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HomeMy WebLinkAboutItem 6.4 IncluZonOrdAmend CITY CLERK File# 450-20 AGENDA STATEMENT CITY COUNCIL MEETING DATE: May 21, 2002 SUBJECT: PUBLIC HEARING - PA 01-038, Amendments to the Inclusionary Zoning Regulations Report Prepared by: Eddie Peabody dr., Community Development Director ATTACHMENTS: 1. Ordinance approving amendments to Chapter 8.66 of the Dublin Municipal Code related to the Inclusionary Zoning Regulations, as introduced on May 7 2. Ordinance approving amendments to Chapter 8.66 of the Dublin Municipal Code related to the Inclusionary Zoning Regulations, · with proposed amendment to Section 8.68.040 (C 3) related to land dedication as proposed by Staff RECOMMENDATION: 1. Open public hearing ~ 2. Receive Staff presentation of proposed amendment  ~;~/ 3. Receive public comment 4. Close public hearing 5. Deliberate 6. Waive the reading and adopt Ordinance (Attachment 1) amending Chapter 8.66 of the Dublin Municipal Code related to the Inclusionary Zoning Regulations or 7. Waive the reading and introduce Ordinance (Attachment 2) with the change to Section 8.68.040 (C 3) as recommended by. Staff and set the second reading for June 4 FINANCIAL STATEMENT: Increase in In-lieu fees for affordable housing units and developer subsidies to construct mandated affordable housing units in place of market priced housing BACKGROUND: On May 7, 2002 the City Council introduced an Ordinance amending the Inclusionary Zoning Regulations (Chapter 8.68) of the Dublin Municipal Code (see Attachment 1). Specific elements of this Ordinance included the requirement of 12.5% of any residential project to be affordable for a period of 55 years. Up COPIES TO: Inclusionary Work Group In-House Distribution G:~A~200m-0mCCSR s-2~ 2n~.aooITEM NO. to 5% of the total' 12.5% of affordable units may pay an in-lieu fee. If affordable units cannot be built On site, the City Council may allow land dedication, construction of required affordable units off site and the possible waiver of requirements and approval of alternative methods of compliance. Alternative Ordinance with Land Dedication Section Retained, with Revisions Section 8.68.040 (C 3) relating to security for land dedication of property by an applicant in-lieu of constructing affordable units was deleted by the City Council when the ordinance (Attachment 1) was introduced. There was some confusion about the intent of this section. Staff has researched the purpose of this section and suggests that the language originally proposed, with some modifications, be included in the Ordinance. The reason for this section was to insure that the value of the property dedicated to the City or non profit developer covered the cost of the land on which to build the. required units and the cost to build the affordable units. Thus the value of the dedication would be large enough to allow the ultimate construction of the affordable 'units required and the proper size of property to accommodate their construction. The proposed amendment would read: 8.68.040 C. Land dedication. 3. that the developer has provided dedicated land large enough and at a value to construct the required affordable units as well as at a value sufficient to cover the cost of building the required affordable units on this site. The Council would have to reintroduce the ordinance to retain the language in section 8.68.040.C.3, with the modifications suggested by staff. Attachment 2 includes such modified language. RECOMMENDATION: Staff recommends that the City Council conduct a public hearing, deliberate and: 1. Waive the reading and adopt Ordinance (Attachment 1) amending Chapter 8.66 of the' " Dublin Municipal Code related to the Inclusionary Zoning Regulations; or 2. Waive the reading and introduce the Ordinance (Attachment 2) with the proposed Amendment to Section 8.68.040 (C 3) related to Land dedication as proposed by Staff. MUNICIPAL CODE RELATING TO INCLUSIONARY ZONING REGULATIONS The City Council of the City of Dublin does hereby ordain as follows: Section 1. Findings: The City of Dublin finds that: A. The citizens of Dublin are experiencing a housing shortage for very low-, low- and moderate-income households. B. A goal of the Housing Element of the City's General Plan is to achieve a balanced community with housing available for households of a range of income levels. C. Persons with very low, low, and moderate incomes that currently live and/or work in the City are increasingly unable to locate housing at prices they can afford, and often become excluded from living in the City. D. Federal and State housing subsidy programs are insufficient by themselves to satisfy the housing needs of very low-, low- and moderate-income households. E. The high cost of newly constructed housing does not, to any appreciable extent, provide housing affordable by very low-, low-, and moderate-income households, and continued new development that does not include affordable housing will serve to further aggravate the current housing shortage by reducing the supply of developable land. F. It is a public purpose of the City, and a public policy of the State as mandated by the requirements for a housing element of the City's General Plan, to make available an adequate supply of housing for persons of all economic segments of the community. Section 2. Amendment of Chapter 8. 68: Chapter 8.68, entitled "Inclusionary Zoning Regulations," of the Dublin Municipal Code is amended to read as set forth in Exhibit A. 