HERCULES CITY COUNCIL
ORDINANCE NO. 551
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HERCULES AMENDING PROVISIONS OF HERCULES MUNICIPAL CODE SECTIONS 13 -6.100, 13- 6.300 AND 13 -30.420, AMENDING AND RENUMBERING SECTIONS 13 -30.460 AND 13-
30.470, REPEALING SECTIONS 13 -30.430, 13- 30.440 AND 13- 30.450 AND AMENDING SECTION 13 -60.200 TO COMPLY WITH THE STATE DENSITY BONUS
LAW AND FINDING THE ACTION EXEMPT FROM THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (CEQA).
WHEREAS, California’s State Density Bonus Law (Government Code §§ 65915 et seq. ; “SDBL” ) encourages developers to build affordable housing (e.g., very low -, low- and moderate- income units) by requiring cities to grant a density bonus, concessions, incentives, and waivers of developments standards for projects that commit certain percentages of their units to affordable housing; and WHEREAS, California Government Code § 65915(a) requires that local governments adopt an ordinance that specifies how compliance with S DBL will be implemented; and
WHEREAS, Sections 13- 6.100, 13-6.300, 13-30.420, 13-30.430, 13-30.440, 13-
30.450, 13- 30.460 and 13- 30.470 of the Hercules Municipal Code contain regulations implementing the SDBL; and
WHEREAS, Hercules Municipal Code Sections 13- 6.100, 13- 6.300, 13 -30.420, 13-30.430, 13- 30.440, 13- 30.450, 13 -30.460 and 13 -30.470 w ere last amended to comply with the SDBL via Ordinance No. 484, adopted on February 10, 2015; and WHEREAS, this ordinance (“Ordinance”) amends Hercules Municipal Code Sections 13- 6.100, 13- 6.300 and 13- 30.420, amends and renumbers Sections 13-
30.460 and 13- 30.470 and repeals Sections 13- 30.430, 13- 30.440 and 13- 30.450 to adopt the State Density Bonus Law by reference. As amended and renumbered by this
Ordinance, Hercules Municipal Code Sections 13- 30.420, 13-30.430 and 13-30.440 will provide density bonuses and other affordable housing incentives required by S DBL (including but not limited to Government Code § 65915 et seq.); and WHEREAS, adopting t he S DBL by r eference will ens ure t he M unicipal C ode remains current whenever the State Legislature amends the SDBL; and WHEREAS, the Planning Commission did hold a properly noticed public hearing on March 4, 2024 to consider the proposed Text Amendment and did hear and use its independent judgement to consider all said reports, recommendations and testimony hereinabove set forth; and
Ordinance No. 551
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WHEREAS, the Planning Commission at its March 4, 2024 meeting passed Resolution #24-02 recommending City Council adoption of an ordinance to modify the Hercules Zoning Ordinance as proposed in order to comply with SDBL; and
WHEREAS, on March 26, 2024, the City Council held a duly noticed public hearing to consider the proposed Ordinance related to density bonus, received the staff report and staff presentation, received comments from the public and interested parties and discussed the matter, and voted 5- 0 to waive first reading and introduce the Ordinance; and
WHEREAS, all legal prerequisites to the adoption of the Ordinance have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HERCULES DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The City Council hereby incorporates the above recitals into this Ordinance by this reference.
SECTION 2. Amendment. Deletions to the Hercules Municipal Code are shown in strikethrough. Additions are shown in bold/underline. T he City Council of the City of Hercules does hereby amend Hercules Municipal Code Sections 13-6.100, 13- 6.300, 13-30.420 and 13- 60.200, amends and renumbers Hercules Municipal Code Sections 13-30.460 and 13- 30.470 and repeals Hercules Municipal Code Sections 13- 30.430, 13-30.440 and 13-30.450 to read as follows:
Hercules Municipal Code
TITLE 13. ZONING ORDINANCE
Chapter 13-6. Residential Districts
Sec. 13-6.100 Specific Purposes.
1. In addition to the general purposes listed in Section 13-5.100, the specific purposes of the residential districts are to:
A. Reserve appropriately located areas for family living at a reasonable range of population densities consistent with the General Plan and sound standards of public health and safety.
B. Ensure adequate light, air, privacy, and yard/open space for each dwelling unit and protect residents from public safety hazards and other harmful environmental effects.
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C. Preserve as many of the desirable characteristics of single-family residential districts as possible while allowing for associated residential uses such as daycare, rooming and boarding, home occupations, second residential units to the extent that substantial adverse impacts are not caused to adjacent residences.
