SAN BENITO COUNTY PLANNING COMMISSION. REGULAR MEETING AGENDA July 20, :00 PM

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1 SAN BENITO COUNTY PLANNING COMMISSION Jeff Culler District No. 1 Vice-Chair Dan DeVries District No. 2 Pat Loe District No. 3 Ray Pierce District No. 4 Chair Robert Rodriguez District No. 5 County Administration Building - Board of Supervisors Chambers, 481 Fourth Street, Hollister, California 6:00 PM ~ CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL BOARD ANNOUNCEMENTS DEPARTMENT ANNOUNCEMENTS PUBLIC COMMENT REGULAR MEETING AGENDA July 20, :00 PM The San Benito County Planning Commission welcomes you to this meeting and encourages your participation. If you wish to speak on a matter which does NOT appear on the agenda, you may do so during the Public Comment period at the beginning of the meeting. Please complete a Speaker Card and provide to the Clerk prior to the meeting. Except as otherwise provided by law; no action shall be taken on any item NOT appearing on the Agenda or items that have been continued to a future public hearing date. When addressing the Commission, please state your name for the record. Please address the Commission as a whole through the Chair. This open forum period is provided to allow members of the public an opportunity to address the Planning Commission on general issues of land use planning and community development. It is not intended for comments on items on the current agenda, any pending items. If you wish to speak on an item contained in the Agenda, please complete a Speaker Card identifying the Item(s) and provide it to the Clerk prior to consideration of the item. Each individual speaker will be limited to a three (3) minute presentation. CONSENT AGENDA These items will be considered as a whole without discussion unless a particular item is requested by a member of the Commission, Staff or the public to be removed from the Consent Agenda. Approval of a consent item means approval of the recommended action as specified in the Staff Report.

2 If any member of the public wishes to comment on a Consent Agenda Item please fill out a speaker card present it to the Clerk prior to consideration of the Consent Agenda and request the item be removed and considered separately. ACKNOWLEDGEMENT OF PUBLIC HEARING ACKNOWLEDGEMENT OF CERTIFICATE OF POSTING ADOPTION OF ACTION MINUTES REGULAR AGENDA PUBLIC HEARING 1. Developers/property owners will be providing an update to the Planning Commission regarding progress on the Southside road study area 2. Appeal of Staff decision regarding completeness of application TSM NOTICE IS HEREBY GIVEN that the San Benito County Planning Commission will hold a public hearing to consider, and potentially adopt, a Resolution to recommend that the Board of Supervisors amend Chapter of Title 21 of the San Benito County Code (County of San Benito Affordable Housing Regulations). APPLICANT: San Benito County Location: San Benito County (county-wide) REQUEST: That the County s Affordable Housing Regulations be amended to create an affordable housing ordinance that will require construction of affordable housing or payment of an in-lieu fee for new subdivisions. Environmental Review: Environmental Impact Report DISCUSSION ADJOURN NOTE: A copy of this Agenda is published on the County's Web site by the Friday preceding each Commission meeting and may be viewed at All proposed agenda items with supportive documents are available for viewing at the San Benito County Administration Building, 481 Fourth Street, Hollister, CA between the hours of 8:00 a.m. & 5:00 p.m., Monday through Friday (except holidays.) This is the same packet that the Planning Commission reviews and discusses at the Commission meeting. The project planner's name and address has been added at the end of each project description. As required by Government Code Section any public record distributed to the Planning Commission less than 72 hours prior to this meeting in connection with any agenda item shall be made available for public inspection at the Planning Department, 2301 Technology Parkway, Hollister, CA Public records distributed during the meeting will be available for public inspection at the meeting if prepared by the County. If the public record is prepared by some other person and distributed at the meeting it will be made available for public inspection following the meeting at the Planning Department. APPEAL NOTICE: Any person aggrieved by the decision of the Planning Commission may appeal the decision within ten (10) calendar days to the Board of Supervisors. The notice of appeal must be in writing and shall set forth specifically wherein the Planning Commission's decision was inappropriate or unjustified. Appeal forms are available from the Clerk of the Board at the San Benito County Administration Office, 481 Fourth Street, Hollister and the San Benito County Planning Department, 2301 Technology Parkway, Hollister. NOTE: In compliance with the Americans with Disabilities Act (ADA) the Board of Supervisors meeting facility is accessible to persons with disabilities. If you need special assistance to participate in this meeting, please contact the Clerk of the Board's office at (831) at least 48 hours before the meeting to enable the County to make reasonable arrangements to ensure accessibility.