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. This ordinance does not, in itself, allow the construction of any building or structure. This ordinance, therefore, has no potential for resulting in physical change in the environment, directly or ultimately. Section 4. Severability: In the event any section or portion of this 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 ATTACHMENT 1 ~ ~1 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 qfOrdinance: 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 21st day of May 2002, by the following votes: AYES: NOES: ABSENT: ABSTAIN: MAYOR ATTEST: CITY CLERK G:pa\01-038\ccord Exhibit A CHAPTER 8.68 INCLUSIONARY ZONING REGULATIONS 8.68.010. Purpose. The purpose of this chapter is to: A. enhance the public welfare and assure that further housing development contributes to the attainment of the City's housing goals by increasing the production of residential units affordable by households of very-low-, low-, and moderate income. assure that the limited remaining developable land in the City's planning area is utilized in a manner consistent with the City's housing policies and needs. 8.68.020. Definitions. As used in this chapter, each of the following terms shall be defined as follows: A. "Affordable Unit" means an ownership or rental-housing unit, including senior housing, affordable to households with very-low-, tow-, or moderate incomes as defined in this chapter. 1. Rental units are deemed affordable units if the annual rent does not exceed 30% ofmaximnm income level for very-low-, low-, and moderate-income households, adjusted for household size and as defined below. 2. Owner-occupied units are deemed affordable units if the sales price results in annual mortgage payments that do not exceed 30% of maximum income level for very-low-, low-, and moderate-income households, adjusted for household size and as defined below. "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. C. "Dwelling unit" means a dwelling designed and intended for occupancy by one household. D. "Very-low-, low-, and moderate-income levels" means those income and eligibility levels determined periodically by the California Department of Housing and Community Development based on Alameda County median income levels adjusted for family size. Such levels shall be calculated on the basis of gross annual household income considering household size and number of dependents, income of all wage earners, elderly or disabled family members, and all other sources of household income and will be recertified as set forth by local standards, and state and federal housing law. 1. "Very-low income" means 50% or less of the median income, adjusted for actual household size. 2. "Low income" means more than 50% to 80% of the median income, adjusted for actual household size. 3. "Moderate income'' means more than 80% to 120% of the median income, adjusted for actual household size. E. "Resale controls and/or rent restrictions" means legal restrictions by which the affordable units shall be restricted to ensure that the unit remains affordable to very-low-, low-, or moderate-income households, as applicable, for a period of not less than 55 years. With respect to rental units, such rent restrictions shall be in the form of a regulatory agreement recorded against the applicable property. With respect to owner-occupied units, such resale controls shall be in the form of resale restrictions, deeds of trust, and/or other similar documents recorded against the applicable property. F. "Residential development" includes, without limitation, detached single-family dwellings, multiple- dwelling structures, groups of dwellings, condominium or townhouse developments, condominium conversions, cooperative developments, mixed use developments that include housing units, and residential land subdivisions intended to be sold to the general public. 8.68.030. General Requirements A. 12.5% Affordability Requirement. All new residential development projects of 20 units or more designed and intended for permanent occupancy shall construct 12.5% of the total number of dwelling units within the development as affordable units, except as otherwise provided by this chapter: The foregoing requirement shall be applied no more than once to an approved development (and generally at the tentative map stage), regardless of the changes in the character or ownership of the development, provided the total number of units does not change. In applying and calculating the affordability requirement, any decimal fraction less than or equal to 0.50 may be disregarded, and any decimal fraction greater than 0.50 shall be construed as one unit. B. Allocation of Units to Income Levels. Affordable units provided pursuant to this section shall be allocated to households with very-low, low-, and moderate-income levels as follows: Very-low-income households 30% Low-income households 20% Moderate-income households 50% Where the calculation of the allocation results in fewer units that would otherwise be required pursuant to subdivision A above, one additional unit should be allocated to the income level with a decimal fraction closest to 0.50. C. Conditions of Approval: Any tentative map, conditional use permit, or site development review approving residential development projects subject to this chapter shall contain conditions sufficient to ensure compliance with the provisions of this chapter. Such conditions shall detail the number of affordable units required, specify the schedule of construction of affordable units, set forth the applicant's manner of compliance with this chapter, and require the execution of an agreement imposing appropriate resale controls and/or rental restrictions on the affordable units. D. Concurrent Construction. All affordable units in a project or phase of a project shall be constructed concurrently with market-rate units, unless the City Manager determines in writing that extenuating circumstances exist that make concurrent construction infeasible or impractical. 