2017-13 Amend Section 30.16.020.C Density Bonus RegulationsORDINANCE 2017 -13
AN ORDINANCE OF THE CITY OF ENCINITAS AMENDING SECTION 30.16.020.0
(DENSITY BONUS REGULATIONS) OF THE ENCINITAS MUNICIPAL CODE
SECTION ONE. The City Council of the City of Encinitas hereby finds and declares as follows.
WHEREAS, California Government Code Section 65915(a) requires that all cities adopt an
ordinance that specifies how compliance with State Density Bonus Law will be implemented,
WHEREAS, the City finds that the proposed amendments to the City's Municipal Code are
exempt from environmental review pursuant to General Rule, Section 15061(b)(3) of the California
Environmental Quality Act (CEQA) Guidelines since there would be no possibility of a significant effect
on the environment. The ordinance being considered specifies how the City will comply with and
implement State density bonus law, and adoption is required pursuant to Government Code §65915(a).
The bonuses, incentives, and waivers permitted by the ordinance are required by State law, and this
ordinance does not permit any bonuses, incentives, or waivers other than those required by State law;
WHEREAS, a Public Notice of Availability of proposed Local Coastal Plan Amendments (LCPA)
was issued which opened a six -week public review period that ran from August 4, 2017 to September
15, 2017,
WHEREAS, the Planning Commission conducted a Public Hearing on August 17, 2017, for the
purpose of considering amendments to Section 30.16.020.C, Density Bonus Regulations, of the
Encinitas Municipal Code and considered public testimony and made a recommendation to the City
Council to adopt the proposed amendments:
WHEREAS, the City Council conducted a Public Hearing on October 4, 2017, for the purpose of
considering amendments to Section 30.16.020.C, Density Bonus Regulations, of the Encinitas
Municipal Code:
WHEREAS, the City Council has duly considered all evidence, including testimony and the
evaluation and recommendations by staff, presented at said hearing,
WHEREAS, notices of said public hearings were made at the time and in the manner required
by law, and.
WHEREAS, the City Council finds that this Ordinance is intended to be carried out in a manner
in full conformance with the California Coastal Act of 1976 and the Development Services Director is
hereby authorized to submit this Ordinance as part of the Local Coastal Program Amendment to the
California Coastal Commission for their review and adoption.
NOW, THEREFORE, the City Council of the City of Encinitas, California, hereby ordains as
follows:
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SECTION TWO. Section 30.16.020.0 (Density Bonus Regulations) of the Encinitas Municipal [Zoning]
Code is hereby repealed and replaced to read as follows:
C. Density Bonus Regulations.
1. The purpose of this subsection is to specify how compliance with Government Code
Sections 65915, 65915.5, 65915.7, and 65917 ( "State Density Bonus Law ") will be
implemented, as required by Government Code Section 65915(a).
2. Definitions. The definitions found in State Density Bonus Law shall apply to the terms
contained in this subsection.
3. Applicability. A "housing development" as defined in State Density Bonus Law shall be
eligible for a density bonus and other regulatory incentives that are provided by State
Density Bonus Law when the applicant seeks and agrees to provide low, very -low.
senior or moderate income housing units or units intended to serve transitional foster
youth, disabled veterans, or homeless persons in the threshold amounts specified in
State Density Bonus Law. A "housing development' includes only the residential
component of a mixed use project.
A `commercial development' as defined in subsection C.11 shall be eligible for a
commercial development bonus as provided in subsection C.11.
4. Application Requirements.
a. Any applicant requesting a density bonus and any incentive(s), waiver(s), parking
reductions, or commercial development bonus provided by State Density Bonus
Law shall submit a density bonus report as described below concurrently with the
filing of the planning application for the first discretionary permit required for the
housing or commercial development. The requests contained in the density
bonus report shall be processed concurrently with the planning application. The
applicant shall be informed whether the application is complete consistent with
Government Code Section 65943.
b. The density bonus report shall include the following minimum information:
i. Requested Density Bonus for a Housing Development.