3 Item Number: 1. MEETING DATE: 7/20/2016 DEPARTMENT: RESOURCE MANAGEMENT AGENCY DEPT HEAD/DIRECTOR: Brent Barnes AGENDA ITEM PREPARER: Byron Turner SBC DEPT FILE NUMBER: SUBJECT: Developers/property owners will be providing an update to the Planning Commission regarding progress on the Southside road study area AGENDA SECTION: PUBLIC HEARING BACKGROUND/SUMMARY: BUDGETED: SBC BUDGET LINE ITEM NUMBER: CURRENT FY COST: STAFF RECOMMENDATION:

4 STAFF RECOMMENDATION: ADDITIONAL PERSONNEL:

5 Item Number: 2. MEETING DATE: 7/20/2016 DEPARTMENT: RESOURCE MANAGEMENT AGENCY DEPT HEAD/DIRECTOR: Brent Barnes AGENDA ITEM PREPARER: Byron Turner SBC DEPT FILE NUMBER: TSM SUBJECT: Appeal of Staff decision regarding completeness of application TSM AGENDA SECTION: PUBLIC HEARING BACKGROUND/SUMMARY: On May 11, 2016, Staff received an appeal regarding completeness of application TSM The applicant contends that the application has been deemed complete and therefore secured vested rights. Staff recommends that the Planning Commission deny the appeal, as the project application remains incomplete, and therefore does not at this time have any vested rights. It should be noted that staff is continuing to process the application and has engaged with a consultant for CEQA review. BUDGETED: SBC BUDGET LINE ITEM NUMBER:

6 CURRENT FY COST: STAFF RECOMMENDATION: Staff recommends that the Planning Commission deny the appeal. ADDITIONAL PERSONNEL: ATTACHMENTS: Description Upload Date Type Staff Report 7/13/2016 Staff Report Resolution 7/13/2016 Resolution Letter Appeal 6/9/2016 Backup Material Letter from Applicant 6/9/2016 Backup Material Correspondence 6/9/2016 Backup Material Counsel Report on Appeal Issues 6/9/2016 Staff Report

7 STAFF REPORT PROJECT DATA: Application: Tentative Subdivision Map Public Hearing: July 20, 2016 Applicant/Owner: Hollister Land Partners LLC/Todd A. Deutscher Location: 3061 Southside Road APN: General Plan: Rural Urban (A) Zoning: Single-Family Residential (R-1) Planner: Byron Turner PROJECT DESCRIPTION: On May 11, 2016, Staff received an appeal regarding completeness of application TSM The applicant contends that the application has been deemed complete and therefore secured vested rights. Staff recommends that the Planning Commission deny the appeal, as the project application remains incomplete, and therefore does not at this time have any vested rights. It should be noted that staff is continuing to process the application and has engaged with a consultant for CEQA review. PLANNING AND ZONING: The site is designated Rural Urban (A) in the General Plan and Single-Family Residential (R-1) in the zoning ordinance. ENVIRONMENTAL EVALUATION: The proposed Bennett Ranch Project, aka Fay Subdivision Project ( Project ), is an application for a Major Subdivision (TSM 15-93) to subdivide approximately acres (APN ) into approximately 84 single-family lots. Staff has determined that the Project is subject to the California Environmental Quality Act ( CEQA ) (Pub. Res. Code et seq.) and CEQA Guidelines (Cal. Code. Regs et seq.). However, projects that are rejected or disapproved are exempt from CEQA under section 15061(b)(4) of the CEQA Guidelines. STAFF ANALYSIS: Hollister Land Partners LLC/Todd A. Deutscher ( Applicant ) submitted the Project application. On May 2, 2016, the County provided the Applicant a Notice of Incomplete Application specifying the parts of the application that are incomplete. On May 11, 2016, the Applicant filed an appeal ( Appeal ) alleging that The application for a Vesting Tentative Map was deemed complete and accepted under the Permit Streamlining Act on February 29, 2016 (if not before) by operation of law. As such, the Project secured a vested right under the Subdivision Map Act to be subject to only those County laws in place on that date. The Appeal is premised on the requirements of the Permit Streamlining Act (Government Code et seq.), which is intended to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects, and the Subdivision Map Act (Government Code et seq.), which vests in local agencies the regulation and control of the design and improvement of subdivisions. SABE\52979\

8 As relevant to the Appeal, the Permit Streamlining Act provides that an application for a development permit may be deemed complete if an application meets certain requirements, including a statement that it is an application for a development permit, and if an agency fails to determine that the application and submitted materials is complete within 30 days after receipt thereof. Government Code 65943, The Permit Streamlining Act also provides that provides that an application will be deemed approved if not acted upon within the statutory time period, but only if the public notice required by law has occurred (b). An application will not be deemed approved unless public notice required by law has occurred. American Tower Corporation v. City of San Diego, 763 F3d 1035, 1052 (9th Cir. 2014) (permit applications were not deemed approved before the City denied them because the public notice required by law did not occur ). The PSA measures all time limits for final approval or disapproval of an application in terms of the environmental review process established by the California Environmental Quality Act (Pub. Res. Code et seq.) A public agency must approve or disapprove a project within 180 days from the certification of an environmental impact report ( EIR ), 60 days from the adoption of a Negative Declaration, or 60 days from a determination that a development project is exempt from CEQA (a). In turn, section (b) of the Subdivision Map Act provides that When a local agency approves or conditionally approves a vesting tentative map, that approval shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards described in Section (Emphasis added). Thus, section (b) confers vested rights only once a local agency has approved or conditionally approved a vesting tentative map, not before. See also Curtin, Jr. & Merritt, California Subdivision Map Act and the Development Process at 7.8 (Cont. Ed. of the Bar). Accordingly, the mere determination that a development application is complete does not create vested rights. The Application did not include the statement that it is an application for a development permit. Thus, the Application cannot be deemed complete under the Permit Streamlining Act. In addition, because public notice required by law has not occurred and the Bennett Ranch Project has not yet complied with CEQA, the Application cannot be deemed approved under the Permit Streamlining Act. Therefore, the Bennett Ranch Project has no vested right to proceed with development in accordance with the ordinance, policies, and standards in effect at the date the application is deemed complete, which has yet to occur. Importantly, however, even if the Application were deemed complete, the Bennett Ranch Project would still lack vested rights under the Subdivision Map Act. STAFF RECOMMENDATION: Staff has reviewed the Appeal and the legal requirements for obtaining deemed complete status under the Permit Streamlining Act and vested rights under the Subdivision Map Act and recommends that the Planning Commission deny the Appeal. SABE\52979\