D. Promote safe and well-designed neighborhoods and encourage new residential development to have an internal circulation system, including pedestrian walkways, bikeways, and access to transit facilities. Ensure provision of public services and facilities to support existing and planned residential densities.
E. Reserve appropriate areas for multifamily dwellings that may be located and designed to be compatible with adjacent land uses and residences.
F. Encourage development of innovative types of housing, including co-housing, congregate care facilities, and other types of housing that may provide low cost alternatives to typical market-rate housing.
G. Encourage provision of affordable housing units, especially for single persons, single parents, elderly and young families. Provide well-designed, well-built housing units for low- and moderate-income households in mixed-density developments, including planned developments (PDs), avoiding a concentration in any limited area.
H. Provide additional affordable senior citizen housing. Encourage provision of senior housing by considering density bonuses up to General Plan maximum where senior projects are desirable and compatible with special senior needs.
I. Allow for public and quasi-public land uses to complement residential development within close access such as schools, churches and daycare facilities; provided, that substantial adverse impacts such as traffic congestion, increased noise (ambient or episodic) or full use of available on-street parking, or other similar impacts are not caused on nearby residences.
2. The additional purposes of each residential zoning district are:
A. RS-E Residential Single-Family Estate. To provide sites for estate homes on larger lots to be developed with custom built and individually designed homes with DocuSign Envelope ID: AB6FAE26-E560-4721-9293-DEAF8AAFA1D3 Ordinance No. 551
a gross density of 1 or 2 units per acre and a minimum parcel size of 0.5 acre.
Specific densities are assigned on the Zoning Map.
B. RS-L Residential Single-Family Low Density. To provide areas for single-family housing on smaller lots that will generally be developed as part of a larger planned subdivision where a limited number of models of varied exterior designs are built in a random pattern on individual lots with a gross density of 2 to 7 units per acre and a minimum parcel size of 6,000 square feet unless a smaller lot size is allowed by an approved planned development (PD).
C. RM-L Residential Multifamily Low Density. To provide sites for low density multifamily housing such as townhouses, condominiums and apartments, and medium density single-family housing that incorporate good design and amenities with a gross density up to 12 units per acre (midrange density of 9 units per acre).
The minimum parcel size for multifamily housing is 3 acres. The minimum lot size for single-family housing is 4,000 square feet unless a smaller lot size is allowed by an approved planned development (PD).
D. RM-M Residential Multifamily Medium Density. To provide sites for medium density multifamily housing such as townhouses, condominiums and apartments that incorporate good design and amenities with a gross density of 12 to 30 units per acre (midrange density of 20 units per acre) and a minimum parcel size of 5 acres.
E. RM-H Residential Multifamily High Density. To provide sites for high density multifamily housing, typically located near public transit centers, adequate streets, shopping centers or other high activity areas and that incorporate good design and amenities with a gross density of 30 to 55 units per acre (midrange density of 42 units per acre) and a minimum parcel size of 15 acres. [Ord. 544 § 3, 2023; Ord. 543 § 3, 2023; Ord. 515 § 2, 2018; ZO § 6.100.]
Sec. 13-6.300 Performance Standards.
The standard performance standards for development specified in Chapter 13-31 shall be met. In addition, the following specific performance standards shall be met:
1. Residential streets shall be designed in relation to the needed capacity and the adjoining housing patterns while discouraging through traffic on local streets.
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2. Existing residential structures of architectural or historic significance are to be restored and maintained.
3. New residential areas shall be designed to avoid conflict with major streets or thoroughfares, and should provide access to transit facilities to encourage safe and convenient alternatives to private auto.
4. Multifamily residential land shall be developed with a balance of open space, landscaping, and recreational amenities and should be easily accessible to commercial and recreational areas and public transportation.
5. Upon reinstitution of the inclusionary housing ordinance, new residential development shall include a minimum 10 percent of the total number of units for affordable housing.
No in-lieu fees will be accepted by the City unless the developer can establish extraordinary circumstances for not providing affordable housing or unless an agreement predating the adoption of the 1996 General Plan Amendment provides otherwise.
A density bonus up to 35 percent over the maximum General Plan designation may be provided, along with the waiver of fees and the relaxation of development standards, in exchange for low income or senior housing provided, as per Section 65915 of the California Government Code, as may be amended and Sections 13-30.420 through 13-
30.470 (Residential Density Bonuses). In order to encourage the development of lower income housing units, the waiver of fees and the relaxation of development standards may be considered by the City in return for commitments to provide lower income housing.
