Sec. 26-89-010 - Purpose

The provisions of this Article are intended to:

A.

Implement the Housing Element of the General Plan, and the requirements of State law (Government Code Section 65915, et seq.).

B.

Achieve a balanced community with a wide range of housing available for households of all income levels.

C.

Increase the supply of housing units for moderate-, low-, very low- and extremely low-income and senior households who are most in need of housing.

D.

Increase the supply of housing for the disabled, large families, and other households with special housing needs, as defined in the Housing Element.

E.

Ensure that new affordable housing units are constructed in proportion to the overall increase in new housing units.

F.

Address the need for affordable housing related to employment growth associated with new or expanded non-residential development.

G.

Ensure that the remaining developable land within the County is utilized in a manner consistent with the County's affordable housing goals, objectives, policies, and programs.

H.

Provide affordable housing units that are compatible in character and quality with their surrounding neighborhoods; and

I.

Maintain the physical condition and affordability of units produced through the provisions of this Article over time.

(Ord. No. 5711 § 4 (Exh. C), 2007: Ord. No. 5570 § 2, 2005)

Sec. 26-89-020 - Applicability

The provisions of this Article shall apply to all proposed residential projects, unless otherwise provided in this Article.

(Ord. 5711 § 4 (Exh. C), 2007: Ord. No. 5570 § 2, 2005)

Sec. 26-89-030 - Administration and General Requirements

A.

Administrative responsibility. The requirements and procedures of this Article shall be administered by the Department, and the Sonoma County Community Development Commission, hereafter referred to as the "CDC." The Board of Supervisors shall adopt policies for the purposes of administering the Affordable Housing Program which may be amended from time to time.

B.

Affordable Housing Requirements. Unless otherwise exempt under Section 26.89.040(B), any person who constructs one or more residential units shall provide affordable housing through either on-site construction of the required affordable units, an alternative equivalent action, or payment of an in-lieu fee, in accordance with Section 26.89.040.

C.

Calculation of base units, affordable or special needs units, and density bonus units. The following requirements apply to calculations performed in the administration of the provisions of this Article regarding base, affordable or special needs and density bonus units.

1.

When calculating the number of base dwelling units allowed on the site in compliance with this Zoning Ordinance, any decimal fraction shall be disregarded.

2.

Density bonus units are counted in the total when determining the number of affordable units required in a Housing Opportunity Area Program Type A or Type C project.

3.

Density bonus units are not counted when determining the number of affordable or special needs units required in a State density bonus project, nor in determining the number of units that qualify the project for a State density bonus.

4.

When calculating the number of affordable or special needs units required, any decimal fraction shall be counted as a whole unit, except as specifically provided by Section 26.89.040(E).

5.

When calculating the number of density bonus units to be granted to an applicant, a fractional unit shall be rounded up to the nearest whole number.

6.

A second dwelling unit shall not be considered a base unit, when performing calculations, to meet the affordable housing, workforce housing, or density bonus program requirements, and shall not be considered as an affordable unit or special needs unit except when meeting the affordable housing requirement for one (1) single-family home on one (1) single lot, as provided in Section 26.89.040.E., or if provided under an Affordable Housing Agreement and approved as an Alternative Equivalent Proposal pursuant to Section 26-89-040 (G) and the requirements of 26-89-070

D.

Design and construction standards. All affordable and special needs housing units provided in compliance with this Article shall be designed and constructed in accordance with the standards in Section 26.89.070 (Design and Construction Standards).

E.

Affordable housing incentives. A residential project that complies with the requirements of this Article through the actual construction of affordable units on-site may be entitled to incentives in compliance with Section 26.89.060 (Affordable Housing Incentives).

F.

Density bonus available. A residential project that complies with the requirements of this Article through the actual construction of affordable units on-site may also qualify for a density bonus pursuant to Section 26.89.050 (Density Bonus Programs).

G.

Housing Proposal required. Applicants for residential projects shall submit, with the initial project application, an Affordable Housing Proposal or Special Needs Housing Proposal, as applicable, which shall include a site plan and a detailed proposal statement describing how the project will comply with the provisions of this Article (i.e., provision of units, payment of in-lieu fees, or alternative equivalent action). The Housing Proposal shall include a listing of the number, type, size, tenure, number of bedrooms and proposed affordability level for each and every unit within the development. No application for any residential project shall be deemed complete until the Housing Proposal is submitted. Modifications to an existing application shall be considered a new application. The Housing Proposal shall be considered and acted upon by the Decision Maker at the same time as the permit for the residential project that is the subject of the Proposal. Project approvals and conditions shall incorporate the provisions of the Housing Proposal, as approved or modified by the Decision Maker.

H.

Permit requirements. Implementation of the Affordable Housing Proposal or Special Needs Housing Proposal shall be ensured through the following, as applicable:

1.

Discretionary permits. Each discretionary permit authorizing a residential project, including tentative maps, shall contain a condition detailing the actions required for compliance with this Article (i.e., in-lieu fees, alternative action or on-site construction of the affordable units).

2.

Final or Parcel Maps. Each Final Map or Parcel Map shall bear a note indicating the method of compliance with the requirements of this Article, and stating that an Affordable Housing Agreement or Special Needs Housing Agreement shall be recorded, in-lieu fees paid, or alternative action undertaken pursuant to Section 26.89.040(G) or 26.89.045(F), prior to issuance of a Building Permit with respect to each parcel created by the map.

3.

Building Permits. Unless the unit is exempt under Section 26.89.040(A) (Exempt Projects), no Building Permit shall be issued for a residential unit until the applicant has demonstrated compliance with this Article through recordation of an Affordable Housing Agreement or Special Needs Housing Agreement, through payment of the appropriate in-lieu fee, or through other alternative action authorized pursuant to Section 26.89.040(G).

I.

Timing of construction. All affordable or special needs dwelling units shall be constructed concurrent with, or before, the construction of the market rate units, except where in-lieu fees are paid or alternative action taken pursuant to Section 26.89.040(G). If the County approves a phased project, the required affordable or special needs units shall be provided within each phase of the residential project in the same proportion as in the project as a whole.

J.

Project Approval. A residential project for extremely low, very low, low or moderate income households shall be approved, or approved with conditions, as deemed appropriate by the decision maker unless any one of the following findings is made:

1.

The Housing Element has been revised in compliance with Government Code Section 65588 and is in substantial compliance with the Government Code, and the development project is not needed for the County to meet its share of the regional housing need for very low-, low- or moderate-income housing; or,

2.

The development project as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households. As used in this paragraph, a "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 the application was deemed complete; or,

3.

The denial of the project or imposition of conditions is required in order to comply with specific State or Federal law, and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households; or

4.

The development project is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation purposes; or

5.

The proposed development does not have adequate water or wastewater facilities to serve the project; or

6.

The development project is inconsistent with both the zoning and General Plan land use designation as specified in any element of the General Plan as it existed on the date the application was deemed complete, provided however that no development project shall be denied based upon this finding if it is proposed on a site that is identified in the General Plan Housing Element for very low, low or moderate income households and is consistent with the density provided in the Housing Element.

K.

Limitations on Development Standards. Site development and design review standards applied to an affordable housing project that qualifies under State density bonus laws (Government Code Section 65915) shall not have the effect of physically precluding the construction of that project at the densities or with the concessions or incentives permitted by Section 65915, unless failure to apply the standard would result in one (1) or more specific adverse impacts on public health or safety or the physical environment, and there is no other feasible method to mitigate the adverse impact(s).

L.

Housing Agreement required for affordable and special needs units. If a residential project will comply with the requirements of this Article through the actual construction of affordable or special needs housing units, the property owner shall execute an Affordable Housing Agreement (in compliance with Section 26.89.100) or a Special Needs Housing Agreement (in compliance with Section 26.89.110) prior to any of the following:

1.

Any ministerial action by the County with regard to the project;

2.

Recordation of a Final Map; or

3.

Issuance of a Building Permit for any unit within the project.

The provisions contained within an Affordable Housing Agreement or a Special Needs Housing Agreement shall be enforceable by the County, and any violation of such Agreements shall constitute a violation of this Code.

(Ord. No. 5883, § V, 3-30-2010; Ord. 5711 § 4 (Exh. C), 2007: Ord. No. 5570 § 2, 2005)

Sec. 26-89-040 - Affordable Housing Requirements for Residential Development

A.

Applicability and Requirements. Unless otherwise exempt under Section 26.89.040(B), any person who constructs or develops one (1) or more residential units, whether a single family home, units in multifamily dwellings, or by condominium conversions or otherwise, shall provide affordable housing through one (1) or more of the following three (3) methods:

1.

