(a)
Findings. The city council finds that:
(1)
A shortage of affordable housing is detrimental to the public health,
safety and welfare in the city of Sunnyvale;
(2)
Persons with low incomes who work or live in the city are experiencing
a shortage of affordable housing opportunities and those with very
low incomes are increasingly excluded from living in the city;
(3)
Federal and state housing subsidy programs are not sufficient by
themselves to satisfy the housing needs of low income households;
(4)
Continued new development without housing at prices affordable to
these persons will worsen the shortage of affordable housing; and
(5)
It is the city's goal and a public policy of the state of California
to ensure there is adequate supply of housing for persons of all economic
segments of the community.
(b)
Purpose. This chapter establishes requirements for affordable housing in new rental housing developments for projects with applications that are first complete after November 8, 2019. This chapter does not supersede Chapter 19.67 or 19.69, which shall continue to apply to all ownership housing developments and rental housing developments with applications that were first complete on or prior to November 8, 2019, respectively.
(c)
The city council desires to provide affordable housing opportunities
in the community through an affordable housing program for rental
housing, and, in furtherance of that goal, includes rental affordable
housing requirements in this chapter consistent with Government Code
Sections 65850(g) and 65850.01. These requirements assure that the
city's affordable housing stock increases in proportion to the overall
increase in new housing; to achieve the housing objectives contained
in state law and in the general plan; and to enhance public welfare.
(d)
The city council also desires to provide the rental housing developer
community with alternatives to construction of the affordable rental
units on the same site as the market rate units. Therefore, this chapter
includes options from which a developer may select an alternative
to the construction of affordable rental units on the same site as
the market rate units.
(Ord. 3147-19 § 1)
When used in this chapter, these terms mean the following:
mean parcels with boundary lines that touch at any point.
"Adjacent lots" include parcels that are separated only by a private
or public street, other than highways and expressways, or that are
separated only by other parcels owned or controlled by the same owner
or applicant.
means a plan on the application form, and containing all
of the information required by, the community development department
to specify the manner in which affordable rental units will be provided.
means the maximum monthly rent, including an allowance for tenant paid utilities, that is calculated at the specified income level in accordance with the community development director's determination and published in the BMR Rental Housing Guidelines as described in Section 19.77.070.
means dwelling units developed to be rented and affordable
to low to very low income households and regulated by this chapter.
"Affordable housing unit" means one affordable housing dwelling unit.
means, for the purposes of establishing affordable rents,
a household with a total number of members equal to the number of
bedrooms in the below market rate unit, plus one. For example, the
assumed household size for a three-bedroom home is a four-person household.
The community development director shall maintain detailed
procedures and guidelines which may be amended from time to time to
ensure the orderly and efficient administration of the requirements
of this chapter. These procedures and guidelines are incorporated
into this chapter as the BMR Rental Housing Guidelines.
means the body that is authorized to approve or deny a project
application for land use approvals.
means rental units approved in a residential development pursuant to California Government Code Section 65915 et seq., and Section 19.18.025 that are in excess of the maximum allowable residential density otherwise permitted by the City of Sunnyvale.
means all those persons, related or unrelated, who occupy
a single housing unit.
shall mean affordable rental units as defined in this section.
means a household whose income exceeds the income for a very
low income household but does not exceed the low income limits applicable
to Santa Clara County, as published and periodically updated by the
State Department of Housing and Community Development (or its successor
provision).
means a dwelling unit that is not subject to the occupancy
or rental regulations in this chapter or any other affordability restrictions
or covenants.
means the monthly payment by tenants for a rental unit.
means three or more separate dwelling units such as apartments,
townhouses, condominiums or other community housing projects used
for occupancy by households living independently of one another.
means one or more applications filed for city approval of
a residential development. "Project" includes a development across
adjacent lots or a multi-phased development, on the same or adjacent
lots. "Project" also includes developments on adjacent lots for which
applications are filed by the same owner or applicant within a period
of ten years.
means a residential unit that is not ownership housing.
means housing needs serving those of the elderly; persons
with disabilities, including a developmental disability, as defined
in Section 4512 of the Welfare and Institutions Code; large families;
farmworkers; families with female heads of households; and families
and persons in need of emergency shelter.
means a household whose income does not exceed the very low
income limits applicable to Santa Clara County as defined in California
Health and Safety Code Section 50105 and published annually by the
California Department of Housing and Community Development in California
Code of Regulations Title 25, Section 6932 (or its successor provision).
