The purpose of this article is to establish procedures for implementing State density bonus requirements, as set forth in California Government Code Sections 65915 through 65918, and to increase the production of affordable housing, consistent with City policies. The bonuses for affordable housing in this article are distinguished from, and are mutually exclusive of, other development bonuses available to projects that provide affordable housing and other community benefits pursuant to Section 9-4.204. Developers may apply for a density bonus and other incentives, if eligible, pursuant to either Section 9-4.204 or this article, but not both.
(Sec. 7 (part), Ord. 15-009, eff. Dec. 3, 2015; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
The provisions of this article shall apply to the following development categories:
(a) 
New residential development projects of five (5) or more dwelling units, regardless of the type of dwelling units proposed. Applicant shall demonstrate that at least five (5) residential units can be developed on the project site in compliance with all zoning and development regulations.
(b) 
Where permitted or conditionally permitted by the underlying zoning designation of a site, mixed use developments that include at least five (5) dwelling units.
(c) 
Rehabilitation of one (1) or more multiple unit residential structures containing at least five (5) units that results in a net increase in the available residential units.
(d) 
Development that will change the use of an existing building from nonresidential to residential and that will provide at least five (5) residential units.
(e) 
Development that includes the conversion of at least five (5) residential units to ownership housing.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
(a) 
The City shall grant one (1) density bonus as described in Section 9-5.505, and incentives or concessions as described in Section 9-5.506, when an applicant for a residential development project agrees to construct at least any one (1) of the following:
(1) 
At least ten percent (10%) of the total dwelling units of a residential development project for low income households.
(2) 
At least five percent (5%) of the total dwelling units of a residential development project for very low income households.
(3) 
A senior citizen housing development or a mobile home park that limits residency based on age requirements for housing older persons pursuant to California Civil Code Section 798.76 or 799.5.
(4) 
Ten percent (10%) of the total dwelling units in a common interest development as defined in California Civil Code Section 1351, for persons and families of moderate income; provided, that all units in the development are offered to the public for purchase.
The applicant shall elect whether the density bonus shall be awarded on the basis of subsection (a)(1), (2), (3), or (4) of this section. A density bonus awarded under this section allows a residential development to exceed the maximum residential density as provided by Section 9-4.203. The maximum residential density shall be the base density established in Table 9-4.203(a) and Figure 9-4.203(a). The granting of a density bonus, concession or incentive shall not be interpreted, in and of itself, to require a General Plan amendment, zoning change, or other discretionary approval. The density bonus shall not be included when determining the number of dwelling units that is equal to five percent (5%) or ten percent (10%) of the total dwelling units.
For those projects that are subject to the provisions of the Affordable Housing Program (in Article 4 of this chapter), affordable units provided pursuant to that article may be counted toward the requirements of this section. To the extent that the provisions of this section and the affordable housing provisions are in conflict, the provisions of the Affordable Housing Program prevail. However, if such affordable units are used to fulfill the requirements of Section 9-4.204, the density bonuses of this article are not available.
(b) 
In addition, the following projects are eligible for a density bonus as provided in Section 9-5.505:
(1) 
Residential developments that include the donation of land.
(2) 
Residential developments that include child care facilities.
(3) 
Condominium conversions.
(Sec. 7 (part), Ord. 15-009, eff. Dec. 3, 2015; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
An applicant shall file a written application in accord with the application procedures under Article 2 of Chapter 7 and any specific application requirements established by the Director for this use.
(a) 
Application for density bonus shall be made concurrent with submittals required for the processing of associated discretionary permits. The request for density bonus shall be articulated as part of the description and justification for the development project. The request for the density bonus shall specify the percentage of density bonus sought, per Section 9-5.503, and indicate how the affordable housing obligations will be met.
(b) 
The review process for a density bonus project shall be the same as that required for associated discretionary permits. Discretionary actions on density bonus projects shall be subject to the same appeal process applied to associated discretionary permits.
(c) 
The application and approval of a density bonus and any associated incentives or concessions shall not require a separate permit or approval process from that otherwise required for the same project without a density bonus request.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
The amount of density bonus granted to a qualifying project shall be based on the category and percentage of affordable units proposed, as reflected in the following tables. The maximum bonus shall be thirty-five percent (35%). The applicant may elect to accept a lesser percentage of density bonus. All density calculations resulting in fractional units shall be rounded up to the next whole number. The calculations are in accordance with California Government Code Section 65915 and are subject to any subsequent amendments or revisions thereto.
