CITY COUNCIL AGENDA ITEM
Meeting Date: January 11, 2005
Subject/Title: Second Reading and Adoption of Ordinance 790 amending Chapter
17.725 of the City of Brentwood Municipal Code pertaining to the Affordable
Prepared by: Ellen Bonneville, Housing Manager
Submitted by: Howard Sword, Community Development Director
Waive the second reading and adopt Ordinance 790.
At its meeting of December 14, 2004, the City Council waived the first
reading of Ordinance 790 amending Chapter 17.725 of the City of Brentwood
Municipal Code pertaining to the Affordable Housing Program on a 5-0 vote.
Adoption of Ordinance 790 will enable the City to more effectively implement
its Affordable Housing Program.
Adoption of the Ordinance will create the First Time Homebuyer Program and
allow developers to meet their affordable housing obligation through the
payment of in-lieu fees into the Housing Trust Fund and make contributions
to the First Time Homebuyer Program. These payments by the developers will
provide the revenues for additional affordable housing opportunities
throughout the City of Brentwood.
ORDINANCE NO. 790
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING CHAPTER
17.725 OF THE BRENTWOOD MUNICIPAL CODE (AFFORDABLE HOUSING PROGRAM)
WHEREAS, the State of California has declared that the availability of
housing is of vital statewide importance, and the early attainment of decent
housing and a suitable living environment for every Californian is a
priority of the highest order; and
WHEREAS, the City currently has an unmet need for lower income housing and
has had residents come forward seeking additional affordable housing
opportunities within the City; and
WHEREAS, the Housing Element of City of Brentwood General Plan includes the
goal of providing housing that is affordable to all segments of Brentwood’s
population and calls for the City to cooperate with non-profit, private, and
public entities to maximize opportunities to develop affordable housing; and
WHEREAS, the City has monitored the effectiveness of voluntary incentives
for producing affordable housing and concluded that a mandatory affordable
housing program is needed to produce Brentwood’s fair share of affordable
WHEREAS, the provision of housing affordable to lower income households
requires the cooperative participation of government and the private sector;
WHEREAS, the City's existing affordable housing ordinance was adopted in
October, 2003, and will remain in effect until the effective date of this
WHEREAS, the City has met with housing developers to discuss the need and
best methods to produce affordable housing and has researched affordable
housing programs throughout the State and has included multiple options to
create new affordable housing opportunities within the community; and
WHEREAS, this Ordinance is to be interpreted consistently with the City's
Residential Growth Management Program as it currently exists and may be
amended in the future;
WHEREAS, a duly noticed City Council public hearing was advertised in the
Brentwood Press as required by City and State law; and
WHEREAS; the City Council of the City of Brentwood held a public hearing on
December 14, 2004, and considered this revised affordable housing ordinance,
all information provided in the staff report and consultant’s technical
report, and public comments received; and
WHEREAS, the City Council of the City of Brentwood makes the following
finding per the Brentwood Municipal Code associated with this amendment:
This amendment is consistent with the General Plan and other applicable City
plans, policies and regulations, and is appropriate to the public interest,
in that it will help implement several General Plan Policies by providing a
means to effect the provision of affordable housing opportunities within
NOW, THEREFORE, the City Council of the City of Brentwood ordains as
SECTION 1. Pursuant to CEQA Guidelines section 15162, the negative
declaration prepared in connection with the City Council's initial approval
of this affordable housing ordinance is hereby adopted and no subsequent
negative declaration shall be prepared.
SECTION 2. The foregoing recitals and staff report are found and determined
to be true and correct.
SECTION 3. The City Council finds as follows:
A. New emergency service, school, office, retail, industrial, hotel,
warehouse, agricultural and other non-residential uses (hereinafter referred
to as “non-residential uses” or “non-residential development projects”) in
or near the City of Brentwood (“City”) have been, and continue to be, a
factor in attracting new employees to the region. A number of these
employees and their families reside, or will reside, in the City. These new
employees and their families create a need for additional affordable housing
in the City.
B. Traditionally these non-residential uses have benefited from an
affordable supply of housing for their employees at locations close to the
place of employment. However, in recent years, the supply of affordable
housing has not kept pace with the demand created by these new employees and
their families. If this shortage were to grow or continue, employers would
have increasing difficulty in locating in or near the City due to problems
associated with attracting a labor force. Employees would be unable to find
affordable housing in the area, and accordingly would be forced to commute
long distances. This situation would adversely affect their quality of life,
consume limited energy resources, increase congestion on already overcrowded
highways and have a negative impact on air quality.
C. New residential development in the City has resulted in a population
increase and created a demand for additional housing for service workers to
serve new City residents.
D. The competition for housing is especially acute with respect to
households of very low and low income (those households with incomes of 50%
- 80% or less, below median income for Contra Costa County). An identifiable
portion of the new employees attracted to the City by new non-residential
development will live in very low, low, and moderate-income households and
will therefore compete with present residents for scarce affordable housing
units in the City. Increasing the production and availability of very low
and low-income housing, including rental housing, is especially problematic.
Prices and rents for housing affordable to households of very low and low
income remain below the level needed to attract new construction. This is
even truer for households of very low income (those with incomes 50% or
below median income for Contra Costa County). Federal and State housing
finance and subsidy programs are not sufficient by themselves to satisfy the
very low and low-income housing requirements associated with this
E. On November 10, 1998, the City Council adopted the Housing Element of the
City of Brentwood General Plan. On November 9, 2004, the City Council
adopted a Housing Element Update. The Housing Element, as updated, calls for
the provision of additional housing for all sectors of the population, to
accommodate the demands of both existing and new residents attracted to the
region by increased employment. The Housing Element also provides that the
City should make special efforts to encourage an increased supply of
affordable housing. More specifically, the City's Housing Element commits
the City to the establishment of an Affordable Housing Program as a key
element of its plan to help ensure that housing will be available for all
economic segments, as required by State law.