(A) Summary table showing the maximum number of dwelling units permitted
by the zoning and general plan excluding any density bonus units, proposed
affordable units by income level, proposed bonus percentage, number of
density bonus units proposed, total number of dwelling units proposed on the
site, and resulting density in units per acre.
(B) A tentative map and /or preliminary site plan, drawn to scale, showing the
number and location of all proposed units, designating the location of
proposed affordable units and density bonus units.
(C) The zoning and general plan designations and assessor's parcel
number(s) of the housing development site.
(D) Calculation of the maximum number of dwelling units permitted by the
City's zoning regulations and general plan for the housing development,
excluding any density bonus units.
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(E) A description of all dwelling units existing on the site in the five -year
period preceding the date of submittal of the application and identification of
any units rented in the five -year period. If dwelling units on the site are
currently rented, income and household size of all residents of currently
occupied units, if known. If any dwelling units on the site were rented in the
five -year period but are not currently rented, the income and household size of
residents occupying dwelling units when the site contained the maximum
number of dwelling units, if known.
(F) Description of any recorded covenant, ordinance, or law applicable to the
site that restricted rents to levels affordable to very low or lower income
households in the five -year period preceding the date of submittal of the
application.
(G) If a density bonus is requested for a land donation, the location of the
land to be dedicated. proof of site control, and reasonable documentation that
each of the requirements included in Government Code Section 65915(g) can
be met.
ii. Requested Incentive(s) for a Housing Development. In the event an
application proposes incentives for a housing development pursuant to State
Density Bonus Law, the density bonus report shall include the following
minimum information for each incentive requested, shown on a site plan if
appropriate:
(A) The City's usual development standard and the requested development
standard or regulatory incentive.
(B) Except where mixed -use zoning is proposed as an incentive, reasonable
documentation to show that any requested incentive will result in identifiable
and actual cost reductions to provide for affordable housing costs or rents.
(C) If approval of mixed use zoning is proposed, reasonable documentation
that nonresidential land uses will reduce the cost of the housing development,
that the nonresidential land uses are compatible with the housing development
and the existing or planned development in the area where the proposed
housing development will be located, and that mixed use zoning will provide
for affordable housing costs or rents.
iii. Requested Waiver(s) for a Housing Development. In the event an application
proposes waivers of development standards for a housing development
pursuant to State Density Bonus Law, the density bonus report shall include
the following minimum information for each waiver requested on each lot,
shown on a site plan if appropriate:
(A) The City's usual development standard and the requested development
standard.
(B) Reasonable documentation that the development standards for which a
waiver is requested will have the effect of physically precluding the
construction of a development at the densities or with the concessions or
incentives permitted by Government Code Section 65915.
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iv. Requested Parking Reduction for a Housing Development. In the event an
application proposes a parking reduction for a housing development pursuant
to Government Code Section 65915(p), a table showing parking required by
the zoning regulations, parking proposed under Section 65915(p), and
reasonable documentation that the project is eligible for the requested parking
reduction.
v. Child Care Facility for a Housing Development. If a density bonus or incentive
is requested for a child care facility in a housing development, reasonable
documentation that all of the requirements included in Government Code
Section 65915(h) can be met.
vi. Condominium Conversion. If a density bonus or incentive is requested for a
condominium conversion, reasonable documentation that all of the
requirements included in Government Code Section 65915.5 can be met.
vii. Commercial Development Bonus. If a commercial development bonus is
requested for a commercial development, the application shall include the
proposed partnered housing agreement and the proposed commercial
development bonus, as defined in subsection C.11, and reasonable
documentation that each of the standards included in subparagraph C.11.c
has been met.
viii. Fee. Payment of any fee in an amount set by resolution of the City Council
for staff time necessary to determine compliance of the Density Bonus Plan
with State Density Bonus Law.