On-site construction of the required affordable units, which shall be encouraged wherever feasible. Provide the required affordable unit(s) on-site, in accordance with the Section 26.89.040(C); or

2.

Payment of in-lieu fee. Pay a fee in lieu of the construction of the required affordable units pursuant to Section 26.89.040(F); or

3.

Alternative equivalent actions. Perform an alternative equivalent action pursuant to Section 26.89.040(G); which may be allowed to fulfill the affordable housing requirements of this Section if approved by the Board of Supervisors, at its sole discretion.

B.

Exempt Projects. The affordable housing requirements of this Section shall not apply to the following exempt projects and unit types:

1.

Project with Vested Rights. A project that demonstrates a vested right to proceed without complying with this section.

2.

Affordable Units. Affordable units which are subject to an affordable housing agreement.

3.

Small Units. Small housing units of not more than one thousand (1,000) square feet in gross living area, second dwelling units, and single room occupancy units.

4.

Agricultural Related Housing. Farm family units, agricultural employee units, farm worker housing.

5.

Alternative Housing. Homeless shelters, transitional housing, community care facilities, group homes, and similar state licensed care facilities.

6.

Dwelling Unit Destroyed by Fire or Natural Catastrophe. Repair, reconstruction or replacement of a legal dwelling unit that is destroyed by fire or natural catastrophe, provided that a building permit for repair, reconstruction or replacement has been issued and construction begun within ten (10) years of destruction.

7.

Residential Remodels and Minor Additions that Add no more than One Thousand (1,000) Square Feet. Remodels and additions that add no more than one thousand (1,000) square feet to existing, legal dwelling units that do not result in the creation of an additional unit.

8.

Replacements. Replacement of an existing, legal dwelling unit where the total living area within the replacement unit is no more than one thousand (1,000) square feet greater than the living area within the unit being replaced.

9.

Lots with Existing Affordable Units. The construction or establishment of one (1) new home on one (1) single lot, when the subject lot contains an existing second dwelling unit, farm family unit, or Ag employee unit that is subject to an affordable housing agreement to maintain long-term affordability pursuant to 26-89-100

10.

General Exemption. Residential projects that can demonstrate that they will not contribute to the demand for affordable housing in the county nor adversely impact the county's ability to meet its affordable housing needs.

C.

Number of affordable units required.

1.

Ownership Projects. At least 20 percent of all new dwelling units in an ownership residential project shall be affordable, and shall be constructed and completed at the same time as the market rate units in the same project.

a.

Level of affordability required. At least one-half of the total number of required affordable units shall be provided as affordable to low-income households. The remaining affordable units may be provided as affordable to households with moderate or low incomes. If the number of required affordable units is an odd number, the number of units affordable to moderate income households may be one (1) greater than the number affordable to low-income households, so long as at least one (1) low-income unit is provided.

2.

Rental Projects. Within each rental residential project, (i) at least fifteen (15) percent of all new dwelling units shall be affordable to low- and very low-income households, or (ii) at least ten (10) percent of all new dwelling units shall be affordable to very low- and extremely low-income households. Affordable units shall be constructed and completed at the same time as the market-rate units within the development.

a.

Level of affordability required - fifteen (15) percent option. At least one-half of the total number of required affordable units shall be provided as affordable to very low-income households. The remaining affordable units may be provided as affordable to low- or very low-income households. If the number of required affordable units is an odd number, the number of units affordable to low-income households may be one (1) greater than the number affordable to very low-income households.

b.

Level of affordability required - ten (10) percent option. At least one-half ½ of the total number of required affordable units shall be provided as affordable to extremely low-income households. The remaining affordable units may be provided as affordable to very low-income or extremely low-income households. If the number of required affordable units is an odd number, the number of units affordable to very low-income households may be one (1) greater than the number affordable to extremely low-income households.

3.

Redevelopment Area Requirements. As required by the California Health and Safety Code at Section 33413(b)(2), at least fifteen (15) percent of all new or substantially rehabilitated dwelling units developed within a redevelopment project area shall be occupied by, and provided at costs affordable to, persons of very-low, low or moderate income, with not less than forty (40) percent of those restricted dwelling units, or six (6) percent of the total units, required to be made available at an affordable housing cost to very low-income households, or as determined by the redevelopment agency, in accordance with state law.

4.

Condominium Conversion Projects. Within each project converting existing rental units or lots to condominium ownership, including common interest developments, at least thirty (30) percent of the converted units shall be offered for sale as affordable to low and very-low income households, as required by Housing Element Policy HE-1e or its subsequent equivalent.

D.

Affordable Housing Agreement. Upon approval of any project providing affordable housing on-site in accordance with this section, and prior to any ministerial action by the county concerning the project, including the recording of a final map, or the issuance of a building permit, the property owner shall execute an affordable housing agreement in compliance with Section 26.89.100 (Affordable Housing Agreements). The housing agreement shall be recorded concurrently with the final map, or prior to the issuance of a building permit, whichever occurs first.

E.

Fractional Calculations. If calculating the number of units required by Section C, above, results in a fraction less than 1.0 requirement, the applicant may satisfy that fractional requirement by:

1.

Constructing an additional affordable unit; or,

2.

On qualifying agricultural parcels, construction or conversion of a unit to a farm family or agricultural employee unit containing not more than one thousand (1,000) square feet of living area, or a farmworker bunkhouse containing at least two (2) bunks for unaccompanied workers pursuant to 26-88-060(l) or (n) and all other applicable provisions within this chapter. Farm family and agricultural employee units may be constructed to satisfy a fractional requirement under this subsection only, and shall not be considered a whole unit for the purposes of meeting the affordable unit requirements of this article; or,

3.

On parcels eligible for a second dwelling unit, construction or conversion of an existing unit to a second dwelling unit pursuant to 26-88-060. Second dwelling units may be constructed to satisfy the fractional requirement for one (1) new single-family home on one (1) single lot only, provided that a covenant is signed by the property owner and recorded to ensure that the unit will remain available for rent. Provision of a second dwelling unit shall not otherwise be considered as meeting the affordable unit requirements of this article. In cases involving the subdivision of property, provision of a separate second dwelling unit on each lot may meet the affordable unit requirement of this article only for each lot upon which a second dwelling unit is placed and a covenant recorded to ensure that the unit will remain available for rent; or

4.

Paying a Fee. Paying an in-lieu fee in compliance with Subsection F (Affordable Housing In-Lieu Fee); or,

5.

Alternative Equivalent. Performing an alternative equivalent action approved by the board of supervisors in compliance with Subsection G (Alternative Equivalent Actions).

F.

Affordable housing in-lieu fee. An applicant may choose to pay a fee in lieu of providing the affordable housing units required by this Section.

1.

Determination of Fee. The amount and calculation of the affordable housing in-lieu fee shall be established by resolution of the Board of Supervisors. Thereafter, the fee shall be increased or decreased annually by the percentage change in the Construction Cost Index for the San Francisco Bay Area for the prior year, as reflected in the third quarter Engineering News Record. The affordable housing in-lieu fee shall be automatically adjusted, and a new schedule published by the Director of PRMD on January 1 of each year, beginning on January 1, 2007. This adjustment will offset the effects of inflation related to construction cost increases or deflation-related cost decreases. If the Construction Cost index is discontinued, the Director shall use a comparable index for determining the changes in the median home costs for Sonoma County. The fee shall be periodically reviewed and updated at least every five (5) years to reflect any changes in the funding gap for a low-income household.

2.

Timing of payment. The in-lieu fee shall be calculated at the time of building permit application. The fee shall be paid at the time of issuance of the building permit for each non-exempt residential unit, unless proof is provided that the required affordable housing units will be constructed on site or that an alternative equivalent action was previously approved in accordance with Section 26.89.040(G).

3.

Affordable Housing In-Lieu Fee Trust Fund Guidelines. There shall be established a separate account for affordable housing in-lieu fees within the County Fund for Housing (CFH) as may be necessary to avoid commingling as required by law, or as deemed appropriate to further the purposes of the in lieu fees. The County's use of the in-lieu fees, along with any interest earnings, shall comply with the following requirements.

a.

Affordable housing in-lieu fees deposited in the CFH, along with any interest earnings, shall be allocated for uses that increase and improve the supply of housing affordable to households of extremely low-, very low-, low-, and moderate incomes, including:

i.

The acquisition of property and property rights; and

ii.

The cost of construction including costs associated with planning, administration, and design, actual building or installation, development fees, on- and off-site improvements, and any other costs associated with the planning, predevelopment, permitting, construction and financing of affordable housing.

b.