F. One of the purposes of this ordinance is to establish a feasible means by
which developers of residential development projects assist in increasing
the supply of affordable housing. The affordable housing requirements
contained in this ordinance are designed to create a rational relationship
between the amount of housing need created by development and the affordable
housing requirement, taking into account the impact of such requirement on
housing construction costs and economic feasibility.
G. The need to provide safe and sanitary affordable dwelling accommodations
is a matter of citywide concern and represents a responsibility that should
be borne by all sectors of the community. The enactment of an affordable
housing requirement for residential development only partially addresses the
total impacts caused by residential developments and is intended as one part
of the City’s multi-faceted approach to affordable housing problems. Further
regulatory changes to encourage the production of affordable housing will
also be considered to address the existing and future need caused by
non-residential uses. The City’s General Plan is attempting to attract
non-residential development in an effort to meet its goal of jobs housing
balance, and at this time an affordable housing requirement for
non-residential development would be a disincentive to attainment of such
jobs housing balance goals.
H. Rental and owner-occupied housing in the City has become more and more
expensive over time. Housing costs have gone up faster than incomes for many
groups in the community and market analysis indicates that rising home
prices will render new homes unaffordable to very low, low, and
I. Many persons who cannot afford housing in the City work in the City, have
grown up or have family ties in the City, and/or already live and work in
the City, but must move because housing is no longer affordable.
J. Federal and State government programs do not provide nearly enough
affordable housing or subsidies to satisfy the housing needs of very low and
low-income households who want or need housing in the City. Newly
constructed housing is available in the City, with rare exceptions, only at
prices that very low, low-income, and moderate-income households cannot
afford to pay.
K. Rising land prices have been a key factor in preventing development of
new affordable housing. New market rate housing construction in the City
aggravates the existing shortage of affordable housing by absorbing the
supply of available residential land. This not only reduces the supply of
land for affordable housing but also further increases the price of
remaining residential land. At the same time, new housing contributes to the
demand for goods and services in the City, increasing local employment at
wage levels that often do not permit employees to afford housing in the
L. Rising land prices and the resultant lack of affordability of housing for
local residents and people working in the City are further exacerbated by
the high demand for housing for new residents who commute to the greater Bay
Area to work. The use of limited residential land for these purposes further
increases the price of remaining residential land.
M. The desirability of the City as a bedroom community for workers in the
greater Bay Area labor market results from good schools, low crime, good
parks, good quality of life, strong agricultural protection and open space
policies resulting in a desirable living environment which in turn makes
housing affordability for local residents who work in local industries even
more difficult to achieve. The City’s General Plan and Municipal Code
contain policy statements and regulations favoring the protection of
agriculture and open space in the County and directing housing and other
urban uses to the urban areas. Newly constructed homes in the upper end of
the housing market further exacerbate the affordable housing problem by
creating greater needs for many services typically provided by very low,
low, and moderate-income employees.
N. Because neither the private market nor the public sector has as yet
provided the levels of housing affordability necessary for the maintenance
of a balanced community through voluntary measures, local government must
take an active lead to insure an adequate supply of housing for residents
and working people of all income levels.
O. The citizens of the City wish to retain a balanced community, with
housing available to very low, low, and moderate-income households. The City
agrees with the established policy of the State of California that each
community should make available an adequate supply of housing to persons at
all economic levels. The City’s use of its police power to regulate housing
production in ways designed to achieve such a mix of units in the community
is appropriate. As stated above, the Council has adopted the Housing Element
of the City of Brentwood General Plan which calls for the establishment of
an Affordable Housing Program.
P. The City recognizes the need to provide developers with alternative
methods of compliance with the City's affordable housing requirement. Should
a developer choose an alternative method of compliance, a balance of options
will best serve the City, including on-site construction, payment of in lieu
fees, dedication of units to the City's rental housing program, and
contribute to the City’s First Time Homebuyer Program.
Q. Because current market rate rents for rental housing are affordable to
moderate-income residents, the City wishes to encourage the development of
low and very-low income rental housing by providing that low and very
low-income housing may be dedicated to the City's Rental Housing Program.
R. A balanced community is only possible if part of the new housing built in
the City is affordable to very low, low, and moderate-income households.
Amending the Municipal Code of the City to require builders of new housing
to include some housing affordable to very low, low, and moderate-income
households, or to otherwise contribute to the effort to increase the supply
of affordable housing in the City, is fair, not only because new development
contributes to the shortage of affordable housing, but also because the land
use regulations of the City in regard to new housing in the City should be
consistent with the community’s goal of providing an adequate supply of
housing for residents and working people of all income levels. Further, in
order to mitigate the impacts caused by new residential development in the
City, it is appropriate to impose some of the cost of the increased burden
of providing housing for very low, low, and moderate-income households
directly upon the sponsors of the development contributing to the shortage
of affordable housing.
S. The Council shall encourage the building and availability of affordable
housing in the City by providing incentives and reducing the constraints on
such development in the community. In this regard, the Council intends to
consider such things as the establishment of public/private partnerships and
the provision of incentives to the building community as provided by law in
the Housing Element of the City of Brentwood General Plan, and in Chapter
17.725 of the Municipal Code.
T. Maintaining the affordability of units constructed under Chapter 17.725
best serves the goal of assuring a continuing supply of affordable housing
for local residents and people who work in the City but cannot afford to
live here. If affordable units are not restricted so as to continue to be
affordable at the time of resale, then such units will become market rate
units within a relatively short period of time and, with the limited supply
of residential land combined with increasing local land and building costs,
the units will not be replaceable.
U. The requirements of this ordinance are minimum requirements. The City
reserves the right to require additional measures to further affordable
housing to the extent it has authority to do so without respect to this
Chapter. As mentioned above, the efforts contained in this Chapter are
simply one aspect of the City’s developing strategy to address affordable
housing needs on a variety of fronts.
