to this section to construct additional unites) of a size that
is not less than the average size of the units within the Housing Development. In the event that
a Density Bonus, or any portion thereof, granted pursuant to this section is insufficient to
construct an additional unit of a size that is not less that the average size of the units within the
Housing Development, the Applicant shall propose an alternative use for the Density Bonus,
subject to the approval of the Community Development Director.
2. An additional Concession or Incentive, as set forth in Section 8.52.050, that contributes
significantly to the economic feasibility ofthe construction of the Child Care Facility.
B. The City shall impose the following condition on approval of any Housing Development that
includes a Child Care Facility: The Child Care Facility shall remain in operation for a period of
time that is as long as or longer than the period of time during which the Density Bonus units are
required to remain affordable pursuant to Section 8.52.060.A. This condition shall run with the
land and be recorded as a deed restriction prior to issuance of any project building permits.
C. In order to qualify for a Density Bonus as provided by this Section, the Applicant shall submit the
following to the Community Development Director:
1. A financial report (pro forma) for the proposed Child Care Facility, subject to approval ofthe
Community Development Director.
2. Security as required by the Community Development Director, such as a cash deposit,
performance bond, or letter of credit, to ensure that the childcare facility remains operational
for the period of time described in Section 8.52.80.B.l.
-9-
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D. Notwithstanding subsections A. and B. above, the City shall not be required to provide a Density
Bonus or Concession or Incentive for a Child Care Facility if it finds, based upon substantial
evidence, that the community has adequate Child Care Facilities.
E. Any Child Care Facility constructed pursuant to this section shall not count towards the
Applicant's obligations, if any, to provide Semi-Public Facilities.
8.52.090
Application Procedure.
A. An Applicant may submit to the Community Development Director a preliminary proposal for the
development of housing pursuant to this Chapter prior to the submittal of any formal project
application. The City shall, within 90 days of receipt of a preliminary proposal, provide the
Applicant in writing, comments and preliminary evaluation of the project. The preliminary
proposal is not an application for purposes of the Permit Streamlining Act deadlines, and any
comments or preliminary evaluations do not bind future City actions.
B. Formal application for a Density Bonus and any Concessions or Incentives shall be made in
conjunction with the application for development. The application shall comply with the review
process stated in the Dublin Municipal Code or Dublin Zoning Ordinance for the development
application being filed. The application shall provide the following additional information:
1.
A written statement specifying the desired density increase, Concession or Incentive
requested and the number, type, location, size and construction scheduling of all units.
2.
A project financial report (pro forma), if required pursuant to Section 8.52.050.E or
Section 8.52.080.C.l.
3.
Any other information requested by the Community Development Director to implement
this Chapter.
8.52.100
Enforcement.
A. The City Manager shall enforce this Chapter, and its provisions shall be binding on all agents,
successors, and assigns of the Applicant. The City Manager may suspend or revoke any building
permit or approval upon finding a violation' of any provision of this Chapter. No land-use
approval, building permit, or certificate of occupancy shall be issued for any development unless
exempt from or in compliance with this Chapter. The City may institute any appropriate legal
actions or proceedings necessary to ensure compliance herewith, including, but not limited to,
actions to revoke, deny, or suspend any permit or development approval.
B. If the City Manager determines that rents or housing costs in excess of those allowed by operation
of this Chapter have been charged to a tenant residing in a Restricted Unit, the City may take
appropriate legal action to recover the excess rent, and the developer shall be obligated to pay to
the tenant, or to the City in the event the tenant cannot be located, any excess rents charged.
8.52.110
Appeals. Decisions of the City Manager under this Chapter may be appealed as
provided in Chapter 8.136.
-10-
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Section 3. Compliance with California Environmental Quality Act ("CEQA "): The City
Council declares that this ordinance is exempt from CEQA based on the following findings: This
ordinance is not a "project" within the meaning of Section 15378 ofthe State CEQA Guidelines, because
it has no potential for resulting in physical change in the environment, directly or ultimately. The
adoption of this ordinance does not, in itself, allow the construction of any building or structure. The
adoption of this ordinance, therefore, has no potential for resulting in physical change in the environment,
directly or ultimately. This ordinance is mandatory pursuant to state law, California Government Code
Section 65915(a). Notwithstanding the adoption of this ordinance, individual projects shall not be exempt
from compliance with CEQA.
Section 4. Severability: In the event any section or portion ofthis ordinance shall be
determined invalid or unconstitutional, such section or portion shall be deemed severable and all other
sections or portions hereof shall remain in full force and effect.
Section 5. Savings Clause: All code provisions, ordinances, and parts of ordinances in
conflict with the provisions of this chapter are repealed. The provisions of this chapter, insofar as they are
substantially the same as existing code provisions relating to the same subject matter shall be construed as
restatements and continuations thereof and not as new enactments. With respect, however, to violations,
rights accrued, liabilities. accrued, or appeals taken, prior to the effective date of this ordinance, under any
chapter, ordinance, or part of an ordinance shall be deemed to remain in full force for the purpose of
sustaining any proper suit, action, or other proceedings, with respect to any such violation, right, liability
or appeal.
Section 6. Effective Date and Posting of Ordinance: This ordinance shall take effect and be in
force thirty (30) days from and after the date of its passage. The City Clerk ofthe City of Dublin shall
cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance
with Section 36933 of the Government Code of the State of California.
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this _ day of_
2007, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
G:\P A#\2006\06-035 Density Bonus Ord Amendment\PC\cc ord adopting DBO.DOC
-11-
RESOLUTION NO. 07 - 07
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE REPEALING
CHAPTER 8.52 OF THE DUBLIN MUNICIPAL CODE (ZONING ORDINANCE)
AND ADDING CHAPTER 8.52 OF THE DUBLIN MUNICIPAL CODE RELATING TO
DENSITY BONUS REGULATIONS
PA 06-035
WHEREAS, the California Government Code Section 65915 requires cities to adopt an ordinance
that specifies how compliance with the state density bonus statute will be implemented; and
WHEREAS, the Dublin Municipal Code (Zoning Ordinance) Chapter 8.52 sets forth the City of
Dublin ("City") regulations relating to density bonus; and
WHEREAS, the City desires to update its density bonus regulations to comply with current state
law; and
WHEREAS, the Planning Commission conducted two separate study sessions on August 8, 2006
and November 14, 2006 to study the proposed amendment of Chapter 8.52 (the "Ordinance"); and
WHEREAS, after incorporating the Planning Commission comments from each study session,
Staff proposes that the current Ordinance be repealed, and the proposed Ordinance, as set forth in Exhibit
A" be adopted in its place; and
WHEREAS, the Ordinance has been found to be exempt from the California Environmental
Quality Act (CEQA), because the Ordinance is not a "project" within the meaning of CEQA Guidelines
Section 15378, as the Ordnance has no potential for resulting in physical change in the environment,
directly or ultimately and does not, in itself, allow the construction of any building or structure; and
WHEREAS, the City of Dublin Planning Commission held a public hearing on February 13,
2007, for which proper notice of the public hearing was given in all respects as required by law; and
WHEREAS, a Staff Report was submitted recommending that the Planning Commission
recommend that the City Council adopt the Ordinance; and
WHEREAS, the Planning Commission did hear and use its independent judgment and considered
all said reports, recommendations, and testimony herein above set forth.