2 E. Design and Distribution of Affordable Units. All affordable units shall reflect the range of numbers of bedrooms provided in the project as a whole and shall not be distinguished by exterior design, construction, or materials. Affordable units may be of smaller size than the units in the project and may have fewer amenities than the market rate units in the project. All affordable units shall be reasonably dispersed throughout the project. 8.68.040. Exceptions to 12.5% Affordability Requirement. Developers of projects subject to 8.68.030.A shall construct 12.5% of the total number of dwelling units within the development as affordable units, unless subject to an exception set forth in this section. All exceptions require City Council approval, which shall be obtained at or prior to the last discretionary approval for the project. A. Payment of Fees In-Lieu of Creation of Affordable Units. Upon request of the applicant, the City Council shall 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 pursuant to section 8.68.030.A. The amount of the fee shall be as set forth in a resolution of the City Council, which may be amended from time to time to reflect inflation and changed conditions in the City and the region. In-lieu fees shall be paid at and the time and in the amount set forth in the in-lieu fee resolution in effect at the time of issuance of the building permit. B. Off-Site Projects. An applicant may construct the affordable units not physically within the development in lieu of constructing some or all of the affordable units within the development, with the approval of the City Council, if the City Council finds: 1. that construction of the units off-site in lieu of constructing units on-site is consistent with the chapter's goal of creating, preserving, maintaining, and protecting housing for very low-, low- and moderate-income households. 2. that the units to be constructed off site are consistent with section 8.68.030.E above 3. that it would be infeasible or impractical to construct affordable units on-site. 4. that conditions of approval for the project require that the off-site affordable units would be governed by the terms of a deed restriction and, if applicable, rental restrictions similar to that used for the on-site affordable units. 5. that the conditions of approval for the project, or other security such as a cash deposit, bond, or letter of credit, are adequate to require the construction of the off-site affordable units concurrently with the completion of the construction of the residential development or within a reasonable period (not to exceed 5 years). C. Land Dedication. An applicant may dedicate land to the City or city-designated local non-profit housing developer in lieu of construction of some or all of the required affordable units, if the council finds that: 1. that dedication of land in-lieu of constructing units is consistent with the chapter's goal of creating, preserving, maintaining, and protecting housing for very-low, low- and moderate- income households. 3 2. that the dedicated land is large enough and appropriately zoned to accommodate the number of units that the applicant would otherwise be required to construct by section 8.68.030.A, is useable for its intended purpose, is free of toxic substances and contaminated soils, and is fully improved, with infrastructure, adjacent utilities, grading, and all development-impact fees paid excluding any inclusionary zoning ordinance fees. D. Credit transfers. An applicant may fully or partiallY satisfy the requirements of section 8.68.030.A through the use of transfer credits created pursuant to section 8.68.060. Credit certificates shall be presented to the Community Development Director, who shall note at the time of project approval the credit certificate by number. Credit certificates may only be used to satisfy the requirements for Inclusionary Units for the income category (i.e., very low, low, or moderate) and number of bedrooms for which they are issued. E. Waiver of Requirements. The City Council, at its discretion, may waive, wholly or partially, the requirements of this ordinance and approve alternate methods of compliance with this chapter if the applicant demonstrates, and the City Council finds, that such alternate methods meet the purposes of this chapter. 