V. Pursuant to Government Code Section 65913.2, the City Council has
considered the effects of these actions on the City’s housing needs as
established in the Housing Element of the General Plan.
SECTION 4. Chapter 17.725 of the Brentwood Municipal Code, "Affordable
Housing," is hereby amended to read as follows:
CHAPTER 17.725 AFFORDABLE HOUSING
17.725.001 TITLE AND PURPOSE OF PROVISIONS
17.725.003 GENERAL REQUIREMENTS
17.725.004 ALTERNATIVE EQUIVALENT PROPOSAL
17.725.005 IMPLEMENTATION PROCEDURES
17.725.006 AFFORDABLE UNIT CONCESSIONS AND CONSTRUCTION INCENTIVES
17.725.007 AFFORDABLE HOUSING TRUST FUND
17.725.008 BRENTWOOD RENTAL HOUSING TRUST FUND
17.725.001 TITLE AND PURPOSE OF PROVISIONS.
A. Title: The provisions of Chapter 17.725 shall be known as the “Affordable
Housing Program” of this title.
B. Purpose: The purpose of this Affordable Housing Program is to:
1. Enhance the public welfare and assure that further housing development
contributes to the attainment of the City’s housing goals as described in
the Housing Element of the General Plan, by creating, preserving,
maintaining, and protecting housing affordable for households of very low,
low, and moderate income.
2. Assure that the remaining developable land in the City’s Planning Area is
utilized in a manner consistent with the City’s housing policies and needs.
As used in this Chapter, each of the following terms shall be defined as
A. Affordable Housing Agreement is a recorded agreement between the City and
a residential developer setting forth the residential developer's compliance
with the requirements of this Chapter.
B. Affordable Housing Cost is the cost defined in the California Health and
Safety Code for owner-occupied and tenant-occupied units. The Housing
Manager, on or about July 1 of each calendar year shall publish the maximum
Affordable Housing Costs for sales prices and rents as calculated in
accordance with the applicable provisions of the California Health and
C. Affordable Unit means an ownership or rental-housing unit, including
senior housing, occupied by and available to households of very low, low and
moderate incomes at an Affordable Housing Cost, adjusted for household size
as defined in this Chapter, with deed restrictions as defined in this
Chapter in favor of the City.
D. Dwelling Unit means a dwelling designed and intended for occupancy by one
E. First Time Homebuyer means a household which has not owned its principal
place of residence within the last three years.
F. Household Size means the number of persons residing at least during 50%
of a calendar year within a Dwelling Unit. For the purposes of this Chapter,
appropriately sized Affordable Units for a given household size are as
follows, or as may be amended by the California Health and Safety Code:
Persons 1 2 3 4 5 6 or more
Unit Size Studio 1 Bedroom 2 Bedroom 3 Bedroom 4 Bedroom 5 Bedroom
G. In-Lieu Fee means a fee paid to the City by an applicant in-lieu of
providing the required Affordable Units.
H. Low-Income Household means a household whose annual income does not
exceed the qualifying limits set for "lower income households" in Section
50079.5 of the California Health & Safety Code.
I. Moderate-Income Household means a household whose annual income does not
exceed the qualifying limits set for "moderate income households" in Section
50093 of the California Health & Safety Code and does not include a very low
or low-income household.
J. Over-Concentration of Very Low and Low-Income Households means a U.S.
Census block group where 50% or more of the households are of very low or
low income, as described in the City’s Low Income Concentration Study, any
updates thereof, and the Housing Element of the General Plan.
K. Refinance and Resale Limitation Agreement means a recorded agreement
between the City and an individual homebuyer of an ownership Affordable Unit
documenting Resale Controls and/or Rent Restrictions.
L. Resale Controls and/or Rent Restrictions means legal restrictions by
which Affordable Units shall be restricted to ensure that the unit remains
affordable to very low, low, or moderate-income households, as applicable,
for a period of not less than 45 years for ownership units and not less than
55 years for rental units, or longer periods if required by State housing or
redevelopment law. Resale controls for owner-occupied units shall be in the
form of resale restrictions, deeds of trust, and/or other similar documents
recorded against the subject property. Rent restrictions for rental units
shall be in the form of a regulatory agreement recorded against the subject
property. Rent restrictions for rental units owned by the City through the
rental housing program shall be permanent.
M. Residential Development includes, without limitation, single-family
dwellings, multiple-family dwellings, groups of dwellings, condominium or
townhouse developments, condominium conversions, cooperative developments,
mixed use developments that include housing units, manufactured housing,
mobile homes, and residential land subdivisions intended to be sold, leased,
or rented to the general public.
N. Very Low-Income Household means a household whose annual income does not
exceed the qualifying limits set for "very low income households" in
Sections 50093 and 50105 of the California Health & Safety Code and
"extremely low income households" in Sections 50093 and 50106 of the
California Health & Safety Code.
17.725.003 GENERAL REQUIREMENTS.
A. Applicability. This Chapter shall apply to all new Residential
Developments of 4 or more lots or Dwelling Units designed and intended for
residential occupancy in the City’s Planning Area. No Residential
Development, other than that exempted below, shall be undertaken, and no
building permits shall be accepted for processing or issued, unless the
development has been approved in accordance with this Chapter.
B. Ten Percent Affordability Requirement. Residential Development of 4 or
more lots or Dwelling Units designed and intended for residential occupancy
shall construct or make possible the construction of a minimum of 10 percent
of the total number of Dwelling Units within the Residential Development as
Affordable Units, allocated to income levels as set forth in this Chapter,
or as provided in an Affordable Housing Agreement which specifies the means
of satisfying this Chapter, or as specified by State Redevelopment Law
(Health and Safety Code § 33413). The foregoing requirement shall be applied
prior to the application of a density bonus and no more than once to an
approved Residential Development, regardless of changes in its character or
ownership, provided that the total number of Dwelling Units does not change.