NOW, THEREFORE, BE IT RESOLVED that the City of Dublin Planning Commission does
hereby find that the proposed Ordinance, as set forth in Exhibit A of this Resolution, is consistent with the
Dublin General Plan and any applicable Specific Plans, and recommends that the City Council find the
same.
BE IT FURTHER RESOLVED that the City of Dublin Planning Commission recommends that
the City Council adopt an Ordinance repealing the Dublin Zoning Ordinance Chapter 8.52 and adding the
ATTACHMENT 2
\":2. 21 ,....,
.....; .::J.-;' \..Y
Dublin Zoning Ordinance Chapter 8.52 relating to density bonus regulations as set forth in Exhibit A of
this Resolution.
PASSED, APPROVED AND ADOPTED this 13thday of February 2007 by the following vote:
AYES: Chair Schaub, Vice Chair Wehrenberg, Commissioners Biddle, King, and Tomlinson
NOES: None
ABSENT: None
ABSTAIN: None
Planning Commission Chair
ATTEST:
Planning Manager
G:\P A#\2006\06-035 Density Bonus Ord Amendment\PC\pc reso approving DBO.DOC
I~D'O'~Lo
AGENDA STATEMENT
PLANNING COMMISsioN MEETING DATE: February 13, 2007
SUBJECT:
ATTACHMENTS:
RECOMMENDATION:
Nr
PROJECT DESCRIPTION:
Background
PUBLIC HEARING: PA 06-035 Proposed Ordinance Repealing and
Replacing the Density Bonus Regulations
Report prepared by Jeff Baker, Senior Planner and
Leah Peachey, City Attorney's Office
1) Resolution recommending that the City Council adopt an Ordinance
repealing Chapter 8.52 of the Dublin Municipal Code and adding
Chapter 8.52 of the Dublin Municipal Code relating to Density Bonus
Regulations, with the proposed Ordinance attached as Exhibit A.
2) Agenda Statement of Planning Commission Study Session II dated
August 8, 2006 (without Attachments).
3) Minutes of Planning Commission Study Session II dated August 8,
2006.
4) Agenda Statement of Planning Commission Study Session I dated
November 14,2006 (without Attachments).
5) Minutes of Planning Commission Study Session I on November 14,
2006.
6) Proposed Density Bonus Ordinance with revisions made since the
November 14,2006 Study Session represented in redline format.
1) Receive Staff presentation;
2) Open the public hearing;
3) Receive testimony from the public;
4) Close public hearing;
5) Deliberate; and
6) Adopt the Resolution recommending that the City Council adopt an
Ordinance repealing Chapter 8.52 of the Dublin Municipal Code and
adding Chapter 8.52 ofthe Dublin Municipal Code relating to Density
Bonus Regulations, with the proposed Ordinance attached as Exhibit
A (Attachment 1).
On August 8, 2006 and November 14,2006, the Planning Commission held two separate Study Sessions
on the proposed Ordinance amending the Dublin Zoning Ordinance (Chapter 8.52) relating to Density
Bonus Regulations. The Planning Commission comments at the August 8th Study Session (Attachments 2
and 3) were incorporated into the Ordinance and presented to the Planning Commission at the November
14th Study Session (Attachments 4 and 5). The Planning Commission comments at the November 14th
Study Session have been incorporated into the draft Ordinance which is included as Exhibit A to
Attachment 1 to this Staff Report. Therefore, Staff is currently recommending that the Planning
="""""""'--~----<"--<~''<~_.
'__~__Ol_______'__",""",,,,,,,,,,,,,
COPIES TO: File
ITEM NO.: 8. 3
Page 1 of3
G:\P A#\2006\06-03 5 Density Bonus Ord Arnendment\PC\pcsr 2.13 .07 .DOC
Attachment 3
Commission adopt the Resolution (Attachment 1) recommending that the City Council repeal the existing
Density Bonus Ordinance, and the proposed Ordinance be adopted in its place.
ANALYSIS:
The state density bonus statute, Government Code Section 65915, is a state mandate that requires cities to
grant a density bonus and certain other "concessions or incentives" when a developer agrees to construct
the requisite percentage of affordable housing units. The statute codifies the Legislature's intent to
encourage developers to provide affordable housing by awarding qualifying developments with additional
market rate units. The statute requires cities to adopt an ordinance that implements the state statute, but
leaves little discretion to the city in such implementation. Thus, the proposed Ordinance seeks to provide
the City with protections to the extent possible under the law, while complying with state-mandated
density bonus provisions. Please refer to Attachment 4 (Page 1) for provisions of the Ordinance that are
intended to serve the City and Staff in the implementation of the Density Bonus law.
The Planning Commission requested several minor changes to the proposed Ordinance at the November
14th Study Session, which have been incorporated into the draft Ordinance (Exhibit A to Attachment 1).
Several other minor changes have been incorporated into the draft Ordinance to further clarify the
Ordinance provisions. All of the proposed changes to the draft Ordinance are presented in redline form in
Attachment 6.
At the November 14th Study Session, the Planning Commission inquired about the following: 1) Private
Mortgage Insurance in relation to housing costs; and 2) the required operation period for qualifying day
care facilities. Each ofthese issues is discussed below.
Housing Cost Includes Private Mortgage Insurance
When a developer agrees to build affordable units in order to receive a density bonus, the costs of the
qualifying owner-occupied units must not exceed the "affordable housing cost," as defmed in Section
8.52.020.A of the Ordinance. The definition of "affordable housing cost" has been amended to clarify
that such costs include the cost of private mortgage insurance (PMI) , along with various other costs,
which is consistent with the applicable California Code of Regulations (Title 25, section 6920).
Day Care Operation
When a developer proposes to construct a housing development, with an associated day care facility, for
which a density bonus is granted, the development may be eligible for a density bonus or concession or
incentive under the state statute. The Planning Commission requested that Staff research whether the City
has the authority to amend or adjust the term of the child care facility's operation based on the economic
and/or business needs of the community.
The state density bonus statute provides that the City "shall require, as a condition of approving the
housing development, that the following occur: The child care 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)." (Gov. Code S 65915(i)(2)(A)). Subdivision
(c), in turn., requires the density bonus units to remain affordable for 30 years (Gov. Code S 65915(c)(1)).
The state statute does not seem to provide the City any discretion in adjusting the operation term of a
child care facility; and any contrary provision in the Ordinance would render the Ordinance susceptible to
challenge as a violation of state density bonus law. Thus, no changes have been proposed relating to this
Issue.
2of3
In addition, Section 8.52.080.B.2 ofthe draft Ordinance (Exhibit A to Attachment 1) sets forth the state- 1'h...
mandated requirement that, of the children who attend the child care facility, the children of very low, \ lO -u
lower, or moderate income households shall be a percentage that is equal to or greater than the percentage -::2..l iJ
of units that are required for a density bonus. Because the City does not anticipate the use of City staff or ~
resources in enforcing this requirement, this section is proposed for deletion.
ENVIRONMENTAL REVIEW:
This Ordinance has been reviewed under the California Environmental Quality Act (CEQA), State CEQA
Guidelines and the City of Dublin Environmental Guidelines, and this Ordinance has been found to not
constitute a "project" within the meaning of Section 15378 of the State CEQA Guidelines, because it has
no potential for resulting in physical change in the environment, directly or ultimately. The adoption of
this ordinance does not, in itself, allow the construction of any building or structure. Notwithstanding the
adoption ofthis ordinance, individual projects shall not be exempt from compliance with CEQA.
