(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:
"Adjacent lots"
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.
"BMR compliance plan"
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.
"Affordable rent"
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.
"Affordable rental units"
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.
"Assumed household size"
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.
BMR rental housing guidelines.
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.
"Decision-making body"
means the body that is authorized to approve or deny a project application for land use approvals.
"Density bonus units"
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.
"Household"
means all those persons, related or unrelated, who occupy a single housing unit.
"Inclusionary units"
shall mean affordable rental units as defined in this section.
"Low income household"
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).
"Market rate unit"
means a dwelling unit that is not subject to the occupancy or rental regulations in this chapter or any other affordability restrictions or covenants.
"Monthly rent"
means the monthly payment by tenants for a rental unit.
"Multi-family dwelling"
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.
"Project"
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.
"Rental unit"
means a residential unit that is not ownership housing.
"Special housing needs"
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.
"Very low income household"
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)
(a) 
New Multi-Family Dwelling Projects with Three or More Units. This chapter applies to any project that would construct three or more rental units with an application that is complete after November 8, 2019, unless an exemption defined in Section 19.77.040 applies.
(b) 
Projects with applications that are complete on or before November 8, 2019, are subject to Chapter 19.75. Projects subject to this chapter are not subject to Chapter 19.75.
(Ord. 3147-19 § 1)
(a) 
The following categories of rental housing shall be exempt from this chapter:
(1) 
Rental housing projects of fewer than three units.
(2) 
Multifamily dwelling rental projects that have received planning approval and those with planning applications deemed complete by the planning division by November 8, 2019.
(3) 
Affordable housing projects in which 100% 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.
(b) 
Notwithstanding the inclusionary percentages required by Table 19.77.070.A, rental housing that meets all of the following criteria shall be subject to the inclusionary percentages identified in subsection (c) of this section:
(1) 
The site has a General Plan land use designation of Village Mixed Use;
(2) 
The site is not identified in the Housing Element as available for lower income housing;
(3) 
The site is not located within 1,700 feet walking distance via public street from any C-1, C-2 or MP-AC zoned property (excluding properties in the same Village Center as the project site), as measured from the closest point of the C-1, C-2 or MP-AC zoned property to the farthest point of the project site;
(4) 
The site is located north of El Camino Real;
(5) 
The site is located entirely within a Village Center, and that Village Center is no more than 6.0 acres in size; and
(6) 
The project has a minimum residential density of 13 dwelling units per acre (for the entire project site).
(c) 
Qualifying projects under subsection (b) of this section shall comply with the following BMR requirements depending on the floor area ratio of commercial/retail uses that will be included in the project:
Floor Area Ratio of Commercial/Retail Uses
BMR Requirement
Over 5% to 10% FAR
5% affordable to low income; and
2.5% affordable to very low income
Over 10% FAR
No requirement
(Ord. 3147-19 § 1; Ord. 3239-25, 3/25/2025)
(a) 
Inclusionary Requirement. At least 15% 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:
(A) 
The ability to return to a unit at the same level of affordability (measured in monthly rent) as the prior unit.
(B) 
The ability to return to a unit of comparable size with the same or greater number of bedrooms.
(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)