8.68.050. General Procedures for Implementing Inelusionary Zoning Requirements A. Agreements. Prior to the issuance of a building permit for an affordable unit, resale restrictions or rental controls, or both, as the case may be, shall be set forth in an agreement between the City and the developer, in a form consistent with the City Council-adopted form agreement, which agreement shall be recorded against the property containing the affordable units. The agreement shall be executed by the City Manager, and its requirements shall run with the land and bind the applicant's successors. B. Rental Units; Occupancy; Annual Report. Agreements involving rental units shall require the owner of the affordable units to ensure that the units are occupied by tenants whose monthly income levels do not exceed moderate income levels' and shall preclude tenants from subletting or subleasing the unit. The agreement shall also require the owner of the affordable unit to submit an annual report to the City Manager, in a format approved by the City. The report shall include, but not be limited to the following information: an identification of the affordable 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 affordable unit throughout the prior year. C. Ownership Units; Occupancy; City's Right °fFirst Refusal. Agreements for ownership units shall specify that the inclusionary units must be occupied by the owner or owners and may not be leased or rented without the written approval of the City. The resale restrictions shall provide that in the event of the sale of an affordable unit, the City shall have the right to purchase any affordable owner-occupant unit at the maximum price that could be charged to an eligible household. D. Selection Criteria. No household shall be permitted to occupy a unit that is required under this chapter to be affordable unless the City or its designee has approved the household's eligibility. Eligible potential occupants of affordable units will be qualified on the basis of household income, the median combined household income statistics for Alameda County published periOdically by the California Department of Housing and Community DevelOpment, all sources of household income 4 and assets, the relationship between household size and the size of available units, and any further criteria required by law. The developer 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. Selection of qualified person should be based on priorities established in the City's 'Affordable Housing Program as noted below: 1. Dublin residents that are seniors 2. Dublin residents that are permanently disabled 3. Dublin residents and non-residents who are members of Dublin's workforce 4. Dublin residents with children 5. Other Dublin residents 6. Non-residents that are seniors 7. Non-residents that are permanently disabled 8. Other n6n-residents. To qualify as a "Dublin resident," the person shall have been a resident of the City °f Dublin for at least a one-Year period prior to the eligibility determination. 8.68.060. Affordable Unit Credits. A. Creation. Affordable unit credits may be created by the City Council. One affordable unit credit certificate shall be issued for each affordable unit constructed in excess of the number of affordable units required to be constructed for the project by Section 8.68.030.A. The certificate shall designate a specific income category (i.e., very-low-, low-, or moderate income) and number of bedrooms for which they are issued. B. Ownership and use of credits. Affordable unit credit certificates are issued to and become the possession of the project owner, who may then use them to satisfy the requirements of this chapter for another project in the City. If a project owner proposes to sell credit certificates, the parties shall first obtain the consent of the Community Development Director, who will document the transfer by certificate number. 8.68.070. Incentives to Encourage On-Site Construction of Affordable Units. The City may, but shall not be required to, offer incentives or financial assistance to encourage the on-site construction of affordable units in excess of 12.5% of the total number of units in the project to the extent resources for this purpose are available and approved for such use by the City Council or City Manager. Such incentives may include, but shall not be limited to, the following: A. Fee Deferral. 1. Development Processing Fees. The City Manager may approve deferred payment of City processing fees applicable to the review and processing of the project. The terms and payment schedule of the deferred fees shall be subject to the approval of the City Manager. 2. Development Impact Fees. The City Council may authorize the deferred payment of development impact fees applicable to the affordable units. Approval of this incentive requires demonstration by the Applicant that the deferral increases the project's feasibility. The applicant must provide appropriate security to ensure future payment of such fees. B. Design Modifications. The City Council may approve design modifications to affordable units that increase the feasibility of the construction of affordable units, including but not limited to, the following: 1. Reduced lot size. 2. Reduced setback requirements. 3. Reduced open space requirements. 4. Reduced landscaping requirements. 5. Reduced interior or exterior amenities. 6. Reduction in parking requirements. 7. Height restriction waivers. 8.68.080. Inclusionary Zoning In-Lieu Fee Fund. In-lieu Fees shall be deposited into a fund known as the "Inclusionary Zoning In-Lieu Fees Fund" ("Fund"). A. Use. All.monies in the Fund, together with any interest earnings on such monies less reasonable administrative charges, shall be used or committed to use by the City for the purpose of providing very-low-, low-, and moderate-income ownership or rental housing in the City of Dublin. B. Annual report. The City Manager shall prepare an annual report to the City Council identifying the balance of monies in the Fund and the affordable units provided and any monies committed to providing very-lOw-, low-, and moderate-income housing. The annual report shall also include a review of administrative charges. 