Monies may also be used to cover actual administrative expenses incurred by the Department or the CDC in connection with affordable housing and not otherwise reimbursed through processing and other fees, including:

i.

Reasonable consultant and legal expenses related to the establishment and/or administration of the in lieu fee account;

ii.

Reasonable expenses for administering the process of calculating, collecting, and accounting for in lieu fees authorized by this Section; and

iii.

County and CDC administrative costs for project development, permitting, post development code compliance, and the ongoing monitoring of affordable housing projects constructed with in lieu fees trust funds.

Adequate cost accounting procedures shall be utilized and documented for all such expenditures.

c.

No portion of the collected in-lieu fees shall be diverted to other purposes by way of loan or otherwise.

G.

Alternative Equivalent Actions. The Board of Supervisors may, at its sole discretion, approve an alternative equivalent action to the provision of the affordable units on site or payment of the in-lieu fee, as follows.

1.

Scope of alternative proposals. Proposals for an alternative equivalent action may include:

a.

The dedication of vacant land (see Subsection G.5, Standards for land dedications); or,

b.

The construction of affordable rental or ownership units on another site within the unincorporated area of the county; or

c.

The acquisition and enforcement of rental or sales price restrictions on existing market rate dwelling units in compliance with this Article.

2.

Content of proposal. A proposal for an equivalent alternative action shall show how the requested alternative action will further affordable housing opportunities in the County to an equal or greater extent than the actual provision of the affordable housing units on site in compliance with Subsection C (Number of affordable units required), or payment of the in-lieu housing fee in compliance with Subsection F (Affordable housing in-lieu fee).

3.

Review and approval. Only the Board of Supervisors can approve an equivalent alternative action under this Section. A proposal for an alternative equivalent action may be approved by the Board of Supervisors only if the Board finds that the alternative action will further affordable housing opportunities in the County to an equal or greater extent than the construction of the required affordable units as part of the project or payment of the in lieu housing fee.

4.

Performance of Alternative Action. After approval by the Board of Supervisors of a proposal for an alternative action, entitlements for that alternative action must be processed concurrent with the market-rate projects. If the alternative action includes construction of affordable units on another site or the acquisition and enforcement of rental/sales price restrictions on existing market rate units, an affordable Housing Agreement pursuant to Section 26.89.100 shall be recorded for each of those units prior to recordation of any Final Map for, or issuance of any Building Permit within, the market-rate project, and the affordable units shall be constructed or acquired concurrent with, or before, the construction of the market rate units.

5.

Standards for land dedications.

a.

Offers of dedication. An applicant who proposes to dedicate land located within unincorporated Sonoma County in lieu of constructing the affordable units required by this Section shall offer such land dedication as a part of the initial application for project approval. The applicant's offer shall describe the site, shall offer it for dedication at no cost to the County, and shall include a site plan illustrating the feasibility of locating and constructing the number of required affordable units for which the applicant is requesting in-lieu credit.

b.

Site suitability and appraisal.

i.

The applicant shall provide a site suitability analysis which demonstrates that the land proposed for dedication is suitable for the development of affordable housing in terms of size, location, general plan land use designation, availability of services, proximity to public transit, adjacent land uses, access, physical characteristics and configuration, and other relevant planning criteria. PRMD staff shall evaluate the site suitability analysis, identify the site's projected unit capacity, and recommend to the Decision Maker whether the site should be accepted or conditionally accepted. An environmental evaluation may be required as a part of the site suitability analysis.

ii.

The applicant shall provide an appraisal of the land proposed for dedication. The appraisal shall be prepared by a qualified land appraiser and shall conform to the Uniform Standards of Professional Appraisal Practice as adopted by the Appraisal Standards Board of the Appraisal Foundation.

iii.

All County staff costs associated with the determination of site suitability, and all expenses incurred to determine legal status of site, to perform environmental assessments and to obtain an appraisal, shall be borne by the applicant.

c.

Number of units credited to dedication of land. Following review of the appraisal and site suitability analysis, the County shall determine the number of required affordable housing units for which the applicant will receive credit upon dedication of the site.

i.

The County will offer to credit the applicant for the land dedication only to the extent that the appraised value of the land to be dedicated equals the full development cost of providing the required affordable units, including both land costs and construction costs.

ii.

If the appraised value of the land is less than the total projected development cost for the number of affordable units required, the applicant will be credited with only the number of affordable units for which development costs are covered by the value of the land.

iii.

The applicant shall agree to provide any remaining affordable units required by this Section on the project site, or to pay an in-lieu fee for the remaining number of required units.

d.

Procedure for acceptance of site. The County shall not accept an offer of dedication nor approve the proposed residential project until such time as the conditions of acceptance of the land, if any, have been completed by the applicant. The County's formal acceptance of the offer of dedication shall take place concurrently with its approval of the residential project. The grant deed dedicating the site to the County, or to a developer of affordable housing approved by the County, shall be recorded prior to issuance of any Building Permit within the market rate project.

(Ord. No. 5883, § VI, 3-30-2010; Ord. 5711 § 4 (Exh. C), 2007: Ord. No. 5570 § 2, 2005)

Sec. 26-89-045 - Workforce Housing Program Requirements

A.

Applicability and Requirements. Unless otherwise exempt under Section 26-89-045(B), any person who constructs new or expanded non-residential development, shall contribute to the County's affordable housing program through one or more of the following three methods:

1.

On-site construction of the required affordable units. Provide the required affordable unit(s) on-site, pursuant to Section 26.89.045(C) as allowed by the underlying zoning district (i.e., mixed use, work/live); or

2.

Payment of in-lieu fee. Pay a fee in lieu of the construction of the required affordable units pursuant to Section 26.89.045(F); or

3.

Alternative equivalent actions. Perform an alternative equivalent action pursuant to Section 26.89.045(G); which may be allowed to fulfill the affordable housing requirements of this Section if approved by the Board of Supervisors, at its sole discretion.

B.

Exempt Projects. The affordable housing requirements of this Section shall not apply to the following exempt projects:

1.

Project with vested rights. A project that demonstrates a vested right to proceed without complying with this Section.

2.

Public and nonprofit projects. Public projects and nonprofit projects which provide a public benefit to the community.

3.

Redevelopment areas. All projects located within a County redevelopment area which already contributes tax increment revenues to affordable housing.

4.

Small projects and additions. Small projects and additions of less than 2,000 square feet in total gross floor area.

5.

Floor Area Discount. The requirements of this Section shall not apply to the first 2,000 square feet of non-residential floor area in all new developments.

6.

Structures destroyed by fire or natural catastrophe. Repair, reconstruction or replacement of a legal non-residential structure that is destroyed by fire or natural catastrophe, provided that a building permit for repair, reconstruction or replacement has been issued and construction begun within ten years of destruction.

7.

Non-residential replacements or remodels. Remodels or replacements to existing, legal structures that do not result in the creation of additional floor area.

8.

Projects that clearly do not contribute to the demand for affordable housing, such as unmanned utility structures, parking garages, and ag exempt structures.

C.

Number of affordable units required. An affordable housing unit requirement is established for non-residential development in accordance with the following Table 1:

Table 1

a.

Level of affordability required. At least one-half of the total number of required affordable units shall be provided as affordable to very low-income households. The remaining affordable units may be provided as affordable to households with low incomes. If the number of required affordable units is an odd number, the number of units affordable to low-income households may be one greater than the number affordable to very low-income households, so long as at least one very low-income unit is provided.

D.

Fractional units. If calculating the number of units required by this Section results in a fractional unit requirement, the applicant may satisfy that fractional unit requirement by:

1.

Constructing an additional affordable unit; or

2.

Paying an in-lieu fee in compliance with Subsection E (Workforce Housing In-Lieu Fee); or,

3.

Performing an alternative equivalent action approved by the Board of Supervisors in compliance with Subsection G (Alternative Equivalent Actions).

E.

Workforce housing in-lieu fee. An applicant may choose to pay a fee in lieu of providing the affordable housing units required by this Section.

1.

Determination of Fee. The amount of the workforce housing fee shall be established by resolution of the Board of Supervisors. Thereafter, beginning on January 1, 2009, the fee shall be increased or decreased annually by the percentage change in the Construction Cost Index for the San Francisco Bay Area for the prior year, as reflected in the third quarter Engineering News Record. The workforce housing fee shall be automatically adjusted, and a new schedule published by the Director of PRMD, on January 1 of each year. This adjustment will offset the effects of inflation related to construction cost increases or deflation-related cost decreases. If the Construction Cost index is discontinued, the Director shall use a comparable index for determining the changes in the median home costs for Sonoma County. The fee shall be periodically reviewed and updated at least every five (5) years to reflect any changes in the funding gap for a low-income household.

