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SR-407-000-05 (6) F:\CityPlanning\Share\COUNCIL\STRPT\2005\Density Bonus Discussion(Final).doc 0 A July 26, 2005 Santa Monica, California 0 .JML B 8 1:000 AUG = 9 2005 TO: Mayor and Councilmembers FROM: City Staff SUBJECT: Discussion Regarding State Density Bonus Requirements, Affordable and Market Rate Housing in Santa Monica, Housing Development Incentives, Options and Direction to Staff to Prepare an Ordinance Addressing Related Inconsistencies Between State Law and Local Regulations INTRODUCTION Significant changes to the state's density bonus law became effective on January 1, 2005. These new provisions, among other requirements, reduce the number of units that a developer must provide in order to receive a density bonus and require the city to provide three development incentives or concessions to facilitate the production of housing. The law also requires cities and counties to bring local ordinances into compliance with state law. Included with this report is a document prepared by the California Chapter of the American Planning Association (CCAPA) that summarizes the changes and provides answers to common questions (Attachment A). The attached document provides a concise explanation that may be helpful in understanding the following sections of this report. Also included is the actual language of S8 1818, chaptered as Government Code Sections 65915 - 65918 (Attachment 8). This report recommends that the City Council discuss the recent changes to state law, provide direction on how best to align its requirements with local policies and objectives regarding affordable housing, and direct staff to prepare an ordinance to comply with its provisions. ~A 1 .a4b. 0 & 2800 AUG = 9 2005 DISCUSSION As detailed in the CCAPA document, a sliding scale is used in the new density bonus law to increase the density bonus up to 35 percent, based on percentage increases to the number of on-site affordable units proposed as part of the development. New parking standards that supersede local requirements reduce, in some cases, the number of spaces that would be required with local regulation and allow tandem configurations, which previously were available only for parcels with narrow widths or with approval of a variance. The number of incentives (up to three) required to be provided by the City to developers, such as financial assistance or a reduction in development standards, to facilitate the development of housing, is based on the percent of affordable housing units in the project. These changes have the potential to profoundly impact the quality and character of residential neighborhoods in the city, including commercial districts where housing is permitted. Allowing greater density, reduced parking, and providing up to three development incentives may increase the number of residents living in a particular neighborhood, alter the way residents move around the city, and could result in larger buildings. While the City has several incentives to encourage housing in the community, a total of three incentives for each district that allows housing are currently not available. Staff intends to evaluate alternative incentives based on Council direction and return with an ordinance that aligns state law with local goals and policies. Issues concerning land use density, urban design, parking and mobility are currently being evaluated through the Land Use and Circulation Element project, but the need to promptly 2 implement state regulations will require some decisions in advance of that effort to align local goals with state law. All of these decisions, however, can be reevaluated as appropriate when such matters are being considered in the General Plan effort. As part of the staff evaluation of incentives, it may be necessary to prepare an economic analysis to evaluate how each of the incentives will reduce costs to the developer, which is a required criterion of state law. The level of environmental review required to implement a future ordinance will also be evaluated and the appropriate course pursued. This effort will take a minimum of two months, but possibly longer depending on the nature of this review. In preparation of the ordinance, it would be helpful to know if there are certain incentives the Council does not want staff to evaluate, because of conflicts with longstanding policies, or, if there are other incentives that should be considered that are not identified below. The City currently offers a variety of incentives for housing, including affordable housing, in various districts throughout the City: . In the BSC, C3, C3-C, and CM districts, floor area devoted to residential uses is discounted fifty percent. In the BCD, C2, C4, and C6 districts, the City offers increased floor area if at least 30 percent of the project floor area is residential. . In the BSC, C3, C3-C, and C6 districts, the City eliminates the restriction on the number of stories within the height limit that can be built if the structure contains at least one floor of residential use and offers increased maximum heights to projects with a designated number of floors of residential use. . In the CM district, there is no limit to the number of stories within the height limit if 3 at least 50 percent is residential. In the CP, R2, R3, and R4 districts, there is no limit to the number of stories within the height limit if the project is affordable housing. . The City's Affordable Housing Production Program in-lieu fees are discounted for residential development in commercial areas. . In the BSC, BCD, C2, C3, C3-C, C4, C5, C6, CM, CP, M1, LMSD, RVC, R2, R3, and R4 districts, the floor area devoted to residential use is discounted 50 percent when determining the threshold for a Development Review Permit. Although the City currently provides these incentives, not every district that allows housing has a total of three incentives. Staff will reassess the value of the above incentives in the context of state law and further examine possible incentives related to increased building heights and parcel coverage; reduced setbacks, open space and parking requirements; application processing incentives; and, mixed use zoning (currently allowed in most commercial districts and the M1 zone). It is anticipated that there will be significant modifications to the development standards or incentives offered in each zoning district that allows housing. A proposed ordinance may include modifications to the Housing Development Incentives section in the Zoning Ordinance (Part 9.04.10.14) and possible elimination, retention or expansion of some existing incentives. In evaluating these various incentive alternatives, including preparation of the associated financial analysis, it is important to understand if it is the City Council's direction to add these incentives to the existing development standards set forth in these 4 districts, or if consideration should be given to reducing building height and density or increasing setbacks and open space requirements beyond current zoning standards in an effort to minimize the impact of state law. Modifying existing development standards may result in fewer or smaller dwelling units, less buildable floor area, and lowered building heights for projects not qualifying as state density bonus projects. BUDGET/FINANCIAL IMPACT The recommendation presented in this report does not have any budget or fiscal impact. Staff will prepare a scope of work for the necessary economic and environmental analysis. If the work exceeds the amount authorized in the City Planning Division's professional services account (01266.55060), staff will return to Council with a request for additional budget allocations. RECOMMENDATION Staff recommends that the City Council discuss the recent changes to California's density bonus law, provide direction on how best to align local objectives and policies regarding affordable housing with State law, and direct staff to prepare an ordinance to comply with State law. Prepared by: Andy Agle, Interim Director Amanda Schachter, Planning Manager Jonathan Lait, AICP, Principal Planner Tony Kim, Associate Planner Planning and Community Development Department 5 Attachments: A. CCAPA's Answers to Frequently Asked Questions Regarding SB 1818 - Changes to Density Bonus Law - 2005 (available online: http://www.calapa.oro/attachments/articles/15/SB-1818-Q-A-Final-1-26-05.pdf) B. Government Code Sections 65915 - 65918 (available online: http://www.leoinfo.ca .oov/cqi-bin/displavcode?section=qov&qroup=6500 1- 66000&file=65915-65918) 6 A IT ACHMENT A l\I~\ Californi;;l <:hapter \I! ' II '. III I I ! III J I '! -' " ... I II I' '11 ~ ~ . . SB1818Q&A CCAPA's Answers to Frequently Asked Questions Regarding 581818 (Hollingsworth) - Changes to Density Bonus Law - 2005 Prepared by Vince Bertoni, AICP, Bertoni Civic Consulting & CCAPA Vice President for Policy and Legislation; Barbara Kautz, Esq., FAICP, Goldfarb & Lipman, LLP; Vivian Kahn, FAICP, Dyett & Bhatia; and Terry Rivasplata, AICP, Jones & Stokes Associates. Background The State of California enacted significant changes to the state's density bonus law, which went into effect on January 1, 2005. The legislation, SB 1818 introduced by Senator Hollingsworth (chaptered as Government Code Section 65915-65918), requires cities and counties to overhaul their ordinances to bring them into conformance with new state mandates. The previous law allowed for a 25% density bonus when housing projects provided between 10- 20% of the units affordable (depending upon the level of affordability). In addition, cities and counties needed to provide at least one "concession" such as financial assistance or a reduction in development standards. The new law significantly reduces the amount of units that a developer must provide in order to receive a density bonus and requires cities and counties to provide between one to three concessions, depending upon the percentage of affordable units that the developer provides. It also imposes a new land donation rule, and statewide parking standards, Given the sweeping changes that the state has put in effect, CCAPA received numerous questions from its members regarding the new law and the following are answers to the most frequently asked questions. Please note that the information provided is the opinion of experts in State housing law, but are not intended as legal advice. Please seek the guidance of your city attorney or county counsel on implementing the provisions of the new law in your jurisdiction. Major Provisions Density Bonus. The number of affordable units that a developer must provide in order to receive a density bonus is significantly reduced from prior law. 1 If at least 5% of the units are affordable to Very Low income households or 10% of the units are affordable to Low income households, then the project is eligible for a 20% density bonus. If 10% of condominium or planned development units are affordable to Moderate income households, then the project is eligible to receive a 5% density bonus. In addition, there is a sliding scale that requires: ?? an additional 2.5% density bonus for each additional increase of 1 % Very Low income units above the initial 5% threshold; ?? a density increase of 1.5% for each additional 1 % increase in Low income units above the initial 1 0% threshold; and ?'? a 1 % density increase for each 1 % increase in Moderate income units above the initial 1 0% threshold. These bonuses reach a maximum density bonus of 35% when a project provides either 11 % Very Low income units, 20% Low income units, or 40% Moderate income units. Continued Affordability. The continued affordability requirements for Very Low and Low income units' have not changed. However, the requirements for Moderate income condominium units have changed significantly. The new law specifies that the city or county must insure that the initial occupants of Moderate income units meet the income qualifications. However, upon resale of the units the seller retains the down payment, the value of any improvements, and the seller's proportionate share of appreciation. The city or county recaptures its proportionate share of appreciation and those funds must be used within three years to promote Lower or Moderate income home ownership. It is unclear whether these units must be sold at market rate, or if a city or county can limit appreciation (see Question 7 below). Concessions and Incentives. Cities and counties must grant more "concessions or incentives" reducing development standards, depending on the percentage of affordable units provided. "Concessions and incentives" include reductions in zoning standards, other development standards, design requirements, mixed use zoning, and any other incentive that would reduce costs for the developer. Any project that meets the minimum criteria for a density bonus is entitled to one concession from the Ipcal government agency, increasing up to a maximum of three concessions depending upon the amount of affordable housing provided. For example: ?? For projects that provide either 5% of the units affordable to Very Low income households,10% of the units affordable to Lower Income households, or 25% Moderate Income condominiums, then the developer is entitled to one concession. ?? When the number of affordable units is increased to 10% Very Low income units, 20% Lower income units, or 20% Moderate income units, then the developer is entitled to two concessions. ?? When the number of affordable units is increased to 15% Very Low income, 30% Lower income, or 30% Moderate income units, then the number of concessions is increased to three. 2 Waivers and Modifications of "Development Standards." A city or county may not impose a "development standard" that makes it infeasible to construct the housing development with the proposed density bonus. In addition to requesting "incentives and concessions," applicants may request the waiver of an unlimited number of "development standards" by showing that the waivers are needed to make the project economically feasible. The bill defines "development standards" as "site or construction cond itions." Land Donation. Additional density is available to projects that donate land for residential use. The land must satisfy all of the following requirements: a) have the appropriate general plan designation and zoning to permit construction of units affordable to Very Low income households in an amount not less than 1 0% of the units in the residential development; b} be at least one acre in size or of sufficient size to permit development of at least 40 units; and c} be served by adequate public facilities and infrastructure. The base density bonus is 15%, with increases in 1 % increments for each percentage increase in the units that can be accommodated above the minimum 10% of the units described in (a), up to a maximum of 35%. The maximum combined density bonus is 35% under all rules. When the land is transferred, it must have all of the permits and approvals necessary for the development of the Very Low income housing units. The land and affordable units must be subject to deed restrictions ensuring continued afford abil ity. The city or county may require that the land be transferred to a developer instead of the city. Parking Standards. If a project qualifies for a density bonus, the developer may request (and the City and County must grant) new parking standards for the entire development project. The new standards are: ?? zero to one bedroom one on-site parking space ?? two to three bedrooms - two onsite parking spaces ?? four or more bedrooms - two and one-half on-site parking spaces. These numbers are inclusive of guest parking and handicapped parking and may be tandem or uncovered (but cannot be on-street). The parking standards may be requested even if no density bonus is requested. Questions 1. Does this law apply to charter cities and charter counties? Yes. 2. Can inclusionary requirements be imposed on the bonus units? Most experts agree that inclusionary requirements cannot be imposed on the density bonus units themselves. The reasoning is that the Legislature intended to give developers market-rate units in exchange for affordable units. For instance, 3 if a 1 OO-unit project becomes a 120-unit project after receiving a density bonus, the inclusionary requirements may be imposed only on the original 1 00 units, not the 20 bonus units. If a city has a 20% inclusionary requirement, normally the city would require 24 inclusionary units in a 120-unit project (20% of 120 units). However, if 20 units are density bonus units, then the 20% inclusionary requirement can only be imposed on 100 units, requiring only 20 inclusionary units (20% of 100 units). The net impact is that only 16.7% (20/120) of the total units will be affordable inclusionary units, rather than 20% (24/120) as intended by the inclusionary ordinance. 