REPORT TO MAYOR AND COUNCIL AND MEMBERS OF THE PLANNING COMMISSION

REPORT TO MAYOR AND COUNCIL AND MEMBERS OF THE PLANNING COMMISSION Agenda Item : 2 TO THE HONORABLE MAYOR AND COUNCIL AND PLANNING COMMISSION MEMBERS: DATE: March 6, 2012 SUBJECT: PROGRESS REPORT AND JOINT CITY COUNCIL/PLANNING COMMISSION STUDY SESSION ON THE DEVELOPMENT CODE PROJECT Report In Brief In November 2010, the City Council approved a Work Program for completion of the Development Code project. Staff has held 11 study sessions with the Planning Commission since that time to review and solicit feedback on Draft Code sections. In addition, three progress reports were delivered to the City Council in 2011. This is the fourth progress report and will be delivered through a Joint Study Session with the Planning Commission. Staff recommends that the City Council receive the report, and provide comments on the topics covered. Background The Development Code project is intended to bring Concord s zoning regulations into conformance with the City s 2030 General Plan, adopted in 2007. The General Plan reflects a 20-year vision for the long-term future of the City, developed through the participation of hundreds of Concord residents and businesses between 2003 and 2007. In some instances, this vision maintains the status quo and retains existing uses. In other instances, this vision promotes reinvestment with new and higher-value land uses. The existing zoning regulations are not adequate to implement the 2030 General Plan. Some of the Plan s land use categories do not have corresponding zoning districts, resulting in land uses on some properties being permitted by the General Plan but not by zoning, and vice versa. The zoning regulations are also outdated and do not respond to the needs of an economically thriving, diverse city. An important part of the Development Code Update project is to modernize current regulations to reflect contemporary planning and building practices as well as desired land uses. This will reduce the burden on new development and have a positive effect on staff resources. In addition to the Development Code Update, the current work effort includes amendments to the Concord 2030 General Plan text and amendments to the General Plan Map. The text amendments include minor changes to narrative and policies related to the Development Code and other factors. These

DEVELOPMENT CODE PROGRESS REPORT March 6, 2012 Page 2 amendments supplement those approved in January 2012 when the Concord Reuse Project Area Plan was adopted. The Map amendments include adjustments which more accurately reflect existing development patterns and open space areas. They slightly reduce the acreage planned for higher intensity commercial and mixed use development to reflect current and predicted future market conditions. Maps showing the proposed changes were reviewed by the City Council at a prior Study Session. Taken together, the Development Code Update and General Plan amendments are considered a project under CEQA and are subject to environmental review. A Supplemental EIR is being prepared, slightly modifying the analysis conducted in the 2030 General Plan EIR to include additional data related to the Map changes and Development Code. Discussion I. Outreach and Public Involvement A public involvement strategy was developed at the start of the Development Code Update and has been implemented on an ongoing basis. Key components of this strategy include a project website (www.concordcode.org), meetings with stakeholders, publicly announced study sessions with the Planning Commission, e-blasts to an extensive mailing list prior to project milestones, and presentations to various community groups. Staff is gearing up for significant outreach efforts in April and May, including a feature article in City News, presentations to the Chamber of Commerce and other business groups, and additional communication with stakeholder groups and neighborhood organizations. An overhaul of the project website will be completed during the next six weeks to ensure that all content is up-to-date and easy to locate. This will include uploading the latest iterations of the Draft General Plan, the Draft General Plan Map, the Draft Supplemental EIR, the Draft Zoning Maps, and all completed sections of the Draft Development Code. Staff will also be updating the property look-up feature which enables property owners to identify their current and proposed General Plan Map designation and zoning district. II. Project Schedule Table 1 (on the following page) indicates the project schedule for the next six months. Completion is expected in Summer, 2012, with a public hearing before the Planning Commission in June and two hearings before the City Council in July. The schedule includes publication of a Supplemental Environmental Impact Report (SEIR) around April 1, 2012 and release of a Final EIR around May 30, 2012. The schedule is driven by four major tasks: environmental review finalizing General Plan Map and Text changes completion of the remaining sections of the Development Code final formatting of the Development Code, including insertion of graphics This staff report focuses on the first three of these bulleted items, with a particular focus on General Plan Map changes and affordable housing regulations.

