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(a) Purpose and Findings: This Section 206.6 details the review, analysis and approval process for any project seeking a density bonus that is consistent with State Law, Government Code Section 65915 et seq., but is not consistent with the pre-vetted menu of concessions, incentives or waivers, or other requirements established in Section 206.5 as analyzed by the Planning Department in coordination with David Baker and Seifel Consulting, and shall be known as the Individually Requested State Density Bonus Program.
California State Density Bonus Law allows a housing developer to request parking ratios not to exceed the ratios set forth in Government Code Section 65915(p)(1), which may further be reduced as an incentive or concession. Because in most cases San Francisco regulates parking by dwelling unit as described in Article 1.5 of this Code, the minimum parking ratios set forth in the Government Code are greater than those allowed in San Francisco. Given that San Francisco’s parking ratios are already less than the State ratios, the City finds that the State’s minimum parking ratio requirement does not apply.
(b) Applicability. A Housing Project that does not meet any one or more of the criteria of Section 206.5(b) under the Analyzed State Density Bonus Program, but meets the following requirements, may apply for a Development Bonus under this Section 206.6 as an “Individually Requested State Density Bonus Project” or “Individually Requested Project” if it meets all of the following criteria:
(1) contains five or more residential units, as defined in Section 102;
(3) provides Restricted Affordable Housing Units, including but not limited to Inclusionary Housing Units, at minimum levels as provided in Table 206.6A;
(4) provides replacement units for any units demolished or removed that are subject to the San Francisco Rent Stabilization and Arbitration Ordinance, Administrative Code Section , or are units qualifying for replacement as units being occupied by households of low or very low income, consistent with the requirements of Government Code section 65915(c)(3); and,
(5) Is in any zoning district except for RH-1 or RH-2, unless the Code permits the development of a project of five units or more on a site or sites.
(c) Development Bonuses. Any Individually Requested Density Bonus Project shall, at the project sponsor’s request, receive any or all of the following:
(1) Density Bonus. Individually Requested Projects that provide On-site Inclusionary Housing Units or Restricted Affordable Units shall receive a density bonus as described in Table 206.6A as follows:
Restricted Affordable Units or Category | Minimum Percentage of Restricted Affordable Units | Percentage of Density Bonus Granted | Additional Bonus for Each 1% Increase In Restricted Affordable Units | Percentage of Restricted Units Required for Maximum 35% Density Bonus |
Very Low Income | 5% | 20% | 2.50% | 11% |
Lower Income | 10% | 20% | 1.50% | 20% |
Moderate Income | 10% | 5% | 1% | 40% |
Senior Citizen Housing | 100% | 20% | ---- | ---- |
Note: A density bonus may be selected from only one category up to a maximum of 35% of the Maximum Allowable Gross Residential Density.
In calculating density bonuses under this subsection 206.6(c)(1) the following shall apply:
(A) When calculating the number of permitted Density Bonus Units or Restricted Affordable Units, any fractions of units shall be rounded to the next highest number.
(B) An applicant may elect to receive a Density Bonus that is less than the amount permitted by this Section; however, the City shall not be required to similarly reduce the number of Restricted Affordable Units required to be dedicated pursuant to this Section and Government Code Section 65915(b).
(C) Each Housing Project is entitled to only one Density Bonus, which shall be selected by the applicant based on the percentage of Very Low Income Restricted Affordable Units, Lower Income Restricted Affordable Units, or Moderate Income Restricted Affordable Units, or the Housing Project’s status as a Senior Citizen Housing Development. Density bonuses from more than one category may not be combined. In no case shall a Housing Project be entitled to a Density Bonus of more than 35%, unless it is a Senior Housing Project meeting the requirements of Section 202.2(f).
(D) The Density Bonus Units shall not be included when determining the number of Restricted Affordable Units required to qualify for a Density Bonus. Density bonuses shall be calculated as a percentage of the Maximum Allowable Gross Residential Density.