9 BEFORE THE PLANNING COMMISSION, COUNTY OF SAN BENITO A RESOLUTION OF THE SAN BENITO ) Resolution No COUNTY PLANNING COMMISSION ) DENYING THE APPEAL OF ) NOTICE OF INCOMPLETE APPLICATION ) TSM ) ) WHEREAS, Hollister Land Partners LLC/Todd A. Deutscher ( Applicant ) applied for a Major Subdivision (TSM 15-93) to subdivide approximately acres (APN ) into approximately 84 single-family lots ( Bennett Ranch Project aka Fay Subdivision Project ); and WHEREAS, on May 2, 2016, the County provided the Applicant a Notice of Incomplete Application specifying the parts of the application that are incomplete; and WHEREAS, on May 11, 2016, the Applicant filed an appeal alleging that The application for a Vesting Tentative Map was deemed complete and accepted under the Permit Streamlining Act on February 29, 2016 (if not before) by operation of law. As such, the Project secured a vested right under the Subdivision Map Act to be subject to only those County laws in place on that date ( Appeal ); and WHEREAS, the Permit Streamlining Act (Government Code et seq.) provides that an application for a development permit may be deemed complete if an application meets certain requirements, including a statement that it is an application for a development permit, and if an agency fails to determine that the application and submitted materials is complete within 30 days after receipt thereof; and WHEREAS, the Permit Streamlining Act also provides that provides that an application will be deemed approved if not acted upon within the statutory time period, but only if the public notice required by law has occurred ; and WHEREAS, the Subdivision Map Act (Government Code et seq.) confers a vested right to proceed with development in substantial compliance with applicable ordinances, policies, and standards described, but only once a local agency approves or conditionally approves a vesting tentative map; and WHEREAS, the Application did not include the statement that it is an application for a development permit; and WHEREAS, public notice required by law has not occurred; and WHEREAS, the Application has not been approved or conditionally approved; and SABE\52979\ TSM Appeal to the Planning Commission

10 WHEREAS, the Planning Commission held duly a noticed public hearing on July 20, 2016, regarding the Appeal, at which hearing the Planning Commission heard and received oral and written testimony and evidence that were made, presented, or filed, and all persons present at the hearing were given ample opportunity to hear and be heard with respect to any matter related to the Appeal; and WHEREAS, at the conclusion of public testimony, the Planning Commission closed the public hearing, deliberated, and considered the merits of the Appeal. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the County of San Benito that based on the foregoing findings and based on the entire record of this proceeding, the Planning Commission hereby finds, declares, and orders as follows: 1. The foregoing findings and determinations are true and correct, are supported by substantial evidence in the record, and are adopted as hereinabove set forth; 2. The Application is neither deemed complete nor deemed approved ; 3. The Bennett Ranch Project has no vested right to proceed with development in accordance with the ordinance, policies, and standards in effect at the date the application is deemed complete ; and 4. The Appellant s Appeal is denied. SABE\52979\ TSM Appeal to the Planning Commission

11 PASSED AND ADOPTED BY THE PLANNING COMMISSION OF THE COUNTY OF SAN BENITO THIS 20THDAY OF JULY, 2016 BY THE FOLLOWING VOTE: Ayes: Noes: Absent: Abstain: Commissioner(s): Commissioner(s): Commissioner(s): Commissioner(s) By: Ray Pierce, Chair ATTEST: Byron Turner Assistant Director Planning & Building Inspection Services Resource Management Agency San Benito County By: APPROVED AS TO LEGAL FORM: Barbara Thompson, San Benito County Counsel By: Date: Date: SABE\52979\ TSM Appeal to the Planning Commission