(Ord. 3147-19 § 1)
(Ord. 3147-19 § 1)
(a)
Rental housing projects of fewer than three units.
(b)
Multi-family dwelling rental projects that have received planning
approval and those with planning applications deemed complete by the
planning division by November 8, 2019.
(c)
Affordable housing projects in which one hundred percent of the rental
units to be built will be subject to a recorded restriction limiting
occupancy to very low income or low income households at affordable
rents.
(Ord. 3147-19 § 1)
(a)
Inclusionary Requirement. At least fifteen percent of the total number of rental units in a project shall be developed as affordable rental units, unless the decision-making body allows the affordable rental housing requirement to be satisfied through alternatives under Section 19.77.100 of this chapter. In calculating the number of affordable rental units required, any fraction of a whole number shall be rounded pursuant to Section 19.77.070 and the number of affordable rental units required by this section shall be based on the number of rental units in the project, excluding any density bonus units.
Affordability requirements for inclusionary units are listed in Section 19.77.070 of this chapter.
(b)
Application. An applicant for a project consisting of three or more
rental units must submit an BMR Compliance Plan concurrently with
the application for the first approval of the project. If an BMR Compliance
Plan is required, no application may be deemed complete until a complete
BMR Compliance Plan is submitted.
Any BMR Compliance Plan shall be processed concurrently with
all other permits required for the project. Before approving the BMR
Compliance Plan, the decision-making body shall find that the BMR
Compliance Plan conforms to this section. The approved BMR Compliance
Plan may be amended before issuance of a building permit for the development
project. A request for a minor modification of an approved BMR Compliance
Plan may be granted by the community development director if the modification
is substantially in compliance with the original BMR Compliance Plan
and conditions of approval. Other modifications to the BMR Compliance
Plan shall be processed in the same manner as the original plan.
(Ord. 3147-19 § 1)
The city, upon request, shall approve an increase in the number of units permitted in a proposed residential development governed by the Chapter, when such an increase in density is consistent with State Density Bonus Law per Sections 65915 through 65918 of the California Government Code and Section 19.18.025 of the Sunnyvale Municipal Code. The dwelling units or parcels designated to meet the city's inclusionary housing requirement may count toward qualifying the proposed development for a density bonus if the residential development meets all of the applicable requirements to qualify for a density bonus under Government Code Section 65915 and Section 19.18.025 of the Sunnyvale Municipal Code.
(Ord. 3147-19 § 1)
(a)
At least ten percent of total project rental units shall be affordable
to low-income households at an affordable rent. At least five percent
of total project rental units shall be affordable to very low-income
households at an affordable rent.
The community development director shall establish and publish
annually the maximum rent amount for each unit size in the BMR Rental
Housing Guidelines. The director may adjust the applicable initial
affordable rent calculation within a range to address major shifts
in prevailing market rate rents for comparable dwellings or other
related economic conditions affecting the demand for affordable rental
housing.
|
Table 19.77.070.A
Required Affordability Levels
| |
|---|---|
|
Income Level
|
Percentage of Project Units Required to be Affordable
|
|
Very Low Income
|
5%
|
|
Low Income
|
10%
|
The application of the minimum distributions will be
as set forth in the following table:
|
Table 19.77.070.B
Total Number of Affordable Units to be Built
| |||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
11
|
12
|
13
|
14
|
15
|
|
Very Low Income Units
|
-
|
1
|
1
|
1
|
1
|
2
|
2
|
2
|
3
|
3
|
3
|
4
|
4
|
4
|
5
|
|
Low Income Units
|
1
|
1
|
2
|
3
|
4
|
4
|
5
|
6
|
6
|
7
|
8
|
8
|
9
|
10
|
10
|
Variations of affordability levels to satisfy the affordable
rental unit requirement, relating only to projects using State Density
Bonus Law, shall be subject to approval by the community development
director.
(b)
Fractional Unit Requirements. In calculating the number of affordable
units required, any fraction of a whole number shall be rounded up
or down to the nearest whole number as shown in this section.