(a) 
Low Income Households. For residential development projects providing at least ten percent (10%) of the total dwelling units for low income households the density bonus shall be calculated as follows:
Table 9-5.505(a)
Density Bonus for Low Income Units
Percentage Low Income Units
Percentage Density Bonus
10
20
11
21.5
12
23
13
24.5
14
26
15
27.5
16
29
17
30.5
18
32
19
33.5
20
35
(b) 
Very Low Income Households. For residential development projects providing at least five percent (5%) of the total dwelling units for very low income households the density bonus shall be calculated as follows:
Table 9-5.505(b)
Density Bonus for Very Low Income Units
Percentage Very Low Income Units
Percentage Density Bonus
5
20
6
22.5
7
25
8
27.5
9
30
10
32.5
11
35
(c) 
Senior Citizen Housing. For a senior citizen housing development or a mobile home park that limits residency based on age requirements for housing older persons pursuant to California Civil Code Section 798.76 or 799.5, the density bonus shall be twenty percent (20%) of the number of senior housing units.
(d) 
Moderate Income Common Interest Development. For a residential development that provides at least ten percent (10%) of the total dwelling units in a common interest development as defined in California Civil Code Section 1351, for persons and families of moderate income; provided, that all units in the development are offered to the public for purchase, the density bonus shall be calculated as follows:
Table 9-5.505(d)
Density Bonus for Moderate Income Common Interest Development
Percentage Low Income Units
Percentage Density Bonus
10
5
11
6
12
7
13
8
14
9
15
10
16
11
17
12
18
13
19
14
20
15
21
16
22
17
23
18
24
19
25
20
26
21
27
22
28
23
29
24
30
25
31
26
32
27
33
28
34
29
35
30
36
31
37
32
38
33
39
34
40
35
(e) 
Donation of Land.
(1) 
When an applicant for a residential development that provides at least ten percent (10%) of the total dwelling units for very low income households donates land to the City in accordance with this section, the applicant shall be entitled to a minimum fifteen percent (15%) increase above the otherwise maximum allowable residential density for the entire development as follows:
Table 9-5.505(e)
Density Bonus for Donation of Land
Percentage Very Low Income Units
Percentage Density Bonus
10
15
11
16
12
17
13
18
14
19
15
20
16
21
17
22
18
23
19
24
20
25
21
26
22
27
23
28
24
29
25
30
26
31
27
32
28
33
29
34
30
35
(2) 
The density bonus for land dedication shall be in addition to any density bonus allowed under Section 9-5.503(a), up to a maximum combined increase of thirty-five percent (35%) if the applicant seeks an increase under this section. Nothing in this section shall be construed to enlarge or diminish the City's authority to require a developer to donate land as a condition of development.
(3) 
An applicant shall be eligible for the increased density bonus described in this section if all the following criteria are met:
a. 
The applicant donates and transfers the land to the City no later than the date of the approval by the City of the final subdivision map, parcel map, or residential development application.
b. 
The developable land 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 ten percent (10%) of the residential units of the proposed development.
c. 
The transferred land is at least one (1) acre in size or of sufficient size to permit development of at least forty (40) units, has the appropriate General Plan designation, is appropriately zoned with appropriate development standards for development at the density described in California Government Code Section 65583.2, subdivision (c), paragraph 3, and is or will be served by adequate public facilities and infrastructure.
d. 
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 land, not later than the date of approval of the final subdivision map, parcel map, or residential development application, except that the City may subject the proposed development to subsequent design review to the extent authorized by California Government Code Section 65583.2(i), if the design is not reviewed by the City prior to the transfer.
e. 
The transferred land and the affordable units shall be subject to a deed restriction, which shall be recorded on the property upon dedication, ensuring continued affordability of the units for at least thirty (30) years.
f. 
The land is transferred to the City or to a housing developer approved by the City.
g. 
The transferred land is within the proposed development or, if the City agrees, within one-quarter (1/4) mile of the boundary of the proposed development.
h. 
