Chapter 16.97 — STATE DENSITY BONUS LAW

The purpose of this chapter is to adopt an ordinance that specifies how compliance with Government Code Section 65915 ("State Density Bonus Law") will be implemented in an effort to encourage the production of low income housing units in developments proposed within the city.

(Ord. 994 § 2 (part), 2013; Ord. 1045 § 3 (part), 2018)

Unless otherwise specified in this chapter, the definitions found in state density bonus law shall apply to the terms contained herein.

(Ord. 994 § 2 (part), 2013; Ord. 1045 § 3 (part), 2018)

This chapter shall apply to all zoning districts, including mixed use zoning districts, where residential developments of five (5) or more dwelling units are proposed and where the applicant seeks and agrees to provide low, very low, senior or moderate income housing units in the threshold amounts specified in state density bonus law such that the resulting density is beyond that which is permitted by the applicable zoning. This chapter and state density bonus law shall apply only to the residential component of a mixed use project and shall not operate to increase the allowable density of the nonresidential component of any proposed project. (Ord. 994 § 2 (part), 2013; Ord. 1045 § 3 (part), 2018)

• (a) Any applicant requesting a density bonus, incentive(s) and/or waiver(s) pursuant to state density bonus law shall provide the city with a written proposal. The proposal shall be submitted prior to or concurrently with filing the planning application for the housing development and shall be processed in conjunction with the underlying application.

• (b) The proposal for a density bonus, incentive(s) and/or waiver(s) pursuant to state density bonus law shall include the following information:

  • (1) Requested Density Bonus. The specific requested density bonus proposal shall evidence that the project meets the thresholds for state density bonus law. The proposal shall also include calculations showing the maximum base density, the number/percentage of affordable units and identification of the income level at which such units will be restricted, additional market rate units resulting from the density bonus allowable under state density bonus law and the resulting unit per acre density. The density bonus units shall not be included in determining the percentage of base units that qualify a project for a density bonus pursuant to state density bonus law.

  • (2) Requested Incentive(s). The request for particular incentive(s) shall include a pro forma or other report evidencing that the requested incentive(s) results in identifiable, financially sufficient and actual cost reductions that are necessary to make the housing units economically feasible. The report shall be sufficiently detailed to allow

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the city to verify its conclusions. If the city requires the services of specialized financial consultants to review and corroborate the analysis, the applicant will be liable for all costs incurred in reviewing the documentation.

• (3) Requested Waiver(s). The written proposal shall include an explanation of the waiver(s) of development standards requested and why they are necessary to make the construction of the project physically possible. Any requested waiver(s) shall not exceed the limitations provided by Section 16.97.080 and to the extent such limitations are exceeded will be considered as a request for an incentive.

• (4) Fee. Payment of the fee in an amount set by resolution of the city council to reimburse the city for staff time spent reviewing and processing the state density bonus law application submitted pursuant to this chapter.

• (Ord. 994 § 2 (part), 2013; Ord. 1045 § 3 (part), 2018)

• (a) A density bonus for a housing development means a density increase over the otherwise maximum allowable residential density under the applicable zoning and land use designation on the date the application is deemed complete. The amount of the allowable density bonus shall be calculated as provided in state density bonus law. The applicant may select from only one (1) of the income categories identified in state density bonus law and may not combine density bonuses from different income categories to achieve a larger density bonus.

• (b) In the sole discretion of the city council, the city council may approve a density bonus and/ or incentive(s) in accordance with state density bonus law for a project that does not maximize the underlying base zoning density. Additionally, nothing herein prevents the city from granting a greater density bonus and additional incentives or waivers than that provided for herein, or from providing a lesser density bonus and fewer incentives and waivers than that provided for herein, when the housing development does not meet the minimum thresholds.

• (c) The density bonus, incentives and waivers provided pursuant to state density bonus law are not additive with and shall not be combined with the density bonus provided pursuant to Section 16.96.040 (FAR and density bonus) or Chapter 16.98 (Affordable Housing Overlay).