Fractions of 0.00 to 0.49 shall be rounded down, but no less than one affordable rental unit per project shall be required unless an alternative compliance option is satisfied as set forth in Section 19.77.100; while inclusionary fractions of 0.50 to 0.99 shall round up to the nearest whole unit. Rounding of fractions shall occur for each income category, as opposed to the inclusionary requirement as a whole.
Example: a fifty-unit development has an inclusionary requirement
of fifteen percent. ten percent low income units yields five units,
and five percent very low income yields two and one-half units. Final
inclusionary requirement would be five low income unit and three very
low income units.
|
Table 19.77.090.C
Sample Breakdowns With Rounded Number of Affordable Units
| |||||
|---|---|---|---|---|---|
|
Project Unit Total
|
10
|
20
|
30
|
40
|
50
|
|
Very Low Income – 5% (rounded)
|
1
|
1
|
2
|
2
|
3
|
|
Low Income – 10% (rounded)
|
1
|
2
|
3
|
4
|
5
|
(Ord. 3147-19 § 1)
Affordable units are subject to the following development standards:
(a)
Location. Affordable units shall be distributed evenly throughout
the project. The community development director may waive distribution
requirement if:
(1)
Significant physical site constraints prevent even distribution;
or
(2)
Granting the waiver would result in improved site or building design,
or a more favorable location of the affordable units than would otherwise
be provided; or
(3)
A portion of the land is being carved out to allow for structuring
of a tax credit project that would provide greater affordability or
services.
(b)
Bedroom Count and Unit Size. Affordable units shall be a pro-rata
share by plan type. Average bedroom count shall be the same as the
average bedroom count in the market rate units in the project. Deviations
from this requirement are subject to the community development directors'
decision.
(c)
Exterior. The exterior shall be consistent with the market rate units
in the project in terms of details, materials, and visual appeal.
There shall be no significant identifiable differences visible from
the exterior.
(d)
Interior. Interiors finishes and amenities shall be consistent with
those of the market rate units in the project and shall incorporate
principles and specifications of universal design. Affordable rental
units shall be renovated on a similar schedule as market rate units.
(e)
Timing of Construction. Affordable units shall be constructed in
proportion to construction of the market rate units, unless otherwise
approved by the community development director.
(f)
Parking. Parking for projects shall meet parking requirements as
set forth in the city's municipal code and/or State Density Bonus
Law.
(Ord. 3147-19 § 1)
Prior to the issuance of any building permit for the project,
an Affordable Housing Regulatory Agreement shall be recorded against
the parcel(s) which sets rent and occupancy restrictions for fifty-five
years and shall run with the land through any change of ownership,
or if the project is a phased project, an affordable housing developer
agreement may be recorded against the parcel prior to issuance of
any building permit with an affordable housing regulatory agreement
recorded prior to issuance of a certificate of occupancy.
(Ord. 3147-19 § 1)
(a)
City Council Approval. The applicant may satisfy the affordable rental housing requirement of a project using one or more of the alternatives in this section, subject to recommendation by the housing and human services commission and final approval by the city council, except that the payment of an in lieu fee for small projects as set forth in subsection (b)(1) is at the discretion of the applicant and does not require the approval of the city council. The applicant shall identify the required affordable housing units in the BMR Compliance Plan submitted with the project application materials regardless of a request to use an alternative to meet the affordable rental housing requirement. An BMR Compliance Plan requesting an alternative compliance option may only be considered once a project has received all other planning entitlements.
(b)
Payment of In-Lieu Fee. The applicant may pay an in-lieu fee, as
follows:
(1)
Rental housing projects with three to six housing units ("small project"):
At the applicant's option, rental housing projects with between three
and six rental units may choose to fulfill some or all of their inclusionary
rental housing obligation by paying the applicable small rental housing
in-lieu fee. Council approval is not required for payment of an in-lieu
fee for small projects
(2)
Rental housing projects with seven or more rental units ("large project"):
At the discretion of the city council, applicants of rental housing
projects with seven or more rental units may request to fulfill some
or all of their inclusionary rental housing obligation by paying the
applicable large rental housing in-lieu fee.
(3)
Amount of In-Lieu Fee. The amount of the in-lieu fee shall be equal
to the affordable rental housing in-lieu fee based on the size of
the rental development as published by the city on an annual basis.