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96 MEMORANDUM TO: FROM: DATE: June 9, 2016 RE: CC: Barbara Thompson, Assistant County Counsel Shirley Murphy, Deputy County Counsel Bryan W. Wenter, AICP, Esq. Nadia L. Costa, Esq. Appeal Issues Raised by Appellant Hollister Land Partners LLC in Connection with Bennett Ranch Project (TSM 15-93) Brent C. Barnes, AICP, Planning Director Byron Turner, Assistant Planning Director The purpose of this memo is to address the two issues appellant Hollister Land Partners ( Appellant ) raised in its undated appeal of the County s May 2, 2016 determination that the application for the Bennett Ranch Project aka Fay Subdivision Project (TSM 15-93) ( Project ) is incomplete. In particular, the Appellant alleges as follows: The application for a Vesting Tentative Map was deemed complete and accepted under the Permit Streamlining Act on February 29, 2016 (if not before) by operation of law. As such, the Project secured a vested right under the Subdivision Map Act to be subject to only those County laws in place on that date. Appellant s attorney Michael P. Durkee addressed these allegations in more detail in his May 10, 2016 letter regarding item #30 on the San Benito County Board of Supervisors May 10, 2016 agenda (SBC FILE NUMBER: 790). According to Mr. Durkee, the Project application was deemed complete by operation of law under the Permit Streamlining Act ( PSA ) either in August 2015, September 2015, or February He also concludes that, because the application is deemed complete, the Project secured vested rights under the Subdivision Map Act. SABE\52979\

97 Memo to Shirley Murphy, Deputy County Counsel June 9, 2016 Page 2 We disagree with both appeal allegations for the reasons explained below. To fully understand our conclusions, it is helpful to briefly review the basic parameters of the PSA (Government Code et seq). The Legislature enacted the PSA in 1977 to relieve applicants from protracted and unjustified governmental delays in processing their permit applications. The PSA thus expressly declares that it is intended to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects The PSA s goal of clarifying the permit process for applicants is effected by requiring state and local agencies to provide each applicant with one or more lists specifying the information the applicant must present to the agency when seeking approval of a development project Provided that the application meets certain requirements discussed further below, the agency has 30 calendar days after receipt of the application to determine in writing whether the application is complete and must immediately notify the applicant of that decision. If the agency fails to act within this 30-day period, the application will be deemed complete, precluding the agency thereafter from requesting new or additional information not specified in the lists , To encourage prompt resolution of permit applications, the PSA provides that an application will be deemed approved if not acted upon within the statutory time period, but only if the public notice required by law has occurred (b). The PSA measures all time limits for final approval or disapproval of an application in terms of the environmental review process established by the California Environmental Quality Act (Pub. Res. Code et seq.) A public agency must approve or disapprove a project within 180 days from the certification of an environmental impact report ( EIR ), 60 days from the adoption of a Negative Declaration, or 60 days from a determination that a development project is exempt from CEQA (a). The PSA thus contains two sets of timelines for different phases of a project s process. The first phase is at the application stage when an applicant files an application for a development project. The second phase is after CEQA compliance. The second phase is not reached, however, until CEQA has been addressed via an exemption, a Negative Declaration or Mitigated Negative Declaration, or an EIR. And an application will not be deemed approved unless public notice required by law has occurred. American Tower Corporation v. City of San Diego, 763 F3d 1035, 1052 (9th Cir. 2014) (permit applications were not deemed approved before the City denied them because the public notice required by law did not occur ). Turning to Appellant s claims, the question of whether the Project application is deemed complete under section 65943(a) the relevant provision of the PSA is a mixed question of fact and law. That section provides as follows: 1 All statutory references are to the California Government Code unless otherwise stated. SABE\52979\

98 Memo to Shirley Murphy, Deputy County Counsel June 9, 2016 Page 3 Not later than 30 calendar days after any public agency has received an application for a development project, the agency shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the development project. If the written determination is not made within 30 days after receipt of the application, and the application includes a statement that it is an application for a development permit, the application shall be deemed complete for purposes of this chapter. Upon receipt of any resubmittal of the application, a new 30- day period shall begin, during which the public agency shall determine the completeness of the application. If the application is determined not to be complete, the agency s determination shall specify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information needed to complete the application. The applicant shall submit materials to the public agency in response to the list and description. (Emphasis added). Appellant refers to section 65943(a) without quoting it and concludes that [t]he consequence of Staff [sic] failure to respond in writing within 30 days of the submission date is [sic] the application is deemed complete and accepted by operation of law. As shown above, however, the section has a condition precedent that requires a development application to include a statement that it is an application for a development permit. See also Curtin, Jr. & Merritt, California Subdivision Map Act and the Development Process at 5.11 (Cont. Ed. of the Bar). The burden is on the applicant to provide that statement. Appellant did not provide any evidence that it met that burden and we are not aware of any evidence in the record that the Project application included the required statement. Thus, as a matter of fact and law, the Project application is not deemed complete. Appellants also refer to section without quoting it to claim that the Project s application completion date is critical to the Vested Rights [sic] that is [sic] provided under the Subdivision Map Act.... But the vested rights conferred through section (b) of the Subdivision Map Act ( SMA ) are premised upon application approval, not completeness. That section provides in relevant part as follows: When a local agency approves or conditionally approves a vesting tentative map, that approval shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards described in Section (Emphasis added). On its face, section (b) confers vested rights only once a local agency has approved or conditionally approved a vesting tentative map, not before. See also Curtin, Jr. & Merritt, California Subdivision Map Act and the Development Process at 7.8 (Cont. Ed. of the Bar). Vested rights do not flow from the mere determination that a development application is complete. In so claiming, Appellant conflates the deemed complete provisions of the PSA with its deemed approved provisions. Thus, even if Appellant were correct that the Project application is deemed complete, that fact would have no SABE\52979\