3. Do inclusionary units qualify a project for a density bonus? The density bonus law applies when an applicant "seeks a density bonus" and "agrees to construct" the required percentages of affordable units. There have been two interpretations of this section. Many localities interpret the bill to mean that if the inclusionary units meet the requirements of the density bonus law, then the inclusionary units will qualify the development for a density bonus. For instance, in these jurisdictions, if an inclusionary ordinance requires that ten percent of the units be affordable to Low income households, a project complying with the ordinance will be eligible for a 20% density bonus. Other localities interpret this to mean that when a local jurisdiction imposes its inclusionary housing requirement, the applicant is not "agreeing to construct" the units and so is not eligible for a density bonus. The legislative history of the amendments to S8 1818 confirms that the changes in the law were not intended to affect an inclusionary zoning ordinance. You may want to discuss this issue with your city or county attorney. Note that no density bonus need be given in any case unless an applicant actually "seeks"--applies for--the bonus, even if the project would otherwise be eligible for a density bonus. 4. Can a developer successfully argue that the inclusionary requirements make the project infeasible? No. Developers can only request a waiver of "development standards" that make a project infeasible. "Development standards" are defined as "site or construction conditions." The proponents of the bill included this definition specifically so that an inclusionary ordinance would not be considered a development standard. An inclusionary ordinance doesn't regulate site or construction conditions; it only affects the economics of the project. Consequently, a developer cannot request a waiver by arguing that the inclusionary ordinance makes the project infeasible. Some inclusionary ordinances do have requirements that might be considered to be site and construction conditions such as requiring dispersal of units, similarity in design to market-rate units, etc. Presumably a developer could try to show that these are site or construction conditions and request that they be waived, following the procedures discussed in Question 9. 4 5. Can a city or county require design review for density bonus projects, even if it renders the project infeasible? The short answer is "no"--if, indeed, design reviewwill make the project infeasible. As discussed in the previous question, no local agency can apply any development standard that will preclude the development of a density bonus project. How would this work in the case of design review? The process of design review is not a development standard, so no waiver could be requested. Design review conditions. however, usually involve site or construction requirements, so would probably be considered to be "development standards." The issue would most likely arise if an applicant argued that design review conditions made the project infeasible and presented evidence showing that the project would not be economically feasible with the conditions. Cities and counties should consider including in their local ordinances a process for evaluating requests for waivers including the type of economic information which must accompany the request and how the information will be evaluated. 6. Can a city or county place additional resale restrictions on a Moderate income condominium and planned developments? If an applicant receives no public subsidy and agrees to impose the equity-sharing required by SB 1818, the city or county cannot require additional resale restrictions (see discussion in Question 7 below). However, if a city or county has an inclusionary ordinance that requires Moderate income units to have resale restrictions or longer periods of affordability, the city is under no obligation to count as inclusionary units, those Moderate income units that meet only density bonus standards. For instance, assume that a city has a 15% Moderate income inclusionary requirement and requires a 55-year resale restriction. A developer could propose 15% Moderate income units with the equity-sharing required by SB 1818 and receive a density bonus. However, since none of the units would meet the standards in the City's inclusionary ordinance, the City would not be required to count any of the units as inclusionary units. The developer would have to provide another 15% Moderate income units meeting the City's standards for resale restrictions and 55 years of affordability. In this case, most developers would choose to apply the city's standards to their Moderate income units. 7. Is there a requirement for continued affordability for Moderate income condominium and planned developments? No, only the initial occupant must meet the affordable income criteria. After the initial owner sells the unit, that person is entitled to receive the value of their down payment, improvements to the property, and proportional share of the appreciation of the unit. The City or County receives its proportional share of the appreciation and must use that money within three years to promote affordable, ownership housing. The bill is not clear about how appreciation is defined. Proponents of the bill state that it was intended to work as follows: if a locality makes a unit available for 5 $200,000 to a moderate income purchaser but the unit has a value at the time of purchase of $300,000, then the locality gets to recapture the $100,000 subsidy upon resale. In addition, if the unit goes up in value another $30,000 between the date or purchase and the date of resale, the locality and purchaser split the appreciation per the formula in the bill. The bill does not specifically require that the units be re-sold at fair market price, which may allow localities to impose resale controls limiting the amount of appreciation. 8. If a developer is proposing a mixture of affordable housing types (i.e., 5% Very Low plus 10% Low income units) how is the density bonus calculated? S8 1818 amended Government Code Section 65915 to delete the language in subsection (I), which previously stipulated that an applicant who "agrees to construct both 20 percent of the total units for Lower income households and 10 percent of the total units for Very Low income households is entitled to only one density bonus and at least one additional concession or incentive". Localities should assume, therefore, that if the proposed percentage of units by affordable housing type meets or exceeds the thresholds stipulated in subsection (g) they will have to grant the 20 percent density bonus to which the applicant is entitled for each type of affordable housing that exceeds the threshold specified in subsection (g) (1). Note, however, that this subsection now specifies that the maximum density bonus to which an applicant is entitled is 35 percent, in contrast to the previous requirement, which stated that the applicant was entitled to a minimum bonus of 25 percent but did not specify a maximum. If the applicant proposes a mixture of affordable housing types that meets or exceeds the threshold for more than one housing type, he or she is, therefore, not entitled to receive a bonus that exceeds 35 percent of the density that would otherwise be allowed by applicable zoning and the land use element. Neither the former version of Sec. 65915 nor the amendments in S8 1818 provide more guidance about how agencies should calculate the density bonus for a project that includes a mixture of affordable housing types when the project does not meet the specified thresholds for each affordable housing type. For example, an applicant might propose to make 5 percent of the units affordable to Very Low income households plus 5 percent affordable to Low.income households. In that case, one way to calculate the bonus would be to grant the incremental density allowed in subsection (g) for the Low income units (1.5 percent multiplied by 5 or a total