CONCLUSION:
The proposed Ordinance fulfills the current statutory requirements of the state density bonus law, while
providing the City with as much protection as possible in implementing this state law. In the absence of
such an ordinance, developers could request a density bonus and concessions in accordance with the state
statue, in which case, the City would forgo the protections provided in the proposed Ordinance.
RECOMMENDATION:
Staff recommends that the Planning Commission: 1) Receive Staff presentation; 2) Open the public
hearing; 3) Receive testimony from the public; 4) Close public hearing; 5) Deliberate; and 6) Adopt the
Resolution recommending that the City Council adopt an Ordinance repealing Chapter 8.52 ofthe Dublin
Municipal Code and adding Chapter 8.52 of the Dublin Municipal Code (Zoning Ordinance) relating to
Density Bonus Regulations, with the proposed Ordinance attached as Exhibit A (Attachment 1).
30f3
, -'1
" \
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I g, r;-t?~RAFT
On a motion by Cm. Biddle, seconded by Vice Chair Wehrenberg, and by a vote of 5-0-0, the
Planning Commission unanimously adopted:
DRAFT
RESOLUTION NO. 07 - 06
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL APPROVE A GENERAL PLAN AND
EASTERN DUBLIN SPECIFIC PLAN AMENDMENT TO AMEND THE PARCELS
DESIGNATED AS PUBLIC/SEMI-PUBLIC TO SEMI-PUBLIC LAND USE DESIGNATION
FOR A PORTION (APN 986-0004-005-01) OF THE PROJECT KNOWN AS
DUBLIN RANCH WEST/W ALLIS RANCH
PA 05-051
8.3 P A 06-035: Density Bonus Ordinance - Proposed ordinance amending the
Density Bonus Regulations.
Chair Schaub asked for the Staff Report.
Mr. Jeff Baker, Senior Planner, and Leach Peachey, City Attorney, presented the specifics of the
project as outlined in the Staff Report.
Chair Schaub commented that this ordinance is the result of some of the best work by the
Planning Commission.
Cm. Biddle asked if the State Statute remains constant. Mr. John Bakker, City Attorney,
explained that the State Statute continues to be a slow-moving target.
On a motion by Cm. Biddle, seconded by Cm. Tomlinson, and by a vote of 5-0-0, the Planning
Commission unanimously adopted:
RESOLUTION NO. 07 - 07
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE REPEALING
CHAPTER 8.52 OF THE DUBLIN MUNICIPAL CODE (ZONING ORDINANCE)
AND ADDING CHAPTER 8.52 OF THE DUBLIN MUNICIPAL CODE RELATING TO
DENSITY BONUS REGULATIONS
P A 06-035
NEW OR UNFINISHED BUSINESS - NONE
16
Attachment 3
\Y () ~_LO
AGENDA STATEMENT
PLANNING COMMISSION STUDY SESSION: November 14,2006
SUBJECT:
STUDY SESSION: P A 06-035 Proposed Ordinance Amending Density
Bonus Regulations
Report Prepared by: Jeff Baker, Senior Planner and
Leah Peachey, City Attorney's Office
ATTACHMENTS:
1.
Draft Ordinance of the City of Dublin Amending Chapter 8.52 of the
Dublin Municipal Code (Zoning Ordinance) relating to Density
Bonus Regulations
Agenda Statement of Planning Commission Study Session regarding
Proposed Density Bonus Ordinance (August 8, 2006) - Without
Attachments
Minutes of Planning Commission Study Session on August 8, 2006
2.
3.
RECOMMENDATION: Receive Staff presentation and provide comments.
PROJECT DESCRIPTION:
On August 8, 2006, the Planning Commission held a Study Session on a proposed Ordinance amending
Dublin Zoning Ordinance (Chapter 8.52) relating to Density Bonus Regulations (Attachment 1). At the
August 8th Study Session, the Planning Commission raised the following issues, which are each addressed
in this Staff Report: 1) prohibition on developers banking density bonuses and concessions or incentives
for subsequent use; 2) whether the density bonus ordinance applies to existing development; 3)
experiences ofthe City and surrounding communities with density bonus ordinances and requests; and 4)
a pro forma illustrating a development that would invoke a density bonus request from a developer.
ANALYSIS:
The state density bonus statute, Government Code Section 65915, is a state mandate that requires cities to
grant a density bonus and certain other "concessions or incentives" when a developer agrees to construct
the requisite percentage of affordable housing units. The statute codifies the Legislature's intent to
encourage developers to provide affordable housing by awarding qualifying developerments with
additional market rate units. The statute requires cities to adopt an ordinance that implements the state
statute, but leaves little discretion to the City in such implementation. Thus, the proposed Ordinance
seeks to provide the City with protections to the extent possible under the law, while complying with
state-mandated density bonus provisions.
Ordinance Provisions Implementing the State Density Bonus Statute
As discussed above, the City is limited in its application ofthe state Density Bonus statute. However, the
proposed Ordinance includes the following provisions to serve the City and Staff in the implementation of
the Density Bonus law:
COPIES TO: File
Page 1 of5
ITEM NO.:
G:\P A#\2006\06-035 Density Bonus Ord Amendment\PC\pcsr 11.14.06.00C
Attachment 4
· Inclusionary Zoning Regulations. The Ordinance prohibits developers from applying any '2.()
affordable units constructed pursuant to the City's Inclusionary Zoning Regulations towards a
density bonus or a concession or incentive.
· Development Impact Fees and CEQA. The Ordinance provides that housing developments that
qualify for a density bonus are not exempt from the payment of development impact fees or
compliance with the California Environmental Quality Act (CEQA).
· Banking of Density Bonus Awards or Concessions or Incentives. In response to a concern raised
by the Planning Commission at the August 8th Study Session, a provision was added to the
Ordinance to prohibit the transfer, credit or application of any density bonus or concession or
incentive to a housing development other than the development for which the bonus or concession
or incentive was awarded.
· Pro Forma Requiredfor Concessions and Incentives. The Ordinance requires applicants, for a
concession or incentive, to provide a financial report (pro forma) to evaluate whether the
development is eligible for the requested concession or incentive. Examples of concession or
incentives include a parking reduction, increase in height limitations, or reduced setbacks. If the
City retains a consultant to review the pro forma, the applicant must pay for the consultant.
· Child Care Facilities. The Ordinance provides that any additional density bonus granted for the
construction of a child care facility must be used towards the construction of additional unite s) of a
size not less that the average size of the units in the housing development. In addition, the
Ordinance requires an applicant to provide a pro forma for the proposed child care facility, which
is subject to the approval ofthe Community Development Director. Finally, the applicant must
submit security, as required by the Community Development Director, such as a cash deposit,
bond, or letter of credit, to ensure the child care facility remains operational for 30 years.
· Application Procedure. The applicant may submit a preliminary proposal for a density bonus
request prior to the submittal of a formal project application, which the City will evaluate. Formal
application for a density bonus and any concessions or incentives must be made in conjunction
with a development application.
· Restriction Agreements. The Ordinance requires applicants to enter into agreements to ensure
rental units will be set at an affordable rent, and to ensure owner-occupied units are subject to the
same Resale Restriction and Option to Purchase Agreement used by the City's inclusionary zoning
program.