99 Memo to Shirley Murphy, Deputy County Counsel June 9, 2016 Page 4 bearing on whether the Project is deemed approved such that it could possibly have vested rights under the SMA. Moreover, tentative maps may not be deemed approved under the PSA unless the map satisfies all applicable subdivision regulations ; see also Pongputmong v. City of Santa Monica, 15 Cal.App.4th 99, (1993). There is no evidence in the record of which we are aware that the Project vesting tentative map satisfies all applicable regulations in the SMA or the County s subdivision ordinance, including sections , 003, 004, and 007. In addition, there is no evidence in the record of which we are aware that the public notice required by law has occurred, whether by the County or by the Project proponent. Tentative maps may not be approved under the PSA unless due process requirements such as notice and a hearing are satisfied. See, e.g., Horn v. Ventura, 24 Cal.3d 605 (1979). Finally, there is no evidence in the record of which we are aware that the County has made any determination what level of CEQA review would be appropriate for the Project or that CEQA compliance has occurred to trigger the applicable PSA timelines for potential deemed approved status. For the foregoing reasons, the Project application is neither deemed complete nor deemed approved. Given that the Project itself is not deemed approved and has not in fact been approved by the County, the Project has no vested right to proceed with development in accordance with the ordinance, policies, and standards in effect at the date the application is deemed complete, which has yet to occur. SABE\52979\

100 Item Number: 3. MEETING DATE: 7/20/2016 DEPARTMENT: RESOURCE MANAGEMENT AGENCY DEPT HEAD/DIRECTOR: Brent Barnes AGENDA ITEM PREPARER: Byron Turner SBC DEPT FILE NUMBER: SUBJECT: NOTICE IS HEREBY GIVEN that the San Benito County Planning Commission will hold a public hearing to consider, and potentially adopt, a Resolution to recommend that the Board of Supervisors amend Chapter of Title 21 of the San Benito County Code (County of San Benito Affordable Housing Regulations). APPLICANT: San Benito County Location: San Benito County (county-wide) REQUEST: That the County s Affordable Housing Regulations be amended to create an affordable housing ordinance that will require construction of affordable housing or payment of an in-lieu fee for new subdivisions. Environmental Review: Environmental Impact Report AGENDA SECTION: PUBLIC HEARING BACKGROUND/SUMMARY: Staff is providing a revised Affordable Housing Ordinance for the Planning Commission's review. BUDGETED: SBC BUDGET LINE ITEM NUMBER:

101 CURRENT FY COST: STAFF RECOMMENDATION: Staff Recommends that he Planning Commission recommend approval of the Ordinance to the Board of Supervisors. ADDITIONAL PERSONNEL: ATTACHMENTS: Description Upload Date Type Ordinance 7/14/2016 Ordinance Resolution 7/14/2016 Resolution Letter CEQA Document 7/13/2016 Exhibit

102 BEFORE THE BOARD OF SUPERVISORS, COUNTY OF SAN BENITO AN ORDINANCE OF THE COUNTY OF SAN BENITO ) Ordinance No. AMENDING CHAPTER OF TITLE 21 OF THE SAN BENITO ) COUNTY CODE ( AFFORDABLE HOUSING REGULATIONS ) ) The Board of Supervisors ordains as follows: Section 1. Chapter of Title 21 of the San Benito County Code shall be amended to read as follows: CHAPTER 21.03: AFFORDABLE HOUSING REGULATIONS Findings Purpose Definitions Development requiring inclusionary contribution Inclusionary requirements On-site units Off-site units In-lieu fees Development project approval Occupancy and continuing availability of units Housing Advisory Committee Collection and use of in-lieu fees Density bonus and incentives Affordable By Design Development Standards Additional Standards Enforcement Monitoring FINDINGS. (a) San Benito County Goals and General Plan. The Board of Supervisors finds that a decent home and suitable living environment for all is a priority of the highest order; this priority conforms to state and federal policies. A key goal of the County is to achieve a balanced community with housing available for persons of all economic levels, with priority given to those persons currently residing or working within the County. The Board of Supervisors finds there is an inadequate supply of housing in San Benito County that is affordable to very low, low, and moderate-income households. Federal and state housing finance and subsidy programs are not sufficient in themselves to meet that need. The Board of Supervisors finds that the cost of housing in new developments has increased and will continue to perpetuate this housing shortage. Further, land for residential development in the 1