5. Density Bonus.
a. In determining the total number of units to be granted, each component of any
density calculation, including base density and bonus density, resulting in fractional
units shall be separately rounded up to the next whole number.
b. When calculating the number of affordable units needed for a given density bonus,
any fractions of affordable dwelling units shall be rounded up to the next whole
number.
c. Each housing development is entitled to only one density bonus. If a housing
development qualifies for a density bonus under more than one income category or
additionally as senior housing or as housing intended to serve transitional foster
youth, disabled veterans, or homeless persons, the applicant shall select the
category under which the density bonus is granted. Density bonuses from more than
one category may not be combined.
d. The density bonus units shall not be included in determining the number of
affordable units required to qualify a housing development for a density bonus
pursuant to State Density Bonus Law.
e. The applicant may elect to accept a lesser percentage of density bonus than the
housing development is entitled to, or no density bonus, but no reduction will be
permitted in the percentages of required affordable units contained in Government
Code Sections 65915(b), (c), and (f). Regardless of the number of affordable units,
no housing development shall be entitled to a density bonus of more than 35
percent.
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6. Incentives.
a. Incentives include "incentives and concessions" as defined in State Density Bonus
Law. The number of incentives that may be requested shall be based upon the
number the applicant is entitled to pursuant to State Density Bonus Law.
b. Nothing in this subsection requires the provision of direct financial incentives for the
housing development, including, but not limited to, the provision of financial
subsidies, publicly owned land, fee waivers, or waiver of dedication requirements.
The City, at its sole discretion, may choose to provide such direct financial
incentives.
7. Local Coastal Plan Consistency.
a. State Density Bonus Law provides that it shall not be construed to supersede or in
any way alter or lessen the effect or application of the California Coastal Act of 1976,
and further provides that the granting of a density bonus or an incentive shall not be
interpreted, in and of itself, to require a local coastal plan amendment.
b. For development within the coastal zone, any requested density bonus, incentive(s),
waiver(s), parking reduction(s), or commercial development bonus shall be
consistent with all applicable requirements of the certified Encinitas Local Coastal
Program, with the exception of density.
8. Review Procedures. All requests for density bonuses, incentives, parking reductions,
waivers, or commercial development bonuses shall be considered and acted upon by
the approval body with authority to approve the development within the timelines
prescribed by Government Code Sections 65950 et seq., with right of appeal to the City
Council.
a. Eligibility for Density Bonus, Incentive(s), Parking Reduction, and /or Waiver(s) for a
Housing Development. To ensure that an application for a housing development
conforms with the provisions of State Density Bonus Law and the Coastal Act, the
staff report presented to the decision - making body shall state whether the application
conforms to the following requirements of state law:
i. The housing development provides the affordable units or senior housing
required by State Density Bonus Law to be eligible for the density bonus and
any incentives, parking reduction, or waivers requested, including the
replacement of units rented or formerly rented to low and very low income
households as required by Government Code Section 65915(c)(3).
ii. Any requested incentive will result in identifiable and actual cost reductions to
provide for affordable housing costs or rents; except that, if a mixed -use
development is requested, the application must instead meet all of the
requirements of Government Code Section 65915(k)(2).
iii. The development standards for which a waiver is requested would have the
effect of physically precluding the construction of a development at the densities
or with the concessions or incentives permitted by Government Code Section
65915.
iv. The housing development is eligible for any requested parking reductions under
Government Code Section 65915(p).
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v. If the housing development is in the coastal zone, the requested density bonus
and any requested incentive(s), waiver(s), or parking reduction(s) are consistent
with all applicable requirements of the certified Encinitas Local Coastal Program,
with the exception of density.
vi. If the density bonus is based all or in part on donation of land, all of the
requirements included in Government Code Section 65915(8) have been met.
vii. If the density bonus or incentive is based all or in part on the inclusion of a child
care facility, all of the requirements included in Government Code Section
65915(h) have been met.
viii. If the density bonus or incentive is based all or in part on the inclusion of
affordable units as part of a condominium conversion, all of the requirements
included in Government Code Section 65915.5 have been met.