A proposed source of funding for the development of very low income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application.
(f) 
Child Care Facility.
(1) 
When an applicant proposes to construct a residential development that conforms to the requirement of Section 9-5.503(a) and includes a child care facility that will be located on the premises of, as part of, or adjacent to the development, the City shall grant either of the following:
a. 
An additional density bonus that is in 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 designated by the City that contributes significantly to the economic feasibility of the construction of the child care facility.
(2) 
In order to qualify for a density bonus as provided in this subsection the applicant shall submit for review and approval by the Director a financial report (pro forma) for the proposed child care facility that includes sources of operating revenue to ensure that the center remains open and provides the promised services for the life of the project.
(3) 
The City shall require, as a condition of approving the development, that:
a. 
The child care facility shall remain in operation as long as or longer than that time during which the affordable housing units are required to remain affordable pursuant to this section; and
b. 
Of the children who attend the child care facility, the children of very low income households, low income households, or families of moderate income households shall equal a percentage that is equal to or greater than the percentage of dwelling units that are made affordable to very low income households, low income households, or moderate income households.
(4) 
Notwithstanding any requirement of this section, the City need not provide a density bonus or concession for a child care facility if it finds, based upon substantial evidence, that Emeryville has adequate child care facilities.
(g) 
Condominium Conversion Developments.
(1) 
When a development is the conversion of an existing apartment complex to a condominium complex and the applicant agrees to make at least thirty-three percent (33%) of the total units of the development affordable to moderate income households for thirty (30) years, or fifteen percent (15%) of the total units of the proposed development affordable to low income households for thirty (30) years, and agrees to pay for the administrative costs incurred by the City to process the application and to monitor the continued affordability and habitability of the affordable housing units, the City shall either:
a. 
Grant a density bonus of twenty-five percent (25%); or
b. 
Provide other incentives of equivalent financial value as determined by the City.
(2) 
Nothing in this section shall be construed to require the City to approve a proposal to convert apartments to condominiums.
(3) 
An applicant shall be ineligible for a density bonus or other incentives under this section if the apartments proposed for conversion are in a development for which a density bonus or other incentives were previously provided under Section 9-5.503 or 9-5.506.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
(a) 
An applicant for a density bonus provided by this article may request specific incentives or concessions and may request a meeting with the City.
(1) 
In addition to the applicable density bonus, qualifying projects shall receive the following number of incentives or concessions:
a. 
One (1) incentive or concession for projects that propose at least ten percent (10%) of the total units for lower income households, at least five percent (5%) for very low income households, or at least ten percent (10%) for persons and families of moderate income in a common interest development.
b. 
Two (2) incentives or concessions for projects that propose at least twenty percent (20%) of the total units for lower income households, at least ten percent (10%) for very low income households, or at least twenty percent (20%) for persons and families of moderate income in a common interest development.
c. 
Three (3) incentives or concessions for projects that propose at least thirty percent (30%) of the total units for lower income households, at least fifteen percent (15%) for very low income households, or at least thirty percent (30%) for persons and families of moderate income in a common interest development.
(2) 
Proposals seeking concessions or incentives deemed necessary to exceed the base density allowance would not be subject to the otherwise required conditional use permit.
(3) 
For purposes of this section, concessions or incentives shall include, without limitation:
a. 
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 California Health and Safety Code Division 13, Part 2.5 (commencing with Section 18901), including, but not limited to, 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.
b. 
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 areas where the proposed housing project will be located.
c. 
A reduction in the ratio of vehicular parking spaces and/or configurations as set forth in California Government Code Section 65915(p).
d. 
Other regulatory incentives or concessions proposed by the developer or the City that result in identifiable, financially sufficient, and actual cost reductions.
(4) 
This section does not limit or require the City to provide direct financial incentives, including the provision of publicly owned land, or the waiver of fees or dedication requirements. However, the City will consider deferral of application processing fees on a case-by-case basis.
(5) 
The City shall grant the concession or incentive requested by the applicant unless the City makes a written finding, based upon substantial evidence, of any of the following:
a. 
The concession or incentive is not required in order to provide for affordable housing costs as defined in California Health and Safety Code Section 50052.5, or for rents for targeted units to be set as specified.
b. 