of 7.5 percent for the Low income units) in addition to the 20 percent bonus to which the applicant is entitled for the 5 percent Very Low income units. Another way to calculate a mixture of affordable housing types it to first evaluate the Very Low income units only. If a project has 5% Very Low income units then it would be entitled to a 20% bonus. Then evaluate the 5% Low income units by themselves. These don't qualify for any density bonus (10% Low income units required). Then, consider all 1 0% of the units as Low income units. This again permits a 20% bonus. Consequently, the project is only entitled to a 20% bonus. (This has the effect of encouraging developers to have more Very Low income units, since 8% Very Low income units would give the developer the 27.5% density bonus.) Since the law is silent on which manner to calculate a density 6 bonus for a mixture of income levels, it is important for the city or county to choose a method and be clear and consistent in the implementation. Also, cities and counties should amend their density bonus provisions to delete any reference to the "one density bonus" limit that Sec. 65915 previously imposed. They may want to amend their ordinances to also specify how to calculate both the minimum and the maximum number of additional units that might be granted pursuant to this section and to specify the 35 percent maximum stipulated as a result of SB 1818. 9. Can a city or county require the developer to choose from a specific list of concessions chosen by the local agency? What happens if they want a concession that is not on the list? A city or county can request that a developer choose a concession or incentive from a list that the city or county has prepared as acceptable concessions; however, under certain circumstances, the developer may be entitled to other incentives not on the city or county list. Section 65915 (I) defines "concession or incentive" as a reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission. Examples include a reduction in setback and square footage requirements and reduction in parking ratios. Approval of mixed use zoning is a "concession" if the non-residential use is compatible with the housing project and the existing or planned development in the area. In addition, the developer may propose other regulatory incentives or concessions that result in "identifiable, financially sufficient, and actual cost reductions" Subsection (d)(1) does make clear that the city or county may refuse to grant a concession or incentive if it makes certain findings based upon substantial evidence. The type of evidence that would be required to support such findings is spelled out in subsections (d)(1) (A) and (B) and includes a determination that the concession or incentive is not required in order to provide the proposed affordable housing units or "would have a specific adverse impact... upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources" so long as there is no way to mitigate or avoid the specific impact without making the development unaffordable to Low and Moderate income households. As noted in subsection (d)(3), these are essentially the same findings that Government code Section 65589.5 requires in order to deny or impose certain conditions on an affordable housing development. Local agencies are advised to pay close attention to these provisions because of the penalties that subsection (e) imposes on localities that refuse to waive standards and requirements in violation of the law. In addition to being ordered to grant the requested waiver, the local agency may be liable for the plaintiffs attorney's fees and litigation costs. 7 In addition to the required concessions and incentives, note that subsection (f) states that cities may not apply development standards that would preclude th~ development of the density bonus units. The applicant may request a waiver and "shall show that the waiver or modification is necessary to make the housing units economically feasible." Local agencies should, therefore, require that applicants provide financial data showing that the proposed waiver or modification is necessary to make the affordable units economically feasible. Pursuant to subsection (d) (3), agencies should also amend their ordinances to establish procedures for accommodating qualified projects by "waiving or modifying development and zoning standards that would otherwise inhibit the utilization of the density bonus on specific sites." Applicants proposing qualified projects should not be subjected to a variance procedure but, instead, should be able to apply for an exception or waiver based on specific findings. including economic considerations, that are spelled out in the ordinance. 10. Do the new reduced parking requirements apply to the affordable units only or to the entire project? The new parking standards apply to the entire project, both affordable and market rate units but only upon request of the developer. 11. Can cities and counties require guest parking for affordable projects? No. The new parking standards that apply upon request of the developer are inclusive of guest parking and handicapped parking. It should be noted that state law cannot preempt federal ADA requirements. 12. Does a city or county need to conduct a CEQA analysis prior to adopting changes to their local ordinances in order to comply with the new law? Yes. A change in zoning or other land use ordinance is a project subject to CEQA (State CEQA Guidelines Section 15378(a)[1]; Bozung v. LAFOO [1975] 13 Cal.3d 263). Under CEQA, the baseline for determining the significance of a project is the existing environment. 5B 1818 will require agencies to adopt ordinances that may result in significant indirect effects on the environment by reducing the effectiveness of existing protective standards. Adopting new, less restrictive standards may result in a significant effect. For example, in City of Redlands, et al. V. County of San Bernardino (2002) 96 Cal.App.4th 398, Redlands and other cities sued San Bernardino County over a general plan amendment which modified existing County general plan provisions relating to development within City spheres of influence. Where previous County policy had been to defer to City development standards within the spheres (including more restrictive regulations and growth control measures), the general plan amendment would have provided the County more leeway to approve projects that did not conform to City standards. The County adopted a negative declaration for the general plan amendment. The court found that the County's initial study "does not provide evidence to show how such a shift in policy would have little or no effect on the environment." 8 The court noted that "CEQA reaches beyond mere changes in the language in the agency's policy to the ultimate consequences of such changes to the physical environment." Although the CEQA analysis is not required to be as detailed as a project-specific analysis, it is required to analyze the expected secondary effects of the general plan amendment. The cities presented substantial evidence, in the form of specific examples of city standards that were more restrictive than County standards and that would no longer be required within unincorporated spheres if the general plan amendment were approved, that the general plan amendment may have a significant effect. The court ordered preparation of an EIR. 13. Are affordable projects exempt from CEQA or can a local government agency require negative declarations or environmental impact reports for affordable projects with inadequate parking? SB 1818 does not establish an exemption from CEQA requirements. The regulatory concessions that must be offered to a qualifying project do not and cannot include non-compliance with CEQA. CEQA operates independently of SB 1818 and is not limited by that statute. However, a project may qualify for a categorical exemption under State CEQA Guidelines Section 15332 (Infill Development Projects) if it meets the criteria set out in that section and is not subject to any of the exceptions established under Section 15300.2. Separately, Public Resources Section 21159.24 provides a qualified, statutory exemption for specified inclusionary infill housing projects. This exemption would not apply if there is "a reasonable