(E) Any Restricted Affordable Unit provided pursuant to the on-site requirements of the Inclusionary Affordable Housing Program, Section 415et seq., shall be included when determining the number of Restricted Affordable Units required to qualify for a Development Bonus under this Section 206.6. The payment of the Affordable Housing Fee shall not qualify for a Development Bonus under this Section. The provision of Off-site Units shall not qualify the Principal Project for a Density Bonus under this Section; however an Off-site Unit may qualify as a Restricted Affordable Unit to obtain a density bonus for the Off-site Project.
(F) In accordance with state law, neither the granting of a Concession, Incentive, waiver, or modification, nor the granting of a Density Bonus, shall be interpreted, in and of itself, to require a general plan amendment, zoning change, variance, or other discretionary approval.
(G) No additional Density Bonus shall be authorized for a Senior Citizen Development beyond the Density Bonus authorized by subsection (c)(1) of this Section.
(H) Certain other types of development activities are specifically eligible for a development bonus pursuant to State law, including land donation under Government Code Section 65915(g), condominium conversions under Government Code Section 65915.5 and qualifying mobile home parks under Government Code Section 65915(b)(1)(C). Such projects shall be considered Individually Requested State Density Bonus Projects.
(2) Concessions and Incentives. This Section includes provisions for providing Concessions or Incentives pursuant to Government Code Section 65915 et seq. as set forth in Table 206.6B. For purposes of this Section 206.6, Concessions and Incentives as used interchangeably shall mean such regulatory concessions as specified in Government Code Section 65915(k) to include:
(A) A reduction of site Development Standards or architectural design requirements which exceed the minimum applicable building standards approved by the State Building Standards Commission pursuant to Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback, coverage, and/or parking requirements which result in identifiable, financially sufficient and actual cost reductions;
(B) Allowing mixed use development in conjunction with the proposed residential development, if nonresidential land uses will reduce the cost of the residential project and the nonresidential land uses are compatible with the residential project and existing or planned development in the area where the Housing Project will be located; and
(C) Other regulatory incentives or concessions proposed by the developer or the City that result in identifiable and actual cost reductions.
Notes: 1. Concessions or Incentives may be selected from only one category (very low, lower, or moderate). 2. Common Interest Development is defined in California Civil Code Section 4100.
(3) Request for Concessions and Incentives. In submitting a request for Concessions or Incentives that are not specified in Section 206.5(c)(4), an applicant for an Individually Requested Density Bonus Project must provide documentation described in subsection (d) below in its application. The Planning Commission shall hold a hearing and shall approve the Concession or Incentive requested unless it makes written findings, based on substantial evidence that:
(A) The Concession or Incentive does not result in identifiable and actual cost reductions, consistent with Government Code Section 65915(k); or
(B) The Concession or Incentive would have a specific adverse impact, as defined in Government Code Section 65589.5(d)(2) upon public health and safety or the physical environment or 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 Housing Project unaffordable to low- and moderate-income households; or
(C) The Concession or Incentive would be contrary to state or federal law.
(4) Waiver or Modification. An applicant may apply for a waiver or modification of Development Standards that will have the effect of physically precluding the construction of a Housing Project at the densities or with the Concessions or Incentives permitted by this Section 206.6. The Planning Commission will not grant a waiver or modification under this Section unless it is necessary to achieve the additional density or the Concessions or Incentives permitted by this Section 206.6. The developer must submit sufficient information as determined by the Planning Department demonstrating that Development Standards that are requested to be waived or modified will have the effect of physically precluding the construction of a Housing Project meeting the criteria of this Section 206.6 at the densities or with the Concessions or Incentives permitted. The Planning Commission shall hold a hearing to determine if the project sponsor has demonstrated that the waiver is necessary. The Planning Commission may deny a waiver if it finds on the basis of substantial evidence that:
(A) It is not required to permit the construction of a Housing Project meeting the density permitted or with the Concessions and Incentives permitted under this Section 206.6;
(B) The Waiver would have a specific adverse impact, as defined in Government Code Section 65589.5(d)(2) upon public health and safety or the physical environment or 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 Housing Project unaffordable to low- and moderate-income households; or,
(C) The Waiver would be contrary to state or federal law.