2.

Timing of payment. The in-lieu fee shall be calculated at the time of building permit application. The fee shall be paid at the time of issuance of the building permit for each non-residential project, unless proof is provided that the required affordable housing units will be constructed on-site or that an alternative equivalent action was previously approved in accordance with Section 26.89.045(F). If the units are to be constructed on-site, no occupancy of the commercial project shall be granted until occupancy of the residential units is granted. Where the units are constructed on-site or with an alternative action, the Affordable or Special Needs Housing Agreement shall specify the timing of construction of the affordable or special needs housing units, and shall be recorded prior to issuance of any building permit for the project.

3.

Workforce Housing In-Lieu Fee Trust Fund Guidelines. There shall be established a separate account for workforce housing in-lieu fees within the County Fund for Housing (CFH) as may be necessary to avoid commingling as required by law, or as deemed appropriate to further the purposes of the in lieu fees. The County's use of the in-lieu fees, along with any interest earnings, shall comply with the following requirements.

a.

Affordable housing in-lieu fees deposited in the CFH, along with any interest earnings, shall be allocated for uses that increase and improve the supply of housing affordable to households of extremely low-, very low-, low-, and moderate incomes, including:

i.

The acquisition of property and property rights for the construction of affordable housing; and

ii.

The cost of construction including costs associated with planning, administration, and design, actual building or installation, development fees, on- and off-site improvements, and any other costs associated with the planning, predevelopment, permitting, construction and financing of affordable housing.

b.

Monies may also be used to cover actual administrative expenses incurred by the Department or the CDC in connection with affordable housing and not otherwise reimbursed through processing and other fees, including:

i.

Reasonable consultant and legal expenses related to the establishment and/or administration of the in lieu fee account;

ii.

Reasonable expenses for administering the process of calculating, collecting, and accounting for in lieu fees authorized by this Section; and

iii.

County and CDC administrative costs for project development, permitting, post-development code compliance, and the ongoing monitoring of affordable housing projects constructed with in-lieu fee trust funds.

Adequate cost accounting procedures shall be utilized and documented for all such expenditures.

c.

No portion of the collected in-lieu fees shall be diverted to other purposes by way of loan or otherwise.

F.

Alternative Equivalent Actions. The Board of Supervisors may, at its sole discretion, approve an alternative equivalent action to the provision of the affordable units on site or payment of the in-lieu fee, as follows.

1.

Scope of alternative proposals. Proposals for an alternative equivalent action may include:

a.

The dedication of vacant land (see Subsection G.5, Standards for land dedications); or,

b.

The construction of affordable rental or ownership units on another site within the unincorporated area of the county; or

c.

The acquisition and enforcement of rental/sales price restrictions on existing market rate dwelling units in compliance with this Article.

d.

Employer based programs providing direct subsidy to qualified employees, including mortgage buy-downs or rental assistance that provides long-term affordability.

2.

Content of proposal. A proposal for an equivalent alternative action shall show how the requested alternative action will further affordable housing opportunities in the County to an equal or greater extent than the actual provision of the affordable housing units on site in compliance with Subsection C (Number of affordable units required), or payment of the in-lieu housing fee in compliance with Subsection F (Affordable housing in-lieu fee).

3.

Review and approval. Only the Board of Supervisors can approve an equivalent alternative action under this Section. A proposal for an alternative equivalent action may be approved by the Board of Supervisors only if the Board finds that the alternative action will further affordable housing opportunities in the County to an equal or greater extent than the construction of the required affordable units as part of the project or payment of the in lieu housing fee.

4.

Performance of Alternative Action. After approval by the Board of Supervisors of a proposal for an alternative action, entitlements for that alternative action must be processed concurrent with the market-rate projects. If the alternative action includes construction of affordable units on another site or the acquisition and enforcement of rental/sales price restrictions on existing market rate units, an affordable Housing Agreement pursuant to Section 26.89.100 shall be recorded for each of those units prior to recordation of any Final Map for, or issuance of any Building Permit within, the market-rate project, and the affordable units shall be constructed or acquired concurrent with, or before, the construction of the market rate units.

5.

Standards for land dedications.

a.

Offers of dedication. An applicant who proposes to dedicate land located within unincorporated Sonoma County in lieu of constructing the affordable units required by this Section shall offer such land dedication as a part of the initial application for project approval. The applicant's offer shall describe the site, shall offer it for dedication at no cost to the County, and shall include a site plan illustrating the feasibility of locating and constructing the number of required affordable units for which the applicant is requesting in-lieu credit.

b.

Site suitability and appraisal.

i.

The applicant shall provide a site suitability analysis which demonstrates that the land proposed for dedication is suitable for the development of affordable housing in terms of size, location, general plan land use designation, availability of services, proximity to public transit, adjacent land uses, access to streets and walkways, physical characteristics and configuration, and other relevant planning criteria. PRMD staff shall evaluate the site suitability analysis, identify the site's projected unit capacity, and recommend to the Decision Maker whether the site should be accepted or conditionally accepted. An environmental evaluation may be required as a part of the site suitability analysis.

ii.

The applicant shall provide an appraisal of the land proposed for dedication. The appraisal shall be prepared by a qualified land appraiser and shall conform to the Uniform Standards of Professional Appraisal Practice as adopted by the Appraisal Standards Board of the Appraisal Foundation.

iii.

All County staff costs associated with the determination of site suitability, and all expenses incurred to determine legal status of site, to perform environmental assessments and to obtain an appraisal, shall be borne by the applicant.

c.

Number of units credited to dedication of land. Following review of the appraisal and site suitability analysis, the County shall determine the number of required affordable housing units for which the applicant will receive credit upon dedication of the site.

i.

The County will offer to credit the applicant for the land dedication only to the extent that the appraised value of the land to be dedicated equals the full development cost of providing the required affordable units, including both land costs and construction costs.

ii.

If the appraised value of the land is less than the total projected development cost for the number of affordable units required, the applicant will be credited with only the number of affordable units for which development costs are covered by the value of the land.

iii.

The applicant shall agree to provide any remaining affordable units required by this Section on the project site, or to pay an in-lieu fee for the remaining number of required units.

d.

Procedure for acceptance of site. The County shall not accept an offer of dedication nor approve the proposed non-residential project until such time as the conditions of acceptance of the land, if any, have been completed by the applicant. The County's formal acceptance of the offer of dedication shall take place concurrently with its approval of the non-residential project. The grant deed dedicating the site to the County, or to a developer of affordable housing approved by the County, shall be recorded prior to issuance of any Building Permit within the non-residential project.

(Ord. 5711 § 4 (Exh. C), 2007: Ord. No. 5570 § 2, 2005)

Sec. 26-89-050 - Density Bonus Programs

A.

Applicability. A project that is proposed to provide affordable housing units or to provide land for such affordable housing units, and which meets or exceeds the minimum thresholds of affordability set forth below, may request a density bonus in compliance with one of the applicable density bonus programs provided by this Section. Only one density bonus program may be applied to each project. Density bonus programs shall not be applied to General Plan Amendments and Rezonings, but rather may be approved only in conjunction with a development permit (i.e., tentative map, parcel map, use permit or design review).

B.

Application requirements. The density bonuses provided by this Section shall be granted by the County only after the filing and approval of an application, as follows.

1.

Application filing. The applicant shall file with the Department an application for a density bonus and other incentives in compliance with this Article either prior to, or concurrent with, the submittal of an application for discretionary project approval (for example, a tentative map, parcel map, or design review). Modifications to an existing application for a density bonus shall be considered a new application.

2.

Application requirements. An application shall include the following information:

a.

A detailed development plan and description of the proposed project, including a Housing Proposal pursuant to Section 26.89.030(G) (Housing Proposal Required) outlining the number, type, size, tenure, number of bedrooms and proposed affordability level for each and every unit within the development.

b.

The density bonus program under which the application is filed (State density bonus program, Supplemental density bonus program, Mixed use project density bonus, Type A Housing Opportunity Area Program or Type C Housing Opportunity Program).

c.

The type of density bonus incentive requested, of those listed in Section 26.89.060 (Affordable Housing Incentives).

d.

If more than one incentive is requested pursuant to Section 26.89.060(B) (Affordable Housing Incentives: Additional Incentives), a statement of why the project is eligible for such additional incentives. Eligibility for the additional incentive may be shown by establishing that the project will provide affordable housing in the percentages set forth in Section 26.89.060(B)(2), that the project meets other Housing Element goals (e.g., provision of housing for seniors, special housing needs individuals, and/or other goals), and/or that the additional incentive is necessary to improve the financial feasibility of the development and to allow the applicant to provide additional affordability or affordability for a longer term;

e.