possibility that the project will have a project- specific, significant effect on the environment due to unusual circumstances." An agency must prepare an initial study for any project (including an affordable project) that is not exempt from CEQA. If there is substantial evidence (e.g., facts or expert opinion based on facts) that the project may result in a significant effect on the environment, an EIR must be prepared. If there is no substantial evidence to that effect, a negative declaration or mitigated negative declaration can be prepared. The baseline for determining the significance of a project impact is the existing environment. The significance of a project's impacts depends upon the extent of adverse change to the environment that would result from the project. Where a project involves a density bonus, the "project" for purposes of CEQA is the proposed activity including the bonus and any related concessions. Government Code Section 65915 comprises the density bonus law. Subdivision (d) authorizes a local agency to deny a proposed incentive/concession when there is substantial evidence that the incentive/concession would have a "specific adverse impact" on "public health and safety" (as defined in Government Code Section 65589.5(d)[2]), or the physical environment, or on a property listed on the California Register of Historical Resources and there is "no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households." This would authorize an agency to deny a proposed incentive/concession when an EIR has been prepared that identifies significant project impacts that either 9 cannot be avoided or that could be mitigated, but the mitigation would make the project unaffordable. Because a mitigated negative declaration can only be released when the applicant has agreed to the mitigation measures, a local agency could also deny incentives/concessions on the basis of an initial study if the applicant was unwilling to agree to the mitigation measures due to cost. The EIR or the initial study would provide the "substantial evidence" necessary to support denial under Section 65915(d). It is important to note that the clear intent of the legislation is to facilitate the construction of affordable housing through density bonuses and reductions in local development standards. Therefore, the CEQA analysis conducted by the city or county should focus on reasonable CEQA impacts, and not as a potential loophole to make the process of building affordable housing more difficult. 1333 36th Street ilK Sacramento, CA 95816 ilK(916)736-2434ilKFAX (916)456-1283 www.calapa.org 10 ATTACHMENT B CA Codes (gov:65915-65918) Page 1 of 10 GOVERNMENT CODE SECTION 65915-65918 65915. (a) When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the jurisdiction of a city, county, or city and county, that local government shall provide the applicant incentives or concessions for the production of housing units and child care facilities as prescribed in this section. All cities, counties, or cities and counties shall adopt an ordinance that specifies how compliance with this section will be implemented. (b) A city, countYI or city and county shall grant a density bonus and incentives or concessions described in subdivision (d) when the applicant for the housing development seeks and agrees to construct at least anyone of the following: (1) Ten percent of the total units of a housing development for lower income households, as defined in Section 50079.5 of the Health and Safety Code. (2) Five percent of the total units of a housing development for very low income households, as defined in Section 50105 of the Health and Safety Code. (3) A senior citizen housing development as defined in Sections 51.3 and 51.12 of the Civil Code. (4) Ten percent of the total dwelling units in a condominium project as defined in subdivision (f) ofl or in a planned development as defined in subdivision (k) ofl Section 1351 of the Civil Codel for persons and families of moderate income I as defined in Section 50093 of the Health and Safety Code. (c) (1) An applicant shall agree tOI and the city, county, or city and county shall ensure, continued affordability of all lower income density bonus units for 30 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. Those units targeted for lower income households I as defined in Section 50079.5 of the Health and Safety Code, shall be affordable at a rent that does not exceed 30 percent of 60 percent of area median income. Those units targeted for very low income households, as defined in Section 50105 of the Health and safety Code I shall be affordable at a rent that does not exceed 30 percent of 50 percent of area median income. (2) An applicant shall agree to, and the citYI county, or city and county shall ensure thatl the initial occupant of the moderate-income units that are directly related to the receipt of the density bonus in the condominium project as defined in subdivision (f) of, or in the planned unit development as defined in subdivision (k) of, Section 1351 of the civil Code, are persons and families of moderate incomel as defined in Section 50093 of the Health and Safety Code. Upon resalel the seller of the unit shall retain the value of any improvements, the downpaymentl and the seller's proportionate share of appreciation. The local government shall recapture its proportionate share of appreciation, which shall then be used within three years for any of the purposes described in subdivision (e) of Section 33334.2 of the Health and Safety Code that promote homeownership. For purposes of this subdivision, the local government's proportionate share of appreciation shall be equal to the percentage by which the initial sale price to the moderate income httn:/ /www.leQinfo.ca. Qov/cQi-bin/disnlavcode?section=Qov&Qroun=6500 1-66000&file=... 07/12/2005 CA Codes (gov:65915-65918) household was less than the fair market value of the home at the time of initial sale. (d) (1) An applicant may submit to a citYI county, or city and county a proposal for the specific incentives or concessions that the applicant requests pursuant to this section, and may request a meeting with the city, county, or city and county. The city, county, or city and county shall grant the concession or incentive requested by the applicant unless the city, county, or city and county makes a written findingl based upon substantial evidence, of either of the following: (A) The concession or incentive is not required in order to provide for affordable housing costs, 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 subdivision (c). (B) The concession or incentive would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment or on 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. (2) The applicant shall receive the following number of incentives or concessions: (A) One incentive or concession for projects that include at least 10 percent of the total units for lower income households, at least 5 percent for very low income households, or at least 10 percent for persons and families of moderate income in a condominium or planned development. (B) Two incentives or concessions for projects that include at least 20 percent of the total units for lower income households, at least 10 percent for very low income households, or at least 20 percent for persons and families of moderate income in a condominium or planned development. (C) Three incentives or concessions for projects that include at least 30 percent of the total units for lower income households, at least 15 percent for very low income households, or at least 30 percent for persons and families of moderate income in a condominium or planned development. (3) The applicant may initiate judicial proceedings if the city, county, or city and county refuses to grant a requested density bonus I incentive, or concession. If a court finds that the refusal to grant a requested density bonus, incentive, or concession is in violation of this section, the court shall award the plaintiff reasonable attorney's fees and costs of suit. Nothing in this subdivision shall be interpreted to require a local government to grant an incentive or concession that has a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon healthl safety, or the physical environment I and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this subdivision shall be interpreted to require a local government to grant an incentive or concession that would have an adverse impact on any real property that is listed in the California Register of Historical Resources. The city, county, or city and county shall establish procedures for carrying out this section, that shall include legislative body approval of the means of compliance with this section. The city, county, or city and county shall also establish procedures for waiving or modifying development and zoning standards that would otherwise inhibit the utilization of the density bonus on specific httn./lu.TUJu.r Ipoinfn l'~ onv/l'ol_hln/r11l;!nl ~vl'nr1p?l;!Pl'tlnn=on.