1. Residential Development of 4-9 Dwelling Units. Residential Development
consisting of 4-9 Dwelling Units may either construct one low-income
Affordable Unit or pay a low-income fee in lieu of construction.
2. Application to Residential Development of 5 or more Dwelling Units. In
applying this requirement to Residential Development consisting of 5 or more
Dwelling Units, any decimal fraction less than 0.50 Dwelling Units shall be
disregarded and any decimal fraction equal to or greater than 0.50 Dwelling
Units shall be construed as one Dwelling Unit.
C. Exemptions. The following are exempt from the provisions of this Chapter:
1. Residential Development a development agreement expressly precluding
compliance with this Chapter or an Ordinance of this nature. In cases in
which the development agreement does not expressly preclude compliance with
this Chapter, the project shall comply with this Chapter.
2. Replacement housing due to natural disaster on a one for one basis (i.e.,
one Dwelling Unit replaced for each legally existing Dwelling Unit).
3. Modifications to existing properties or structures that do not increase
the number of Dwelling Units.
4. Residential care facilities with Dwelling Units that are
non-self-sufficient units; that is, they do not include kitchen facilities
(if a project includes both self-sufficient and non-self-sufficient units,
only the latter are exempt).
5. Subdivisions consisting of between 1 and 3 units.
6. Development of up to three new Dwelling Units on an existing residential
lot of record.
7. Up to two additional units on a lot zoned to accommodate up to a maximum
of three units, and which already contains one existing unit.
8. A residential Second Unit (as defined by State law) on an existing
residential lot, subject to compliance with the Zoning Ordinance.
9. Developments and/or subdivisions with between 4 and 9 parcels or Dwelling
Units may either construct one Affordable Unit or pay the Housing In-Lieu
Fee at the low-income level as established by Resolution of the City
Council, or other alternative equivalents shall be provided, as established
in this Chapter. However, if a Residential Development is later resubdivided
into 10 or more parcels or Dwelling Units, the City's affordable housing
requirement may not be satisfied by payment of an In Lieu Fee.
D. Allocation of Affordable Units to Income Levels. Dwelling Units for Very
Low, Low, and Moderate-Income Households as required by this Chapter shall
be allocated as follows:
Moderate-income households 3%
Low-income households 4%
Very Low-income households 3%
Low-income households 5%
Very Low-income households 5%
E. Conditions of Approval. Conditions of Approval calling for compliance
with prior rules, regulations, laws, ordinances, and policies of the City
shall be interpreted to require compliance with this Chapter.
F. Concurrent Construction. All Affordable Units in a Residential
Development or phase of a Residential Development shall be constructed prior
to or concurrently with market-rate units.
G. Design and Distribution of Affordable Units. All Affordable Units within
a Residential Development shall be similar to the market rate units in
exterior design, quality, materials, and architectural elements. Affordable
Units may be smaller in size and have different interior amenities than the
market rate units in a Residential Development. In all cases, Affordable
Units shall be comparable to market rate units in exterior appearance,
style, and overall construction quality, as well as number and proportion of
bedroom types, and shall be dispersed throughout the development project so
as to prevent the concentration of Affordable Units, unless the Planning
Commission has approved an alternative distribution pattern, or approval of
an off-site location has been granted.
1. Very Low to Medium-Density Zoning. For Residential Developments with very
low- to medium-density zoning designations as defined by the General Plan,
the Affordable Unit may be smaller in size than other models in the
Residential Development. The minimum permissible Affordable Unit size is
1,600 square feet on a 3,000 square foot parcel. As a means to provide
massing and lot proportions consistent with the Residential Development, a
duet unit will satisfy the City's affordable housing requirement. For
example, a duet unit can be located on a corner with each duet unit being
1,600 square feet on two separate 3,000 square foot parcels.
2. High to Very High-Density Zoning. For Residential Developments with high
to very high-density zoning designations as defined by the General Plan, the
Affordable Units shall be comparable to market-rate units in overall size.
H. Length of Affordability. All affordable ownership units shall remain
affordable for a period of at least 45 years from date of original occupancy
and each subsequent ownership, and all affordable rental units shall remain
affordable for a period of at least 55 years from the date of the initial
rental or leasing period, or longer periods as may be required by State
housing or redevelopment law.
17.725.004 ALTERNATIVE EQUIVALENT PROPOSAL.
As an alternative to constructing affordable units on-site, a residential
developer may propose one of the alternative equivalents set forth below to
meet the requirements of section 17.725.003. An alternative equivalent
proposal may include, but is not limited to, payment of an In Lieu Fee
(available to ownership Residential Developments but not rental Residential
Developments), dedication of vacant developable land, dedication of
constructed units to the City's Rental Housing Program, construction of
Affordable Units on another site, and conversion of existing market rate
Dwelling Units within the City to Affordable Units through acquisition and
enforcement of required affordability restrictions consistent with this
Chapter. All alternative equivalent proposals must be submitted in writing,
demonstrate that the alternative equivalent will further affordable housing
in the City to an equal or greater extent than the construction of required
on-site Affordable Units required under Section 17.725.003(D) and (E), and
satisfy the following minimum conditions: 1) Be consistent with the City's
Housing Element, 2) provide the same amount of affordable housing, and 3)
have equivalent or lesser impact on the City's administrative obligations,
including maintenance and management duties, than the on-site requirement.
Additionally, for ownership projects, an alternative equivalent proposal
must result in a citywide balance of the following components: Construction
of Affordable Units, Payment of in lieu fees and contribution to the City's
first-time homebuyer program, and dedication of a portion of the units to
the City's affordable housing rental program.
A. Approval of Payment of In Lieu Fees. In Lieu Fees may be paid for 1)
Residential Developments consisting of between 4 and 9 Dwelling Units or 2)
the very low-income portion of Residential Development consisting of 10 or
more Dwelling Units. The amount of the In-Lieu Fee shall be as set forth by
resolution of the City Council, which may be amended from time to time to
reflect inflation, and changed conditions in the City and the region.