Any alternative incentive being requested pursuant to Section 26.89.060(D) (Request for Alternative Incentive), together with a statement as to why, due to the particular characteristics of the project site, such alternative incentive is necessary to make the housing units economically feasible; and

f.

Any other information deemed necessary by the Director of PRMD to allow a complete evaluation of the application.

3.

Consideration of application. An application for a density bonus shall be considered and approved only as an integral part of the County's approval of a discretionary development permit for the project (i.e., at the time of approval of a subdivision, use permit, design review, or other required planning approval). The project approval shall identify the density bonus and other incentive(s) that the County has granted the applicant, and any waiver or modification of standards that may have been approved for the project.

C.

State density bonus program. In addition to the incentives provided by Section 26.89.060 (Affordable Housing Incentives), a residential project of five or more base units that provides affordable or senior housing, or that provides land for construction of affordable housing, or that provides affordable housing along with child care facilities, all as set forth below, shall be eligible for a density bonus to allow more dwelling units than otherwise allowed on the site by the applicable General Plan Land Use Map and Zoning, in accordance with the following:

1.

Density bonus for on-site construction of very low-income housing.

a.

A 20 percent density bonus shall be granted to any housing project of five or more base units that is constructed to provide at least 5 percent of the base units for very low-income households.

b.

For each 1 percent increase in the number of base units provided as affordable to very low-income households above the 5 percent set forth in Subsection C.1.a, the density bonus shall be increased by 2.5 percent, up to a maximum of 35 percent above the maximum density permitted by the General Plan and Zoning, as shown in Table 2.

2.

Density bonus for on-site construction of low-income housing.

a.

A 20 percent density bonus shall be granted to any housing project of five or more base units that is constructed to provide at least 10 percent of the base units for low-income households.

STATE DENSITY BONUS PROGRAM

Affordability and Incentive Schedule

* The density bonus units shall not be included when determining the number of affordable units required

**All density calculations resulting in fractional units shall be rounded up to the next whole number

b.

For each 1 percent increase in the number of base units provided as affordable for low-income households above the 10 percent set forth in Subsection C.2.a, the density bonus shall be increased by 1.5 percent, up to a maximum of 35 percent above the maximum density permitted by the General Plan and Zoning, as shown in Table 2, above.

3.

Density bonus for on-site construction of senior housing. A 20 percent density bonus shall be granted to any housing project that is constructed to provide at least 35 dwelling units for senior households.

4.

Density bonus for construction of moderate income housing in condominium and planned development construction projects.

a.

A 5 percent density bonus shall be granted to any condominium project or planned development of five or more base units that is constructed to provide at least 10 percent of the base units for moderate-income households.

b.

For each 1 percent increase in the number of base units provided as affordable to moderate income households above the 10 percent set forth in Subsection C.4.a, the density bonus shall be increased by 1 percent up to a maximum of 35 percent above the maximum density permitted by the General Plan and Zoning, as shown in Table 3, above.

c.

Modifications or waivers of development standards that are approved as part of the condominium or planned development project shall be considered additional incentives pursuant to Section 26.89.060(B).

5.

Density bonus for provision of affordable housing in condominium conversion projects. In the case of a condominium conversion, a 25 percent density bonus shall be granted, or other incentives of equivalent financial value shall be offered, if the project is constructed to provide at least:

a.

33 percent of the base units to low- or moderate-income households; or

b.

15 percent of the base units to lower-income households.

An applicant shall be ineligible for a density bonus or other incentives in compliance with this Subsection if the apartments proposed for conversion constitute a housing development for which a density bonus or other financial incentives were previously provided.

6.

Density bonus for donation of land for affordable housing.

a.

A 15 percent density bonus shall be granted to a residential project of five or more base units if the project applicant donates land to the County for development of affordable housing in accordance with all of the following:

i.

The applicant shall donate and transfer the land no later than the date of approval of the final map, parcel map or other residential project application, whichever comes first.

ii.

The developable acreage and zoning classification of the land shall be sufficient to permit construction of units affordable to very low-income households in an amount not less than 10 percent of the number of residential units of the proposed project.

iii.

The transferred land shall:

A.

Be at least one acre in size or of sufficient size to permit development of at least 40 units;

B.

Have appropriate general plan designation and zoning for development of affordable housing;

C.

Be served by adequate public facilities and infrastructure; and

D.

Have appropriate zoning and development standards to make the development of the affordable units feasible.

iv.

Prior to transfer of the land, the applicant shall obtain all permits and approvals, except building permits, necessary for development of very low-income housing units in accordance with this Subsection. At the County's discretion, design review may be delayed until after transfer of the land.

v.

The transferred land and the affordable units constructed upon it shall be subject to a deed restriction ensuring continued affordability in accordance with Section 26.89.090.

vi.

The land shall be transferred to the County or to a developer of affordable housing approved by the County. The County may, at its discretion, require the applicant to identify and transfer the land to an approved developer.

vii.

The transferred land shall be within the boundary of the proposed project or, with the approval of the County, within one-quarter mile of the boundary of the proposed development.

b.

For each 1 percent increase above the 10 percent land donation described in Subsection C.6.a.ii, the density bonus shall be increased by 1 percent up to a maximum of 35 percent above the maximum density permitted by the General Plan and Zoning Ordinance.

7.

Childcare Facilities.

a.

If a residential project that meets the minimum state density bonus requirements in Subsections C.1 through C.4 includes a child care facility on the premises of or adjacent to the project, then the County shall grant either of the following:

i.

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 childcare facility; or

ii.

An additional incentive that contributes significantly to the economic feasibility of the construction of the childcare facility.

b.

If a density bonus or additional incentive is granted pursuant to this subsection, the child care facility shall be required:

i.

to remain in operation for a period of time that is equal to or longer than the period of time during which the density bonus units are required remain affordable under this Section; and

ii.

to ensure that, of the children who attend the child care facility, the percentage of children of very low-income households, low-income households, or moderate-income households equals the percentage of dwelling units required for each of those income categories pursuant to Subsection C.1, Subsection C.2 or Subsection C.4, as applicable.

c.

For purposes of this subsection, a "child care facility" means a child 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.

8.

The density bonuses set forth in Subsections C.1 through C.7 may be combined, but shall in no case, except as otherwise provided in this Article, result in an increase in density for the residential project above 35 percent above the maximum density permitted by the General Plan and Zoning Ordinance.

D.

County supplemental density bonus program.

1.

In addition to the incentives provided by Section 26.89.060 (Affordable Housing Incentives), a residential project of five or more base units shall be eligible for a density bonus of up to 50 percent above the maximum density permitted by the General Plan and Zoning Ordinance if the project provides a total of:

a.

10 percent or more of the base units for extremely low-income households; or

b.

20 percent or more of the base units for very low-income households; or

c.

30 percent or more of the base units for low-income senior households; or

d.

30 percent or more of the base units for low-income households, with 10 percent or more of those base units provided as fully accessible units for low-income disabled households; or

e.

30 percent or more of the base units for low-income households, with 10 percent or more of those base units provided as large rental units with three or more bedrooms for low-income households; or

f.

40 percent or more of the base units for low-income households.

E.

Mixed use project density bonuses. A mixed use project in compliance with Section 26.88.123 (Mixed Use Developments) in which at least 20 percent of the residential floor area is provided as housing affordable to extremely low-, very low- or low-income households, shall be eligible for an increase in the residential floor area to allow the gross residential floor area to be up to a maximum of 70 percent of the total project floor area, provided that the overall residential density does not exceed 24 dwelling units per acre.

F.

Housing Opportunity Area Program bonuses.

1.

Type A Housing Opportunity Area Program requirements. Only rental housing projects consisting of two or more base dwelling units may participate in the Type A Housing Opportunity program.

a.

Type A areas established. Type A housing opportunity areas may be established in locations designated by the General Plan Land Use Maps as:

i.

Urban Residential, six-to-12 dwelling units per acre, that are zoned R-2 (Medium Density Residential); and

ii.

Urban Residential 12-to-20 dwelling units per acre, that are zoned R-3 (High Density Residential).

b.

Type A project density increase. A Type A project that is allowed two or more dwelling units by the applicable zoning district may be constructed at up to twice the base density, provided that a minimum of 40 percent of the total units within the project will be provided as affordable for rent to very low- or low-income households, and further provided that in no case may the total density exceed that shown in Table 4.

c.