All fees are due prior to issuance of any building permit.
(4)
In-lieu fee funds will be deposited in the city's housing mitigation
fund.
(c)
Partnership. The applicant may satisfy the inclusionary requirement established under Section 19.77.070 through a partnership with another developer providing affordable housing units in another project, if the following requirements are met:
(1)
Proof of Partnership. Legal agreements between the applicant and
the partner show that the applicant is providing reasonable funding,
land, development services, or other support to the affordable housing
units;
(2)
Financial Contributions. The applicant's financial contributions
to the partnership shall be at least equal to the amount of the in-lieu
fee that would otherwise be due from the project and shall be held
in trust by the city until needed by the partner to develop the affordable
housing units. The proposed project with the Partner shall not have
received other city financial contributions (such as land lease, housing
mitigation fund or low/mod impact fund loan);
(3)
Site Acquired. The applicant or the partner has control of or the
right to build on the site where the affordable housing units will
be developed;
(4)
Affordable Housing Development Application. The affordable housing
development application has been approved or at least deemed complete
at the time the project required to provide affordable housing is
approved;
(5)
Funding Acquired. The partner has obtained legal commitments for
all necessary financing, or the city has approved the financing plan
for the affordable housing development;
(6)
Construction in Two Years. The affordable housing units can be constructed
and occupied within two years of completion of the applicant's project,
unless the community development director approves an extension not
to exceed an additional two years. If the development is not completed
within this time period, the city may transfer the applicant's financial
contributions to the below market rate housing mitigation fund; and
(7)
Average Number of Bedrooms Per Unit. The average number of bedrooms
per unit of the affordable housing units in the other project is comparable
to the average number of bedrooms per unit in the project required
to provide affordable rental housing. This requirement may be modified
if the affordable housing units in the other project is designed to
serve those with special housing needs which would not require an
equivalent number of bedrooms per unit.
(d)
Unit Conversion or Preservation Program. The applicant may convert
an existing market rate unit into deed-restricted affordable housing
or preserve an expiring affordable housing development through the
city's unit conversion or preservation program, in compliance with
Government Code Section 65583.1, as follows:
(1)
Affordability. Rental units shall be made affordable to low and very
low income households;
(2)
For every required affordable rental unit, at least two rental units
shall be converted or preserved, as approved by the decision-making
body. Approval shall be based on a finding that the benefit of the
number of affordable rental units preserved has a greater benefit
than providing the units within the original project;
(3)
Declaration of Restrictions. Dwellings converted into affordable rental housing shall be secured by recording a declaration of restrictions to bind the units to the requirements of Section 19.77.070;
(4)
Timing of Completion. Dwellings shall be converted or rehabilitated
and available for occupancy before or at the same time the project
required to provide affordable rental housing is available for occupancy,
unless a modified schedule is approved by the community development
director;
(5)
Displacement. The conversion or preservation shall not displace any
tenants, regardless of income level, through the following measures:
(i)
First Right of Return. The developer of a new development or rehabilitation
project that would displace existing tenants shall provide each tenant
the following rights:
(ii)
Relocation Plan. Prior to project approval, conversion or preservation
projects that would add, demolish, and/or rehabilitate rental units
shall prepare, subject to approval by the community development director,
a relocation plan that accounts for all tenants displaced by new construction
or rehabilitation. The relocation plan shall ensure tenants are provided
housing from the moment they are displaced until they are relocated
into a replacement unit. The relocation plan must meet the following
criteria:
(A)
Provide temporary housing within Sunnyvale or within 10 miles
of the prior home.
(B)
Must not pay more in rent than paying in the prior home.
(C)
All costs of relocation must be paid for by the project sponsor.
(D)
Moving process between units must occur quickly and efficiently
and to minimize the inconvenience of the tenant.
(E)
Replacement housing must be completed within one and one-half
years to minimize impacts to tenants.
(e)
Land Dedication. Dedicate a parcel of land large enough to accommodate
the project's inclusionary requirement plus thirty-five percent additional
units. Any rezone or land use change required by the city needed to
construct residential units shall be completed prior to issuance of
building permit of market rate units.
(f)
Other methods of mitigating affordable housing may be approved at
the sole discretion of city council.