6. Affordable senior housing projects with density bonuses up to General Plan maximum are allowed where desirable and compatible with special senior needs. Such projects shall only be allowed where the size of the structure and style of architecture are compatible with the surrounding neighborhood.
7 6. The use of solar systems, both active and passive designs, is encouraged in new residential development. [Ord. 544 § 3, 2023; Ord. 543 § 3, 2023; Ord. 515 § 2, 2018; Ord. 484 § 13, 2015; ZO § 6.300.]
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TITLE 13. ZONING ORDINANCE
Chapter 30. Property Development Standards
Sec. 13-30.420 Residential Density Bonuses—Purpose and Applicability.
1. This Section through Section 13-30.440 and the requirements of California Government Code Sections 65915 through 65918, as may be amended, are intended to implement the housing element of the General Plan and the requirements of California Government Code Sections 65915 through 65918, offering incentives for the development of affordable housing. Where regulations are not specifically addressed in these sections or where there are conflicts between these provisions and the provisions of California Government Code Sections 65915 through 65918, the provisions of the California Government Code, as they may be amended over time, shall apply.
2. Housing developments are eligible for a density bonus as provided in California Government Code Section 65915 and these provisions, when the applicant for the housing development agrees or proposes at least 1 of the following:
A. Construct:
1) Ten percent of the total units affordable to lower-income households at affordable rent or affordable housing cost; or
2) Five percent of the total units affordable to very low-income households at affordable rent or affordable housing cost; or
3) Ten percent of the total units proposed in a common interest development for sale to moderate-income households; provided, that all units in the development are offered to the public for purchase; or
4) A senior citizen housing development.
B. Donate land in accordance with California Government Code Section 65915.
3. In addition to meeting the requirements of subsection (1) of this Section, housing developments which include a child care facility in accordance with California Government Code Section 65915 are entitled to an additional density bonus.
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4. An applicant may also submit a proposal for specific incentives or concessions to be granted in conjunction with the density bonus, as provided in Section 13-30.440.
5. The granting of a density bonus, incentive, or concession, in and of itself, shall not require a General Plan amendment, zone change, or other discretionary approval and shall be reviewed concurrently with the review of the housing development.
6. To qualify for a density bonus, a senior housing development is not required to provide affordable units; however, the entire development must be reserved for qualified senior persons pursuant to Section 51.3 of the California Civil Code. Also, any senior housing development for which a density bonus is requested and approved must have a minimum of 35 units. [Ord. 515 § 2, 2018; Ord. 484 § 12, 2015; ZO § 30.420.
Sec. 13-30.430 Residential Density Bonuses—Calculation.
1. Housing developments that meet the criteria in Section 13-30.420(1) are eligible for a maximum density bonus as set forth in Table 13-30.1.
2. The calculation of a density bonus in compliance with this subsection that results in fractional units shall be rounded up to the next whole number, as required by state law.
For purposes of calculating a density bonus, the residential units do not have to be based upon individual subdivision maps or parcels.
Table 13-30.1 Maximum Density Bonus Calculations Based on Government Code Section 65915
Unit Type
Minimum %
Affordable
Units in
Category
Base Density
Bonus
Granted1
Additional
Bonus for
each 1% of
Affordable
Units
Provided
%
Affordable
Units
Required
for
Maximum
35% Bonus
Very Low-Income
Units
5% 20% 2.5% 11%
Low-Income Units 10% 20% 1.5% 20%
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Table 13-30.1 Maximum Density Bonus Calculations Based on Government Code Section 65915
Unit Type
Minimum %
Affordable
Units in
Category
Base Density
Bonus
Granted1
Additional
Bonus for
each 1% of
Affordable
Units
Provided
%
Affordable
Units
Required
for
Maximum
35% Bonus
Moderate-Income
Units
10% 5% 1.0% 40%
Senior Housing See
Section 13-
30.420(6)
20% n/a n/a
Land Donation (for
very low income
housing)2
10% 15% 1.0% 30%
Condominium
Conversion (moderate
income)3
33% 25% n/a n/a
Condominium
Conversion (lower
income)3
15% 25% n/a n/a
Child Care Facility4 n/a Sq. Ft. in Day
Care Facility
n/a n/a
Notes:
1. A density bonus may be selected from only 1 category, except that density bonuses for land donation may be combined with others, up to a maximum of 35 percent, and an additional square foot bonus may be granted for a child care facility as provided in California Government Code Section 65915(h).
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2. The donation of land must conform to the requirements of California Government Code Section 65915(g).