Type A development standards. A Type A development shall consist of rental housing, and shall comply with the development standards established by this Zoning Ordinance for the R3 (High Density Residential) Zoning District.

2.

Type C Housing Opportunity Area Program requirements. Only residential projects consisting of four or more base dwelling units may participate in the Type C Housing Opportunity program.

Table 4

a.

Type C areas established. Type C housing opportunity areas may be established in locations identified by the General Plan as Urban Residential with a density of four to six dwelling units per acre, and that are zoned R-1 or R-2.

b.

Type C project density increase. A Type C project that is allowed four or more dwelling units by the applicable zoning district may be approved for development as a small-lot subdivision at a density of up to 11 dwelling units per acre if:

i.

The site is designated by the General Plan Land Use Map with a density of four to six dwelling units per acre;

ii.

A minimum of 20 percent of the units are reserved for sale to very low- or low-income households; and

iii.

The remainder of the units are reserved for sale to low- and moderate-income households.

c.

Type C development standards. A Type C development shall comply with the following standards.

i.

Parcel configurations and sizes. The parcel configurations within a Type C development may include zero lot-line lots, angled Z lots, zipper lots, flag lots, alternate width lots, quad lots, and motor court lots. Parcel sizes may range from 2,000 to 6,000 square feet or more. A variety of parcel configurations and parcel sizes shall be provided in a development on any site larger than three acres.

ii.

Allowable floor area ratio. Allowable house size shall be based on parcel area. Actual house sizes, as well as parcel sizes, in a proposed development plan may vary so long as the averages shown in the following table are maintained. "House size" refers to the gross living area of the primary dwelling only; storage sheds, garages, carports, covered patios, and decks are not included in the gross living area.

Table 5

iii.

Subsequent expansions or additions. Subsequent expansions or additions to dwelling units, if not shown on the development plan, may be allowed in the future only where the proposed expansion is within a designated building envelope shown on the development plan.

iv.

Setback/yard requirements. Setbacks and yards shall be provided in compliance with the standards of the R-3 zoning district.

(a)

Setbacks for all proposed and possible future buildings or additions shall be designated on the development plan.

(b)

Front yard setbacks shall be varied.

(c)

A garage or carport with an automobile entrance facing the street shall be set back a minimum of 20 feet from the rear of the public sidewalk, or 20 feet from the property or adopted street plan line, whichever is greater.

v.

Private open space requirement. Each residential unit or parcel shall be designed to provide a minimum of 400 square feet of usable private open space.

vi.

Maximum building height. The maximum height of buildings is 35 feet.

vii.

Maximum coverage. Maximum allowable building coverage is 65 percent. The use of alternative permeable surfaces is strongly encouraged for driveways, walkways, and patios wherever feasible in order to maintain or enhance groundwater absorption and recharge.

d.

Alternatives to development standards. An applicant for a Housing Opportunity Type C project may propose alternatives to the development standards in subsection F.2., provided that in no case shall the residential density exceed that in Subsection b. Use Permit approval shall be required to authorize alternative development standards. A Use Permit application for alternative standards shall be processed concurrently with the required design review and subdivision applications.

(Ord. No. 5570 § 2, 2005)

Sec. 26-89-060 - Affordable Housing Incentives

A residential project that provides affordable housing on site in compliance with the affordable housing requirements of Section 26.89.040 (Affordable Housing Requirements), or the requirements of a density bonus program under Section 26.89.050 (Density Bonus Programs), may be granted incentives in compliance with this Section.

A.

Guaranteed incentives. The following incentives are guaranteed for each residential project providing on-site affordable housing in accordance with Section 26.89.040(C) (Affordable Housing Requirements: Number of affordable units required), Section 26.89.050(C) (State density bonus program), Section 26.89.050(D) (Supplemental density bonus program), Section 26.89.050(E) (Mixed use project density bonuses) or Section 26.89.050(F) (Housing Opportunity Area Program bonuses):

1.

"Fast-tracking" of planning permit, subdivision, and construction permit applications for the affordable housing development by all County departments, provided that an affordable rental project shall have priority over an affordable ownership project;

2.

Concurrent processing, where projects require multiple permits or environmental review; and

3.

Preference to affordable housing developments in areas where growth management measures are in effect.

B.

Additional Incentives.

1.

In addition to the incentives guaranteed under Subsection A, the Decision Maker shall also grant one of the following incentives to each residential project providing on-site affordable housing in accordance with Section 26.89.040(C) (Affordable Housing Requirements: Number of affordable units required), Section 26.89.050(C) (State density bonus program), Section 26.89.050(D) (Supplemental density bonus program), Section 26.89.050(E) (Mixed use project density bonuses) or Section 26.89.050(F) (Housing Opportunity Area Program bonuses):

a.

Elimination of covered parking requirements;

b.

A 20 percent reduction of any open space requirements;

c.

A 20 percent reduction of the minimum lot size or minimum lot width;

d.

A five-foot reduction in side yard setbacks and a 10 foot reduction in front yard setbacks, provided that adequate access to light is maintained for all units as determined by design review; and further provided that no front yard setback shall be less than 10 feet, no garage shall be set back less than 20 feet, and adequate sight distance is maintained;

e.

Allowance of other regulatory incentives or measures that can be shown to result in identifiable and actual cost reductions.

2.

The Decision Maker shall grant two incentives under Subsection B (Additional Incentives) to each residential project that provides:

a.

30 percent of the base units for low-income households; or

b.

15 percent of the base units for very low-income households; or

c.

30 percent of the base units for moderate income households in a condominium project or planned development.

3.

The Decision Maker may grant two or more incentives under this Subsection (Additional Incentives) if the applicant demonstrates that the development meets other Housing Element goals (e.g., provision of housing for seniors or special housing needs individuals), or provides greater or longer term affordability, or a greater number of affordable units than otherwise required. Incentives provided under this subsection shall be proportional to the extent to which the project provides for additional affordable and/or special needs housing units and/or child care facilities. In the case of condominiums and planned developments, any waiver or modification of development standards approved for the condominium or planned development project shall be considered incentives under this Subsection (Additional Incentives).

C.

Request for Specific Incentive. An applicant eligible for an affordable housing incentive under this Subsection may submit a request for a specific incentive under paragraph (B) of this Subsection and may request a meeting with the Department to discuss that request. The Decision Maker shall grant the specifically requested incentive unless it finds either of the following:

1.

The incentive is not required in order to provide for the affordable housing costs or rents as provided in this Section; or

2.

The incentive would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Government Code Section 65589.5, upon public health or safety or the physical environment or upon 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 project unaffordable to low- and moderate income households.

If the Decision Maker finds that it cannot grant the specifically requested incentive, it shall grant a different incentive under paragraph (B) of this Section, which incentive it determines will best enhance the economic feasibility of the project or will permit greater or longer term affordability or a greater number of affordable units.

D.

Request for Alternative Incentive. An applicant eligible for an affordable housing incentive under this Section may, in lieu of the above incentives, submit a request for an alternative waiver or modification of development or zoning standards that, due to the particular characteristics of the project site, would otherwise inhibit the utilization of the density bonus or preclude the construction of the development at the densities or with the concessions or incentives permitted by this Section. The applicant must show that the waiver or modification is necessary to make the housing units economically feasible. The Decision Maker shall grant the request for alternative incentive unless it finds either of the following:

1.

The applicant has not established that the incentive is necessary to make the housing units economically feasible; or

2.

The incentive would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health or safety or the physical environment or upon 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 project unaffordable to low- and moderate income households.

If the Decision Maker finds that it cannot grant the requested alternative incentive, it shall grant an incentive under paragraph (B) of this Section, which incentive it determines will best enhance the economic feasibility of the project or will permit greater or longer term affordability or a greater number of affordable units.

(Ord. No. 5570 § 2, 2005)

Sec. 26-89-070 - Design and Construction Standards

Each housing unit that is constructed to provide affordable or special needs housing in compliance with this Article shall comply with the following standards.

A.

Design and construction.

1.

Timing of construction. Affordable or special needs units shall be constructed concurrently with the other units in the project. Where construction phasing is necessary, each phase shall provide the same ratio of lower-income or special needs units to the moderate income, market rate or other unrestricted units in the phase as that required for the project as a whole.

2.

Location within overall development. Affordable or special needs units shall be integrated into the overall project design and distributed throughout the development.

3.

Unit size.

a.

The average floor area of the affordable or special needs units shall be at least 75 percent of the average floor area of the other units in the development.

b.

The mix of unit sizes and numbers of bedrooms in the affordable or special needs units shall be similar to the mix of unit sizes and bedroom counts provided in the development as a whole; except that the affordable or special needs units may have less floor area than the market rate units to assist in achieving affordability provided that the units comply with the average floor area requirement in Subsection A.3.a above.