In-Lieu Fees shall be paid at building permit issuance. The amount of the
fee shall be as set forth in the In-Lieu Fee resolution in effect at the
time of issuance of the building permit. In-Lieu Fees paid to the City shall
be deposited into the Affordable Housing In-Lieu Fee Fund in accordance with
No In-Lieu Fee shall be allowed for rental developments. Rental developments
must construct Affordable Units on-site or satisfy the affordable
requirements through an alternative equivalent proposal other than payment
of In-Lieu Fees.
B. Dedication of Vacant Developable Land. An applicant may dedicate vacant
developable land to the City or City-approved non-profit housing developer
in lieu of constructing a portion of the required Affordable Units, if the
City Manager finds all of the following:
1. The dedication of vacant land in-lieu of constructing Affordable Units is
consistent with this Chapter’s goal of creating, preserving, maintaining,
and protecting housing for very low, low, and moderate-income households.
2. The dedicated vacant land is large enough and appropriately zoned to
accommodate the number of units that the applicant would otherwise be
required to construct by Section 17.725.003 (D) and (E).
3. The dedicated vacant land is improved with infrastructure and utilities
required to serve the property, including, but not limited to, power,
telephone, cable, gas, water, sewer and fiber optics, grading, and all
applicable fees, taxes, and assessments, including, but not limited to,
school and flood control fees, and excluding any affordable housing in lieu
fees, have been or will be paid by the applicant.
4. The dedicated vacant land (if zoned multi-family) is not located within
an area of the City currently experiencing an over-concentration of very
low, low, or moderate-income households as defined in this Chapter.
5. The dedicated vacant land is located inside the City, or the vacant land
will be annexed to the City prior to issuance of any building permits to the
applicant for his/her related market rate Dwelling Unit(s).
C. Off-Site Construction or Conversion of Market Rate Units To Affordable
An applicant may construct the required Affordable Units off-site from the
proposed market-rate development site or convert existing market-rate units
to Affordable Units with the approval of the City Council and subject to the
City Council's approval of each of the following findings and imposition of
the following conditions of approval on each tentative map:
1. Required Findings:
a. The construction of the Affordable Units off-site or conversion of the
existing market-rate units, excluding mobile home units and units within
cooperative developments, in lieu of constructing Affordable Units on-site
is consistent with this Chapter.
b. The developer has submitted documentation to the satisfaction of the City
Manager or designee that demonstrates that it would be financially or
otherwise infeasible or impractical to construct Affordable Units on-site,
or that off-site construction or conversion of market-rate units to
Affordable Units will significantly benefit the City.
c. The conditions of approval and subdivision guarantee for a residential
project, or other security such as a cash deposit are adequate to provide
for the construction of the off-site Affordable Units prior to or
concurrently with the completion of the on-site construction of the
d. Pursuant to Policy 3.3 of the Housing Element of the General Plan, any
Affordable Units to be constructed off-site will not be located within any
area of the City currently experiencing an over-concentration of very low,
low, or moderate-income- households as defined in this Chapter.
e. The quality and quantity of Affordable Units constructed off-site and
market-rate units converted to Affordable Units shall be equivalent to
Affordable Units that would have been constructed on-site to satisfy the
City's affordable housing requirement.
f. The Residential Development will be subject to the Conditions of Approval
set forth in section 17.725.004(C)(2) below. The conditions of approval for
the market rate development shall require that any off-site Affordable Units
be governed by Resale Controls and/or Rent Restrictions similar to those
required for on-site Affordable Units.
2. Required Conditions:
a. Affordable Units constructed off-site shall be constructed at the time
specified in the Affordable Housing Agreement.
b. Affordable Units converted from market-rate units shall be both converted
and inspected at the time specified in the Affordable Housing Agreement.
Market rate units converted to Affordable Units shall require inspection by
the Community Development Department to ensure that the Affordable Units are
in good condition and repair, and conform to all applicable City building
and zoning codes.
c. Existing very low, low, or moderate-income households that occupy market
rate units being converted to Affordable Units shall not be displaced from
those units. If temporary or permanent displacement occurs while the
converted units are being repaired or rehabilitated, the developer shall be
responsible to pay relocation and moving benefits to the displaced
households in accordance with the California Code of Regulations, Title 25,
Chapter 6, (California Relocation Assistance Guidelines). The calculation of
relocation and moving benefits to be provided by developers to temporarily
or permanently displaced households shall be submitted to and approved by
the City for verification of compliance with the California Relocation
D. Dedication of Affordable Units to the City of Brentwood. An applicant may
dedicate constructed or converted on-site or off-site affordable Dwelling
Units to the City’s rental housing program to satisfy the requirements of
this Chapter. Mobile homes and units within cooperative developments are
excluded from dedication. Each unit dedicated to the City shall equate to
the construction of 2 Affordable Units that would otherwise be required
pursuant to Section 17.725.003 (D) and (E). Any units dedicated to the
City’s rental housing program shall be intended as rental units with
permanent affordable rental restrictions. Net proceeds from the rental
stream from these affordable rental units shall be deposited into a
Brentwood Rental Housing Trust Fund administered by the City’s Finance
Director in accordance with Section 17.725.008.
All units dedicated to the City pursuant to this Chapter shall meet the
following requirements prior to acceptance by the City:
1. All applicable fees (including development impact fees), Capital
Improvement Financing Program assessments, and bond interest payments shall
have been prepaid by the developer.
2. The units shall be less than 20 years old and in good condition and
repair, as verified by an inspection conducted by the Community Development
Department. A second such inspection may need to be performed to confirm
that any repair punchlist generated by the initial inspection is completed
prior to the City's acceptance of the unit into the Rental Housing Program.
3. The developer shall have installed any front yard, sideyard, any backyard
landscaping and the unit's interior shall meet the City's minimum interior
finish and appliance requirements.