· Enforcement. The Ordinance provides that the City Manager may suspend or revoke any building
permit or approval upon finding a violation of the Ordinance. In addition, the City Manager may
take legal action to recover any excess rent charged to tenants of restricted units.
The City has limited discretion to regulate the provision of the state density bonus statute. Therefore, the
above sections provide the City with protections to the extent possible under the law, while complying
with state-mandated density bonus provisions.
Application of Density Bonus Ordinance to Parcels with Existing Development
At the August 8th Study Session, the Planning Commission inquired about the application ofthe proposed
Ordinance to parcels with existing development. Under the state Density Bonus statute, a density bonus
must be awarded to any qualifying "housing development." A housing development is defined to include
one or more groups of projects for residential construction, without limitation on location or existing uses.
Indeed, the definition includes projects that substantially rehabilitate existing multifamily dwellings
where the result of the rehabilitation would be a net increase in available residential units, or projects that
rehabilitate/convert commercial buildings to residential buildings.
20f5
However, it is importation to keep in mind two limitations on the opportunities for obtaining a density .'
bonus on existing development. First, a developer is only entitled to a density bonus if the housing J \ 6';'C/j)
development consists of five of more units. Second, a density bonus is only warranted when the V
developer seeks a density increase above the density allowed under the applicable zoning and general plan
land use designation. As discussed in more detail below, development applications received by the City
propose projects that are generally around the mid-point ofthe allowable density under the applicable
zoning and general plan land use designation. Thus, developers find no need to seek a density bonus in
excess of the prescribed maximum, since development proposals are typically at the midpoint of
allowable density.
Use of Density Bonus Regulations in the City and Surrounding Communities
Since the adoption of the Eastern Dublin Specific Plan in 1991, the City has issued permits for 6,986
residential units for developments within Eastern Dublin. In that time, and in fact, since incorporation,
the City has processed one density bonus request for Fairway Ranch [Dublin Land Holdings, LLC], which
was a 744-unit residential development located at Dublin Ranch Area B, Parcels 1,2, and 3. The City
Council awarded a density bonus of 186 residential units, and concessions consisting of 1) mixed use
zoning for 5,000 square feet of retail; and 2) expedited processing. The application of the Density Bonus
Regulations resulted in a project of 930-units. (Please note the factual error in the Agenda Statement of
August 8th indicating that the City had never received a density bonus request, which was clarified during
the Staff presentation.)
Staff contacted the cities of Livermore, Pleasanton, San Ramon, and Santa Rosa regarding experiences in
applying a density bonus award. The City of Livermore is beginning the process of updating its existing
density bonus ordinance to comply with the current state statute. To date, the City of Livermore has
granted a density bonus for three separate projects, two of which were in-fill projects. The cities of
Pleasanton and San Ramon have not adopted density bonus ordinances nor have they received a request
for a density bonus. The City of Santa Rosa has an existing density bonus ordinance and has granted a
density bonus for two separate in-fill projects. Based on Staff's research, there have been very few
requests by developers for density bonuses in this area.
Use of Density Bonus Awards by Developers
,
Staff contacted several developers regarding the frequency in their application for a density bonus award
for projects built in other communities. These developers indicated that they had not applied a density
bonus to greenfield development. Their experience in the City of Dublin, as in other communities is that
given current densities, developers find it challenging to build at the midpoint of the permitted density
range as allowed by the General Plan, let alone exceed the density range. In addition, developers are
concerned with additional environmental review to study the additional units associated with a density
bonus once the environmental work has been completed. For these reasons, the developers indicated to
Staff that small sized infill developments are better suited for the use of density bonuses.
Pro-Forma Illustration
The Planning Commission requested Staff to develop a pro forma illustrating a development that would
invoke a density bonus request from a developer. Staff contacted several cities for such an example
however, no City was able to provide such documentation. Since a density bonus request depends on a
variety of factors specific to each development proposal, such as area of land, applicable density under the
zoning, the proposed housing type (single-family, multi-family, etc.), the budget for the project, etc., it is
difficult to generalize when a developer might seek a density bonus. Since there are so many factors used
to determine the viability of a proj ect and more specifically request a density bonus, Staff is unable to
create a pro forma illustration. The City's ordinance goes further than state law to give the City the ability
to require a developer to document why requested concessions/incentives are necessary.
30f5
Hypothetical Development with No InclusionaryUnits ~~ UA~LD
An applicant is eligible for a density bonus and certain other concessions or incentives if the develop~ent
consists of at least 5 units and provides the requisite amount of affordable housing. However, the City's
Inclusionary Zoning requirements are not trigged until the applicant proposes at least 20 units. Thus, it is
possible for an applicant to receive a density bonus award, without providing inclusionary housing units.
The hypothetical below describes a development that is not subject to the City's Inclusionary Zoning
Regulations.
Applicant's
Proposal
Density Bonus
Award Units
Total
Development
9 MR units
11 MR units
+
2 MR units
(20% Density Bonus)
+
1 BMR Density Bonus
Qualifying unit* (10%
affordable units)
+
1 BMR unit
o BMR Inclusionary units
+
12 units [Total Development]
10 units [Applicant's Proposal]
MR = Market Rate, BMR = Below Market Rate
* For purposes of this hypothetical, this qualifying unit is affordable to Lower-Income Households.
In addition to the Density Bonus Award Units, the applicant would be eligible for one concession or
incentive.
Hypothetical Development with Inclusionarv Units
Applicant's
Proposal
Density Bonus
Award Units
Total
Development
78 MR units
+
98 MR units
10 BMR Density Bonus
Qualifying units* (10%
affordable units)
20 MR units
(20% Density Bonus)
+
22 BMR units
+
12 BMR Inclusionary units
+
-
-
120 units [Total Development]
100 units [Applicant's Proposal]
MR = Market Rate BMR = Below Market Rate
* For purposes ofthis hypothetical, this qualifying unit is affordable to Lower-Income Households.
40f5
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Once an applicant proposes a development of20 units or more, the applicant must provide affordable'"''
units pursuant to the City's Inclusionary Zoning Regulations. The hypothetical below describes a
development that is subject to the City's Inclusionary Zoning Regulations.
. Again, in addition to the Density Bonus Award units, the applicant would be eligible for one concession
or incentive.
CONCLUSION:
The proposed Ordinance fulfills the current statutory requirements of the state density bonus law, while
providing the City with as much protection as possible in implementing this state law. In the absence of
such an ordinance, developers could request a density bonus and concessions in accordance with the state
statue. In which case, the City would forgo the protections provided in the proposed ordinance and would
rely solely on the state statute to implement such requests.
While the City is limited in what can be included in a Density Bonus Ordinance, the provisions of the
Ordinance offer several measures of protection to the City, including: 1) a requirement to pay
development impact fees; 2) compliance with CEQA; 3) prohibiting developers from banking a density
bOlfUS award or concessions and incentives; 4) a requirement for a financial pro forma; 5) a clarification
regarding a density bonus for child care facilities; 6) application procedures for a density bonus request;
7) a requirement that applicants to enter into a restriction agreement; and 8) an enforcement mechanism
for the City.
RECOMMENDATION:
Staff recommends that the Planning Commission receive Staff presentation and provide comments to
Staff.
50f5
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CALL TO ORDER/ROLL CALL
A regular meeting of the City of Dublin Planning Commission was held on Tuesday, November
14,2006 in the Council Chambers located at 100 Civic Plaza. Chair Schaub called the meeting to
order at 7:00 p.m.