8.68.090. Violations. It shall be unlawful for any person, firm, corporation, partnership or other entity that is subject to this ordinance pursuant to section 8.68.030.A to violate any provision or to fail to comply with any of the requirements of this chapter. A violation of any of the provisions or falling to comply with any of the requirements of this Chapter shall constitute a misdemeanor; except that notwithstanding any other provisions of this Code, any such violation constituting a misdemeanor under this chapter, may in the discretion of the enforcing authority, be charged and 6 prosecuted as an infraction. Any person convicted of an infraction under the provisions of this Code shall be punishable as provided by the Government Code of the State of California. 8.68.100. Enforcement. A. General. The City Manager shall enforce this chapter, and its provisions shall be binding on all agents, successors, and assigns of an 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 residential 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 notiimited to, actions to revoke, deny, or suspend any permit or development approval. B. Excessive rents/legal action. If the City Manager determines that rents in excess of those allowed by operation of this chapter have been charged to a tenant residing in an affordable unit, the City may take appropriate legal action to recover, and the project owner shall be obligated to pay to the tenant, or to the City in the event the tenant cannot be located, any excess rents charged. 8.68.110. Appeals. Decisions of the City Manager under this Chapter may be appealed as provided in Chapter 8,136. G:~PA#k2001\01-038\cc ord..doc 7 ORDINANCE NO. - 02 AN ORDINANCE OF THE CITY OF DUBLIN AMENDING CHAPTER 8.68 OF THE DUBLIN MUNICIPAL CODE RELATING TO INCLUSIONARY ZONING REGULATIONS The City Council of the City of Dublin does hereby ordain as follows: Section 1. Findings: The CitY of Dublin finds that: A. The citizens of Dublin are experiencing a housing shortage for very low-, low- and moderate-income households. B. A goal of the Housing Element of the City's General Plan is to achieve a balanced community with housing available for households of a range of income levels. C. Persons with very low, low, and moderate incomes that currently live and/or work in the City are increasingly unable to locate housing at prices they can afford, and often become excluded from living in the City. D. Federal and State housing subsidy programs are insufficient by themselves to satisfy the housing needs of very low-, low- and moderate-income households. E. The high cost of newly constructed housing does not, to any appreciable extent, provide housing affordable by very low-, low-, and moderate-income households, and continued new development that does not include affordable housing will serve to further aggravate the current housing shortage by reducing the supply of developable land. F. It is a public purpose of the City, and a public policy of the State as mandated by the requirements for a housing element of the City's General Plan, to make available an adequate supply of housing for persons of all economic segments of the community. Section 2. Amendment of Chapter 8. 68: Chapter 8.68, entitled "Inclusionary Zoning Regulations," of the Dublin Municipal Code is amended to read as set forth in Exhibit A. 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. This ordinance does not, in itself, allow the construction of any building or structure. This ordinance, therefore, has no potential for resulting in physical-change in the environment, directly or ultimately. Section 4. Severability: In the event any section or portion of this 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 ATTACHMENT 2 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 June 2002, by the following votes: AYES: NOES: ABSENT: ABSTAIN: MAYOR ATTEST: CITY CLERK G:LPA#k2001\01-038\cc ord staff recomm.doc Exhibit A CHAPTER 8.68 INCLUSIONARY ZONING REGULATIONS 8.68.010. Purpose. The purpose of this chapter is to: A. enhance the public welfare and assure that further housing development contributes to the attainment of the City's housing goals by increasing the production of residential units affordable by households of very low-, low-, and moderate income. B. assure that the limited remaining developable land in the City's planning area is utilized in a manner consistent with the City's housing policies and needs. 8.68.020. Definitions. As used in this chapter, each of the following terms shall be defined as follows: A. "Affordable Unit" means an ownership or rental-housing unit, including senior housing, affordable to households with very-low-, low-, or moderate incomes as defined in this chapter. 1. Rental units are deemed affordable units if the annual rent does not exceed 30% of maximum income level for very-low,, low-, .and moderate-income households, adjusted for household size and as defined below. 