\lkr(JrC\1ln=h"OO 1 _hhOOOkrfjl p= Page 2 of 10 07/1') noo'\ CA Codes (gov:65915-65918) Page 3 of 10 sites. These procedures shall include, but not be limited to, such items as minimum lot size I side yard setbacks, and placement of public works improvements. (e) In no case may a city, countYI or city and county apply any development standard that will have the effect of precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted by this section. An applicant may submit to a city, county, or city and county a proposal for the waiver or reduction of development standards and may request a meeting with the city, county, or city and county. If a court finds that the refusal to grant a waiver or reduction of development standards is in violation of this section, the court shall award the plaintiff reasonable attorney's fees and costs of suit. Nothing in this subdivision shall be interpreted to require a local government to waive or reduce development standards if the waiver or reduction would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this subdivision shall be interpreted to require a local government to waive or reduce development standards that would have an adverse impact on any real property that is listed in the California Register of Historical Resources. (f) The applicant shall show that the waiver or modification is necessary to make the housing units economically feasible. (g) (1) For the purposes of this chapter I except as provided in paragraph (2), "density bonus" means a density increase of at least 20 percent I unless a lesser percentage is elected by the applicant, over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the general plan as of the date of application by the applicant to the city, county, or city and county. The amount of density bonus to which the applicant is entitled shall vary according to the amount by which the percentage of affordable housing units exceeds the percentage established in subdivision (b). For each 1 percent increase above 10 percent in the percentage of units affordable to lower income households, the density bonus shall be increased by 1.5 percent up to a maximum of 3S percent. For each 1 percent increase above 5 percent in the percentage of units affordable to very low income households, the density bonus shall be increased by 2.5 percent up to a maximum of 3S percent. All density calculations resulting in fractional units shall be rounded up to the next whole number. The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment I local coastal plan amendment, zoning change, or other discretionary approval. The density bonus shall not be included when determining the number of housing units that is equal to 5 or 10 percent of the total. The density bonus shall apply to housing developments consisting of five or more dwelling units. (2) For the purposes of this chapter, if a development does not meet the requirements of paragraph (1), (2), or (3) of subdivision (b), but the applicant agrees or proposes to construct a condominium project as defined in subdivision (f) of, or a planned development as defined in subdivision (k) of, Section l351 of the Civil Code, in which at least 10 percent of the total dwelling units are reserved for persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code, a "density bonus" of at least S percent shall be granted, unless a lesser percentage is elected by the applicant, over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of httn~/ /www_lepinfo_c;:u:JOv/cQ'i-hin/di~nlavcode?~ection=Qov&Qroun=6500 1-66000&fi1e=... 07/12/2005 CA Codes (gov:65915-65918) the general plan as of the date of application by the applicant to the city, county, or city and county. For each 1 percent increase above 10 percent of the percentage of units affordable to moderate income households, the density bonus shall be increased by 1 percent up to a maximum of 35 percent. All density calculations resulting in fractional units shall be rounded up to the next whole number. The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. The density bonus shall not be included when determining the number of housing units that is equal to 10 percent of the total. The density bonus shall apply to housing developments consisting of five or more dwelling units. (h) When an applicant for a tentative subdivision map, parcel map, or other residential development approval donates land to a city, county I or city and county as provided for in this subdivision, the applicant shall be entitled to a 15 percent increase above the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the general plan for the entire development. For each 1 percent increase above the minimum 10 percent land donation described in paragraph (2) of this subdivision, the density bonus shall be increased by 1 percent, up to a maximum of 35 percent. This increase shall be in addition to any increase in density mandated by subdivision (b), up to a maximum combined mandated density increase of 35 percent if an applicant seeks both the increase required pursuant to this subdivision and subdivision (b). All density calculations resulting in fractional units shall be rounded up to the next whole number. Nothing in this subdivision shall be construed to enlarge or diminish the authority of a city, county I or city and county to require a developer to donate land as a condition of development. An applicant shall be eligible for the increased density bonus described in this subdivision if all of the following conditions are met: (1) The applicant donates and transfers the land no later than the date of approval of the final subdivision map, parcel map, or residential development application. (2) The developable acreage and zoning classification of the land being transferred are sufficient to permit construction of units affordable to very low income households in an amount not less than 10 percent of the number of residential units of the proposed development. (3) The transferred land is at least one acre in size or of sufficient size to permit development of at least 40 units, has the appropriate general plan designation, is appropriately zoned for development as affordable housing, and is or will be served by adequate public facilities and infrastructure. The land shall have appropriate zoning and development standards to make the development of the affordable units feasible. No later than the date of approval of the final subdivision map, parcel map, or of the residential development, the transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units on the transferred landl except that the local government may subject the proposed development to subsequent design review to the extent authorized by subdivision (i) of Section 65583.2 if the design is not reviewed by the local government prior to the time of transfer. (4) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with paragraphs (1) and (2) of subdivision (c), which shall be recorded on the property at the time of dedication. httn'llwwur Jp'(Jlnfn rl'l (J{\vlr(Jl-hjnlnl<;:nll'lvrnnp.?<;:p.rtlnn=(J{\v~(Jrmm=h'::;OOl-hhOOO~filp.