Present: Chair Schaub, Vice Chair Wehrenberg, Commissioners Biddle, Fasulkey, and King;
Mary Jo Wilson, Planning Manager; Jeff Baker, Senior Planner; John Bakker, Assistant City
Attorney; Leah Peachy, Associate City Attorney; and Rhonda Franklin, Recording Secretary.
Absent: None
ADDITIONS OR REVISIONS TO THE AGENDA - NONE
MINUTES OF PREVIOUS MEETINGS
The October 10, 2006 minutes were approved as submitted. Cm. Fasulkey abstained from the
vote due to his absence during the October 10, 2006 meeting.
CONSENT CALENDAR - NONE
ORAL COMMUNICATIONS - NONE
WRITTEN COMMUNICATIONS - NONE
PUBLIC HEARINGS - NONE
NEW OR UNFINISHED BUSINESS - NONE
OTHER BUSINESS
10.1 Study Session on the Proposed Ordinance Amending Density Bonus
Regulations - A second Study Session to acquaint the Planning Commission
with the proposed revisions to the Density Bonus Regulations.
Chair Schaub asked for the Staff Report.
Ms. Leah Peachey, Associate City Attorney, presented the specifics of the project as outlined in
the Staff Report.
Chair Schaub asked if the equity-sharing agreement is only for moderate income levels, and Ms.
Peachy, Assistant City Attorney, said yes.
Chair Schaub asked about the prospect of in-fill in the Downtown area of the City. Ms. Mary Jo
Wilson, Planning Manager, explained that it is unknown exactly how the Downtown would be
117
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Attachment 4
--
d~ m ~-'.,;
affected; however, there are current in-fill density bonus opportunities of which develop~ ....." L.O
have not taken advantage. She further explained that with the upcoming Downtown Specific
Plan, the land use designators and densities for the Downtown area may be changed. Chair
Schaub cautioned that Staff should keep the Density Bonus Regulations in mind when
determining the densities for the Downtown area. Ms. Wilson pointed out that Staff is trying to
put as many protection measures in place, as allowed by the State Statute, in order to exercise
some control over potential outcomes.
Cm. Biddle asked if the City could modify the proposed Density Bonus Regulations Ordinance
if problems arose while it was being utilized. Mr. John Baker, Assistant City Attorney,
explained that once a project is approved, developers typically seek vested rights to proceed
with the project as it was approved. He further explained that the City; however, could amend
the Zoning of a property as it deems necessary.
Cm. King asked about other ways to obtain vested rights. Mr. Bakker explained that vested
rights could also be obtained with a Vesting Tentative Map or a Development Agreement.
Cm. Fasulkey asked about the readiness of Staff to adequately analyze and interpret a pro-
forma. Ms. Wilson explained that Staff could work with consultants and the City Attorneys as
needed to assist in analyzing a pro-forma. Mr. Jeff Baker, Senior Planner, pointed out that the
proposed ordinance includes a provision that requires applicants to pay the costs for Staff to
hire a Consultant, as needed, to assist in reviewing a pro-forma. Mr. Bakker stated that the way
the proposed ordinance is drafted, if the developer can not demonstrate a need for a Density
Bonus, Staff can recommend denial to the Planning Commission.
Chair Schaub expressed concern over the requirement of a document with which the Staff may
not be familiar. Ms. Wilson pointed out that Staff has implementing documents that outline
application requirements. She reiterated that Staff has the ability to determine the sufficiency of
documents submitted for an application.
Chair Schaub expressed concern that the term "pro-forma" may be too vague. He suggested
that the proposed ordinance require a more explicit set of information. Chair Schaub asked if
the pro-forma would be included in the Planning Commission packet if such an item is brought
before the Planning Commission. Mr. Bakker stated that the pro-forma could be included in the
Planning Commission packet as evidence presented with the project application. He stated that
since Staff determines whether the evidence presented is adequate, the form in which the
evidence is required is flexible.
Cm. Fasulkey sought clarification on whether the proposed ordinance allows for a consultant to
be retained at the developer's expense, and Ms. Peachy said yes and pointed it out in the draft
ordinance. Chair Schaub suggested that either the term "pro-forma" or "financial report" be
carried throughout the entire document, and Staff agreed.
Chair Schaub suggested that the proposed ordinance state that the pro-forma would be made a
part of the public record. Ms. Wilson explained that it is inherently stated in the draft
ordinance, and Mr. Bakker agreed.
118
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Chair Schaub asked about the bond requirement for Child Care Facilities. He expressed
concern about whether the concept of "the time value of money" is being considered. Mr.
Bakker stated that the Child Care Facility requirement is a part of the State Statute and
explained that Staff continues to work on this issue, and Ms. Wilson agreed. Cm. Fasulkey
questioned whether a child care facility would be needed for the specified time required. He
stated that he would like to allow options for the redirection of use for a child care facility that is
no longer needed. Mr. Bakker explained that Staff must remain consistent with the State
Statute. Mr. Bakker and Ms. Wilson agreed that it is unlikely that a developer would utilize the
Child Care Facility option for a Density Bonus.
Cm. Fasulkey asked about the practicality of the Enforcement (sub-section A) of the draft
ordinance if a violation occurs after the building permits have been finaled. Mr. Bakker
explained that after-permit conditions typically require a bond. Cm. Fasulkey suggested
including a reference to the bond requirement in the draft ordinance. Mr. Bakker explained that
the bond is self-executing and that ordinance authority is not needed. Chair Schaub suggested
referencing the bond as a performance bond in the proposed ordinance, and Staff agreed.
Vice Chair Wehrenberg asked how the City Manager would determine sub-section B of the
Enforcement section. Mr. Bakker explained that the Housing Division routinely audits
affordable housing units.
Cm. Biddle asked if the proposed ordinance could read "up to 30 years" for the child care
facility instead of " at least 30 years." Ms. Peachy explained that the State Statute explicitly
states that that the child care 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. . ."
Vice Chair Wehrenberg asked if Staff contacted other cities for comments on their experience
with in-fill Density Bonus projects. Mr. Baker explained that surrounding cities were contacted
and the comments received were fairly positive.
Chair Schaub asked about concession or incentive requests that are in violation of the public
health and safety, and Mr. Bakker explained that the draft ordinance allows Staff to reject or
mitigate such requests.
Chair Schaub asked about environmental requirements for Density Bonus projects. Ms. Wilson
explained that Density Bonus projects are not exempt from CEQA (California Environmental
Quality Act). She further explained that a CEQA study would be conducted on the ultimate
density of the project. Mr. Baker pointed out the CEQA requirement is also called out in the
draft ordinance.
Chair Schaub asked if the City Council could direct Staff to modify the existing Inclusionary
Ordinance to require fewer or no Inclusionary Units when the Density Bonus Ordinance is
invoked if it was found that having both the Inclusionary and Density Bonus Ordinances
provided more than enough Affordable or Below Market Rate housing, and Ms. Wilson said
yes.
> 'f)?,""')!! '
119
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Chair Schaub suggested that PMI (Private Mortgage Insurance) be included in the Definitiens of
Affordable Housing Cost, and Ms. Peachy explained the origin of the definitions.