2. Owner-occupied units are deemed affordable units if the sales price results in annual mortgage payments that do not exceed 30% of maximum income level for very-low-, low-, and moderate-income households, adjusted for household size and as defined below. B. "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. C. "Dwelling unit" means a dwelling designed and intended for occupancy by one household. D. "Very-low-, low-, and moderate-income levels" means those income and eligibility levels determined periodically by the California Department of Housing and Community Development based on Alameda County median income levels adjusted for family size. Such levels shall be calculated on the basis of gross annual household income considering household size and number of dependents, income of all wage earners, elderly or disabled family members, and all other sources of household income and will be recertified as set forth by local standards, and state and federal housing law. 1. "Very-low income" means 50% or less of the median income, adjusted for actual household size. 2. "Low income" means more than 50% to 80% of the median income, adjusted for actual household size. 3. "Moderate income" means more than 80% to 120% of the median income, adjusted for actual household size. E. "Resale controls and/or rent restrictions" means legal restrictions by which the affordable units shall be restricted to ensure that the unit remains affordable to very-low-, low-, or moderate-income households, as applicable, for a period of not less than 55 years. With respect to rental units, such rent restrictions shall be in the form of a regulatory agreement recorded against the applicable property. With respect to owner-occupied units, such resale controls shall be in the form of resale restrictions, deeds of trust, and/or other similar documents recorded against the applicable property. F. "Residential development" includes, without limitation, detached single-family dwellings, multiple- dwelling structures, groups of dwellings, condominium or townhouse developments, condominium conversions, cooperative developments, mixed use developments that include housing units, and residential land subdivisions intended to be sold to the general public. 8.68.030. General Requirements A. 12.5% Affordability Requirement. All new residential development projects of 20 units or more designed and intended for permanent occupancy shall construct 12.5% of the total number of dwelling units within the development as affordable units, except as otherwise provided by this chapter. The foregoing requirement shall be applied no more than once to an approved development (and generally at the tentative map stage), regardless of the changes in the character or ownership of the development, provided the total number of units does not change. In applying and calculating the affordability requirement, any decimal fraction less than or equal to 0.50 may be disregarded, and any decimal fraction greater than 0.50 shall be construed as one unit. B. Allocation of Units to Income Levels. Affordable units provided pursuant to this section shall be allocated to households with very-low, low-, and moderate-income levels as follows: Very-low-income households 30% Low-income households 20% Moderate-income households 50% Where the calculation of the allocation results in fewer units that would otherwise be required pursuant to subdivision A above, one additional unit should be allocated to the income level with a decimal fraction closest to 0.50. C. Conditions of Approval: Any tentative map, conditional use permit, or site development review approving residential development projects subject to this chapter shall contain conditions sufficient to ensure compliance with the provisions of this chapter. Such conditions shall detail the number of affordable units required, specify the schedule of construction of affordable units, set forth the applicant's manner of compliance with this chapter, and require the execution of an agreement imposing' appropriate resale controls and/or rental restrictions on the affordable units. D. Concurrent Construction. All affordable units in a project or phase of a project shall be constructed concurrently with market-rate units, Unless the City Manager determines in writing that extenuating circumstances exist that make concurrent construction infeasible or impractical. E. Design and Distribution of Affordable Units. All affordable units shall reflect the range of numbers of bedrooms provided in the project as a whole and shall not be distinguished by exterior design, construction, or materials. Affordable units may be of smaller size than the units in the project and may have fewer amenities than the market rate units in the project. All affordable units shall be reasonably dispersed throughout the project. 8.68.040. Exceptions to 12.5% Affordability Requirement. Developers of projects subject to 8.68.030.A shall construct 12.5% of the total number of dwelling units within the development as affordable units, unless subject to an exception set forth in this section. All exceptions require City Council approval, which shall be obtained at or prior to the last discretionary approval for the project. A. Payment of Fees In-Lieu of Creation of Affordable Units. Upon request of the applicant, the City Council shall 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 pursuant to section 8.68.030.A. The amount of the fee shall be as set forth in a resolution of the City Council, which may be amended from time to time to reflect inflation and changed conditions in the City and the region. In-lieu fees shall be paid at and the time and in the amount set forth in the in-lieu fee resolution in effect at the time of issuance of the building permit. B. Off-Site Projects. An applicant may construct the affordable units not physically within the development in lieu of constructing some or all of the affordable units within the development, with the approval of the City Council, if the City Council finds: 1. that construction of the units off-site in lieu of constructing units on-site is consistent with the Chapter's goal of creating, preserving, maintaining, and protecting housing for very low-, Iow- and moderate-income households. 