DEVELOPMENT CODE PROGRESS REPORT March 6, 2012 Page 3 Table 1: Schedule for Development Code Update, March to July 2012 Date Milestone March 14 Planning Commission Study Session #12 March 28 Planning Commission Study Session #13 April 1 Supplemental EIR issued April (TBD) Planning Commission Study Session #14 (as needed) April Airport Land Use Commission hearing May 15 Close of 45 day comment period on SEIR May 30 Release of FEIR, including responses to comments June 6 First Planning Commission Public Hearing July 3 City Council Hearing/ First Reading of Ordinance July 10 Reserved for Additional Council discussion July 24 City Council Hearing/ Second Reading of Ordinance/ adoption Aug 23 Ordinance becomes effective III. Environmental Review The Development Code Update and associated General Plan Amendments are considered a project under the California Environmental Quality Act (CEQA). A Supplemental Environmental Impact Report (SEIR) is now being finalized. Once the SEIR is published, copies will be distributed to State and regional agencies for review and comment. An electronic copy will be posted on the City s website, and email notification will be provided to the interested parties list. The project analyzed by the SEIR includes specific General Plan Map and text changes, new zoning maps (which implement the General Plan Map), and the new Development Code. The emphasis will be on the General Plan Map changes, since the anticipated Development Code impacts were largely evaluated in the General Plan EIR in 2007. Concurrent with the release of the SEIR, the General Plan Map and text changes will be available for public review via the project website. It is expected that the Development Code itself will still be a Working Draft at the time that CEQA review begins. However, any remaining work to be done on the Code after the start of CEQA review will consist of editing and formatting and should not have a material outcome on the conclusions and findings of the SEIR. IV. General Plan Map and Text Changes The City Council and Planning Commission discussed General Plan Map changes in a joint study session on November 1, 2011. Three issues require follow-up discussion at the March 6, 2012 Study Session: Bel Air Shopping Center (Clayton Road and Treat Boulevard). This neighborhood shopping center currently has a General Plan designation of Commercial Mixed Use. In the course of preparing new Zoning Maps, Staff determined that Neighborhood Commercial (NC) was a

DEVELOPMENT CODE PROGRESS REPORT March 6, 2012 Page 4 better fit given current and anticipated uses, necessitating a General Plan Map change to be consistent with the proposed zoning. On November 1, Council raised questions about the rationale behind this General Plan map change. Staff has developed three options for Council and Planning Commission consideration: o Proceed with the change as proposed and zone Bel Air Plaza NC o Retain the Commercial Mixed Use General Plan designation and zone as Commercial Mixed Use (CMX) o Extend the General Plan Map change to include Treat Plaza (on the west side of Treat Boulevard) as well as Bel Air Plaza and zone both sites as NC rather than CMX The rationale for a Neighborhood Commercial designation on Bel Air Plaza is that it is a large, traditional neighborhood shopping center with major anchor tenants that provides an important resource for surrounding neighborhoods. By contrast, the Mixed Use centers (including Treat Plaza) tend to be smaller and are located on shallower parcels. Other sites in the Clayton Road Corridor similar in size and composition to Bel Air Plaza are designated Neighborhood Commercial on the General Plan Map. Also, the Commercial Mixed Use zoning designation permits very similar uses to the Neighborhood Commercial designation, but would add the flexibility of including ground floor residential uses in the future. A map of this area is included as Exhibit A to this staff report. West side of Solano Way between Marsh Drive and Highway 4. This area currently has a General Plan designation of Regional Commercial. Staff has determined that the best fit zoning designation, given the location of this site at a major gateway into Concord, is West Concord Mixed Use (WCMX). This necessitates a change to the General Plan Map. The property is currently vacant and is owned by the Airport. In 2011, the County Airports Division submitted a letter objecting to the proposed new General Plan designation (as well as the current Regional Commercial designation) due to airport safety, noise, and other compatibility concerns. They have requested a Business Park designation for the property. City Staff believes that the most appropriate zoning for this site should recognize its visual prominence, as well as airport-related constraints. Since a Business Park designation would allow outdoor storage, Staff has not been supportive of this designation. City Staff is meeting with Airport Staff to discuss potential solutions. Staff is soliciting City Council feedback on this issue prior to its statutorily required presentation of the proposed General Plan Amendments to the County Airport Land Use Commission later this Spring. A map of this area is included as Exhibit A to this staff report. Contra Costa Water District (CCWD) property designations. Staff has received correspondence from the CCWD expressing their interest in having all CCWD properties zoned as Public/Quasi- Public (PQP). Accordingly, Staff has changed the General Plan designation of several CCWD properties within urbanized locations and is proposing PQP zoning on these sites. However, for CCWD facilities in open space areas (such as water tanks on hillside open space), staff recommends retaining Open Space General Plan and zoning designations. An Open Space designation does not preclude future development of Water District (and ancillary) facilities, but does ensure that sufficient public review is provided and that appropriate conditions may be imposed when future changes in use