= Page 4 of 10 07/1 ') noo.::; CA Codes (gov:65915-65918) Page 5 of 10 (5) The land is transferred to the local agency or to a housing developer approved by the local agency. The local agency may require the applicant to identify and transfer the land to the developer. (6) The transferred land shall be within the boundary of the proposed development or, if the local agency agrees, within one-quarter mile of the boundary of the proposed development. (i) (1) When an applicant proposes to construct a housing development that conforms to the requirements of subdivision (b) and includes a child care facility that will be located on the premises of, as part of, or adjacent to, the project, the city, county, or city and county shall grant either of the following: (A) An additional density bonus that is an amount of square feet of residential space that is equal to or greater than the amount of square feet in the child care facility. (B) An additional concession or incentive that contributes significantly to the economic feasibility of the construction of the child care facility. (2) The city, county, or city and county shall require, as a condition of approving the housing development I that the following occur: (A) The child care facility shall remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable pursuant to subdivision (c). (B) Of the children who attend the child care facility, the children of very low income households, lower income households, or families of moderate income shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very low income households, lower income households, or families of moderate income pursuant to subdivision (b). (3) Notwithstanding any requirement of this subdivision, a city, county, or a city and county shall not be required to provide a density bonus or concession for a child care facility if it finds, based upon substantial evidence, that the community has adequate child care facilities. (4) uChild care facility,U as used in this section, means a child day care facility other than a family day care home, including I but not limited to, infant centers I preschoolsl extended day care facilities, and schoolage child care centers. (j) IlHousing development, II as used in this section, means one or more groups of projects for residential units constructed in the planned development of a city, county, or city and county. For the purposes of this section, Ilhousing developmentll also includes a subdivision or a planned unit development or condominium project, as defined in Section 1351 of the Civil Code, approved by a citYI county, or city and county and consists of residential units or unimproved residential lots and either a project to substantially rehabilitate and convert an existing commercial building to residential use or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of Section 65863.4, where the result of the rehabilitation would be a net increase in available residential units. For the purpose of calculating a density bonus, the residential units do not have to be based upon individual subdivision maps or parcels. The density bonus shall be permitted in geographic areas of the housing development other than the areas where the units for the lower income households are located. (k) The granting of a concession or incentive shall not be interpreted, in and of itself, to require a general plan amendment I local coastal plan amendment, zoning change, or other discretionary httn'//urww ]polnfo ('.::1 oov/t'oi-hin/ni<::nl::1vt'onp.?<::p.dion=aov&ar01m=o"OO1-hoOOO&file=... 07/1212005 CA Codes (gov:65915-65918) approval. This provision is declaratory of existing law. (l) For the purposes of this chapter, concession or incentive means any of the following: (1) A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited tOI a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required that results in identifiable, financially sufficient, and actual cost reductions. (2) Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located. (3) Other regulatory incentives or concessions proposed by the developer or the city, county, or city and county that result in identifiablel financially sufficient, and actual cost reductions. This subdivision does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the city, countYI or city and county, or the waiver of fees or dedication requirements. (m) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act (Division 20 (commencing with Section 30000) of the Public Resources Code) . (n) Nothing in this section shall be construed to prohibit a city, county, or city and county from granting a density bonus greater than what is described in this section for a development that meets the requirements of this section or from granting a proportionately lower density bonus than what is required by this section for developments that do not meet the requirements of this section. (0) For purposes of this section, the following definitions shall apply: (1) "Development standard" includes site or construction conditions that apply to a residential development pursuant to any ordinance, general plan element I specific plan, charter amendment, or other local condition, law, policy, resolution, or regulation. (2) "Maximum allowable residential density" means the density allowed under the zoning ordinance, or if a range of density is permitted, means the maximum allowable density for the specific zoning range applicable to the project. (p) (1) Upon the request of the developer, no city, county, or city and county shall require a vehicular parking ratio, inclusive of handicapped and guest parking, of a development meeting the criteria of subdivision (b), that exceeds the following ratios: (A) Zero to one bedrooms: one onsite parking space. (B) Two to three bedrooms: two onsite parking spaces. (C) Four and more bedrooms: two and one-half parking spaces. (2) If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number. For purposes of this subdivision, a development may provide "onsite parking" through tandem parking or uncovered parking, but not through onstreet parking. (3) This subdivision shall apply to a development that meets the requirements of subdivision (b) but only at the request of the applicant. An applicant may request additional parking incentives or ht+.....//nrnrnr l"o,nf'A t'" OA,,/t'o,_h,n/rl, cnl"'tTl"Arlp?cPf'tlC\n=crC\vRrcrrC\l1n=h"iOO 1 -hhOOORrf11f'= Page 6 of 10 07/1 ? noo.::; CA Codes (gov:65915-65918) concessions beyond those provided in this section, subject to subdivision Cd). 65915.5. (a) When an applicant for approval to convert apartments to a condominium project agrees to provide at least 33 percent of the total units of the proposed condominium project to persons and families of low or moderate income as defined in Section 50093 of the Health and Safety Code, or 15 percent of the total unit~ of the proposed condominium project to lower income households as defined in Section 50079.5 of the Health and Safety Code, and agrees to pay for the reasonably necessary administrative costs incur::ced by a city, county, or city and county pursuant to this section, the citYI county, or city and county shall either (1) grant a density bonus or (2) provide other incentives of equivalent financial value. A city, county, or city and county may place such reasonable conditions on the granting of a density bonus or other incentives of equivalent financial value as it finds appropriate, including, but not limited to, conditions which assure continued affordability of units to subsequent purchasers who are persons and families of low and moderate income or lower income households. (b) For purposes of this section, "density bonus" means an increase in units of 25 percent over the number of apartments I to be provided within the existing structure or structures proposed for conversion. (c) For purposes of this section, "other incentives of equivalent financial value" shall not be construed to require a city, county, or city and county to provide cash transfer payments or other monetary compensation but may include the reduction or waiver of requirements which the city, county, or city and county might otherwise apply as conditions of conversion approval. Cd) An applicant for approval to convert apartments to a condominium project may submit to a city, county, or city and county a preliminary proposal pursuant to this section prior to the submittal of any formal requests for subdivision map approvals. The city, county, or city and county shall, within 90 days of receipt of a written proposal, notify the applicant in writing of the manner in which it will comply with this section. The city, county, or city and county shall establish procedures for carrying out this section, which shall include legislative body approval of the means of compliance with this section. (e) Nothing in this section shall be construed to require a city, county, or city and county to approve a proposal to convert apartments to condominiums. (f) An applicant shall be ineligible for a density bonus or other incentives under this section if the apartments proposed for conversion constitute a housing development for which a density bonus or other incentives were provided under Section 65915. 