• (d) An applicant shall be ineligible for a density bonus or any other incentives or waivers under this chapter if the housing development displaces qualifying rental dwelling units, unless the development replaces those units in accordance with state law.

• (Ord. 994 § 2 (part), 2013; Ord. 1045 § 3 (part), 2018)

• (a) The number of incentives granted shall be based upon the number the applicant is entitled to pursuant to state density bonus law.

• (b) An incentive includes a reduction in site development standards or a modification of zoning code requirements or architectural requirements that result in identifiable, financially sufficient and actual cost reductions. An incentive may be the approval of mixed use zoning (e.g., commercial) in conjunction with a housing project if the mixed use will reduce the

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City of Menlo Park, CA § 16.97.060

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cost of the housing development and is compatible with the housing project. An incentive may, but need not be, the provision of a direct financial incentive, such as the waiver of fees.

• (c) The city has specifically approved the following incentive for properties not located within the El Camino Real/Downtown specific plan boundary:

  • (1) If the applicant proposes to put fifty percent (50%) of the required parking in a parking structure, then the applicant shall be eligible for a ten percent (10%) increase in the base density for purposes of the calculations of maximum base density and percentage of affordable units required to apply state density bonus law.

• (d) A requested incentive may be denied only for those reasons provided in state density bonus law. Denial of an incentive is a separate and distinct act from a decision to deny or approve the entirety of the project.

• (Ord. 994 § 2 (part), 2013)

The granting of a density bonus or incentive(s) shall not be interpreted in and of itself to require a general plan amendment, zoning change or other discretionary approval. If an incentive would otherwise trigger one of these approvals, when it is granted as an incentive, no general plan amendment, zoning change or other discretionary approval is required. However, if the base project without the incentive requires a general plan amendment, zoning change or other discretionary approval, the city retains discretion to make or not make the required findings for approval of the base project.

(Ord. 994 § 2 (part), 2013)

A waiver is a modification to a development standard such that construction at the increased density would be physically possible. Modifications to floor area ratio in an amount equivalent to the percentage density bonus utilized shall be allowable as a waiver. Requests for an increase in floor area ratio above that equivalent percentage shall be considered a request for an incentive. Other development standards include, but are not limited to, a height limitation, a setback requirement, an on-site open space requirement, or a parking ratio that applies to a residential development. An applicant may request a waiver of any development standard to make the project physically possible to construct at the increased density. To be entitled to the requested waiver, the applicant must show that without the waiver, the project would be physically impossible to construct. There is no limit on the number of waivers. (Ord. 994 § 2 (part), 2013)

The following requirements in the Menlo Park El Camino Real Downtown specific plan area shall not be modified as either an incentive or waiver pursuant to this chapter:

• (1) The maximum FAR shall be limited to the public benefit levels.

• (2) The front and side setbacks facing a public right-of-way.

• (3) Building facade height.

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• (4) Massing and modulation standards including major portions of a building facing a street should be parallel to the street, building breaks, building facade modulation and building profile, and upper story facade length.

• (Ord. 994 § 2 (part), 2013)

Prior to project approval, the applicant shall enter into an affordable housing agreement with the city, to be executed by the city manager without review by the housing commission, planning commission or city council if the underlying application does not require review and/or approval by those bodies, to the satisfaction of the city attorney guaranteeing the affordability of the rental or ownership units for a minimum of thirty (30) years and identifying the type, size and location of each affordable unit. Such affordable housing agreement shall be recorded in the San Mateo County recorder's office.

• (Ord. 994 § 2 (part), 2013)

• (a) Affordable units must be constructed concurrently with market rate units and shall be integrated into the project. Affordable units shall be of equal design and quality as the market rate units. Exteriors, including architecture and elevations, and floor plans of the affordable units shall be similar to the market rate units. 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 building official. The number of bedrooms in the affordable units shall be consistent with the mix of market rate units.

• (b) Parking standards shall be modified as allowable under state density bonus law and anything beyond those standards shall be considered a request for an incentive.

• (Ord. 994 § 2 (part), 2013)

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City of Menlo Park, CA