3. The conversion of condominiums must conform to the requirements of California Government Code Section 65915.5.
4. The provision of child day care facilities must conform to the requirements of California Government Code Section 65915(h).
[Ord. 515 § 2, 2018; Ord. 484 § 12, 2015; ZO § 30.430.] Sec. 13-30.440 Residential Density Bonuses—Incentives and Concessions.
1. A housing development is eligible for incentives and concessions as shown in Table 13-30.2. Incentives and concessions must be selected from only 1 category (very low-, low-, or moderate-income). No incentives or concessions are available for land donation or for a senior citizen housing development that is not affordable. Condominium conversions and day care centers may have 1 incentive/concession or a density bonus, at the City’s option, but not both.
Table 13-30.2 Incentives and Concessions Calculations
Based on Government Code Section 65915
Unit Type Percent of
Affordable Units
Number of
Concessions/
Incentives
Very Low-Income
Units
5% or greater 1
10% or greater 2
15% or greater 3
Low-Income Units 10% or greater 1
20% or greater 2
30% or greater 3
Moderate-Income
Units
10% or greater 1
20% or greater 2
30% or greater 3
2. For purposes of this Section, permissible concessions and incentives include but are not limited to:
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A. A modification of development standards or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code that would otherwise be required, including but not limited to a reduction in setback requirements, lot coverage, landscape coverage, or number of parking spaces, such that the reduction or modification 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 area where the proposed housing project will be located; C. Other regulatory incentives or concessions proposed by the developer or the City which result in identifiable financially sufficient and actual cost reductions.
3. A housing development which requests incentives or concessions must show that the requested concessions are required to provide for affordable rents or affordable housing costs, as applicable. The Director shall determine the type and detail of documentation that must be provided.
4. If the housing development is eligible for a density bonus as provided in Section 13-
30.420, upon request of the applicant, the maximum off-s treet parking standards that can be applied, inclusive of handicapped and guest parking, are indicated in Table 13-
30.3. These may include tandem and uncovered parking spaces.
Table 13-30.3 Off-Street Parking
Standards for Density Bonus
Projects
Number of
Bedrooms
Maximum Number
of Off-Street
Parking Spaces
Required per Unit
0-1 1
2-3 2
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Table 13-30.3 Off-Street Parking
Standards for Density Bonus
Projects
Number of
Bedrooms
Maximum Number
of Off-Street
Parking Spaces
Required per Unit
4+ 2.5
5. Nothing in this Section requires the provision of direct financial incentives for the housing development, including but not limited to the provision of financial subsidies, publicly owned land by the City, or the waiver of fees or dedication requirements. The City, at its sole discretion, may choose to provide such direct financial incentives.
6. 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 meeting the criteria outlined in Section 13-30.420 at the densities or with the concessions or incentives permitted under Section 13-30.440. A proposal for the waiver or reduction of development standards shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled. The applicant shall bear the burden of demonstrating that the development standards that are requested to be waived will have the effect of physically precluding the construction of the housing development with the density bonuses and incentives.
7. The City Council shall grant the concession or incentive requested by the applicant unless the Council makes a written finding, based upon substantial evidence, of either of the following:
A. The concession or incentive is not required to provide for affordable housing costs, as defined in California Health and Safety Code Section 50052.5, or for rents for the targeted units to be set in compliance with Government Code Section 65915(c); or
B. The concession or incentive would have a specific adverse impact, as defined by California Government Code Section 65589.5(d)(2), upon public health and DocuSign Envelope ID: AB6FAE26-E560-4721-9293-DEAF8AAFA1D3 Ordinance No. 551
safety, or the physical environment, or on any real property listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households. [Ord. 515 § 2, 2018; Ord. 484 § 12, 2015; ZO § 30.440.]
Sec. 13-30.450 Residential Density Bonuses—General Requirements.
1. Affordable for-sale and rental low- and very low-income units must remain affordable to low- or very low-income households, as applicable, for 55 years or for a longer period of time if required by a construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.
2. The affordable dwelling units and land dedication that qualify a housing development for a density bonus may also be used to meet the inclusionary housing provisions of the City’s inclusionary housing requirements (Municipal Code Title 10, Chapter 19), to the extent that the Inclusionary Housing requirements are applicable and/or operable; provided, that the affordable units and land dedication comply with the requirements of both the Density Bonus Ordinance (Sections 13-30.420 through 13-30.470), and the Inclusionary Housing Ordinance (Title 10, Chapter 19) as it may apply regarding the required number of affordable units, required level of affordability, and term of affordability so as to provide the greatest affordability to the most households for the longest term.