(Ord. 3147-19 § 1)
The community development director shall provide an annual informational
report to the city council on the status of affordable rental units
developed under this chapter. The report shall include the number,
size, type, tenure, and general location of each affordable rental
unit completed during the year.
(Ord. 3147-19 § 1)
In addition to the provisions in Section 19.98.140 (Violations), the following provisions also apply to the enforcement of this chapter:
(a)
Agents, Successors and Assigns. The provisions of this chapter apply
to all agents, successors and assigns of the applicant.
(b)
Penalties and Fines. Any person, firm, or corporation, whether as
principal or agent, violating or causing the violation of this chapter
is guilty of a misdemeanor. Each offense shall be punishable by a
fine in the amount established in the city fee schedule, or by imprisonment
in the Santa Clara County jail for a term up to six months, or both.
Such person, firm, or corporation shall be deemed to be guilty of
a separate offense for each and every day during any portion of which
any violation of this chapter is commenced, continued, or permitted
by such person, firm, or corporation, and may be punishable as provided
in this section.
(c)
Civil Action. Any tenant who rented an affordable rental unit for
rents in excess of those allowed by this chapter, and who has given
written notice to the community development director, may file a civil
action to recover the excess costs, whether rental of such affordable
rental unit was prohibited by this chapter or expressly permitted
in writing by the director as an exception or alternative to the standard
affordable housing requirement. The tenant shall have met the income
eligibility requirements of this chapter, as applicable, during the
period of time for which the individual seeks reimbursement of the
excess costs.
(d)
Fines. If it is determined that unauthorized or excess rents have been charged to a tenant or subtenant of an affordable rental unit of any kind subject to the restrictions of this chapter, the property owner and/or landlord shall be subject to a civil penalty. The civil penalty amount shall be as set forth in Chapter 1.04 or 1.05, as amended from time to time, and any excess rent proceeds not recovered by a tenant under subsection (c) of this section. If the city does not otherwise recover its reasonable attorney fees and other legal costs from the landlord, the city shall deduct these costs from the amounts collected under this section and deposit the balance into the below market rate housing mitigation fund.
(e)
Legal Action. The city may institute injunction, mandamus, or any
appropriate legal actions or proceedings necessary for the enforcement
of this chapter, including actions to suspend or revoke any permit,
including a development approval, building permit or certificate of
occupancy; and for injunctive relief or damages.
(Ord. 3147-19 § 1)
Any person aggrieved by a decision pursuant to this chapter may appeal the decision following the procedures in Section 19.98.070 (Appeals and calls for review).
(Ord. 3147-19 § 1)
If any portion of this chapter is held to be invalid, unconstitutional,
or unenforceable by a court of competent jurisdiction, that decision
shall not affect the validity of the remaining portions of this zoning
code. The city council declares that this chapter and each portion
would have been adopted without regard to whether any portion of this
chapter would be later declared invalid, unconstitutional, or unenforceable.
(Ord. 3147-19 § 1)
Notwithstanding any other provision of this chapter, the requirements
of this chapter may be waived, adjusted, or reduced by the decision-making
body based upon a showing that applying the requirements of this chapter
would result in an unconstitutional taking of property or would result
in any other unconstitutional result. The waiver, adjustment or reduction
may be approved only to the extent necessary to avoid an unconstitutional
result, after adoption of written findings, based on substantial evidence,
supporting the determinations required by this section. If a reduction,
adjustment, or waiver is granted, any change in the residential development
shall invalidate the reduction, adjustment, or waiver, and a new application
shall be required for a reduction, adjustment, or waiver pursuant
to this section.
Any request for a waiver, adjustment, or reduction under this
section shall be submitted to the city concurrently with the BMR Compliance
Plan. The request for a waiver, adjustment, or reduction shall set
forth in detail the factual and legal basis for the claim. The request
for a waiver, adjustment, or reduction shall be reviewed and considered
in the same manner and at the same time as the BMR Compliance Plan.
In making a determination on an application for waiver, adjustment,
or reduction, the applicant shall bear the burden of presenting substantial
evidence to support the claim. The city may assume each of the following
when applicable:
(a)
That the applicant will provide the most economical affordable units
feasible, meeting the requirements of this chapter; and
(b)
That the applicant will benefit from the incentives for the project
as described in this chapter and elsewhere in the City Code.
(Ord. 3147-19 § 1)