(5) Nothing in this Section shall be construed to require the provision of direct financial incentives for the Project, including the provision of publicly owned land by the City or the waiver of fees or dedication requirements.
(d) Application. An application for a Density Bonus, Incentive, Concession, or waiver under this Section 206.6 shall be submitted with the first application for approval of a Housing Project and shall be processed concurrently with all other applications required for the Housing Project. The application shall be on a form prescribed by the City and, in addition to any information required for other applications, shall include the following information:
(1) A description of the proposed Project, and a full plan set, including a site plan, elevations, section and floor plans, with the total number and location of dwelling units, Restricted Affordable Units, and Density Bonus Units proposed;
(2) A plan set sufficient for the Planning Department to determine the project site’s Maximum Allowable Gross Residential Density. The project sponsor shall submit plans for a base project that demonstrates a Code complying project on the Housing Project site without modification of the Planning Code. Such plans shall include similar detail to the proposed Housing Project. The project sponsor shall demonstrate that site constraints do not limit the Maximum Allowable Gross Residential Density for the base project in practice. If the project sponsor cannot make such a showing, the Zoning Administrator shall determine whether the Maximum Allowable Gross Residential Density shall be adjusted for purposes of this Section;
(3) The zoning district designations, Maximum Allowable Gross Residential Density, assessor’s parcel number(s) of the project site, and a description of any Density Bonus, Concession or Incentive, or waiver requested;
(4) If a Concession or Incentive is requested that is not included within the menu of Incentives/Concessions set forth in subsection 206.5(c), a submittal including financial information or other information providing evidence that the requested Concessions and Incentives result in identifiable and actual cost reductions required in order to provide for affordable housing costs as defined in Health and Safety Code Section 50052.5, or for rents for the Restricted Affordable Units to be provided as required under this Program. The cost of reviewing any required financial information, including, but not limited to, the cost to the City of hiring a consultant to review the financial data, shall be borne by the applicant;
(5) If a waiver or modification is requested, information sufficient to demonstrate why a Development Standard would physically preclude the construction of the Development with the Density Bonus, Incentives, and Concessions requested. The cost of reviewing any required information supporting the request for a waiver, including, but not limited to, the cost to the City of hiring a consultant to review the architectural information, shall be borne by the applicant;
(6) Level of affordability of the Restricted Affordable Units and a draft Regulatory Agreement;
(7) The number of residential units which are on the property, or if the residential units have been vacated or demolished in the five year period preceding the application, have been and which were subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very low income; subject to any other form of rent or price control through the City or other public entity’s valid exercise of its police power; or occupied by lower or very low income households;
(8) If the property includes a parcel or parcels in which dwelling units under subsection (d)(7) are located or were located in the five year period preceding the application, the type and size of those units, the incomes of the persons or families occupying those units;
(9) Documentation that the applicant has provided written notification to all existing commercial or residential tenants that the applicant intends to develop the property pursuant to this section. Any affected commercial tenants shall be given priority processing similar to the Department’s Community Business Priority Processing Program, as adopted by the Planning Commission on February 12, 2015 under Resolution Number 19323 to support relocation of such business in concert with access to relevant local business support programs;
(10) If a Density Bonus or Concession is requested for a land donation under Government Code Section 65915(g), the application shall show the location of the land to be dedicated, provide proof of site control, and provide evidence that all of the requirements and each of the findings included in Government Code Section 65915(g) can be made;
(11) If a density bonus or Concession is requested for a Child Care Facility under Section 206.7, the application shall show the location and square footage of the child care facilities and provide evidence that all of the requirements and each of the findings included in Government Code Section 65915(h) can be made; and
(12) If a Density Bonus or Concession is requested for a condominium conversion, the applicant shall provide evidence that all of the requirements found in Government Code Section 65915.5 can be met.
(e) Review Procedures. An application for a Density Bonus, Incentive, Concession, or waiver shall be acted upon concurrently with the application other permits related to the Housing Project.
(1) Before approving an application for a Density Bonus, Incentive, Concession, or waiver, for any Individually Requested Density Bonus Project, the Planning Commission shall make the following findings as applicable.