3. The designated units shall be reasonably dispersed throughout the project, shall contain on average the same number of bedrooms as the nondesignated units in the project, and shall be compatible with the design or use of remaining units in terms of appearance, materials, and finished quality.
4. If a project is to be phased, the density bonus units shall be phased in the same proportion as the nondensity bonus units, or phased in another sequence acceptable to the City.
5. A master regulatory agreement shall be made between the developer and the City which indicates the household type, number, location, size and construction scheduling of all affordable units, and such information as shall be required by the City for the purpose of determining the developer’s compliance with this Chapter. The regulatory agreement shall be recorded against the housing development prior to final or parcel DocuSign Envelope ID: AB6FAE26-E560-4721-9293-DEAF8AAFA1D3 Ordinance No. 551
map approval or, where a map is not being processed, prior to issuance of any building permits, and shall be binding on all future owners and successors in interest.
6. The City may establish fees associated with the setting up and monitoring of affordable units.
7. For rental affordable very low- and low-income units:
A. The owner shall obtain and maintain on file certifications by each household.
Certification shall be obtained immediately prior to initial occupancy by each household and annually thereafter, in the form provided by the City or its designee.
The owner shall obtain updated forms for each household on request by the City, but in no event less frequently than once a year. The owner shall maintain complete, accurate, and current records pertaining to the housing development, and will permit any duly authorized representative of the City to inspect the records pertaining to the affordable units and occupants of these units.
B. The owner shall submit an annual report to the City, on a form provided by the City. The report shall include for each affordable unit the rent, income, and family size of the household occupying the unit.
C. The owner shall provide to the City any additional information required by the City to ensure the long-term affordability of the affordable units by eligible households.
8. For any application submitted or processed after January 1, 2015, an applicant shall be ineligible for a density bonus or any other incentives or concessions under this Section if the housing development is proposed on any property that includes a parcel or parcels on which rental dwelling units are or, if the dwelling units have been vacated or demolished in the 5-year period preceding the application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very low income; subject to any other form of rent or price control through a public entity’s valid exercise of its police power; or occupied by lower or very low income households, unless the proposed housing development replaces those units (as defined by California Government Code Section 65915[c][3][B]), and either of the following applies:
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A. The proposed housing development, inclusive of the units replaced pursuant to this paragraph, contains affordable units at the percentages set forth in Section 13-
30.420(2).
B. Each unit in the development, exclusive of a manager’s unit or units, is affordable to, and occupied by, either a lower or very low income household. [Ord. 515 § 2, 2018; Ord. 484 § 12, 2015; ZO § 30.450.]
Sec. 13-30.4630 Residential Density Bonuses—Application Requirements.
1. An applicant may submit a preliminary proposal for housing development pursuant to Sections 13-30.420 through 13-30.470 California’s Density Bonus Law, including but not limited to Government Code Section 65915, prior to the submittal of any formal application.
2. All requests pursuant to Sections 13-30.420 through 13-30.470 California’s Density Bonus Law, including but not limited to Government Code Section 65915, shall be submitted to the City concurrently with the application for the first discretionary permit or other permit required for the housing development and shall be processed concurrently with the discretionary application following the review process as set forth for permits in Chapters 13-40 and 13-42, design review, (when applicable). The applicant shall provide additional information as specified in Sections 13-30.420 through 13-30.470 California’s Density Bonus Law, including but not limited to Government Code Section 65915, specifically:
A. Provide a written statement specifying the desired density increase, incentives and any waivers requested; proposed rent schedules and/or sales prices; and the type, location, size, and construction scheduling of all dwelling units; B. Submit sufficient evidence demonstrating that the requested incentive(s)/concession(s) result in an actual and identifiable cost reductions;a project financial report (pro forma) demonstrating that the requested incentives will result in identifiable, financially sufficient, and actual cost reductions to the housing development and they are required to provide for affordable rents or affordable housing costs, as applicable. The pro forma shall include the capital costs, operating expenses, return on investment, loan-to-value ratio and the debt coverage ratio including the contribution(s) provided by any applicable subsidy program(s), as required;
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C. An appraisal report indicating the value of the density bonus and of the incentive(s)/concession(s);
D. A use of funds statement identifying the financial gaps for the housing development with the affordable housing units. The analysis shall show how the funding gap relates to the incentive(s)/concession(s);
CE. For any requested waiver of a development standard, evidence that the development standard for which the waiver is requested will have the effect of physically precluding the construction of the housing development with the density bonus and incentives requested;
DF. If a mixed-use building or project is proposed as an incentive, evidence that nonresidential land uses will reduce the cost of the housing development and that the nonresidential land uses are compatible with the development and the existing or planned development in the area;
EG. If a density bonus is requested for a land donation, the location of the land to be dedicated, proof of site control, and evidence that each of the requirements included in California’s Density Bonus Law, including but not limited to Government Code Section 65915(g) can be met.