4. The sprinkler system, window coverings, and all appliances shall have
been installed in the unit in accordance with the list of required items
maintained by the City Manager or designee.
5. Each unit must be on a subdivided parcel in accordance with Government
Code sections 66426, 66427, or 66428.
E. Contribution to City’s First Time Homebuyer Program. An applicant may
request to contribute to the City’s First Time Homebuyer Program to satisfy
the moderate unit requirements of this Chapter.
F. Other Means of Fulfilling Affordable Housing Requirements. Subject to
City Manager or designee approval, any developer may fulfill its affordable
housing requirement through additional alternative equivalent methods not
specifically mentioned in this Chapter, provided that the City Council
determines such alternative results in the same number of Affordable Units
that would have been provided with on-site construction of Affordable Units.
17.725.005 IMPLEMENTATION PROCEDURES.
A. Satisfaction of Affordable Housing Requirement. Each proposal for
satisfying the City's affordable housing requirement, together with a
proposed Affordable Housing Agreement per Section 17.725.005(B), shall be
reviewed by the City Manager or designee, considered for recommendation by
the City Council Housing SubCommittee, and forwarded to the City Council for
approval on its consent calendar agenda. The required Affordable Units shall
be constructed or converted unless the applicant provides documentation to
the satisfaction of the City Manager, detailing why it is not financially or
otherwise feasible to construct or convert the Affordable Units.
B. Agreements. Prior to the issuance of a building permit for any unit
within a Residential Development to which this Chapter applies, the City and
the residential developer shall have entered into an Affordable Housing
Agreement in a form approved by the City Attorney. For those Residential
Developments for which Affordable Units will be constructed or converted on-
or off-site, the Affordable Housing Agreement shall include appropriate
Resale Controls and/or Rent Restrictions. For ownership Affordable Units,
the City and the individual homebuyer shall be required to enter into a
recorded Refinance and Resale Limitation Agreement in a form approved by the
C. Annual Monitoring and Transfer Fees. Agreements involving rental units
shall require the owner of the affordable rental units to submit an annual
monitoring report to the Housing Manager, in a format approved by the City
Manager. For each affordable rental unit provided hereunder, the current
owner may be required to pay an annual monitoring fee for the term of
required affordability in the amount set forth in the Affordable Housing
Agreement. For each owner-occupied Affordable Unit provided under this
Chapter, the current owner may be required to pay a transfer fee for any
change of ownership during the term of required affordability in the amount
set forth in the Refinance and Resale Limitation Agreement.
D. Resale Prices For Affordable Ownership Units. The maximum resale price
for an affordable ownership unit and terms of resale to an eligible
household shall be set by the Housing Manager pursuant to the Affordable
Housing Cost as defined in Section 17.725.002 (A) and as set forth in a
Refinance and Resale Limitation Agreement.
E. City’s Right of Option to Purchase Affordable Ownership Units. The resale
restrictions as set forth in the Refinance and Resale Limitation Agreement
shall provide that in the event the owner cannot in good faith and despite
his or her best reasonable efforts, locate an eligible household to purchase
an affordable ownership unit at an affordable housing cost, the owner shall
give written notice of such circumstances, and an option to purchase, to the
F. Selection Criteria for Rental or Ownership Units. No household at the
time of move-in shall be permitted to rent, purchase or occupy an Affordable
Unit that is required under this Chapter unless its qualifications are
consistent with this Chapter and the Housing Manager has approved the
household’s eligibility. Eligible potential occupants of ownership
Affordable Units must be First-Time Homebuyers and will be qualified on the
basis of household income as defined in this Chapter, including all sources
of income and assets, the relationship between household size and the size
of the available units, and any further criteria required by law and/or
established by the City Council. The affordable housing developer shall use
an equitable selection method established in conformance with the terms of
this Chapter and in compliance with State and Federal law. Selection of
qualified households shall be based on the affordable housing priorities
Priority 1. Emergency and school district personnel, current Brentwood
residents, and agricultural and other workers employed within the Brentwood
Planning Area as defined in the Land Use Element of the General Plan. Forty
percent of the available Affordable Units shall be first made available to
any qualified emergency and school district personnel. If emergency and
school district personnel do not utilize 40% of the Affordable Units, then
they shall be made available to other qualified Priority 1 applicants, prior
to being made available to Priority 2 applicants.
Priority 2. Other qualified non-residents.
To qualify as “emergency and school district personnel,” the household must
include a person employed by the East Diablo Fire District, Brentwood Police
Department, Brentwood Union School District, Liberty Union High School
District, or the Brentwood Campus of the Los Medanos College prior to the
To qualify as a “Brentwood resident,” the household occupants shall have
resided within the City of Brentwood for one year prior to the eligibility
determination. To qualify as a non-resident “employed within the City of
Brentwood,” the household must include a person employed full-time (40 hours
per week) at an address inside Brentwood’s city limits at the time of
The Housing Manager shall establish and maintain eligibility selection
contact lists for qualified households based on the two housing priority
groups mentioned above. Proof of qualification for a priority group shall be
provided by a household before placement on one of the selection contact
lists. The lists shall be updated as needed.