DEVELOPMENT CODE PROGRESS REPORT March 6, 2012 Page 5 occur. City staff will be meeting with CCWD prior to the March 6 Study Session to discuss this issue in greater detail. V. Affordable Housing The Draft Development Code includes standards for Affordable Housing, including Concord s Inclusionary Zoning regulations and the State-mandated Density Bonus Ordinance. As called for by the 2009 Concord Housing Element, a new section has been added to the Code to provide specific development incentives for affordable housing. To date, most of the discussion with the Planning Commission and City Council has focused on the new incentives. The Planning Commission initially considered Affordable Housing standards in a Study Session on June 1, 2011. The City Council and Planning Commission had a joint discussion of the standards at a Study Session on November 1, 2011. Staff has also met several times with representatives from East Bay Housing Organizations and Public Advocates in 2011 and 2012 to discuss the Draft regulations. Revisions have been made based on Council and Commission feedback, as well as input from the stakeholders. Revised standards were presented to the Planning Commission in a Study Session on February 29, 2012. The Concord Housing Element called for creation of an Affordable Housing Overlay (AHO) District as part of the Development Code Update. As described in the Housing Element and earlier staff reports, the AHO would be a floating zone which would be mapped on a case-by-case basis as individual affordable housing developments are proposed. The initial proposal suggested that this floating zone could apply in any base zone where residential uses are permitted. The City Council expressed concern that the floating zone provisions were too broad and provided inadequate opportunities for comment by abutting neighborhoods. In response, Staff has recast the proposal as an Affordable Housing Incentive Program rather than a floating zone or overlay district. Staff proposes to limit the incentive program to six zoning districts (discussed below), and has identified specific requirements for neighborhood notification. In addition, the proposed development standards were modified to address Council concerns about possible excessive housing density and height. Attachment B includes the proposed regulations. The issues listed below may require additional discussion and feedback by the City Council: 100% Affordable vs Mixed Income. At the November 1, 2011 Study Session, the Council suggested that the Affordable Housing Incentive Program should avoid creating pockets of lower income housing in the City, and should support the goal of creating economically diverse, mixed income communities. Staff has responded by making the incentives available to mixed income developments (e.g., at least 40 percent of the units are affordable and the remainder are market rate), rather than limiting participation to projects which are 100 percent affordable.

DEVELOPMENT CODE PROGRESS REPORT March 6, 2012 Page 6 Applicable Zones. The proposed Affordable Housing Incentives would apply in the RM, RH, CMX, NC, DMX, and DP zoning districts. 1 Multi-family housing is currently permitted in all of these districts. The incentives would not apply in RR, RS, and RL Districts (e.g., single family and lower density residential districts). The Council and Planning Commission may wish to discuss whether this is the right list of applicable zones, or whether more (or fewer) zones should be considered. Relationship to State Density Bonus and Transit Station Density Bonus. The revised Ordinance clearly states that the Affordable Housing Incentive Program is to be used instead of the State Density Bonus and not in addition to the State Density Bonus. In addition, the Incentive Program includes special standards for projects within one-half mile of a BART station. Affordable housing projects would use these standards instead of those in the proposed Transit Station Overlay district and not in addition to those standards. Development Standards. At the November 1 Council meeting, concerns were expressed about the Incentive Program resulting in excessive densities and heights, especially near single family neighborhoods. Staff has responded by revising some of the base development standards, making it less likely that new development will be excessively dense and bulky. For instance, the maximum density permitted in the RH (Residential High Density) zone has been reduced from 100 units per acre to 72 units per acre. 2 A 40 percent density bonus for projects that include affordable units would bring the density back up to 100 units per acre, which is the General Plan maximum. This not only reduces the possibility of overly dense development, it also makes the density bonuses more realistic and effective. Similar adjustments have been proposed for lot coverage, floor area ratio, height, and open space (see Attachment A). Use Permit Requirements. An important component of the Affordable Housing Incentive Program is that such projects would be permitted by right and would not require discretionary review (e.g., a public hearing and decision by the Planning Commission or City Council). 3 Currently, multi-family housing is permitted by right in the RM, RH, and CMX zones. It requires a major use permit (e.g., Planning Commission approval) in the DMX, DP, and NC zones. In addition, ground floor residential uses are not permitted in the NC zone. The proposed revisions would remove the major use permit requirement for affordable and mixed income multi-family projects in the DMX and DP zone, provided they meet the development standards in Attachment B. A major use permit would still be required in the NC district (Design Review would still be required of all projects as discussed below.) Staff has discussed the possibility of waiving the prohibition on ground floor residential uses for affordable housing in the NC zone under certain conditions (e.g., portions of a property not facing the street). This would provide more flexibility to property owners in these districts. 1 RM=Residential Medium Density;RH =Residential-High Density; CMX = Commercial Mixed Use; NC=Neighborhood Commercial; DMX=Downtown Mixed Use; DP=Downtown Pedestrian 2 The 2009 Housing Element used an assumption of 65 units per acre when calculating the probable yield of sites in the RH zone. 3 A public meeting before the Design Review Board would still be required. As noted below, neighborhood notification would also be required in most circumstances.