FH. If a density bonus or incentive is requested for a child care facility, evidence that all of the requirements in California’s Density Bonus Law, including but not limited to Government Code Section 65915(h) can be met.
GI. Any other information requested by the Community Development Director or their designee to determine if the required findings can be made. [Ord. 515 § 2, 2018; Ord. 484 § 12, 2015; ZO § 30.460.]
Sec. 13-30.4740 Residential Density Bonuses—Findings.
1. Before approving an application that includes a request for a density bonus, incentive, parking reduction, and/or waiver pursuant Sections 13-30.420 through this section to California’s Density Bonus Law, including but not limited to Government Code Section 65915, the decision-making body shall make all of the following findings, as applicable:
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A. That the residential project is eligible for the density bonus and any incentives, parking reductions, or waivers requested.
B. That any requested incentive will result in identifiable, financially sufficient, and actual cost reductions based upon the financial analysis and documentation provided.
C. That there are sufficient provisions to guarantee that the units will remain affordable for the required time period.
D. If the density bonus is based all or in part on donation of land, a finding that all the requirements included in California’s Density Bonus Law, including but not limited to Government Code Section 65915(g) have been met.
E. If the density bonus, concession, or incentive is based all or in part on the inclusion of a child care facility, a finding that all the requirements included in California’s Density Bonus Law, including but not limited to Government Code Section 65915(h) have been met.
F. If the concession or incentive includes mixed-use development, a finding that all the requirements included in California’s Density Bonus Law, including but not limited to Government Code Section 65915(k)(2) have been met.
G. If a waiver is requested, a finding that the development standards for which the waiver is requested would have the effect of physically precluding the construction of the housing development with the density bonus and incentives permitted.
2. If the findings required by subsection (1) of this Section cannot be made, the City Council may deny an application for a concession, or incentive, or waiver only if it makes 1 of the following written findings, supported by substantial evidence:
A. The concession, or incentive does not result in identifiable and actual cost reductions, consistent with Government Code Section 65915(k), to provide for affordable housing costs, as defined in Section 50052.5 of the health and Safety Code, or for rents for the targeted units to be set as specified in Government Code Section 65915(c), or waiver is not required to provide for affordable housing; or
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B. The concession or, incentive, or waiver would have a specific, adverse impact, as defined in Government Code paragraph (2) of subdivision (d) of Section 65589.5, upon public health andor safety or the physical environment or on real property listed in the California Register of Historic Resources, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low and moderate income households. For the purpose of this subsection, “specific adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the development was deemed complete; or
C. The concession or, incentive, or waiver is contrary to State or Federal law.
3. If the findings required by subsection (1) of this Section cannot be made, the City Council may deny an application for a waiver only if it makes 1 of the following written findings, supported by substantial evidence:
A. The waiver or reduction of development standards has a specific, adverse impact as defined in Government Code Section 65589.5(d.2), upon health and safety and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact; or
B. The waiver or reduced development standards has a specific, adverse impact on any real property that is listed in the California Register of Historical Resources; or
C. The waiver is contrary to State or Federal law.
43. If the findings required by subsection (1) of this Section can be made, the decision- making body may deny an application for a density bonus or incentive that is based on the provision of child care only if it makes a written finding, based on substantial evidence, that adequate child care facilities are already available in the City. [Ord. 515 § 2, 2018; Ord. 484 § 12, 2015; ZO § 30.470.]
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TITLE 13. ZONING ORDINANCE
Chapter 60. Definitions
Sec. 13-60.200 Definitions.
“Affordable housing cost” means the amount set forth in the Health and Safety Code Section 50052.5, as may be amended.
“Affordable rent” means the amount set forth in the Health and Safety Code Section 50053, as may be amended.
“Density bonus” means a density increase over the otherwise maximum allowable residential density in accordance with the provisions of Sections 13-30.420 through 13-
30.470 ( residential density bonuses) California’s Density Bonus Law, including but not limited to Government Code Section 65915 as of the date of the project application.
“Lower-income household” means a household whose gross income does not exceed that established by Health and Safety Code Section 50079.5, as may be amended. (generally less than 80 percent of County median income and includes very-low income category).