103 County is limited, and the amount of land which can be used for development of housing for very low, low, and moderate-income households is being depleted by development of high cost housing. The Board of Supervisors finds that the provision of housing affordable to very low, low, and moderate-income households is a County-wide responsibility, and the provision of such housing is a goal of the housing element of the County general plan. A County-wide inclusionary housing program will assist in alleviating the use of available residential land solely for the benefit of households that are able to afford market rate housing because such market rate development will be required to contribute to the provision of affordable housing for the entire San Benito community. (b) Provide for Workforce. The Board of Supervisors finds that the housing shortage for persons of very low, low, and moderate-income is detrimental to the public health, safety and welfare, and particularly finds that provision of very low, low, and moderate-income housing is fundamental to the maintenance of an adequate, growing workforce and market place for the local economy, as well as to provide housing for additional employees whose jobs serve the increasing population living in new market-rate housing. The Board of Supervisors acknowledges that if very low, low, and moderate income workers cannot find housing in the County, then employers will have difficulty in securing a labor force; and employees will be forced to commute. Employee commutes use limited gasoline resources and increase air pollution. (c) Benefit to the County. The Board of Supervisors finds that a County-wide affordable housing program will benefit the County as a whole. Each property that contributes to inclusionary housing augments the housing mix, increases the supply of housing for all economic segments of the community, and thereby provides for a balanced community, which is deemed to be in the public interest. (d) Resale Restrictions. The Board of Supervisors finds that the effect of an affordable housing program is severely diminished if it benefits only the first occupants of very low, low, and moderate-income housing, and affordable units are resold at market prices. Therefore, the Board of Supervisors recognizes that resale control, to ensure the continuing availability of affordable units to very low, low, and moderate-income households, is a necessary consideration in order to prevent undermining of the credibility of the whole program, particularly because of the loss of the unit itself as an affordable unit. (e) Public Purpose. The Board of Supervisors finds that public housing programs and housing subsidy programs can meet only a small portion of the need for very low, low, and moderateincome housing. The vast majority of housing units has been and will continue to be produced by the private housing industry. This industry has the knowledge and ability to produce housing affordable to very low, low, and moderate-income households given supportive government policies, including incentives and public investment as appropriate. Therefore, the Board of Supervisors finds it is a public purpose of the County to seek assistance and cooperation from the 2

104 private sector and non-profit agencies in making available an adequate supply of housing for persons of all economic segments of the community. (f) Benefits of the Application of this Chapter. Application of this chapter may benefit the public through increased housing opportunities in all areas of the County, an increased supply of very low, low, and moderate-income housing, and an increased availability of funds for very low, low, and moderate-income housing projects. (g) Collection of Fees. To the extent that fees will be imposed at a later date after a nexus study is performed, the Board of Supervisors finds that the fees required or permitted by this chapter will be appropriate and permissible. The fees permitted by this chapter will be fair and effective because: (1) The fee amount will be based on the amount necessary to construct or subsidize an affordable unit or affordable units as called for by this chapter, so that when a developer elects to pay an inlieu fee, funds will be available to reach the County's overall affordability target, without excessive payments and without setting varying fee standards on a case-by-case basis; (2) The fee amount necessary to construct or subsidize units at the affordability levels specified by this chapter will be based on land, construction and other costs of units in the County; (3) Payment of in-lieu fees will be within a specific period of time, thereby allowing a predictable and stable flow of in-lieu fees; and (4) The fees collected will be used in a specific time frame for the provision of very low, low, and or moderate-income housing. (h) Other Objectives. The Board of Supervisors finds that an objective of this chapter is to meet the housing needs of all types of very low, low, and moderate-income groups in a manner that is economically feasible and consistent with their needs. The Board of Supervisors further finds that very low, low, and moderate income housing best achieves the broader community goal of integrating households of all economic levels into the community when such housing is provided throughout the community and that a specific objective of this chapter is to provide housing opportunities throughout the community, in all planning areas of the County for very low, low, and moderate-income households. The Board of Supervisors further finds that an objective of this chapter is to provide housing opportunities for very low, low, and moderate-income household members currently residing or working in San Benito County, on a priority basis PURPOSE. The purposes of this chapter are to enhance the public welfare, benefit the property being developed, assure compatibility between future housing development and the housing units affordable to persons of very low, low, and moderate-income and ensure that remaining 3