b. If a commercial development bonus is requested for a commercial development. the
decision - making body shall make a finding that the development complies with all of
the requirements of subparagraph C.11.c, that the City has approved the partnered
housing agreement, and that the commercial development bonus has been mutually
agreed upon by the City and the commercial developer. If the project is in the coastal
zone, the decision - making body shall also find that the commercial development
bonus is consistent with all applicable requirements of the certified Encinitas Local
Coastal Program, with the exception of density.
c. The decision - making body shall grant an incentive requested by the applicant unless
it makes a written finding. based upon substantial evidence, of any of the following:
i. The proposed incentive does not result in identifiable and actual cost reductions
to provide for affordable housing costs, as defined in Section 50052.5 of the
Health and Safety code, or for affordable rents, as defined in Section 50053 of
the Health and Safety Code; or
ii. The proposed incentive would be contrary to state or federal law; or
iii. The proposed incentive would have a specific, adverse impact upon public health
or safety or the physical environment or on any real property that is listed in the
California Register of Historic Resources, and there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact without rendering the
housing development unaffordable to low and moderate income households. For
the purpose of this subsection, "specific adverse impact" means a significant,
quantifiable. direct. and unavoidable impact, based on objective, identified,
written public health or safety standards, policies, or conditions as they existed
on the date that the application for the housing development was deemed
complete.
d. The decision - making body shall grant the waiver of development standards
requested by the applicant unless it makes a written finding, based upon substantial
evidence, of any of the following:
i. The proposed waiver would be contrary to state or federal law; or
ii. The proposed waiver would have an adverse impact on any real property listed in
the California Register of Historic Resources; or
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iii. The proposed waiver would have a specific, adverse impact upon public health
or safety or the physical environment, and there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact without rendering the
housing development unaffordable to low and moderate income households. For
the purpose of this subsection, "specific adverse impact' means a significant,
quantifiable, direct, and unavoidable impact, based on objective, identified,
written public health or safety standards, policies, or conditions as they existed
on the date that the application for the housing development was deemed
complete.
e. If any density bonus, incentive, parking reduction, waiver, or commercial
development bonus is approved pursuant to this chapter, the applicant shall enter
into an affordable housing agreement or senior housing agreement with the City
pursuant to Subsection C.9.
9. Affordable Housing Agreement and Senior Housing Agreement. Except where a density
bonus, incentive, waiver, parking reduction, or commercial development bonus is
provided for a market -rate senior housing development, the applicant shall enter into an
affordable housing agreement with the City, in a form approved by the City Attorney, to
be executed by the City Manager, to ensure that the requirements of this subsection are
satisfied. The affordable housing agreement shall guarantee the affordability of the
affordable units for a minimum of 55 years or a longer period of time if required by the
construction or mortgage financing assistance program, mortgage insurance program, or
rental subsidy program; shall identify the type, size and location of each affordable unit:
and shall specify phasing of the affordable units in relation to the market -rate units.
Where a density bonus, waiver, or parking reduction is provided for a market -rate senior
housing development, the applicant shall enter into a restrictive covenant with the City,
running with the land, in a form approved by the City Attorney, to be executed by the City
Manager, to require that the housing development be operated as "housing for older
persons" consistent with State and federal fair housing laws.
The executed affordable housing agreement or senior housing agreement shall be
recorded against the housing development prior to final or parcel map approval, or,
where a map is not being processed. prior to issuance of building permits for the housing
development. The affordable housing agreement or senior housing agreement shall be
binding on all future owners and successors in interest.
10. Design and Quality.
a. The City may not issue building permits for more than 50 percent of the market rate
units until it has issued building permits for all of the affordable units, and the City
may not approve any final inspections or certificates of occupancy for more than 50
percent of the market rate units until it has issued final inspections or certificates of
occupancy for all of the affordable units.
b. Affordable units shall be comparable in exterior appearance and overall quality of
construction to market -rate units in the same housing development. Interior finishes
and amenities may differ from those provided in the market rate units, but neither the
workmanship nor the products may be of substandard or inferior quality as
determined by the City.