(A) The Housing Project is eligible for the Individually Requested Density Bonus Program.
(B) The Housing Project has demonstrated that any Concessions or Incentives reduce actual housing costs, as defined in Section 50052.5 of the California Health and Safety Code, or for rents for the targeted units, based upon the financial analysis and documentation provided.
(C) If a waiver or modification is requested, a finding that the Development Standards for which the waiver is requested would have the effect of physically precluding the construction of the Housing Project with the Density Bonus or Concessions and Incentives permitted.
(D) If the Density Bonus is based all or in part on donation of land, a finding that all the requirements included in Government Code Section 65915(g) have been met.
(E) If the Density Bonus, Concession or Incentive is based all or in part on the inclusion of a Child Care Facility, a finding that all the requirements included in Government Code Section 65915(h) have been met.
(F) If the Concession or Incentive includes mixed-use development, a finding that all the requirements included in Government Code Section 65915(k)(2) have been met.
(2) If the findings required by subsection (a) of this Section cannot be made, the Planning Commission may deny an application for a Concession, Incentive, waiver or modification only if it makes one of the following written findings, supported by substantial evidence:
(A) The Concession, Incentive, waiver or modification is not required to provide for the affordability levels required for Restricted Affordable Units;
(B) The Concession, Incentive, waiver or modification would have a specific, adverse impact upon public health or safety or the physical environment or on real property listed in the California Register of Historic Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the Housing Project unaffordable to Low and Moderate Income households. For the purpose of this subsection, “specific adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the Housing Project was deemed complete; or
(C) The Concession, Incentive, waiver or modification is contrary to state or federal law.
(3) The review procedures for an Individually Requested Density Bonus Project, including notice, hearings, and appeal, shall be the procedures applicable to the Housing Project regardless of whether it is applying for a State Density Bonus under this Section 206.6. However, any notice shall specify that the Housing Project is seeking a Development Bonus and shall provide a description of the development bonuses requested. Individually Requested Projects shall also be reviewed for consistency with the Affordable Housing Bonus Program Design Guidelines.
(4) In accordance with state law, neither the granting of a Concession, Incentive, waiver, or modification, nor the granting of a Density Bonus, shall be interpreted, in and of itself, to require a general plan amendment, zoning change, variance, or other discretionary approval.
(f) Regulatory Agreements. Recipients of a Density Bonus, Incentive, Concession, waiver, or modification shall enter into a Regulatory Agreement with the City, as follows.
(1) The terms of the agreement shall be acceptable in form and content to the Planning Director, the Director of MOHCD, and the City Attorney. The Planning Director shall have the authority to execute such agreements.
(2) Following execution of the agreement by all parties, the completed Density Bonus Regulatory Agreement, or memorandum thereof, shall be recorded and the conditions filed and recorded on the Housing Project.
(3) The approval and recordation of the Regulatory Agreement shall take place prior to the issuance of the First Construction Document. The Regulatory Agreement shall be binding to all future owners and successors in interest.
(4) The Regulatory Agreement shall be consistent with the guidelines of the City’s Inclusionary Housing Program and shall include at a minimum the following:
(A) The total number of dwelling units approved for the Housing Project, including the number of Restricted Affordable Units, Inclusionary Units, HOME-SF Units or other restricted units;
(B) A description of the household income group to be accommodated by the Restricted Affordable Units, and the standards for determining the corresponding Affordable Rent or Affordable Sales Price;
(C) The location, dwelling unit sizes (in square feet), and number of bedrooms of the Restricted Affordable Units;
(D) Term of use restrictions for Restricted Affordable Units of at least 55 years for Moderate Income units and at least 55 years for Low and Very Low units;
(E) A schedule for completion and occupancy of Restricted Affordable Units;
(F) A description of any Concession, Incentive, waiver, or modification, if any, being provided by the City;
(G) A description of remedies for breach of the agreement (the City may identify tenants or qualified purchasers as third party beneficiaries under the agreement); and
(H) Other provisions to ensure implementation and compliance with this Section.
AMENDMENT HISTORY
Division (c)(1)(H) amended; Ord. 202-18, Eff. 9/10/2018.