Cm. Biddle asked if this proposed ordinance would have affected a past project that invoked the
current Density Bonus Ordinance. Mr. Bakker said yes and explained that the current
Ordinance does not state that Inclusionary Units could not be counted toward Density Bonus;
therefore, the project may not have been entitled to a Density Bonus.
Vice Chair Wehrenberg sought clarification on cost reductions. Ms. Peachy explained that a
concession or incentive must result in a cost reduction to the project as proven in the pro-forma.
Chair Schaub commented that Staff should be aware of explicit and incremental costs when
reviewing a pro-forma.
The Planning Commission complemented Staff on the Study Session and stated that it was very
hel pfu!'
10.2 Brief INFORMATION ONLY reports from the Planning Commission and/or
Staff, including Committee Reports and Reports by the Planning Commission
related to meetings attended at City Expense (AB 1234).
Chair Schaub pointed out that no one from the Housing Committee attended tonight's meeting.
Chair Schaub informed Staff that Vice Chair Wehrenberg would not attend the next Planning
Commission meeting.
ADJOURNMENT - The meeting was adjourned at 8:24 p.m.
Respectfully submitted,
Planning Commission Chair
ATTEST:
Planning Manager
c'mn,^\"
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AGENDA STATEMENT
PLANNING COMMISSION STUDY SESSION DATE: August 8, 2006
SUBJECT:
STUDY SESSION: P A 06-035 Proposed Ordinance Amending Density
Bonus Regulations
Report Prepared by Jeff Baker, Senior Planner and Leah Peachey, City
Attorney's Office
ATTACHMENTS:
1)
Ordinance Amending Chapter 8.52 ofthe Dublin Municipal Code
(Zoning Ordinance) Relating to Density Bonus Regulations.
Comparison of Dublin's Inclusionary Zoning Regulations and
Density Bonus Regulations.
2)
RECOMMENDATION: Receive Staff presentation and provide comments.
PROJECT DESCRIPTION:
Currently, the Dublin Zoning Ordinance (Zoning Ordinance) provides for Density Bonus Regulations in
Chapter 8.52. A density bonus is a density increase over the otherwise maximum allowable residential
density under the Zoning Ordinance and General Plan. However, the current Chapter 8.52 was adopted in
September 1997, and California Density Bonus law has changed significantly over the past ten years.
The proposed revision to the Density Bonus Regulations (Attachment 1) is intended to: 1) fulfill the
current statutory requirements of state law regarding density bonus; 2) facilitate the implementation of the
Density Bonus Regulations at the City Staff level; and 3) continue to encourage developers to include
affordable housing units in their development projects.
BACKGROUND:
The State Legislature passed the first density bonus law in 1979 with the intent of encouraging builders to
include low- and moderate-income housing in their proposed housing developments. Under the state
statute, when a developer agrees to construct the requisite percentage of affordable housing units, a city
must grant a density bonus and certain other "concessions or incentives" to the developer (Gov. Code S
65915(a).). However, it should be noted that to date, the City has not received any requests to grant a
density bonus.
The core provisions of the state statute include tables to determine the density bonus for which a
developer is eligible, examples of development concessions or incentives, and other methods for which a
developer may receive a density bonus, such as construction of a child care facility. However, many of
the state statute's provisions are ambiguous and require interpretation at the City Staff level.
In fact, the state statute requires all cities to adopt an ordinance that specifies how compliance with the
state density bonus statute will be implemented within the city (Gov. Code S 65915(a).). In other words,
the City must comply with the statutory provisions set forth in the state density bonus statute; but where
the state statute is silent, the City may adopt its own implementing procedures.
COPIES TO: File
Page 1 of6
ITEM NO.:
G:\P A#\2006\06-035 Density Bonus Ord Amendment\PC\pcsr 8.08.06.DOC
Attachment 5
I'~'. ~, _ ~o
It is important to note the impact that the proposed Ordinance will have on zoning and development
within the City. Although the Ordinance encourages applicants to construct affordable housing units, the
Ordinance also involves the reduction of development standards and density regulations. Please note, the
City currently has requirements for affordable housing (Inclusionary Ordinance). The Density Bonus
regulations are separate from the Inclusionary Ordinance. For these reasons, Staff recommends that the
Planning Commission review the proposed Density Bonus Ordinance as a land use regulation with the
potential to impact the development, density and housing within the City.
ANALYSIS:
Proposed Density Bonus Regulations and Hypothetical Development
Since its adoption in 1979, the state density bonus law has been amended frequently, adding increasing
complexity to density bonus law. Perhaps the most effective method for describing the state statute and
proposed Ordinance is to apply the Ordinance to a hypothetical development. Thus, as each element of
the Ordinance is described, the effect on the hypothetical development will be described in the boxes
below.
Eligibility for Density Bonus (Section 8.52.030)
To qualify for a density bonus, a developer must propose a housing development that consists of five or
more units, and includes at least one of the following within the development: 1) ten percent of the total
units in the development for lower income households; 2) five percent of the total units in the
development for very low income households; 3) a senior citizen housing development or mobilehome
park for seniors that comply with state law; or 4) ten percent of the total units in a common interest
development for persons and families of moderate income, provided that all units in the development are
offered to the public for purchase.
Prior to the submittal of any formal project application, the proposed Ordinance permits an applicant to
submit a preliminary proposal to the Community Development Director (Section 8.52.090). Within 90
days of receiving the preliminary proposal, the City will provide the applicant with a preliminary
evaluation of the project. Formal application for a density bonus must be made in conjunction with the
application for development.
The affordable units that qualify a developer for a density bonus are subject to certain restnctIOns
described in greater detail in the section entitled "Restriction Terms and Regulatory Agreements" below.
Density Bonus Calculation (Section 8.52.040)
As the developer increases the percentage of affordable units beyond the threshold requirements above,
the density bonus percentage similarly increases. The increments of affordable unit percentages and
resultant density bonus percentages are set forth in the proposed Ordinance in a user-friendly table format
based on affordability levels. However, in no event may the City be required to grant a density bonus in
excess of 35 percent of the maximum permitted density. On the other hand, the state statute provides that
the City may not be prevented from granting a density bonus in excess of the statutory requirements, at its
discretion.
20f6
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STEP 1: Densitv Bonus Calculation
Developer proposes a 100-unit development, which will contain 15 units for lower income households, or
15% will be provided for lower income units.
Pursuant to the table in Section 8.52.040.A.l ofthe draft ordinance, developer receives a Density Bonus
of 27.5%. Where a density calculation results in fractional units, the fractional unit will be rounded up.
Therefore the developer could develop:
Total of 128 units [100 base proposal + 28 density bonus], which contains:
15 lower-income units pursuant to the Density Bonus Regulations.
Effects of the City's Inclusionary Zoning Regulations (Chapter 8.68)
The City's existing Inclusionary Zoning Regulations (Zoning Ordinance Chapter 8.68) require all new
residential development projects of 20 units or more to construct 12.5 percent of the total number of
dwelling units within the development as affordable units (Section 8.68.030.A). Alternatively, the
Inclusionary Zoning Regulations permit the applicant to pay a fee in-lieu of constructing up to 40 percent
of the affordable units that the developer would otherwise be required to construct.
The Inclusionary Zoning Regulations also establish a mandate to provide affordable housing, with which
all developers must comply. Conversely, the Density Bonus Regulations establish a mechanism for
developers to voluntarily provide affordable housing, with which developers may choose to comply.