“Moderate-income household” means a household whose gross income does not exceed that established by Section 50093 of the Health and Safety Code, as may be amended. (generally 80 to 120 percent of County median income). “Senior citizen housing development” means a housing development with at least 35 dwelling units as defined in Civil Code Section 51.3, or a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code, as may be amended. “Very low-income household” means a household whose gross income does not exceed that established by Health and Safety Code Section 50105, as may be amended. (generally less than 50 percent of County median income and includes extremely-low category).
SECTION 3. CEQA. The City Council finds that adoption of this Ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines § 15061(b)(3) – Common Sense Exemption in that the proposed ordinance would only establish and clarify administrative processes and would not facilitate new construction or other groundbreaking activities. It can be seen with certainty that t here is no DocuSign Envelope ID: AB6FAE26-E560-4721-9293-DEAF8AAFA1D3 Ordinance No. 551
possibility that the ordinance will result in either a direct physical change to the environment or a reasonably foreseeable indirect physical change to the environment.
Further, none of the circumstances described in CEQA Guidelines § 15300.2 applies.
No unusual circumstances are present. This determination reflects the City of Hercules’ independent judgment and analysis.
SECTION 4. The Ordinance would not be detrimental to the public interest, health, safety, convenience, or welfare of the City, as the proposed Ordinance will comply with, implement, and adopt by reference State Density Bonus Law; SECTION 5. The Hercules C ity Council has reviewed, considered, and evaluated all of the information prior to acting upon Ordinance.
SECTION 6. S everability. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decisions shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be deleted.
SECTION 7. Codification. Section 2 of this Ordinance shall be codified in the Hercules Municipal Code. Sections 1 and 3 through 8 shall not be so codified.
SECTION 8. Effective Date and Publication . The City Clerk shall certify the adoption of this Ordinance and shall publish or post the Ordinance as required by law. This Ordinance shall be effective thirty (30) days from date of final adoption.
THE FOREGOING ORDINANCE was first read at a regular meeting of the Hercules City Council on the 26th day of Mar
ch, 2024, and was passed and adopted at a regular
meeting of the Hercules City Council on the 9th day of April, 2024, by the following vote of the Council:
AYES: Council Member: T. Grimsley, C. Kelly, A. Walker-G riffin, Vice Mayor: D. Bailey and Mayor: D. Romero
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
D
an Romero, Mayor
A
TTEST:
E
ibleis Melendez, City Clerk
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STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of April 9, 2024
TO: Mayor and Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Timothy Rood, AICP, Community Development Director
SUBJECT: Waive Second Reading and Adopt Ordinance R epealing Local Density Bonus Regulations in Hercules Municipal Code and Reference State Density Bonus Law
RECOMMENDED ACTION:
Staff recommends that the City Council waive second reading and adopt Ordinance No. 24-XX (Attachment 2) amending provisions of Hercules Municipal Code Sections 13-
6.100, 13-6.300 and 13-30.420, amending and renumbering Sections 13-30.460 and 13-
30.470, repealing Sections 13-30.430, 13-30.440 and 13-30.450 and amending Section 13-60.200 to comply with the State Densi ty Bonus Law and finding the action exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3).
PLANNING COMMISSION RECOMMENDATION AND COUNCIL INTRODUCTION:
On March 4, 2024, at their regularly scheduled meeting, the Planning Commission approved Resolution No. 24-02 (Attachment 3), recommending City Council approval of the amended provisions of the Hercules Municipal Code to comply with the State Density Bonus Law.
At its March 26, 2024 regular meeting, the City Council waived first reading and introduced the proposed Ordinance with a vote of 5-0.
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BACKGROUND:
The City of Hercules regulates and implements the State of California Density Bonus Law (SDBL). The current standards in the Municipal Code allow a sliding scale of density bonuses and the granting of concessions based on the amount and type of affordable housing that is provided, an unlimited number of waivers or reductions of local regulations, and parking reductions based on unit size.
Between 2018 and 2023, the State amended the SDBL 10 times (Attachment 4), so it has been challenging for cities to keep up with required updates to local density bonus ordinances. This proposal would amend the Municipal Code to be consistent with, and refer to , updated State law. The proposal contains the most up- to-date regulations regarding density bonus opportunities.
Since 2021, the City has been receiving housing-related technical assistance through the Association of Bay Area Governments (ABAG) as part of the Regional Early Action Planning (REAP) Grant Program from the State Housing and Community Development Department (HCD). The Contra Costa County Collaborative (C4) meets monthly to discuss housing-related topics, including completing and certifying housing elements, the implementation and complying with evolving State laws.