By virtue of their position or relationship, City senior management
employees and officials and their children, or members of the City’s
agencies, authorities, or commissions who have, by the authority of their
position, policy making authority or influence affecting City housing
programs, are ineligible to occupy an Affordable Unit:
G. Requirements for Occupancy/Final inspection. No occupancy shall be
permitted, no final inspection approved, or release of utilities authorized
for any new Dwelling Unit in the applicable phase of a Residential
Development until the developer has satisfactorily completed the
requirements within this Chapter, i.e., on-site construction of Affordable
Units, alternative equivalent proposal action(s), payment of the Affordable
Housing In-Lieu Fee, or dedication of Affordable Units to the City, for that
17.725.006 AFFORDABLE UNIT CONCESSIONS AND CONSTRUCTION INCENTIVES.
For Residential Development meeting the requirements specified in Section
17.725.003 of this Chapter, the City may offer incentives or financial
assistance to encourage compliance with this Chapter to the extent resources
for this purpose are available and approved for such use by the City. In
order to provide flexibility in the application of these concessions and
incentives, and to ensure that they fit the variety of circumstances and
different development projects regularly processed by the City, such
incentives may include, but shall not be limited to any of the following
items, applied alone or in any combination upon the City Council's finding
that a developer has proven that the incentive is necessary to the financial
feasibility of the Residential Development:
A. Development Processing Fee Deferral. The City Manager or designee may
approve deferring payment of City processing and plan check fees applicable
to the review and processing of the project. The terms and payment schedule
of the deferred processing fees shall be subject to the approval of the City
Manager or designee. In no case shall deferred development processing fees
be paid later than occupancy of any of the units in the Residential
Development. In no case shall fees be waived.
B. Development Impact Fee Deferral. The City Manager or designee may
authorize the deferred payment of development impact fees applicable to the
Affordable Units. Approval of this incentive requires demonstration by the
applicant that the deferral increases the project’s feasibility. The
applicant must provide appropriate security to ensure future payment of
applicable development impact fees. In no case shall deferred development
impact fees be paid later than occupancy of any of the units in the
Residential Development. In no case shall fees be waived.
C. Density Bonus. Concurrently with consideration of an application for a
Residential Growth Management Program allocation, the City may award a
density bonus for developments that comply with the very low, low, or
moderate-income affordability provisions of this Chapter by constructing
units on-site, dedicating units, paying the appropriate In-Lieu Fee,
providing an acceptable Alternative Equivalent Proposal, or a combination of
the above, in accordance with this Chapter. In the event that a development
is also eligible for a density bonus pursuant to Government Code section
65915, the density bonus authorized pursuant to this Chapter shall be
included in any density bonus obtained pursuant to state law and shall not
increase the amount of the density bonus above that afforded by state law.
An application for a density bonus must be received concurrently with an
application for Residential Growth Management Program allotments. The
density bonus provided shall initially be set at 9% above the midpoint of
the density range established in the General Plan and Zoning Code. However,
the cumulative density including the density bonus shall not exceed the
maximum density set forth in the City's General Plan or Zoning Code.
Fractional density bonus units shall be rounded in the manner set forth in
section 17.725.003(B)(2) above. The density bonus amount shall be
periodically reviewed by the City Engineer, the Community Development
Director, and the Housing Manager, who will recommend that adjustments, as
appropriate, be adopted by resolution of the City Council. Density bonus
units authorized under this Chapter shall be excluded from the affordability
requirements specified in Section 17.725.003.
D. Flexible Design Standards. The Planning Commission may modify City
standards and/or approve design modifications for Affordable Units that
increase the feasibility of the construction of Affordable Units, including
but not limited to, the following:
1. Reduced lot sizes.
2. Reduced setback requirements.
3. Reduced open space requirements.
4. Construction of duplexes or triplexes on corner lots within single-family
5. Reduced landscaping requirements.
6. Reduced interior amenities.
7. Reduced parking requirements.
8. Height restriction waivers.
The applicant shall be responsible for documenting to the satisfaction of
City Manager or designee, that the modification is necessary for the
financial or other feasibility of the Residential Development. Except for
any standards modified by the Planning Commission, the project must
otherwise be consistent with all required General Plan, Zoning Code, Uniform
Building Code, and other applicable City regulations and policies.
E. Fast Track Processing. The City Manager or designee may authorize
prioritized application review and project processing including
environmental review, report preparation, entitlement meetings, plan checks,
and project inspections.
F. Direct Financial Assistance. The City Council may authorize provision of
direct financial assistance in the form of a loan or grant from collected
affordable housing trust funds as described in Section 17.725.007 for
developments which include ownership and/or rental dwellings affordable to
very low, low, or moderate-income households that exceed minimum Affordable
Unit counts required under Section 17.725.003.
G. Additional Concessions and Incentives. The City Council may consider, on
a case-by-case basis, at its sole discretion, the provision of additional
concessions or incentives consistent with state law and the Housing Element
of the City of Brentwood General Plan for Residential Development projects
that exceed the requirements of this Chapter.
17.725.007 AFFORDABLE HOUSING IN-LIEU FEE FUND.
A. Creation. In-lieu fees shall be deposited into the Affordable Housing
In-Lieu Fee Fund.
B. Use. The Finance Director shall administer all monies in this Fund
including any interest earnings. Funds shall be disbursed at the discretion
of the City Council for the purpose of assisting in the construction of very
low, low, and moderate-income Dwelling Units, or helping with other
affordable housing opportunities. The Finance Director is authorized to
utilize up to 20% of these funds annually for City housing personnel and
17.725.008 BRENTWOOD RENTAL HOUSING TRUST FUND.
A. Creation. Net rental income from all rental units dedicated to the City’s
rental housing program as described in Section 17.725.004 (D) shall be
deposited into a Brentwood Rental Housing Trust Fund.
B. Use. The Finance Director shall administer all monies in this Fund
including any interest earnings. All Funds other than those specified in
Section 17.725.008 (C) shall be utilized to purchase, construct or repair
single or multi family rental unit inside the City limits. One half of the
rental income may be utilized from time to time at the City Council’s
discretion to further the provision of affordable housing in the City of
Brentwood so long as sufficient funds remain to pay for the maintenance and
operation of existing affordable housing in the City's rental housing
C. Withholding. The Finance Director is authorized to withhold 20% of the
net proceeds from the rental stream of these affordable rental units to fund
City housing personnel and administrative costs directly related to
management and administration of the Brentwood Rental Housing Trust Fund and
program. The Finance Director is further authorized to withhold up to an
additional 15% of net proceeds from the rental stream to reimburse City
development fees and agricultural mitigation fees for these units until the
City development fee accounts are whole.