2. that the units to be constructed off site are consistent with section 8.68.030.E above 3. that it would be infeasible or impractical to construct affordable units on-site. 4. that conditions of approval for the project require that the off-site affordable'units would be governed by the terms of a deed restriction and, if applicable, rental restrictions similar to that used for the on-site affordable units. 5. that the conditions of approval for the project, or other security such as a cash deposit, bond, or letter of credit, are adequate to require the construction of the off-site affordable units concurrently with the completion of the construction of the residential development or within a reasonable period (not to exceed 5 years). C. Land Dedication. An applicant may dedicate land to the City or city-designated local non-profit housing developer in lieu of construction of some or all of the required affordable units, if the council finds that: 1. that dedication of land in-lieu of constructing units is consistent with the chapter's goal of creating, preserving, maintaining, and protecting housing for very-low, low- and moderate- income households. 2. that the dedicated land is large enough and appropriately zoned to accommodate the number of units that the applicant would otherwise be required to construct by section 8.68.030.A, is useable for its intended purpose, is free of toxic substances and contaminated soils, and is fully improved, with infrastructure, adjacent utilities, grading, and all development-impact fees paid excluding any inclusionary zoning ordinance fees. 3. that the developer has provided dedicated land large enough and at a value to construct the required affordable units as well as at a value sufficient to cover the cost of building the required affordable units on this site. D. Credit transfers. An applicant may fully or partially satisfy the requirements of section 8.68.030.A through the use of transfer credits created pursuant to section 8.68.060. Credit certificates shall be presented to the Community Development Director, who shall note at the time of project approval the credit certificate by number. Credit certificates may only be used to satisfy the requirements for Inclusionary Units for the income category (i.e., very low, low, or moderate) and number of bedrooms for which they are issued. E. Waiver of Requirements. The City Council, at its discretion, may waive, wholly or partially, the requirements of this ordinance and approve alternate methods of compliance with this chapter if the applicant demonstrates, and the City Council finds, that such alternate methods meet the purposes of this chapter. 8.68.050. General Procedures for Implementing Inclusionary Zoning Requirements A. Agreements. Prior to the issuance of a building permit for an affordable unit, resale restrictions or rental controls, or both, as the case may be, shall be set forth in an agreement between the City and the developer, in a form consistent with the City Council-adopted form agreement, which agreement shall be recorded against the property containing the affordable units. The agreement shall be executed by the City Manager, and its requirements shall run with the land and bind the applicant's successors. B. Rental Units; Occupancy; Annual Report. Agreements involving rental units shall require the owner of the affordable units to ensure that the units are occupied by tenants whose monthly income levels do not exceed moderate income levels and shall preclude tenants from subletting or subleasing the unit. The agreement shall also require the owner of the affordable unit to submit an annual report to the City Manager, in a format approved by the City. The report shall include, but not be limited to the following information: an identification of the affordable 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 affordable unit throughout the prior year. C. Ownership Units; Occupancy; City's Right of First Refusal. Agreements for ownership units shall specify that the inclusionary units must be occupied by the owner or owners and may not be leased or rented without the written approval of the City. The resale restrictions shall provide that in the event of the sale of an affordable unit, the City shall have the right to purchase any affordable owner-occupant unit at the maximum price that could be charged to an eligible household. D. Selection Criteria. No household shall be permitted to occupy a unit that is required under this chapter to be affordable unless the City or its designee has approved the household's eligibility. 