HomeMy WebLinkAboutItem 4.02 Density Bonus Regulations
CITY CLERK
File # D~[][Q]-~~
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: March 20, 2007
SUBJECT:
Proposed Ordinance Repealing and Replacing the Density Bonus
Regulations
Report Prepared by Jeff Baker, Senior Planner and
Leah Peachey, City Attorney's Office
ATTACHMENTS:
1) Proposed 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.
2) City Council Staff Report dated March 6, 2007 without
attachments.
RECOMMENDATION:., 1\/"
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Waive the second reading and adopt 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).
FINANCIAL STATEMENT:
None
DESCRIPTION:
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.
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 the California Density Bonus law has changed significantly over the past ten years.
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.
COpy TO: In-House Distribution
ITEM NO.
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G:\PA#\2006\06-035 Density Bonus Ord Amendment\CC\ccsr 3-20-07 2nd reading. doc
The 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. 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.
The City Council held a public hearing on March 6, 2007, to review the proposed Density Bonus
Ordinance. During the March 6, 2007 City Council meeting, the City Council raised questions regarding
the bond and security requirements for a Density Bonus for Child Care Facilities, and the number of
density bonus requests the City has received. Staff noted that the bond and security requirements for a
Child Care Facility are provisions of the state statute which provides little discretion to the City in such
implementation. Staff also noted that the City of Dublin has received one request for a Density Bonus
which was for the 930-unit Fairway Ranch project.
On March 6, 2007, the City Council voted to introduce the 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.
RECOMMENDATION:
Staff recommends that the City Council waive the second reading and adopt 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).
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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 ofthe 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 ofthe 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 of the City's housing element.
8.52.020
follows:
Definitions. As used in this Chapter, each ofthe 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 of30 percent times 50 percent of the Area
Median Income adjusted for family size appropriate for the unit.
2. For Lower Income Households the product of 30 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 of35 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 of the 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 of the Area
Median Income adjusted for family size appropriate for the unit.
2. For Lower Income Households the product of30 percent times 60 percent of the 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
ofthe 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 ofthe 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% ofthe 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% ofthe 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 of 30 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%) ofthe total units of a 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 % Density Bonus %
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
16 29
17 30.5
18 32
19 33.5
20 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:
Very Low-Income Units % Density Bonus %
5 20
6 22.5
7 25
--4-
50) 11
o
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 project 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 ofthe 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. The 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 ofthe 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 of the 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 ofthe 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 ofthe 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 of the 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: Ifthe 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 ofthe 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.
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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 of the construction ofthe 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 of the
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.
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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 ofthe 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.1.
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 ofthis 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. Ifthe 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.
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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 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. The
adoption ofthis 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 ofthis 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 of the 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:\PA#\2006\06-035 Density Bonus Ord Amendment\CC\cc ord adopting DBO.DOC
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: March 6, 2007
SUBJECT:
Proposed Ordinance Repealing and Replacing the Density Bonus
Regulations
Report Prepared by Jeff Baker, Senior Planner, and
Leah Peachey, City Attorney's Office
ATTACHMENTS:
1) Proposed 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.
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.
RECOMMENDATION: ' / / 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).
FINANCIAL STATEMENT:
None.
BACKGROUND:
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.
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G:\P A#\2006\06-035 Density Bonus Ord Amendment\CC\CC StfRpt Density Bonus Ordinance (2).DOC 1
A'fTACHMENT 2
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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 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.
The proposed Ordinance permits all applicant to submit a preliminary proposal to the Community
Development Director, to which the City will provide a preliminary evaluation of the 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.
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STEP 1: Density Bonus Calculation
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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.1, Developer receives a Density Bonus of 27.5%. 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 Inc1usionary 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. (~8.68.030.A.) Alternatively, the Inc1usionary 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. (~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 Zoninsz Reszulations
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 Inc1usionary Zoning Regulations provide that fractions of 0.50 or less shall be disregarded.
The Inc1usionary 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 Inc1usionary Zoning Regulations.
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Concessions or Incentives
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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 ifit 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.
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 ofthe 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.
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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. ~ to vb 11
STEP 4: Child Care Facility Bonus
Developer constructs a child care facility of2,800 square feet. The average size ofthe 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.
Pro?osed 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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submit security, as required by the Community Development Director, such as a cash deposit, \ 1
bond, or letter of credit, to ensure the child care facility remains operational for 30 years. Il un
· 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).
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