A. General. The City shall enforce this Chapter, and its provisions shall be
binding on all agents, successors, and assigns of an applicant. The City may
suspend or revoke any building permit or approval upon finding a violation
of any provision of this Chapter. No land use approval, building permit, or
occupancy approval shall be granted for any Residential Development unless
it is in compliance herewith, including but not limited to, actions to
revoke, deny, or suspend any permit or development approval.
B. Excessive Rents/Legal Action. It shall be unlawful, a public nuisance and
a misdemeanor for any person to sell or rent an Affordable Unit at a price
or rent exceeding the maximum allowed under this Chapter or to a household
not qualified under this Chapter, and such person shall be subject to a
$500.00 fine per month from the date of original non-compliance until the
Affordable Unit is in compliance with this Chapter. If the City determines
that rents in excess of those allowed by operation of this Chapter have been
charged to a tenant residing in an affordable rental unit, the City may take
appropriate legal action.
C. Violation Abatement. The City of Brentwood City Attorney or the Contra
Costa County District Attorney, as appropriate, shall be authorized to abate
violations of this Chapter and to enforce the provisions of this Chapter and
all implementing regulatory agreements and affordability controls placed on
Affordable Units by civil action, injunctive relief, and any other
proceeding or method permitted by law. Remedies provided for herein shall
not preclude the City from any other remedy or relief to which it otherwise
would be entitled under law or equity.
A. A developer of any project subject to the requirements of this Chapter
may appeal to the City Council for a reduction, adjustment, or waiver of its
requirements based upon the absence of any reasonable relationship or nexus
between the impact of the Residential Development and the amount of the
affordable housing requirement.
B. Any such appeal shall be made in writing and filed with the housing
manager along with the applicable administrative fee for processing costs as
set forth by city council resolution no later than 10 days before the first
public hearing on any discretionary approval or permit for the development,
or if no such discretionary approval or permit is required, or if the action
complained of occurs after the first public hearing on such permit or
approval, then the appeal shall be filed within 10 days after payment of the
fees objected to. The appeal shall set forth in detail the factual and legal
basis for the claim of waiver, reduction, or adjustment. The City Council
shall consider the appeal at the public hearing on the permit application or
at a separate hearing within 60 days after the filing of the appeal,
whichever is later. The appellant shall bear the burden of presenting
substantial evidence to support the appeal including comparable technical
information to support appellant’s position. A waiver of an affordable
housing requirement may only be approved by the City Council if the
developer demonstrates that there is no nexus between the proposed project
and its impact upon the City's provision of affordable housing. The decision
of the Council shall be final. If a reduction, adjustment, or waiver is
granted, any change in use within the project shall invalidate the waiver,
adjustment, or reduction of the affordable housing requirement."
SECTION 5. Phase-In Partial Exemption. The following Residential
Developments shall continue to be subject to the City's phase-in partial
exemption in either of the following two cases:
1. Any Residential Development of 4 or more units satisfying each of the
a. A vesting tentative map has been approved for the Residential Development
prior to October 9, 2003.
b. The Residential Development’s conditions of approval include a condition
requiring compliance with the City’s Affordable Housing Program.
c. Affordable Housing Agreement has been negotiated with the Council’s
Housing SubCommittee and received a positive recommendation from the
Council’s Housing SubCommittee prior to December 15, 2004.
2. Any Residential Development of 4 or more units with either:
a. An application for a Residential Growth Management Program allocation
that has been deemed complete by the City between October 9, 2003, and the
effective date of this Ordinance; or
b. A vesting tentative map or development agreement approved between October
9, 2003, and the effective date of this Ordinance.
In accordance with the City’s practice in effect prior to the effective date
of this Ordinance, the Residential Developments specified above shall
1. Construction of 5 percent of the total number of Dwelling Units within
the Residential Development as Affordable Units, 70 percent of which shall
be affordable to low income households and 30 percent of which shall be
affordable to very low income households; or
2. If the Residential Development’s average lot size exceeds 8500 square
feet, pay the in-lieu fee in effect at the time of building permit issuance
for 5% of the total number of Dwelling Units within the Residential
Development, 70 percent of which shall be the amount in effect for low
income households and 30 percent of which shall be the amount in effect for
very low income households.
This phase-in exemption shall sunset, and all Residential Developments shall
be subject to the full requirements of this Ordinance upon its effective
SECTION 6. This Ordinance shall take effect and be in force thirty days
following its adoption and, prior to the expiration of fifteen days after
its adoption, it shall be published once with the names of the council
members voting for and against it in a newspaper of general circulation,
available in the City of Brentwood.
SECTION 7. If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional by the
decision of a court of competent jurisdiction, the holding shall not affect
the validity or enforceability of the remaining provisions, and the council
declares that it would have adopted each provision of this ordinance
irrespective of the validity of any other provision.
SECTION 8. Any judicial review of this Ordinance shall be by writ of mandate
under Code of Civil Procedure 1085. Any action or proceeding seeking to
attack, review, set aside, void or annul this ordinance shall be commenced
within 90 days after the adoption of this Ordinance.
SECTION 9. This Ordinance shall be published in accordance with Government
Code Section 36933 by either posting or publishing the ordinance in
accordance with that law. Further, the City Clerk is directed to cause
Section 3 of this Ordinance to be entered in the Brentwood Municipal Code.
SECTION 10. In accordance with Government Code Section 65863.5, upon the
effective date of this Ordinance, a copy shall be delivered to the County
THE FOREGOING ORDINANCE was introduced with the first reading waived at a
regular meeting of the Brentwood City Council on the 14th day of December
2004, by the following vote:
And was adopted at a regular meeting of the Brentwood City Council on the
day of , 2005, by the following vote:
Karen Diaz, CMC
City Clerk/Director of Administrative Services