4 Eligible potential occupants of affordable units will be qualified on the basis of household income, the median combined household income statistics for Alameda County published periodically by the California Department of Housing and Community Development, all sources of household income and assets, the relationship between household size and the size of available units, and any further criteria required by law. The developer 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. Selection of qualified person should be based on priorities established in the City's Affordable Housing Program as noted below: 1. Dublin residents that are seniors 2. Dublin residents that are permanently disabled 3. Dublin residents and non-residents who are members of Dublin's workforce 4. Dublin residents with children 5. Other Dublin residents 6. Non-residents that are seniors 7. Non-residents that are permanently disabled 8. Other non-residents. To qualify as a "Dublin resident," the person shall have been a resident of the City of Dublin for at least a one-year period prior to the eligibility determination. 8.68.060. Affordable Unit Credits. A. Creation. Affordable unit credits may be created by the City Council. One affordable unit credit certificate shall be issued for each affordable unit constructed in excess of the number of affordable units required to be constructed for the project by Section 8.68.030.A. The certificate shall designate a specific income category (i.e., very-low-, low-, or moderate income) and number of bedrooms for which they are issued. B. Ownership and use of credits. Affordable unit credit certificates are issued to and become the possession of the project owner, who may then use them to satisfy the requirements of this chapter for another project in the City. If a project owner proposes to sell credit certificates, the parties shall first obtain the consent of the Community Development Director, who will document the transfer by certificate number. 8.68.070. Incentives to Encourage On-Site Construction of Affordable Units. The City may, but shall not be required to, offer incentives or financial assistance to encourage the on-site construction of affordable units in excess of 12.5% of the total number of units in the project to the extent resources for this purpose are available and approved for such use by the City Council or City Manager. Such incentives may include, but shall not be limited to, the following: A. Fee Deferral. 1. Development Processing Fees. The City Manager may approve deferred payment of City processing fees applicable to the review and processing of the project. The terms and payment schedule of the deferred fees shall be subject to the approval of the City Manager. 2. Development Impact Fees. The City Council may authorize the deferred payment of development impact fees applicable to the affordable units. Approval of this incentive requires demonstration by the Applicant that the deferral increases the project's feasibility. The applicant must provide appropriate security to ensure future payment of such fees. B. Design Modifications. The City Council may approve design modifications to affordable units that increase the feasibility of the construction of affordable units, including but not limited to, the. following: 1. Reduced lot size. 2. Reduced setback requirements. 3. Reduced open space requirements. 4. Reduced landscaping requirements. 5. Reduced interior or exterior amenities. 6. Reduction in parking requirements. 7. Height restriction waivers. 8.68.080. Inclusionary Zoning In-Lieu Fee Fund. In-lieu Fees shall be deposited into a fund known as the "Inclusionary Zoning In-Lieu Fees Fund" ("Fund"). A. Use. All monies in the Fund, together w/th any interest earnings on such monies less reasonable administrative charges, shall be used or committed to use by the City for the purpose of providing very-low-, low-, and moderate-income ownership or rental housing in the City of Dublin. B. Annual report. The City Manager shall prepare an annual report to the City Council identifying the balance of monies in the Fund and the affordable units provided and any monies committed to providing very-low-, low-, and moderate-income housing. The annual report shall also include a review of administrative charges. 8.68.090. Violations. It shall be unlawful for any person, firm, corporation, partnership or other entity that is subject to this ordinance pursuant to section 8.68.030.A to violate any provision or to fail to comply with any of the requirements.of this chapter. A violation of any of the provisions or failing to comply with any of the requirements of this Chapter shall constitute a misdemeanor; except that notwithstanding any other provisions of this Code, any such violation constituting a misdemeanor under this chapter, may in the discretion of the enforcing authority, be charged and 6 prosecuted as an infraction. Any person convicted of an infraction under the provisions of this Code shall be punishable as provided by the Government Code of the State of California. 8.68.100 Enforcement. A. General. The City Manager shall enforce this chapter, and its provisions shall be binding on all agents, successors, and assigns of an 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 residential 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. Excessive rents/legal action. If the City Manager determines that reuts in excess of those allowed by operation of this chapter have been charged to a tenant residing in an affordable unit, the City may take appropriate legal action to recover, and the project owner shall be obligated to pay to the tenant, or to the City in the event the tenant cannot be located, any excess rents charged. 8.68.110. Appeals. Decisions of the City Manager under this Chapter may be appealed as provided in Chapter 8.136. G:~PAffx2001\01-038\cc ord staff recomm, doc