65916. Where there is a direct financial contribution to a housing development pursuant to section 65915 through participation in cost of infrastructure, write-down of land costs, or subsidizing the cost of construction, the city, county I or city and county shall assure continued availability for low- and moderate-income units for 30 years. When appropriate, the agreement provided for in Section 65915 shall specify the mechanisms and procedures necessary to carry out this section. httn' / /u.ro.ro.J Jpoinfn l'~ oov/l'oi_hin/lli 1mbvl'ollp?C::Pl'tinn=onvJ&ormm=h'i()() 1 _hh()()()J&filp= Page 7 of 10 ()7/1 ') n()()'i CA Codes (gov:65915-65918) 65917. In enacting this chapter it is the intent of the Legislature that the density bonus or other incentives offered by the citYI countYI or city and county pursuant to this chapter shall contribute significantly to the economic feasibility of lower income housing in proposed housing developments. In the absence of an agreement by a developer in accordance with Section 65915, a locality shall not offer a density bonus or any other incentive that would undermine the intent of this chapter. 65917.5. (a) As used in this section, the following terms shall have the following meanings: (1) ~Child care facility~ means a facility installed, operated, and maintained under this section for the nonresidential care of children as defined under applicable state licensing requirements for the facility. (2) ~Density bonus" means a floor area ratio bonus over the otherwise maximum allowable density permitted under the applicable zoning ordinance and land use elements of the general plan of a city, including a charter city, city and county, or county of: (A) A maximum of five square feet of floor area for each one square foot of floor area contained in the child care facility for existing structures. (B) A maximum of 10 square feet of floor area for each one square foot of floor area contained in the child care facility for new structures. For purposes of calculating the density bonus under this section, both indoor and outdoor square footage requirements for the child care facility as set forth in applicable state child care licensing requirements shall be included in the floor area of the child care facility. (3) "Developer~ means the owner or other person, including a lessee, having the right under the applicable zoning ordinance of a city council, including a charter city council, city and county board of supervisors, or county board of supervisors to make application for development approvals for the development or redevelopment of a commercial or industrial project. (4) "Floor area" means as to a commercial or industrial projectl the floor area as calculated under the applicable zoning ordinance of a city council, including a charter city council, city and county board of supervisors, or county board of supervisors and as to a child care facility, the total area contained within the exterior walls of the facility and all outdoor areas devoted to the use of the facility in accordance with applicable state child care licensing requirements. (b) A city council I including a charter city council, city and county board of supervisors, or county board of supervisors may establish a procedure by ordinance to grant a developer of a commercial or industrial project, containing at least 50,000 square feet of floor area, a density bonus when that developer has set aside at least 2,000 square feet of floor area and 3,000 outdoor square feet to be used for a child care facility. The granting of a bonus shall not preclude a city council, including a charter city council, city and county board of supervisors, or county board of supervisors from imposing necessary conditions on the project or on the additional square footage. Projects constructed under this section httn'//UTunxr I",o,nf'n l"'''' onu/l"'oLh1n/r1, coni "'Ul"'nrl",?co"'l"'t,nn=onu.RT n1'nlln=h.c;:flf\l _hhf\flf\.RTf11",= Page 8 of 10 f\7/1 ') /')f\f\.c;: CA Codes (gov:65915-65918) shall conform to height, setback, lot coverage, architectural review, site plan review, fees, charges, and other health, safety, and zoning requirements generally applicable to construction in the zone in which the property is located. A consortium with more than one developer may be permitted to achieve the threshold amount for the available density bonus with each developer's density bonus equal to the percentage participation of the developer. This facility may be located on the project site or may be located offsite as agreed upon by the developer and local agency. If the child care facility is not located on the site of the projectl the local agency shall determine whether the location of the child care facility is appropriate and whether it conforms with the intent of this section. The child care facility shall be of a size to comply with all state licensing requirements in order to accommodate at least 40 children. (c) The developer may operate the child care facility itself or may contract with a licensed child care provider to operate the facility. In all cases, the developer shall show ongoing coordination with a local child care resource and referral network or local governmental child care coordinator in order to qualify for the density bonus. (d) If the developer uses space allocated for child care facility purposes, in accordance with subdivision (b), for any purposes other than for a child care facility, an assessment based on the square footage of the project may be levied and collected by the city council, including a charter city council I city and county board of supervisors, or county board of supervisors. The assessment shall be consistent with the market value of the space. If the developer fails to have the space allocated for the child care facility within three years, from the date upon which the first temporary certificate of occupancy is granted, an assessment based on the square footage of the project may be levied and collected by the city council, including a charter city council, city and county board of supervisors, or county board of supervisors in accordance with procedures to be developed by the legislative body of the city council, including a charter city council, city and county board of supervisors, or county board of supervisors. The assessment shall be consistent with the market value of the space. Any penalty levied against a consortium of developers shall be charged to each developer in an amount equal to the developer'S percentage square feet participation. Funds collected pursuant to this subdivision shall be deposited by the city council, including a charter city council, city and county board of supervisors, or county board of supervisors into a special account to be used for childcare services or child care facilities. (e) Once the child care facility has been established, prior to the closure I change in use, or reduction in the physical size of, the facility, the citYI city council, including a charter city council, city and county board of supervisors, or county board of supervisors shall be required to make a finding that the need for child care is no longer present, or is not present to the same degree as it was at the time the facility was established. (f) The requirements of Chapter 5 (commencing with Section 66000) and of the amendments made to Sections 53077, 54997, and 54998, by Chapter 1002 of the Statutes of 1987 shall not apply to actions taken in accordance with this section. (g) This section shall not apply to a voter-approved ordinance adopted by referendum or initiative. 1_~__ _ 11_______ 1__=_-C_ __ __..f__~ t..~_ frl~~_l~n~~rl~')n~~+;~_-~~u.QT~..~n...=h"f\f\l _hhf\f\f\A>Tf11",,= Page 9 of 10 f\7/1,)/,)()().c:; CA Codes (gov:65915-65918) 65918. The provisions of this chapter shall apply to charter cities. htt......! !urmUT !po-i...f'n {'!-I nn,';{'ni_hi.../r!i .;:n!!-I't!{'nr!p?';:Pl,tinn=OlnrRr orol1n=I\'\OO 1 -I\I\OOORrfi !p= Page 10 of 10 07/1,)/,)OO.c;