105 developable land in the County is utilized in a manner consistent with state and local housing policies and needs DEFINITIONS. For the purposes of this chapter, the following definitions shall apply: (a) "Administrative manual" means the manual prepared pursuant to subsection (g). (b) Affordable means a cost for housing, whether for an owner-occupied or rental unit, that does not exceed affordable housing cost as set forth in California Health and Safety Code Section Adjustments for household size based on the number of bedrooms in the unit and other monthly housing cost factors, including assumed mortgage interest rates, loan insurance fees, maintenance and repair allowances, utility allowances, homeowners insurance, property tax and assessment costs, and homeowners association dues, shall be as provided by the County in the administrative manual. (c) Affordable housing plan means a plan demonstrating how a specific development project will meet the requirements of this chapter. (d) "Affordable Housing Agreement" means an inclusionary housing agreement between the County and an applicant, governing how the applicant shall comply with this chapter. (d) "Applicant" means a person or entity that applies for a residential development and, if the applicant does not own the property on which development is proposed, also means the owner or owners of the property. (e) "Appropriate authority" means that person, official, or body designated by County regulations to hear, grant, deny, modify, condition, revoke or otherwise act on permits required by the County's regulations. (f) "Approval" means any approval by the appropriate authority of a discretionary permit for residential development, including, but not limited to, planned unit development or planned community development approval, subdivision approval, use permit, building permit or combined development permit, and if no discretionary approval is required, also means a building permit for residential development. (g) Approved Documents means Affordable Housing Agreement or Development Agreement. (h) "Building permit" means a permit issued by the San Benito County department of planning and building authorizing the construction of new dwellings. (i) "Director" means the Director of the Resource Management Agency (or a County officer with similar responsibilities designated by the County administrative officer), or his or her designee. 4

106 (j) "Dwelling" or "Unit" means any structure or portion thereof designed or used as the residence. (k) "First approval" means the first approval, as the term "Approval" is defined in this chapter, to occur with respect to a residential project. (l) "For sale inclusionary unit" means an inclusionary unit which is designated in an inclusionary housing agreement to be sold to a household eligible under this chapter. (m) "Household" means one or more individuals who occupy one dwelling unit as a single housekeeping unit, whether or not related by blood or marriage. (n) "HUD" means the United States Department of Housing and Urban Development. (o) "Inclusionary unit" means a housing unit, which is required by an approval to meet affordability and occupancy limits under this chapter. (p) "Low-income inclusionary unit" means an inclusionary unit reserved for occupancy by lowincome households at an affordable rent or sales price. (q) "Low-income household" or "Lower-income household" means a household, including a very low-income household, with an annual income, which does not exceed State of California Department of Finance annual determination for low-income households with incomes of eighty percent of the median income, adjusted for household size. (r) "Median income" means the median household income as determined by the State of California Department of Finance and updated on an annual basis. (s) "Moderate-income inclusionary unit" means an inclusionary unit reserved for occupancy by moderate-income households at an affordable rent or sales price. (t) "Moderate-income household" means a household, including a low-income household and a very low-income household, with an annual income which does not exceed one hundred twenty percent of the median income, adjusted for household size. (u) "Owner occupied development" means a residential development in which the same person or persons are sole or majority owner(s) of the property at the time of first approval of the development and at the time the development receives its building permit, and those persons make and record a legally binding agreement, acceptable to the director and approved as to form by County Counsel, to reside in the residential development for not less than one year from the recordation of the notice of completion, and where the proposed owner-occupant has not previously been an owner-occupant under this chapter during a period of ten years prior to application for a first approval. 5

107 (v) "Pending development" means a residential development for which an application has been approved by the County on or before the effective date of this chapter, so long as the number of dwellings does not increase after the first approval. (w) "Planning area" means the unincorporated area of the County of San Benito. (x) "Rental inclusionary unit" means an inclusionary unit which is designated in an inclusionary housing agreement to be rented to a household eligible under this chapter. (y) "Residential development" means any project requiring any approval, for which an application or applications are submitted to the County and which would by construction or alteration of structures create five or more new or additional dwelling units and/or lots. (z) "Subdivision" means a "Subdivision" as that term is defined by the California Subdivision Map Act. (aa) "Very low-income inclusionary unit" means an inclusionary unit designated in an reserved for occupancy by very low-income households at an affordable rent or housing cost. (bb) "Very low-income household" means a household with an annual income which does not exceed the state of California Department of Finance annual determination for very low-income households earning fifty percent of median income, adjusted for household size DEVELOPMENT REQUIRING INCLUSIONARY CONTRIBUTION. (a) The requirements of this chapter are minimum requirements and shall not preclude a residential development from providing additional affordable units and/or affordable units with lower rents or sales prices. Except as expressly provided in paragraphs (b) and (c) of this section, all residential developments shall contribute to the provision of housing for very low, low, and moderate-income households in the County of San Benito as provided in this chapter. (b) Residential developments which meet one of the following criteria shall not be required to comply with this chapter: (1) Residential developments that form part of a larger residential development as to which the requirements of this chapter have previously been fully satisfied and as to which there is no default in continuing obligations under this chapter, where the new residential development results in no increase in the number of previously approved lots or units; (2) Development as to which the applicant demonstrates that there is no reasonable relationship between the development and the requirements imposed by this chapter, that the requirements of this chapter would take property in violation of the United States or California Constitutions, or that as a result of unusual or unforeseen circumstances, it would not be appropriate to apply, or would be appropriate to modify, the requirements of this chapter, provided that the Board of Supervisors makes the determination to approve or disapprove an exemption or modification, and makes written findings, based on substantial evidence, supporting that determination; 6