DEVELOPMENT CODE PROGRESS REPORT March 6, 2012 Page 7 Neighborhood Notification. Changes to the previous proposal have been made in response to Planning Commission and City Council concerns that sufficient neighborhood/public notification be provided. The draft regulations now clearly state that all affordable housing and mixed income developments are subject to Design Review, including a public meeting before the Design Review Board. In addition, the Draft regulations indicate that a neighborhood meeting is required as part of the application process if the site is in a residential zone or within 100 feet of a residential zone. This is consistent with Article VII Division 2 of the Development Code, which includes requirements for neighborhood meetings for larger development applications. VI. Other Development Code Sections Since the last Council Progress Report in December 2011, Staff has continued to make progress on the remaining sections of the Draft Development Code. Standards for Specific Uses, including Wireless Communication Facilities, have been completed and were considered at a Planning Commission Study Session on February 15. Standards for Signs are now being drafted and will be considered at a Planning Commission Study Session in mid-march. General Development Standards (decks, fences, outdoor storage, etc.) are currently underway and will also be considered at the mid- March Planning Commission Study Session. Development standards for small lot single family and medium density residential development are also being prepared. Completion of these Code sections is expected by the end of March. As noted earlier, Staff anticipates posting these newly drafted sections of the Code to the Project website by April 1. This will constitute a 95 percent complete work product. Staff anticipates completing any outstanding sections of the Code in April, and completing graphics and formatting in May and early June. Recommendation for Action Receive the Staff report and provide feedback. Valerie J. Barone City Manager Valerie.Barone@ci.concord.ca.us Prepared by: Barry Miller, AICP Consulting City Planner bmiller@ci.concord.ca.us Reviewed by: Carol Johnson, AICP Planning Manager carol.johnson@ci.concord.ca.us Victoria Walker Community and Economic Development Director victoria.walker@ci.concord.ca.us Attachment A: Location of Proposed General Plan Map Changes Attachment B: Draft Affordable Housing Regulations

Highway 4 at Solano Way Proposed Change from Regional Commercial to West Concord Mixed Use Buchanan Field ATTACHMENT A : GENERAL PLAN MAP CHANGES

Bel Air Plaza Clayton at Treat From Commercial Mixed Use to Neighborhood Commercial

Article IV. ATTACHMENT B Division 8. Affordable Housing Sections 122-130 Purpose 122-131 Applicability 122-132 Review Authority 122-133 Inclusionary Zoning 122-134 Density Bonuses 122-135 Affordable Housing Incentive Program 122-136 Affordable Housing Agreements 122-137 Application Requirements and Review 122-138 Duration of Affordability 122-139 Compliance Monitoring Fees 122-130 Purpose (a) (b) The purpose of this Division is to facilitate and encourage the development of housing affordable to a broad range of households with varying income levels within the City. It is intended to implement the City s General Plan Housing Element policies and programs pertaining to the need for housing affordable to persons of very low, low and moderate income. In addition, this Division is intended to ensure that at least a minimum percentage of units affordable to very low, low, and/or moderate income individuals is included within new residential developments and that appropriate incentives are established to encourage the inclusion of affordable units beyond the stated minimum. This Division is further intended to allow for Density Bonuses and related incentives consistent with State Density Bonus law. Terms referenced in this section are defined in Article IX Division 2 under the sub-heading Affordable Housing. 122-131 Applicability (a) The provisions of this Division apply to all development containing five or more residential units. More specific applicability provisions are noted below: (1) Section 122-133 (Inclusionary Zoning) requires the inclusion of a minimum percentage of affordable housing units in all projects with five units or more. Its intent is to integrate affordable housing throughout areas of the City where housing is permitted. An option for payment of in-lieu fees is provided in the event that development of inclusionary units as part of the project is not feasible. The MARCH 6, 2012 Page 1

requirements of Section 122-133 apply in all zones where residential uses are permitted. (2) Section 122-134 (Density Bonus) allows increased housing densities with a corresponding increase in affordable housing units consistent with State of California Density Bonus requirements. It applies in all zones where residential uses are permitted. (3) Section 122-135 (Affordable Housing Incentive Program) includes additional incentives for projects incorporating affordable units and permits Density Bonuses above those provided under Section 122-134, in accordance with the Concord Housing Element. Section 122-135 is only applicable in specified zones where high-density multifamily housing and residential mixed use development is permitted. The provisions of Section 122-135 are intended as an alternative to those in Section 122-134 for qualifying projects, and are not cumulative. Projects using the Density Bonus provisions of Section 122-135 are not eligible for additional bonuses under Section 122-134. (b) (c) Affordable housing units are units which are specifically designated for verylow, low income, or moderate income households. They may be developed in all zoning districts that allow residential uses. Affordable housing developments may consist of owner-occupied units or rental units. The standards in this Division are supplemental to, and supersede when in conflict with, the standards in the applicable zoning districts in Article II and in other Divisions of this Development Code, except that the provisions of Article VIII, Division 5 (Nonconforming Uses, Structures, Parcels and Physical Improvements) shall apply in all cases. 122-132 Review Authority (a) (b) (c) The Community and Economic Development Department shall be the review authority for new affordable housing developments. All applications for Density Bonuses, Concessions, Incentives, and Waivers shall be reviewed by the Community and Economic Development Director. Design Review, as described in Article VII, Division 5, is required for all new affordable housing developments in all zoning districts. This includes projects in which only a portion of the units are designated as affordable as well as those that are 100% affordable. Projects containing affordable housing units are subject to all permit requirements and permitting procedures established by Article VII of this Code (Permits and Permit Procedures). All pre-development and public notice provisions established by that Article shall apply. MARCH 6, 2012 Page 2