Thus, the proposed Density Bonus Ordinance provides that the affordable units constructed by a
developer pursuant to the Inclusionary Zoning Regulations do not count towards a Density Bonus award.
Similarly, because the Legislature intended the density bonus statute to provide an "award" to a developer
and to give the developer an incentive to construct affordable housing, the City's Inclusionary Zoning
Regulations must be applied to the developer's original proposed development-and not to the
development as augmented by the Density Bonus Regulations.
STEP 2: Application of Inclusionarv Zonin2 Re2:ulations
Developer's 100-unit development must include 12.5% affordable units pursuant to the Inclusionary
Zoning Regulations.
Applying the 12.5% to the 100-unit proposed development results in 12.5 units of affordable housing.
However, the Inclusionary Zoning Regulations provide that fractions of 0.50 or less shall be disregarded.
The Inclusionary Zoning Regulations require the Developer to construct 12 affordable units, assuming
that the Developer constructs all the units, as opposed to paying an in-lieu fee.
Development Profile:
Total of 128 units [100 base proposal + 28 density bonus], which contains:
15 lower-income units pursuant to the Density Bonus Regulations and
12 affordable units pursuant to the Inclusionary Zoning Regulations.
30f6
Concessions or Incentives (Section 8.52.050)
In addition to the density bonus award, the state statute provides for the award of certain "concessions or
incentives" to applicants of eligible housing developments. A "concession or incentive" is defined in
Section 8.52.050.B to include: 1) a reduction in site development standards, such as a reduced setback or
increased building height, that results in identifiable, financially sufficient and actual cost reductions; 2)
approval of mixed use zoning with a housing project if it reduces the cost of the housing project and is
compatible with existing and planned development; and 3) other regulatory concessions or incentives
proposed by the applicant that result in identifiable, financially sufficient and actual cost reductions.
31 D1J3Co
Applicants are eligible to receive one, two or three concessions or incentives, depending on the
percentage of affordable housing units proposed by the applicant. Formal application for the concessions
or incentives must be made in conjunction with the application for development, and must include: 1) a
written statement specifying the concession or incentive requested and 2) a project financial report (pro
forma) to allow the City to evaluate whether the concession or incentive results in identifiable, financially
sufficient and actual cost reductions, or reduces the cost of the housing project, as appropriate.
STEP 3: Concessions or Incentives
Developer proposes a development that will contain 15% lower-income units.
Developer is eligible for one concession or incentive based on the proposal of 15% lower-income units.
Developer requests a concession or incentive of a waiver ofthe height limit development standard that
would otherwise be applicable to the proposed development.
Development Profile:
Total of 128 units [100 base proposal + 28 density bonus], which contains:
15 lower-income units pursuant to the Density Bonus Regulations; and
12 affordable units pursuant to the Inclusionary Zoning Regulations.
A waiver of the height limit that would otherwise be applicable to the development.
Child Care Facility (Section 8.52.080)
If the developer proposes a housing development that receives a density bonus as described above and, in
addition, constructs a child care facility within the development, the developer is eligible for an additional
density bonus or additional concession or incentive. The additional density bonus award will be an
amount of residential space that is equal to or greater than the square feet of the child care facility, which
the applicant shall use to construct additional unites) of a size not less than the average size of units within
the development. If the applicant chooses a concession or incentive instead of a density bonus, the
concession or incentive must contribute significantly to the economic feasibility of the construction of the
child care facility.
Operation of the child care facility is subject to certain restrictions. The child care facility must remain in
operation so long as the units qualifying the developer for a density bonus are restricted (see section
entitled "Restriction Terms and Regulatory Agreements" below). To ensure such operation, the applicant
must submit a financial report (pro forma) and security as required by the Community Development
Director, such as cash deposit or letter of credit. In addition, the children who attend the child care
40f6
facility must reflect the percentage of very low, lower or moderate Income households within the
development.
3 ~ C)'D ~~ lJ)
The City need not grant the additional award for construction of a child care facility if it finds that the
community is already adequately served by child care facilities.
STEP 4: Child Care Facilitv Bonus
Developer constructs a child care facility of 2,800 square feet. The average size of the units within the
development is 1,400 square feet.
The developer may construct 2 additional units.
Development Profile:
Total of 130 units [100 base proposal + 28 density bonus+ 2 child care facility bonus], which contains:
15 lower-income units pursuant to the Density Bonus Regulations; and
12 affordable units pursuant to the Inclusionary Zoning Regulations.
A waiver of the height limit that would otherwise be applicable to the development.
General Requirements for Implementing Density Bonus Regulation (Section 8. 52.060)
The units that qualify an applicant for a Density Bonus must remain affordable, as defined below, for a
period of 30 years or longer. To ensure this continued affordability, the proposed Ordinance requires the
execution of certain agreements with the City.
For lower and very low income rental units, the agreement will ensure that rents are affordable, preclude
subletting or subleasing the unit, and require an annual report to the City providing information such as
location of restricted units, monthly rents charged, and vacancy information. For lower and very low
income for-sale units, the agreement will ensure an initial sales price that results in an affordable housing
cost, and require the initial purchaser to enter into a Resale Restriction and Option to Purchase
Agreement, in substantially the form required by the Inclusionary Zoning Regulations.
For developments operated as senior citizen housing developments or mobilehome parks for senior
residents, the agreement will ensure that the development will operate in accordance with state law.
For moderate income units, the agreement will ensure that initial occupants are persons and families of
moderate income, and the agreement will require the initial occupants to enter into an equity sharing
agreement with the City.
The agreements between the applicant and City will specify information regarding location and
construction scheduling of restricted units, and will require: 1) the restricted units to be constructed
concurrently with or prior to non-restricted units; 2) the restricted units to be dispersed throughout the
project; and 3) the restricted units to include unit types identical to and in the same proportion as the
development as a whole. All agreements will be recorded against the property as a deed restriction prior
to the issuance of any project Building Permits.
Finally, potential occupants of units that qualify an applicant for a density bonus must qualify on the basis
of household income. No household may occupy a restricted unit unless the City or the City's designee
approves the household's eligibility.
50f6
Enforcement of Density Bonus Regulations (Section 8.52.100) ~ ::~; ::!J)
The proposed Ordinance provides two methods of enforcement. The City may suspend or revoke any
Building Permit approval upon violation of the Density Bonus Regulations; and no land-use approval,
Building Permit or Certificate of Occupancy will be issued for any development, unless exempt from or in
compliance with. the Density Bonus Regulations. In addition, the City may take legal action to recover
any excess rent charged to tenants of a restricted unit.
Affordahility Comparison of In clusionary Zoning and Density Bonus Regulations
Both the City's Inclusionary Zoning Regulations and the proposed Density Bonus Regulations render
housing units that are restricted based on income levels. In addition, the Inclusionary Zoning and Density
Bonus Regulations use identical income definitions, namely, very low income does not exceed 50 percent
of area median income, lower income does not exceed 80 percent of area median income and moderate
income does not exceed 120 percent of area median income.
However, the level of affordability in restricted units, both in the rental and owner-occupied contexts,
differs significantly between the Inclusionary and proposed Density Bonus Regulations. Attachment 2
provides a comparison of affordability under the Inclusionary and proposed Density Bonus Regulations.
In most cases, the definitions for affordability in the Density Bonus Regulations provide deeper
affordability than the Inclusionary Zoning Regulations.