4.

Amenities.

a.

Interior amenities. To assist in achieving affordability, affordable or special needs units may have fewer interior amenities than the market rate units in the project.

b.

Exterior appearance. Exterior appearance and quality of the affordable units shall generally be similar to the market-rate units, with exterior materials and appointments similar to, and architecturally compatible with, the market-rate units in the development.

c.

Upgrades. A developer shall not offer upgrades of materials to renters or buyers of affordable dwelling units where the upgrades would increase the total price paid by the buyer to the developer, or total rent paid by the tenant, for the affordable dwelling unit to above the specified affordable rent or sales price.

(Ord. No. 5570 § 2, 2005)

Sec. 26-89-080 - Ownership Unit Occupancy and Long-Term Restrictions

Each affordable or special needs ownership unit constructed pursuant to this Article shall comply with the requirements of this Section.

A.

Ownership unit occupancy requirements.

1.

Eligibility requirements. An affordable or special needs housing unit shall be sold, and to the extent required by paragraph D of this section resold, only to a household certified by the CDC as extremely-low, very low-, low-, or moderate-income, or as a special needs household, as designated by the terms of project approval, and which also complies with the following requirements.

a.

The purchaser shall be a "first-time home buyer," as defined by the CDC and set forth in the Sonoma County Affordable Housing Program Homeownership Policies, available at the offices of the CDC.

b.

The purchaser shall reside in the unit as their principal residence and may not rent the unit in its entirety to another party.

2.

Buyer certification and selection. Affordable or special needs housing units shall be sold, and to the extent required by paragraph D of this section resold, only to households certified by the CDC as satisfying eligibility requirements listed in subsection A.1. of this Section, and in accordance with the following procedures:

a.

Initial buyers eligible to purchase affordable or special needs housing units shall be selected by the developer in compliance with a marketing program approved, in advance, by the Executive Director of the CDC. Subsequent buyers shall be selected by the CDC in compliance with the Sonoma County Affordable Housing Program Homeownership Policies available in the offices of the CDC.

b.

The marketing program shall identify and detail an equitable selection process to be used for the marketing and sale of the affordable or special needs units.

c.

Selection criteria may include household income and assets, household size, and the size or special needs features of the available unit(s).

3.

Preferences. Preference in the sale of affordable or special needs housing units shall be given first to persons currently employed in the County, and then to current County residents, to the extent permitted by law.

B.

Ownership Units - Initial Sales Price Restrictions. Affordable ownership units as designated in the terms of project approval shall be offered at initial sales prices that are considered affordable to very low-, low-, or moderate-income households, as applicable, as defined in Section 26.02.140. CDC shall calculate initial sales prices for each of these income categories in compliance with the Sonoma County Affordable Housing Program Homeownership Policies available at the offices of the CDC.

C.

Ownership Units - Special Needs Restrictions. Special needs ownership units as designated in the terms of project approval shall be offered for sale only to households with special needs, as defined in Section 26.02.140. The CDC shall determine eligibility in compliance with Section 26.02.140 and the Sonoma County Affordable Housing Program Homeownership Policies available at the offices of the CDC.

D.

Option Agreement Required.

1.

The CDC shall record an option agreement with the eligible buyer concurrently with the recording of each grant deed transferring title to an affordable or special needs unit subject to this section to an eligible household. The option agreement shall provide the CDC, for the term specified in subparagraph 5 hereof, with a first right to purchase the unit upon resale, at its fair market value calculated pursuant to the Sonoma County Affordable Housing Program Homeownership Policies available at the offices of the CDC.

2.

The option agreement shall permit CDC to assign its rights to purchase the unit under the option agreement to an eligible buyer to purchase the unit.

3.

In all cases where the CDC exercises or assigns its option to purchase the unit at fair market value, the unit shall be conveyed to or purchased by an eligible buyer at an affordable price in accordance with the designation of the unit in project approvals and as determined by the CDC pursuant to the Sonoma County Affordable Housing Program Homeownership Policies, available at the offices of the CDC.

4.

The option agreement shall contain provisions further restricting the resale of an affordable or special needs ownership unit to the extent required by the Sonoma County Affordable Housing Program Homeownership Policies available at the offices of the CDC.

5.

The option agreement for each affordable or special needs ownership unit shall reserve the unit for purchase by the CDC or its assignee and for resale only to eligible households, as defined by this section and the project approvals, for a minimum term of 30 years, or for a longer time if required by the project approvals, construction or mortgage financing assistance program, or mortgage insurance program. A new term shall commence on the recording date of each new option agreement recorded concurrently with a grant deed transferring title of the designated unit to an eligible household.

E.

Recapture of Share of Appreciation. The CDC shall ensure, to the greatest extent permissible by law, that the appropriate share of appreciation in the value of the unit is recaptured by the CDC or the County at the time that any owner who has received assistance or incentive under this Article sells an affordable or special needs unit.

F.

Alternative financing programs and affordability guarantees.

1.

Where the Executive Director of the CDC determines, after consultation with County Counsel, that one or more federal, state, and/or local financing programs applicable to a project will achieve results that are equivalent to, or more restrictive than the affordability, special needs restrictions, and/or financing requirements of this Section and the Sonoma County Affordable Housing Program Homeownership Policies, and that such financing programs otherwise comply with applicable federal, state and local laws, the Executive Director may authorize the relevant provisions of those programs to replace or supersede the affordability, special needs restrictions and/or financing requirements of this Section and the Sonoma County Affordable Housing Program Homeownership Policies.

2.

The Affordable Housing Agreement or Special Needs Housing Agreement required by Section 26.89.100 or 26.89.110 for a project shall incorporate the affordability, special needs restrictions and/or financing provisions of the relevant federal, state, and/or local programs authorized by the Executive Director of the CDC pursuant to Subsection F.1. that will replace the corresponding or similar requirements of this Section and the Sonoma County Affordable Housing Program Homeownership Policies. Notwithstanding this provision, the CDC shall record an option agreement pursuant to Subsection D for each unit sold under this Subsection F.

G.

Administrative fees. The CDC may collect an administrative fee, as the Board of Supervisors may establish from time to time, at close of escrow of the sale and resale of each affordable or special needs ownership unit, to recover the costs of its obligation under this Section.

(Ord. No. 5570 § 2, 2005)

Sec. 26-89-090 - Rental Unit Occupancy and Long-Term Restrictions

Each affordable or special needs rental unit constructed pursuant to this Article shall comply with the requirements of this Section.

A.

Rental Unit - Occupancy Requirements.

1.

Eligibility requirements.

a.

No household shall be allowed to occupy an affordable rental unit constructed pursuant to this Article unless the annual household income, adjusted for household size, is equal to or less than:

i.

30 percent of median income for Sonoma County, for units restricted to extremely low-income households;

ii.

50 percent of median income for Sonoma County, for units restricted to very low-income households; and,

iii.

80 percent of median income for Sonoma County, for units restricted to low-income households.

b.

No household shall be allowed to occupy a special needs rental unit constructed pursuant to this Article unless it meets the definition of the special needs household type for which the unit is reserved.

2.

Tenant certification and selection. Affordable or special needs rental units shall be rented only to households meeting the eligibility requirements of Subsection A.1 of this Section, and in accordance with the following procedures.

a.

Renters eligible to rent the affordable or special needs units shall be selected by the developer or owner in compliance with a tenant selection and marketing program approved, in advance, by the Executive Director of the CDC.

b.

At least once annually and no more often than semi-annually, owners of affordable or special needs rental units shall provide to the CDC compliance reports on forms provided or approved by CDC, certifying that all tenants occupying the designated rental units are eligible under the terms of this Section and the Affordable Housing Agreement or Special Needs Housing Agreement applicable to the development.

3.

Preferences. Preference in the rental of affordable or special needs housing units shall be given first to persons currently employed in the County, and then to current County residents, to the extent permitted by law.

B.

Affordable Rental Unit Restrictions. Each affordable rental unit shall be offered at a rent level that is considered affordable to extremely low-, very low- or low-income households, as established annually by the Executive Director of the CDC based upon income limits that the U.S. Department of Housing and Urban Development (HUD) issues annually for Sonoma County. A utility allowance will be deducted from the maximum affordable rent so that monthly housing costs (rent plus tenant-paid utilities) are equal to or less than:

1.

For units restricted to low-income households, 30 percent of 60 percent of median area income, as established annually by HUD, adjusted for assumed household size;

2.

For units restricted to very low-income households, 30 percent of 50 percent of median area income, as established annually by HUD, adjusted for assumed household size;

3.