(d) The Approval Authority for density bonuses and for the modifications to development standards identified in Sections 122-135 shall be the City of Concord Community and Economic Development Department. Staff may deny a density bonus by making certain findings as described in Section 122-134(j)(2). Such denials are appealable to the City Council. As indicated by Article VII (Permits and Permit Procedures), Planning Commission and/or City Council approval shall only be required where a Major Use Permit or Major Subdivision Approval is required, where a decision is being appealed, or where actions related to financial incentives or agreements are included. 122-133 Inclusionary Housing Requirements (a) Applicability. The following requirements shall apply to all residential projects of five or more units. No application for a General Plan Amendment, Rezoning, Tentative Subdivision Map, Parcel Map, Preliminary Development Plan, Use Permit, Design Review, Hillside Development Plan, or Building Permit for a residential project shall be approved, nor shall any such residential project be constructed or occupied, without compliance with this Division, except as noted below in 122-133(b) (Exemptions). (1) All residential ownership projects shall either include the minimum number of inclusionary units required under Section 122-133 (d) (Required Number of Inclusionary Units), or if eligible, pay the in-lieu fee determined pursuant to Section 122-133 (e) (In-Lieu Fees). (2) Residential rental projects shall either include the minimum number of inclusionary units required under Section 122-133 (d) (Required Number of Inclusionary Units), or if eligible, pay the in-lieu fee determined pursuant to Section 122-133 (e) (In-Lieu Fees), only in the event that the project: a) receives a direct financial contribution from the City or any other form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code; or b) is subject to a development agreement. (3) An Affordable Housing Agreement governing the number, size, and location of affordable units, and terms of their use, shall be required pursuant to Section 122-136 of this Division. (4) If affordable rental housing units are required, the City shall require as a condition of City assistance that the Affordable Housing Agreement include the applicant s agreement to any limitation on rents in consideration for the City assistance to ensure compliance with the Costa-Hawkins Act (Chapter 2.7 of Title 5 of Part 4 of Division 3 of the Civil Code). MARCH 6, 2012 Page 3

(b) Exemptions. This Division shall not apply to the following: (1) A residential project consisting solely of the construction of one to four single-family dwelling units; or (2) The reconstruction of any dwelling units that were destroyed by a fire, flood, earthquake, or other act of nature; or (3) Residential rental projects that are not either: a) receiving a direct financial contribution or any other form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code; or b) subject to a development agreement. (4) Residential projects located within Redevelopment Project Areas that may be subject to separate affordability requirements. This shall include development within the Concord Reuse Project Area, which is subject to independent requirements for the inclusion of affordable housing as directed by the City Council. (c) Required Number of Inclusionary Units (1) Basic requirement. The required number of inclusionary units to be provided shall vary depending upon the total number of dwelling units in the project and the income category for the inclusionary units being provided. Within the parameters set forth in Table IV.8-1 below, the applicant may choose which income category of inclusionary units to provide. Table IV.8-1 Required Percentage of Inclusionary Units Project Size and Type Residential Ownership Projects Residential Rental Projects (not otherwise exempt) Inclusionary Requirement Either 10 percent at moderate income, or 6 percent at low income Either 10 percent at low income, or 6 percent at very low income (2) Fractional units. When the application of the percentages set forth above results in a number that includes a fractional unit, the fraction shall be rounded up to the next whole number if the fraction is 0.5 or more. If the result includes a fraction below 0.5, the applicant shall have the option of either rounding up to the next whole number and providing an additional inclusionary unit, or paying an in-lieu fee as provided in Section 122-133(d) (In-Lieu Fees). (3) Blended income levels for inclusionary units. A developer may request that the development project include inclusionary units MARCH 6, 2012 Page 4

affordable to a mix of income levels (very low, low and moderate), instead of a single income level. Authority to approve a particular mix of income levels shall rest with the final City review authority for the underlying application. (4) Projects of five to nine units. The developer of a residential project containing from five to nine units, inclusive, shall have the option of either providing one inclusionary unit or paying an in-lieu fee as provided in Section 122-133(d) (In-Lieu Fees). (5) Rental alternative. As an alternative to providing ownership inclusionary units on-site in residential ownership projects as required by subsection (a) above, and pursuant to Government Code 65589.8, the applicant for a residential ownership project may provide rental inclusionary units. In such cases, the number of rental units provided shall be such that at least 10 percent of the total number of units in the project (including the ownership and rental units) are affordable to low income households or at least 6 percent of the total number of units in the project (including the ownership and rental units) are affordable to very low income households. To ensure compliance with the Costa-Hawkins Act (Civil Code Sections 1954.51 1954.535), the City may only approve such a proposal if the applicant agrees in a Rent Regulatory Agreement with the City to limit rents in consideration for a direct financial contribution or other form of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code. (d) In Lieu Fees (1) Amount. A fee may be paid in-lieu of providing inclusionary units for a residential project as provided in Sections 122-133(c)(2) (Fractional units) and 122-133(c)(4) (Projects of five to nine units) and for a residential project which contains less than 20 acres in gross land area. The fee shall be set by resolution of the City Council and shall be an amount sufficient to pay the proportionate cost of providing Inclusionary Units elsewhere in the City. The fee may be periodically reviewed and updated by the City. (2) Use. All fee revenues shall be deposited in a restricted fund earmarked for housing developments affordable to very low, low, and/or moderate income households. Fees may also be used for administration of City affordable housing programs and to administer fair housing requirements for affordable units. (3) Timing of Payment. In-lieu fees shall be paid prior to issuance of a Certificate of Occupancy or prior to building permit issuance, for MARCH 6, 2012 Page 5