108 (3) Development for farm workers; (4) Mobile-home park development. (5) Notwithstanding any other provision of this chapter, an applicant may propose an alternative means of compliance with this chapter by submitting an Affordable Housing Plan that achieves the purpose and intent of this chapter. The Board of Supervisors may approve such alternative method of meeting the County s inclusionary housing requirement by means of a Development Agreement or an Affordable Housing Agreement or other appropriate means if the Board of Supervisors finds and determine that, based on substantial evidence in the record, the proposed new residential development is consistent with the general plan, will assist in the attainment of the County s identified housing needs and regional fair share responsibilities for very low, low, and moderate income households, and the number of affordable housing units will provide an acceptable level of affordable housing while providing public benefits consistent with compliance with the express requirements of this chapter. (a) Developers may reserve or set-aside land to be transferred to an affordable housing developer to satisfy an affordable housing requirement. Land may be part of the market-rate development being constructed, or may be provided off-site in a highdensity residential zone. Priority will be given to development projects that satisfy affordable requirements through land set-aside and dedicated to high-density affordable housing. (c) Pending developments, as that term is defined by this chapter, shall be subject to the requirements of the inclusionary housing ordinance in effect when the application for the development is first approved by the appropriate authority, with the exception that vesting tentative maps shall be subject to the requirements of the inclusionary housing ordinance in effect when the application for the vesting tentative map was deemed complete INCLUSIONARY REQUIREMENTS. All residential development consisting of 5 or more lots, inclusive, in San Benito County shall provide inclusionary units on-site or off-site, except that a fee may be paid in-lieu of providing fractional units and in other circumstances specified in Section The size, design, and location of inclusionary units shall be consistent with a project-specific affordable housing plan, the County general plan, zoning ordinance, and other County ordinances and building standards. Compliance may be accomplished by the developer alone or in combination with others, including a non-profit housing corporation ON-SITE UNITS. (a) To satisfy its inclusionary requirement on-site, a residential development must construct inclusionary units in an amount equal to or greater than 15% percent of the total number of units approved for the residential development (except to the extent a fraction of a unit would be required, for which the applicant may elect to substitute a fractional unit fee). Initial and 7

109 subsequent affordability levels and eligible occupants of the inclusionary units shall conform to the requirements of Section , as applicable. (b) On-site affordable units must: (1) Receive building permits and certificates of occupancy concurrently with the remainder of the residential development, as set forth in and except as otherwise provided by the affordable housing agreement; (2) Will be compatible in exterior appearance with the other units in the residential development (though interiors may differ to the extent authorized in the affordable housing agreement) and be dispersed throughout the residential development to the extent feasible or as otherwise provided by the inclusionary housing agreement; (3) Have a similar number of bedrooms as the market rate homes in which the affordable units are located. (4) Have the following minimum square footages: 2 Bedroom 900 sq. ft. 3 Bedroom 1150 sq. ft. 4 Bedroom 1360 sq. ft. (5) A minimum of 50% of the required affordable housing shall be 3 bedroom. (c) The inclusionary housing requirements of this chapter are summarized in the following table. Should there be any discrepancy between this table and the text of this ordinance, the text shall control Size of Inclusionary Development Requirement 1-4 None 5-6 Payment of in-lieu fee 7-13 Provide 15% inclusionary units Provide 15% inclusionary units 20 Provide 15% inclusionary units 21 to 26 Provide 15% inclusionary units Moderate Income Low Income 1 unit + payment of in-lieu fee for fractional difference 1 unit + payment 1 unit of in-lieu fee for fractional difference 1 unit 1 unit 1 unit 1 unit + payment of in-lieu fee for fractional difference 1 unit 1 unit Very Low Income 8

110 27 to 33 Provide 15% inclusionary units Provide 15% inclusionary units 40 Provide 15% inclusionary units 41 or more Provide 15% inclusionary units 2 unit + payment of in-lieu fee for fractional difference 1 unit 1 unit 2 unit + payment 2 unit 1 unit of in-lieu fee for fractional difference 2 units 2 units 2 units 5% of all units 2 units minimum 5% of all units 2 units minimum 5% of all units 2 units minimum OFF-SITE AFFORDABLE UNITS. (a) Off-site inclusionary units, in place of or combined with on-site units, may be approved upon a showing by the applicant for the residential development, approved by the appropriate authority, that off-site units will provide a greater contribution to the County's affordable housing needs. If a developer chooses off-site affordable housing, the inclusionary requirement shall be 20%. (b) Off-site affordable units, to the greatest extent possible, should be located within the same planning area as the market rate project. (c) Off-site units may be allowed only if their location is identified and is owned, or site control is demonstrated by the applicant, at the time of first approval. (d) Except as otherwise provided in the affordable housing agreement for the residential development, building permits for corresponding market-rate units will not be issued until building permits have been issued for off-site units, and final inspections for occupancy will not occur for corresponding market-rate units until final inspections for occupancy have occurred for off-site units. (e) The inclusionary housing requirements of this chapter are summarized in the following table. Should there be any discrepancy between this table and the text of this ordinance, the text shall control Development Size Inclusionary Moderate Income Low Income Requirement 1-4 None 5 Provide 20% 1 unit Inclusionary Units unit + payment of in-lieu fee for Very Low Income 9