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c. The number of bedrooms of the affordable units shall at least equal the minimum
number of bedrooms of the market -rate units.
11. Commercial density bonus.
a. The following definitions shall apply to this subsection C.11:
i. ''Commercial development" means a development project for non - residential uses.
ii. "Commercial development bonus" means a modification of development standards
mutually agreed upon by the City and a commercial developer and provided to a
commercial development eligible for such a bonus under subparagraph C.11.c.
Examples of a commercial development bonus include an increase in floor area
ratio, increased building height, or reduced parking.
iii. "Partnered housing agreement" means an agreement approved by the City
between a commercial developer and a housing developer identifying how the
commercial development will provide housing available at affordable ownership
cost or affordable rent consistent with subparagraph C.11.c. A partnered housing
agreement may consist of the formation of a partnership, limited liability
company, corporation. or other entity recognized by the state in which the
commercial developer and the housing developer are each partners, members,
shareholders. or other participants, or a contract between the commercial
developer and the housing developer for the development of both the commercial
development and the housing development.
b. When an applicant proposes to construct a commercial development and has
entered into a partnered housing agreement approved by the City, the City shall
grant a commercial development bonus mutually agreed upon by the developer and
the City. The commercial development bonus shall not include a reduction or waiver
of fees imposed on the commercial development to provide for affordable housing.
c. The partnered housing agreement shall include all of the following provisions:
i. The housing development shall be located either: (a) on the site of the
commercial development; or (b) on a site within the city that is within one -half
mile of a major transit stop and is located in close proximity to public amenities,
including schools and employment centers.
ii. At least 30 percent of the total units in the housing development shall be made
available at affordable ownership cost or affordable rent for low- income
households, or at least 15 percent of the total units in the housing development
shall be made available at affordable ownership cost or affordable rent for very
low- income households.
iii. The commercial developer must agree either to directly build the affordable units;
donate a site consistent with subparagraph (i) above for the affordable units; or
make a cash payment to the housing developer for the affordable units.
d. Any approved partnered housing agreement shall be described in the City's housing
element annual report as required by Government Code Section 65915.7(k).
12. Interpretation. If any portion of this subsection conflicts with State Density Bonus Law or
other applicable state law, state law shall supersede this subsection. Any ambiguities in
this section shall be interpreted to be consistent with State Density Bonus Law. (Ord. 93-
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08; Ord. 93 -14; Ord. 95 -04, Ord. 96 -07; Ord. 2003 -10; Ord. 2015 -01; Ord. 2015 -05; Ord.
2016 -07)
SECTION THREE: Severability. If any section, subsection, sentence, clause, phrase or word of this
Ordinance is for any reason held to be invalid by a court of competent jurisdiction, such decision shall
not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that
it would have passed and adopted this Ordinance, and each and all provisions hereof, irrespective of
the fact that one or more provisions may be declared invalid.
SECTION FOUR: Public Notice and Effective Date. The City Clerk is directed to prepare and have
published a summary of the ordinance no less than five days prior to consideration of its adoption, and
again within 15 days following adoption, indicating the votes cast. For property located within the
Coastal Zone, this Ordinance will become effective following certification by the California Coastal
Commission as being consistent with the Local Coastal Program for the City of Encinitas and California
Coastal Act For property located outside the Coastal Zone, this Ordinance shall take effect 30 days
after its adoption by the City Council.
SECTION FIVE:
This Ordinance was introduced on October 4. 2017.
PASSED AND ADOPTED this 18" day of October. 2017 by the following vote to wit:
AYES: Blakespear, Boerner Horvath, Kranz, Mosca, Muir
NAYS: None
ABSTAIN: None
ABSENT: None
ATTESTATION AND CERTIFICATION:
Catherine S. Blakespear, Mayor, City of Encinitas
I hereby certify that this is a true and correct copy of Ordinance No. 2017 -13 which has been published
pursuant to law.
i
Kathy H I ywoo , City Clerk
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