projects for which a certificate of occupancy is not issued; or as otherwise provided in the conditions of approval. (4) Purpose of In Lieu Fees. Nothing in this Ordinance shall deem or be used to deem the in-lieu fee authorized in this section as an ad hoc exaction, as a mandated fee required as a condition to developing property, or as a fee subject to the analysis in Building Industry Association of Central California v. City of Patterson, 171 Cal.App.4th 886 (2009). Any in-lieu fee adopted by the City Council is a menu option that may serve as an alternative to the provision of on-site inclusionary units as otherwise required by Section 122-135. (5) City staff has the flexibility to allow a developer to pay in-lieu fees rather than fulfilling the requirements of an executed Inclusionary Housing Agreement requiring the construction of Below Market Rate For-Sale Units if the affordable price for a moderate income fourperson household would be higher than the anticipated market value of the proposed units. (e) (f) Duration of Affordability. The duration of designated affordable inclusionary units shall conform to Section 122-138 of this Division. Design Standards. The following design standards shall apply to all inclusionary units constructed pursuant to this Division: (1) Inclusionary units shall be dispersed throughout the residential project and shall have access to all on-site amenities that are available to market rate units. (2) The construction quality and exterior design of inclusionary units shall be comparable to the market rate units. However, inclusionary units may be smaller in size, developed on smaller lots, and/or have alternative interior finishes. (3) The average number of bedrooms for all inclusionary units must be equivalent to the average number of bedrooms for market rate units within the same residential project. (g) Timing of Construction and Occupancy. All inclusionary units must be constructed and occupied prior to or concurrently with the market rate units within the same residential project. For phased residential projects, the inclusionary units may be constructed and occupied in proportion to the number of dwelling units in each phase of the project. MARCH 6, 2012 Page 6

(h) Development Incentives (1) The City may grant one or more of the following affordable housing development incentives in order to mitigate the financial impact of this Division's requirements on a particular residential project: (i) (ii) (iii) (iv) Provision of housing set-aside funds, tax exempt financing, or other financial assistance, as approved by the City Council. A Density Bonus, incentive, concession, or waiver authorized pursuant to Section 122-134 (Density Bonuses). Modification of zoning or development standards as described in Section 122-135 (Affordable Housing Incentives) for projects seeking a Density Bonus above and beyond the Inclusionary Housing requirements, as negotiated with and approved by the City. Authority to act on a request for these development incentives shall rest with the final City decisionmaking body regarding the underlying application. Expedited processing of a development application and/or deferral of development fees, as authorized by the City Manager or designee. The terms and payment schedule for any deferred development fees shall be subject to the approval of the City Manager or designee. Fees shall not be deferred any later than occupancy of the first dwelling unit in the residential project. (2) No development incentive shall be provided by the City pursuant to this Section unless the applicant enters into an Affordable Housing Agreement consistent with Section 122-136 of this Division. (i) Off-Site Alternatives (1) As a complete or partial alternative to the provision of on-site inclusionary units pursuant to this Division, the applicant for a residential project may propose a plan for providing affordable housing units at an off-site location within the City of Concord, as follows: (i) (ii) Acquire existing unrestricted multifamily units located elsewhere within the City and rehabilitate those dwelling units. At least two rehabilitated dwelling units shall be provided for each inclusionary unit required pursuant to this Division. Construct new affordable residential dwelling units. At least two new dwelling units shall be provided for each inclusionary unit required pursuant to this Division. MARCH 6, 2012 Page 7

(2) Any new or rehabilitated dwelling units shall be regulated pursuant to an Affordable Housing Agreement, as applicable, between the developer and the City pursuant to Section 122-136 (Affordable Housing Agreements). (3) All off-site inclusionary units must be rehabilitated or constructed and occupied prior to or concurrently with the market rate units for the related residential project. For phased residential projects, the inclusionary units may be constructed and occupied in proportion to the number of dwelling units in each phase of the project. (4) The applicant may partner with a nonprofit affordable housing provider in order to meet its inclusionary housing obligations through one of the alternatives set forth in this section. (5) Authority to act on off-site alternative proposals shall rest with the final City review authority regarding the underlying application. (j) (k) Waivers or Adjustments. The City Council may approve a reduction or waiver of the requirements of this Division for residential projects which: (i) are the subject of a disposition and development agreement, owner participation agreement, acquisition agreement, or other arrangement with the City of Concord; and (ii) are receiving assistance from the City of Concord, such as relocation of occupants, acquisitions and disposition of land for site assemblage, use of eminent domain, write-down of land costs, fee waivers, or other forms of direct City assistance. The City may also adjust or waive the requirements of this Division if the applicant demonstrates that its strict application would affect a taking of private property without just compensation or otherwise constitute a violation of the United States Constitution, California Constitution or other applicable federal or State laws. Any applicant requesting a reduction or waiver must submit a pro forma and such other financial analysis sufficient to support a determination that the reduction or waiver is necessary to ensure the economic feasibility of the project. Consistent with its responsibilities under the Public Records Act, the City shall take reasonable steps to protect the confidentiality of any proprietary financial information submitted by the applicant. Allocation Priority. In the event that there exists a greater number of qualified persons than the number of available Inclusionary Units for any residential project subject to this Division, then first priority for allocating available inclusionary units shall be given to qualified purchasers or renters who live or work within the City of Concord. MARCH 6, 2012 Page 8