For example, whereas the Inclusionary Zoning Regulations define affordable rent for a lower income
household to be 30 percent times 80 percent of the area median income, the Density Bonus Regulations
define affordable rent for a lower income household as 30 percent times 60 percent of the area median
income. Thus, for a four-person household in Alameda County, the affordable monthly rent for a lower
income household cannot exceed $1,678 under the Inclusionary Zoning Regulations and $1,257 under the
Density Bonus Regulations.
Due to the difference in levels of affordability, the City must operate two parallel monitoring programs
for affordable units subject to the Inclusionary Zoning Regulations and affordable units subject to the
Density Bonus Regulations. Thus, the proposed Density Bonus Ordinance provides that the City Council
may, by resolution, establish the amount of fees to be charged to applicants for administration of the
Density Bonus Regulations.
ENVIRONMENTAL REVIEW:
The California Environmental Quality Act (CEQA), together with the State guidelines and City
environmental regulations require that certain projects be reviewed for environmental impacts and that
environmental documents be prepared. The proposed ordinance is not a "project" within the meaning of
Section 15378 of the State CEQA Guidelines, because it has no potential for resulting in physical change
in the environment, directly or ultimately. Notwithstanding the adoption of this ordinance, individual
projects shall not be exempt from compliance with CEQA.
RECOMMENDATION:
Staff recommends that the Planning Commission receive Staff presentation and provide comments.
60f6
CALL TO ORDER
A special meeting of the City of Dublin Planning Commission was held on Tuesday, August 8,
2006, in the Council Chambers located at 100 Civic Plaza. Chair Schaub called the meeting to
order at 6:00 p.m.
ATTENDEES
Present: Chair Schaub; Vice Chair Wehrenberg; Commissioners Biddle, Fasulkey, and King; Jeri
Ram, Community Development Director; Mary Jo Wilson, Planning Manager; Leah Peachey,
Assistant City Attorney; Jeff Baker, Senior Planner; and Rhonda Franklin, Recording Secretary.
1.1 Study Session - Proposed Ordinance Amending Density Bonus Regulations
Chair Schaub asked for the Staff Report.
Ms. Leah Peachey, Assistant City Attorney, presented the specifics of the project as
outlined in the Staff Report.
Cm. Fasulkey asked about the Planning Commission's role in the project. Ms. Peachey
explained that the Planning Commission could make suggestions on the Ordinance
within the limits of the State statute.
Vice Chair Wehrenberg asked why the Density Bonus Regulations have not been utilized
in Dublin. Ms. Peachey stated that the convoluted nature of the item and/ or the lack of
knowledge about the item could contribute to its lack of use.
Cm. King sought clarification on how the Density Bonus Regulations are calculated. Ms.
Peachey explained that any fractional calculation is rounded to next whole number.
Chair Schaub sought clarification on the definition of common-interest developments.
Ms. Peachey explained that common interest developments include stock cooperatives,
planned developments, condominium developments, and community apartment
projects.
Cm. King and Cm. Fasulkey sought clarification on how the Density Bonus units would
be allocated when a development is at unit and/ or land capacity. Ms. Peachey explained
that a developer could apply for a concession or incentive.
Cm. Fasulkey asked if multiple Density Bonuses for a development could be banked and
applied to a different development. Ms. Peachey stated that that issue is not addressed
in the statute; however, Staff would take the issue into consideration.
1
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Attachment 5
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Chair Schaub stated that the Planning Commission should voice all of its concerns
regarding the project in an attempt to contemplate all possible scenarios for utilizing the
Density Bonus Regulations.
Cm. Biddle asked about the types of communities that utilize Density Bonus Regulations.
Ms. Mary Jo Wilson, Planning Manager, explained that Density Bonus Regulations are
typically utilized in areas that are undergoing revitalization. Ms. Wilson further
explained that concessions and incentives are granted upon meeting specific criteria as
set forth by the Density Bonus Ordinance.
Chair Schaub asked if the Density Bonus calculations include Inclusionary Zoning
requirements, and Ms. Peachey said no. Ms. Peachey further explained that Density
Bonus and Inclusionary Zoning requirements should be applied separately.
Cm. King and Cm. Fasulkey sought clarification on how the Density Bonus units would
be allocated when a development is at unit and/ or land capacity. Ms. Wilson explained
that the intent of the Density Bonus is to grant increased allowances to density limits
based on the need for affordable housing.
Chair Schaub stated that he would like Staff present a sample pro forma to the Planning
Commission.
Cm. Fasulkey sought clarification on how the Density Bonus and Inclusionary Zoning
Regulations are applied. Ms. Peachey explained that each Regulation is applied to the
base number of units.
Chair Schaub and Cm. Fasulkey expressed concerns about the potential of concessions
and incentives to create traffic and/ or other problems. Ms. Wilson stated that the
concessions and incentives do not circumvent CEQA (California Environmental Quality
Act) requirements.
Cm. Biddle asked if a height concession or incentive would be automatically granted,
and Ms. Peachy said no. Chair Schaub commented that the concessions or incentives
should be an economic advantage to the developer. Mr. Baker pointed out that a variety
of concessions or incentives would be available to the developers. Vice Chair
Wehrenberg asked if a concession or incentive could be a reduction in fees. Ms. Peachey
stated that concessions or incentives could not be a reduction in the Development Impact
fees. Chair Schaub commented that the developer would probably request a concession
or incentive that would be most profitable to the overall development. Ms. Wilson
explained that the types of concessions or incentives requested would also probably
depend on the type of development.
Mr. Baker stated that Density Bonus Regulations had been used one time at the Fairway
Ranch development. Ms. Wilson stated that the State requirements for the Density Bonus
Regulations at that time were different than the current requirements. Ms. Peachey
explained that the current Density Bonus Regulations are more beneficial to developers.
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Vice Chair Wehrenberg asked about the status of the City's Housing Element. Ms.
Wilson stated that the next update will be in 2 years.
Cm. Biddle asked about Density Bonus examples from other cities. Ms. Wilson gave
examples and explained that many California cities are struggling with implementing a
Density Bonus Ordinance.
Chair Schaub reiterated that he would like to see viable economic examples and
scenarios of how the Density Bonus Regulations would be utilized by developers.
Ms. Wilson pointed out that the Density Bonus Ordinance Amendment was included in
the City Council 2005-2006 Goals & Objectives.
Chair Schaub asked if the Density Bonus Regulations applied to for-sale and rental units,
and Ms. Peachey said yes.
Cm. Fasulkey asked if the Density Bonus Regulations could be applied to existing
developments. Ms. Wilson explained that the Density Bonus Ordinance is not retro-
active and only applies to future developments. She further stated that Staff would
research the issue to verify the intent of the Ordinance.
Vice Chair Wehrenberg asked about the monitoring program fee for the affordable units
that are subject to the Inclusionary Zoning and Density Bonus Regulations. Ms. Peachey
explained that a fee structure may be imposed according to the Ordinance.
Cm. Fasulkey asked if restrictions on the footprint or height of a development could be
included in the Density Bonus Ordinance, and Ms. Peachey said no.
Ms. Mary Rose Parkman, Housing Committee Chair, explained that she has experience in
working with Density Bonus Regulations. She further stated that she would be happy to
share her knowledge and work with Staff on providing examples.
Chair Schaub adjourned the meeting at 7:10 p.m.
The Planning Commission thanked Staff for putting the Study Session together.
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