For units restricted to extremely low-income households, 30 percent of 30 percent of median area income, as established annually by HUD, adjusted for assumed household size.

C.

Special Needs Rental Unit Restrictions. Each special needs rental unit shall be offered only to households determined by the CDC to be eligible for a special needs unit, in accordance with this Article and the project approvals.

D.

Term of Rental Restrictions. The following requirements of this Article shall apply to the rental of affordable or special needs units:

1.

Minimum term for continued affordability. Each required affordable rental unit shall be reserved for eligible extremely low-, very low- or low-income households at the applicable affordable rent for a minimum of 55 years, or for a longer time if required by the project approvals, construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program, or as otherwise allowed by law. The 55-year term shall commence on the date of issuance of the Certificate of Occupancy for the affordable unit.

2.

Minimum term for continued special needs restrictions. Each required special needs rental unit shall be reserved for eligible special needs households for a minimum of 55 years, or a longer time if required by the project approvals, construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program, or as otherwise allowed by law. The 55-year term shall commence on the date of issuance of the Certificate of Occupancy for the special needs unit.

E.

Rental Unit Monitoring. The CDC shall monitor the rental of affordable and special needs units for compliance with the Affordable Housing Agreement or Special Needs Housing Agreement and the provisions of this Article. On an annual basis, the owner shall pay to the CDC a fee for monitoring each unit subject to the Affordable Housing Agreement or Special Needs Housing Agreement, which fee shall be established by resolution of the CDC from time to time.

(Ord. No. 5570 § 2, 2005)

Sec. 26-89-100 - Affordable Housing Agreements

The obligations assumed by an applicant or property owner in exchange for subsidies or incentives for the construction of affordable housing in compliance with this Article shall be secured by an recorded Affordable Housing Agreement executed by the property owner and by the CDC on behalf of the County, and recorded prior to the recordation of a final map or issuance of a building permit, whichever occurs first.

A.

Review and approval. Subject to review and approval by County Counsel as to form, the Executive Director of the CDC is authorized to sign and record Affordable Housing Agreements required by this Section and to sign and record documents subordinating Affordable Housing Agreements to acquisition, construction, bridge, and long-term permanent financing associated with the development of the project in which the affordable units will be located.

B.

Agreement contents. An Affordable Housing Agreement shall contain provisions that implement all requirements of Section 26.89.080 (Ownership Unit Occupancy and Long-Term Affordability) or Section 26.89.090 (Rental Unit Occupancy and Long-Term Affordability), as applicable to the specific project. The agreement shall also include the following provisions, and any additional requirements required by the Decision Maker.

1.

Occupancy standards. The agreement shall include provisions that specify:

a.

Income eligibility criteria for defining housing unit affordability;

b.

The actual affordable sales prices or rents for affordable units, as determined by the CDC. The agreement shall also provide that the CDC may from time to time revise the sales prices and rent limits in response to changes in income limits, monthly housing costs, and the real estate market. Monthly housing costs for affordable ownership units shall include mortgage payments, property taxes, homeowners insurance and, as applicable, homeowners association dues and private mortgage insurance. Monthly housing costs for affordable rental units shall include the rent plus any tenant-paid utilities;

c.

Criteria for the certification and selection of buyers or renters, as applicable. Selection criteria may include the amount of household income and assets, household size, and the size or special needs features of available units;

d.

A fair and equitable marketing and buyer or tenant selection process, submitted by the applicant and approved in advance by the Executive Director of the CDC, to ensure the selection of eligible buyers or tenants.

2.

Initial Sale, resale and rental restrictions. The agreement shall include provisions that specify:

a.

A guarantee of initial sale or rent and continuing availability of all units designated as moderate income units to moderate income households, and a guarantee of initial sale or rent of affordable units and continued affordability of all units designated as affordable to low-, very low-, and extremely low-income households for a minimum of 30 years or s otherwise provided by this Article, or for such other term as may be authorized by the project approvals and allowed by law; and

b.

A provision restricting the sale of all affordable ownership units to "first-time home buyers" as defined by the CDC and set forth in the Sonoma County Affordable Housing Program Homeownership Policies, available at the offices of the CDC.;

c.

A provision that the sale of a dwelling designated as affordable to a moderate, low- or very low-income household shall include an assignable option agreement granting the CDC the first right of refusal to purchase the unit at the time of subsequent sale for fair market value as set forth in the Sonoma County Affordable Housing Program Homeownership Policies.

3.

Subordinate Loan and Deed of Trust. For affordable ownership units, the agreement shall provide for the execution by each purchaser of such units of a promissory note and deed of trust evidencing and securing a deferred payment subordinate loan, in accordance with Sonoma County Affordable Housing Program Homeownership Policies. The principle amount of the subordinate loan shall equal the value of the subsidies, density bonus, and other concessions provided to the developer in connection with the project. In addition to payment of the principal amount, the subordinate loan shall provide for the payment by the purchaser of one or both of the following: interest as determined by the promissory note, and/or a share of appreciation in the value of the unit between the time of original purchase and the time of sale, as specified in the Sonoma County Affordable Housing Program Homeownership Policies available at the offices of the CDC.

4.

Fees. The agreement shall include a provision that the CDC and PRMD receive all applicable fees as may be established by resolution of the CDC or Board of Supervisors from time to time, including but not limited to monitoring fees for rental units and administrative fees at initial sale and resale of ownership units subject to this Article.

5.

Enforcement and Recovery of Costs. The agreement shall include a provision that provides for enforcement of the agreement by the County and/or the CDC and that entitles the County and the CDC to recover reasonable attorney's fees (including County Counsel fees), investigation and litigation expenses, and any related staff costs associated with enforcing the agreement.

(Ord. No. 5570 § 2, 2005)

Sec. 26-89-110 - Special Needs Housing Agreements

The obligations assumed by an applicant or property owner in exchange for subsidies or incentives for the construction of special needs housing in compliance with this Article shall be secured in a recorded Special Needs Housing Agreement that the property owner shall execute, and the CDC shall prepare, execute and record on behalf of the County, prior to recordation of the final map or parcel map, or the issuance of a use permit or building permit, as applicable.

A.

Review and Approval. Subject to review and approval by County Counsel, as to form, the Executive Director of the CDC is authorized to sign and record Special Needs Housing Agreements required by this Section, and to sign and record documents subordinating Special Needs Housing Agreements to acquisition, construction, bridge, and long-term permanent financing associated with the development of the project in which the special needs units will be located.

B.

Agreement Contents. A special needs housing agreement shall contain provisions that implement all requirements of Section 26.89.080 (Ownership Unit Occupancy and Long-Term Restrictions) or Section 26.89.090 (Rental Unit Occupancy and Long-Term Restrictions), as applicable to the specific project. The agreement shall also include the following provisions, and any additional requirements imposed by the Decision Maker.

1.

Occupancy Standards. The agreement shall include provisions that specify:

a.

Eligibility criteria for defining special needs housing unit occupancy;

b.

Criteria for the certification and selection of buyers or renters, as applicable;

c.

A fair and equitable marketing and buyer or tenant selection process, submitted by the applicant and approved in advance by the Executive Director of the CDC, to ensure the selection of eligible buyers or tenants.

2.

Initial Sale, Resale and Rental Restrictions. The agreement shall include provisions that specify:

a.

A guarantee of initial sale or rent and continuing availability of all special needs units to households meeting the definition of the designated special needs household types for which the units are reserved, for a minimum of 30 years, or for such other term as may be authorized by the project approvals and allowed by law; and

b.

A provision restricting the sale of all special needs ownership units to "first-time home buyers," as defined by the CDC and set forth in the Sonoma County Affordable Housing Program Homeownership Policies, available at the offices of the CDC; and

c.

A provision that the sale of a special needs unit shall include an assignable option agreement granting the CDC the first right of refusal to purchase the unit at the time of a subsequent sale for fair market value as set forth in the Sonoma County Affordable Housing Program Homeownership Policies, available in the offices of the CDC.

3.

Fees. The Agreement shall include a provision that the CDC and PRMD receive all applicable fees as may be established by resolution of the CDC or Board of Supervisors from time to time, including but not limited to monitoring fees for rental units and administrative fees at initial sale and resale of ownership units subject to this Article.

4.

Enforcement and Recovery of Costs. The Agreement shall include a provision that provides for enforcement of the Agreement by the County and/or the CDC and that entitles the County and the CDC to recover their reasonable attorney's fees (including County Counsel fees), investigation and litigation expenses and any related staff costs associated with enforcing the Agreement.

(Ord. No. 5570 § 2, 2005)