122-134 Density Bonus Program (a) Purpose The purpose of this section is to provide Density Bonuses for the production of affordable housing and senior housing in accordance with Sections 65915 and 65917 of the California Government Code. A Density Bonus is an increase in the number of dwelling units authorized for a particular parcel of land. Bonuses range from 5 to 35 percent over the maximum residential density otherwise permitted, depending on the level of affordability, the percentage of units that are affordable, and the inclusion of child care facilities in the development project. (b) Relationship to Inclusionary Housing Requirements All projects utilizing a Density Bonus shall also comply with Section 122-133 for inclusionary housing. For the purposes of calculating the required number of affordable units required by Section 122-133, the additional units which may be authorized by a Density Bonus under this Section are not included. (c) Relationship to Transit Station Overlay Zone The provisions of this section may be used in lieu of those specified in the Transit Station (TS) Overlay zoning district, but may not be used in addition to those specified in the TS Overlay. Because the TS Overlay already offers Density Bonuses and other development incentives which may exceed those listed in this section, the bonus densities offered through this section and the TS Overlay (Article 3, Division 2) are separate and not cumulative. Projects in the TS Overlay are eligible to use the affordable housing incentive program components in Section 122-135, as noted in that Section. (d) General Provisions (1) State law governs. When conflict occurs between the provisions of this Division and Government Code Sections 65915, State law shall govern. (2) Land use compatibility. Affordable housing units in projects using density bonuses shall be built on-site and dispersed within marketrate projects, whenever feasible. Density bonus units within marketrate projects shall be comparable with the design of market-rate units in building appearance, use of materials, and finished quality. (3) Availability. Density bonus units shall be constructed concurrently with, and made available for qualified occupants at the same time as the market-rate housing units within the same project unless both the MARCH 6, 2012 Page 9

City and the applicant agree to an alternative schedule for development. (4) Effect of granting a Density Bonus. The granting of a Density Bonus shall not, in and of itself, require a General Plan Amendment, zoning change, or other discretionary approval. (5) Income levels. For purposes of determining income levels of households under this Division, the City shall use the Contra Costa County income limits in Title 25, Section 6932 of the California Code of Regulations. (6) Affordability Term. The duration of affordability shall comply with Section 122-138 of this Division. (7) Affordable Housing Agreement. Applicants requesting a density bonus shall enter into an Affordable Housing Agreement with the City pursuant to Section 122-136 of this Division. (e) Density Bonus Requirements (1) Minimum Density Bonus and Composition of Qualifying Projects. The provisions of this Section apply to the construction of five or more housing units that satisfy at least one of the following criteria: (i) (ii) (iii) (iv) At least 10 percent of the units are designated as affordable to low-income households. For each one percent increment over 10 percent in the number of low-income designated units, the amount of the Density Bonus as defined in Table IV.8-2 shall be increased by 1.5 percent, up to a maximum of 35 percent. At least five percent of the units are designated as affordable to very low-income households. For each one percent increment over 5 percent in the number of very low-income designated units, the amount of the Density Bonus as defined in Table IV.8-2 shall be increased by 2.5 percent, up to a maximum of 35 percent. 100 percent of the units are designated for senior citizens as defined in Section 51.3 and 51.12 of the Civil Code or are located in a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code. At least 10 percent of the units in a common interest development as defined in California Civil Code Section 1351 are designated for moderate-income households, provided that all units in the development are offered to the public for MARCH 6, 2012 Page 10

purchase. For each one percent increment over 10 percent in the number of moderate-income designated units, the amount of the Density Bonus as defined in Table IV.8-2 shall be increased by one percent, up to a maximum of 35 percent. Table IV.8-2 Percentage of Affordable Units and Corresponding Density Bonus Very Low-Income Households Earning < 50% AMI Low-Income Households Earning < 80% AMI Moderate-Income 120% AMI Persons/Families in Common Interest Development Percent Units set aside as Very Low- Income Units Percentage Density Bonus Percent Units set aside as Low-Income Units Percentage Density Bonus Percent Units set aside as Moderate- Income Units Percentage Density Bonus 5% 20.0% 10% 20.0% 10.0% 5.0% 6% 22.5% 11% 21.5% 11.0% 6.0% 7% 25.0% 12% 23.0% 12.0% 7.0% 8% 27.5% 13% 24.5% 13.0% 8.0% 9% 30.0% 14% 26.0% 14.0% 9.0% 10% 32.5% 15% 27.5% 15.0% 10.0% 11% 35.0% 16% 29.0% 16.0% 11.0% 17% 30.5% 17.0% 12.0% 18% 32.0% 18.0% 13.0% 19% 33.5% 19.0% 14.0% 20% 35.0% 20.0% 15.0% 21.0% 16.0% 22.0% 17.0% 23.0% 18.0% 24.0% 19.0% 25.0% 20.0% 26.0% 21.0% 27.0% 22.0% 28.0% 23.0% 29.0% 24.0% 30.0% 25.0% 31.0% 26.0% 32.0% 27.0% 33.0% 28.0% 34.0% 29.0% 35.0% 30.0% 36.0% 31.0% 37.0% 32.0% 38.0% 33.0% 39.0% 34.0% 40.0% 35.0% MARCH 6, 2012 Page 11