The concession or incentive would have a specific adverse impact, as defined in California Government Code Section 65589.5, subdivision (d), paragraph (2), 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 or moderate income households.
c. 
The concession or incentive would be contrary to State or Federal law.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
(a) 
An applicant may submit to the City a proposal for the waiver or reduction of development standards that will have the effect of physically precluding the construction of a development at the densities or with the concessions or incentives permitted under this section, and may request a meeting with the City. Nothing in this section shall be interpreted to require the City to waive or reduce development standards if the waiver or reduction would have a specific, adverse impact, as defined in California Government Code Section 65589.5, subdivision (d), paragraph (2), 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 section 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 Historic Resources, or to grant any waiver or reduction that would be contrary to State or Federal law.
(b) 
A proposal for the waiver or reduction of development standards pursuant to this section shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to Section 9-5.506.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
(a) 
Upon request of the developer, the following maximum parking ratio, inclusive of handicapped and guest parking, shall apply, pursuant to California Government Code Section 65915:
(1) 
Zero (0) to one (1) bedroom: one (1) on-site parking space.
(2) 
Two (2) to three (3) bedrooms: two (2) on-site parking spaces.
(3) 
Four (4) or more bedrooms: two and one-half (2-1/2) parking spaces.
(b) 
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. A development may provide on-site parking through tandem parking or uncovered parking, but not through on-street parking. The applicant may also request a concession or an incentive pursuant to Section 9-5.506 to further lower the vehicle parking ratios from those described herein.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
In order for a developer or property owner to be eligible for density bonus the following requirements must be met:
(a) 
Any development permit that receives density bonus under this article shall have conditions attached which will assure compliance with the provisions of this article. The conditions shall require a written agreement to indicate the number, type, location, approximate size, and construction scheduling of all dwelling units, the appropriate price levels, provision for income certification and screening of potential purchasers and/or renters of affordable units and senior units, a resale control mechanism, if applicable, and such reasonable information as shall be required by the City for the purpose of determining the applicant's compliance with this article.
(b) 
All affordable units and senior units in a project shall be constructed concurrently with or prior to the construction of any market-rate and nonsenior housing units.
(c) 
Unless the City finds compelling reasons to the contrary, the affordable units or senior units shall be dispersed throughout the development and shall be proportionate to the mix and type of units in the project as a whole (with the exception that premium units such as penthouses and top floor view units shall not be required to be available as affordable or senior housing units). Furthermore, the affordable units or senior units shall be comparable with the design of the base level market-rate units prior to purchaser-funded upgrades in terms of appearance, materials, and finished quality.
(d) 
The time period of availability as affordable or senior housing shall be for at least thirty (30) years. A longer period may be required for affordable housing units pursuant to Article 4 of this chapter, or as required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.
(e) 
The maximum allowable rents for affordable units shall be as defined in California Health and Safety Code Section 50053.
(f) 
Owner-occupied units shall be available at affordable housing costs, as defined in California Health and Safety Code Section 50052.5.
(g) 
For-sale affordable units may be subject to an equity sharing agreement, in the event that public subsidies are involved in the construction and/or purchase of said units.
(h) 
The developer or property owner may not also seek development bonuses pursuant to Section 9-4.204.
(Sec. 7 (part), Ord. 15-009, eff. Dec. 3, 2015; Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
As used in this article:
(a) 
"Affordable"
shall be as defined in Section 9-5.415.
(b) 
"Child care facility"
means a facility installed, operated, and maintained for the nonresidential care of children as defined under applicable State licensing requirements for the facility.
(c) 
"Common interest development"
as currently defined in California Civil Code Section 1351 and any subsequent amendments or revisions.
(d) 
"Concession" or "incentive"
shall have the meaning set forth in California Government Code Section 65915(k).
(e) 
"Equivalent financial value"
concerns a condominium conversion project and refers to the cost to the developer/property owner based on the land cost per dwelling unit. The land cost per dwelling unit is determined by the difference in the value of the land with and without the density bonus.
(f) 
"Senior citizen housing development"
as currently defined by California Civil Code Sections 51.3 and 51.12 and any subsequent amendments or revisions.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)