Recently, several Contra Costa County agency staff discussed repealing their local density bonus regulations/ordinances and adopting references to State law. This approach streamlines local implementation and eliminates the need for numerous amendments to the Zoning Ordinance as State law is amended in the future.
The State Density Bonus Law (SDBL) was adopted in 1976 to address California’s affordable housing needs. The SDBL required local agencies to allow increased density, reduced standards, and development incentives based upon the number and type of affordable housing units proposed. Over time, the law has been expanded to include housing for households at a wider range of income levels and with specialized needs (for example seniors, students, foster youth, formerly homeless persons, and disabled veterans).
The SDBL applies to housing projects, including mixed- use developments, new subdivisions, and common- interest developments. Density bonuses and associated incentives and concessions are intended to offset the financial burden of constructing affordable uni ts. The density bonus and associated concessions are based upon the amount and type of affordable units provided.
Qualifying residential projects which set aside a certain percentage of units for affordable residents may be eligible for one or more of the following under SDBL:
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Density Bonus: An increase above the maximum allowed density permitted in the General Plan Land Use Element or Zoning Code. The amount of the bonus depends upon the quantity of affordable units and the level of affordability.
Incentives/Concessions: Modifications to City development standards that result in actual and identifiable cost reductions to provide for affordable housing costs or rents.
The number of required incentives is based on the percentage of affordable units provided in the qualifying project. For example, developers may ask for increased height above that allowed by the zoning regulations to accommodate the additional units granted in a density bonus.
Reductions/Waivers: Modification to City development standards that would physically prevent the construction of a housing development at the density permitted with a bonus and any concessions, except where the waiver would cause a public health or safety concern, harm historical property, or would be contrary to the law. There is no limit to the number of reductions/waivers that may be requested. For example, applicants may request decreased setbacks and/or increased floor area ratio and/or waiver of hills ide regulations that would preclude a qualifying project from being constructed at the proposed density.
Reduced Parking Ratios - Parking ratios are defined based on unit size:
o Zero to one bedroom: one on-site parking space per unit; o Two to three bedrooms: one and one-half on-site parking spaces per unit; and, o Four or more bedrooms: two and one-half parking spaces per unit.
ANALYSIS:
Existing Density Bonus Ordinance
Hercules Municipal Code Sections 13- 30.420 Purpose and Applicability , 13 -30.430 Calculations, and 13-30.440 Incentives and Concessions include the Residential Density Bonus standards. The last update to this portion of the City of Hercules Residential Density Bonus standards was in 2015, and it is therefore out of compliance with current State Density Bonus Law.
The SDBL includes much of the information that is currently included in Hercules Municipal Code, but it also includes additional definitions and options that have not yet been adopted by the City. For example, the SDBL now provides density bonus options for the construction of student housing, shared housing, and housing for transitional foster youth, disabled veterans, and homeless persons.
Proposed Ordinance
Staff proposes to repeal and replace the existing density bonus regulations with the Ordinance attached to this staff report. The new regulations would adopt the SDBL by reference and identify when the regulations apply. The draft ordinance also contains requirements related to physical constraints and parking reductions, outlines applicati on DocuSign Envelope ID: AB6FAE26-E560-4721-9293-DEAF8AAFA1D3
requirements, and specifies the approval process for density bonus projects. The draft ordinance also acknowledges that future State law amendments may occur.
In future years, as the legislature continues to amend and/or refine SDBL (Attachment 5), the Hercules Municipal Code will remain consistent with State law, and the City will avoid frequent zoning updates. In addition, by referencing State law, City staff will find it easier to process applications and communicate relevant regulations to applicants, the public, and appointed/elected officials.
ENVIRONMENTAL DETERMINATION
The proposed ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3) – Common Sense Exemption in that the proposed ordinance would only establish and clarify administrative processes and would not facilitate new construction or other groundbreaking activities. It can be seen with certainty that there is no possibility that the ordinance would result in either a direct physical change to the environment or a reasonably foreseeable indirect physical change to the environment. Further, none of the circumstances described in CEQA Guidelines Section 15300.2 applies.
FISCAL IMPACT OF RECOMMENDATION:
There are no direct fiscal impacts associated with this item.
ATTACHMENTS:
Staff Report – Density Bonus Regulations
Attachment 1 – Draft Ordinance
Attachment 2 – Planning Commission Resolution No. 24-02 Attachment 3 –Legislative History Summary (2019-2022)
Attachment 4 –Summary of Pending (2023-2024) Legislation
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