(2) Calculating the Density Bonus. The Density Bonus shall be calculated as shown in Table IV.8-2. The maximum number of units shall be equal to the percentage indicated applied to the maximum allowable density in the applicable zoning district. For senior housing projects, the Density Bonus shall be 20 percent of the number of senior housing units. (3) An applicant must state in its application which of the Density Bonuses above is being sought. (4) Density Bonus applicants shall meet the minimum Inclusionary Housing requirements before being eligible for Density Bonuses. (5) Fractional units. When calculating the number of permitted Density Bonus Units, any fractions of units shall be rounded to the next highest number. (6) An applicant may elect to receive a Density Bonus that is less than the amount required by this Section. In such cases, no reduction will be allowed in the number of affordable units required. (7) As provided in Section 122-135, projects meeting certain locational criteria may be eligible for a Density Bonus that is greater than the amount made available by this Section. In such cases, the criteria in Section 122-134 shall no longer be used and the criteria in Section 122-135 shall apply. (f) Development Incentives and Concessions (1) In addition to the Density Bonus set forth in Section 122-134(e), the City shall provide a Concession or Incentive for qualified projects, unless the City makes a finding that the Concession or Incentive is not necessary as provided in Section 122-134(f)(6) below. The development incentive(s) granted shall contribute significantly to the economic feasibility of providing the affordable or senior units. (2) Applicants seeking a waiver or modification of development or zoning standards shall show that such waivers or modifications are necessary to make the housing development economically feasible in accordance with California Government Code Section 65915(f). (3) Number of Concession or Incentives. If an applicant proposes to provide at least one of the percentages of affordable units indicated in Table IV.8-3, one or more concessions or incentives shall be granted in order to facilitate achievement of the Density Bonus. MARCH 6, 2012 Page 12

Affordable Unit Set-Aside Table IV.8-3 Incentive Schedule Percent Units set aside as Very Low-Income Units Percent Units set aside as Low-Income Units Percent Units set aside as Moderate- Income Units (in Common Interest development) Number of Incentives (*) 5% 10% 10% 1 10% 20% 20% 2 15% or more 30% or more 30% or more 3 (*) As stipulated in Section 122-135, developments meeting specified criteria may be eligible for additional incentives.. Such projects would not be subject to the requirements above. (4) Development Incentives Defined. For the purposes of this Section, Concession or Incentive means any of the following: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) Reduced minimum lot sizes and/or dimensions; Reduced minimum setbacks; Reduced minimum common and/or private outdoor open space; Increased maximum lot coverage; Increased maximum building height and/ or stories; Reduced on-site parking standards, including the number or size of spaces and garage requirements, such that no more than (a) one on-site space shall be required for each studio or onebedroom unit; (b) two on-site spaces shall be required for each two or three bedroom unit; (c) 2.5 on-site spaces shall be required for each four bedroom unit. For the purposes of this section, at the applicant s request, on-site parking may be provided through tandem or uncovered spaces but not through on-street parking. Pursuant to Government Code 65915, guest parking is not required. Reduced minimum building separation requirements; Reduced street standards, including street widths; Approval of mixed-use zoning if commercial, office, or other land uses will reduce the cost of the housing development and MARCH 6, 2012 Page 13

if the commercial, office, or other land uses are compatible with the housing development and the existing or planned development in the area; (x) (xi) (xii) (xiii) Reduced or deferred permit application fees; Expedited or accelerated permitting process; Direct financial aid in the form of a loan or grant to subsidize or provide low interest financing for on or off-site improvements, or land or construction costs. Other regulatory incentives or concessions proposed by the developer or the City which result in identifiable cost reductions or avoidance. (5) The City may offer an Equivalent Financial Incentive in lieu of granting a Density Bonus, a Concession or Incentive, or both. The value of the Equivalent Financial Incentive shall equal at least the land cost per dwelling unit savings that would result from a Density Bonus and must contribute significantly to the economic feasibility of providing the affordable or senior units pursuant to this Section. (6) Restrictions. The City will grant the number of development incentives or concessions as required by this subsection, unless, on the basis of substantial evidence, it makes any of the following written findings below: (i) (ii) (iii) The development incentives or concessions are not required in order to provide affordable housing, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in Section 65915(c) of the California Government Code. The development incentives or concessions would have a specific adverse impact, as defined in paragraph (2) of Subdivision (d) of California Government Code Section 65589.5, upon public health and safety or the physical environment or an 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 development unaffordable to low- and moderate-income households. The development incentives or concessions would be contrary to State or Federal law. MARCH 6, 2012 Page 14