Agenda packet, regular meeting, second session — Mayor and City Council, February 21, 2024 (part 7 of 7)

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA project (at 4-17), and the Golden Springs project (at 6-4). However, the vast majority of the planned placements for unhoused people are emergency shelter beds and transitional shelter beds. Even with all the projects listed, the City will not come close to providing placements for its entire population of unhoused residents – especially as this number continues to rise.

The planned buildup of emergency, temporary, and/or interim placements will create a bottleneck of unhoused community members waiting for permanent and affordable housing. To truly fulfill the City’s Housing First goal, the City must prioritize deep investments in permanent housing solutions.

Under the state’s official Housing First policy, placements for unhoused residents should be lowbarrier, long-term, and should allow for people to stay with their loved ones, pets, and personal property.2 Studies have shown that congregate shelters are not an effective solution to the housing crisis and often do not provide pathways to permanent housing. Congregate shelters subject individuals to higher rates of communicable diseases like COVID-19, due to their tight quarters and requirements that many people share facilities.3 Further, crowding large numbers of people together can lead to social withdrawal, psychological distress, and other mental and physical health conditions, and often do not put residents on a path to obtaining permanent housing.4 Importantly, people do not want to live in congregate settings: in a recent research study of unhoused people in Los Angeles, 70% of individuals surveyed stated they would not accept offers to stay in group shelters, citing lack of privacy as a concern, suggesting a limited role for congregate shelters in effectively moving people off the streets.5 Rather than focusing on increasing its number of shelter beds, the City should prioritize moving people into dignified, permanent housing consistent with Housing First principles.

The City’s Anti-Camping Enforcement Plan (3-54) is Harmful, Unlawful, and Contravenes Best Practices
The draft plan details the City’s commitment to ramping up enforcement of its anti-camping code against unhoused people. See 3-54. This anti-camping code (SBMC, Chapter 12.98) makes it unlawful to camp, occupy camp facilities or use camp paraphernalia in the following areas: (a) any street; (b) any public parking lot or public area, improved or unimproved; or (c) any park. In effect, the text of this code makes it unlawful for people to be unhoused within the City – anytime, anywhere.
2 See SB 1380, Homeless Coordinating and Financing Council (Sept. 29, 2016). 3 National Low Income Housing Coalition, Moving Away from Congregate Shelter, https://nlihc.org/resource/moving-away-congregate-shelter (Jun. 9, 2020). 4 Id. at 8, citing Gove, W., Hughes, M., & Galle, O. (1979). Overcrowding in the home: An empirical investigation of possible pathological consequences. American Sociological Review 44(1), 59-80. See also Ann Oliva, Ending Homelessness: Addressing Local Challenges in Housing the Most Vulnerable, CENTER ON BUDGET AND POLICY PRIORITIES, https://www.cbpp.org/research/housing/ending-homelessness-addressing-local-challengesin-housing-the-most-vulnerable (Feb. 2, 2022). 5 Jason M. Ward, et al. Recent Trends Among the Unsheltered in Three Los Angeles Neighborhoods: An Interim Report on the Los Angeles Longitudinal Enumeration and Demographic Survey (LA LEADS) Project, RAND Corporation, https://www.rand.org/pubs/research_reports/RRA1890-1.html (last visited Oct. 15, 2022).

Packet Page. 1580

Page 3 ends

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA The draft plan references the Ninth Circuit precedent in Martin v. City of Boise, which held that that cities may not criminalize people for their unhoused status. 920 F.3d 584 (9th Cir. 2019).

Even though the draft cites this binding case, it states that starting on December 1, 2023, the City plans to have an additional 200 beds and as a result "the City can enforce the anti-camping ordinance and be in compliance." It is unclear why the City believes it may enforce its anticamping code when it will still be woefully lacking in placements for its 1,017 unsheltered residents. As long as there are more unhoused individuals in the City than housing options available to them, it remains unconstitutional to criminalize individuals for engaging in lifesustaining activities like camping in public.

Further, building shelters to enable the City to enforce its anti-camping ordinance is an adversarial policy that does nothing to solve the underlying housing crisis. The City’s goal of enforcing its anti-camping code is misplaced. The goal should not be to criminalize people, but rather to find ways to solve the underlying problem of lack of affordable housing that forces people to live on the street in the first place.

Criminalizing people for being unhoused is counterproductive and hinders people’s ability to secure housing. People become unhoused because they cannot afford housing; punishing them does not make housing any more accessible. In fact, criminalization can actually make housing less accessible. Studies show that criminalization “perpetuates homelessness” by systematically limiting unhoused people’s access to services, housing, and jobs, while damaging their health, safety, and well-being.6
We urge the City to move away from punitive approaches to what is, in essence, a housing affordability crisis. The City should focus instead on meeting the immediate affordable housing and service needs of its unhoused population. Any interim accommodations the City provides while it develops sufficient permanent affordable housing should be non-congregate (e.g., motel vouchers), voluntary, and free from restrictive rules and protocols. The City’s top priority should be a commitment to permanent and dignified housing solutions.

The City’s Stated Encampment Removal Policies (3-54) Do Not Match the City’s Actual Practices
The draft plan refers to the City’s encampment removal program (at 3-54). The draft plan states that when encampments are "proposed for closure,” residents are provided with notice, and opportunity to store their belongings at the City's yard. See 3-54. However, the plan fails to mention widespread complaints that the City is destroying unhoused people’s personal property during these removals.

Page 4 ends

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA wheelchairs and other mobility devices. These individuals are often unable to comply with the City’s removal orders in time to avoid having their essential items destroyed. These individuals are also regularly forced into remote, inaccessible areas – including ravines, washes, and flood control channels – after their encampments are destroyed.

The City’s largescale encampment removal program is harmful, unlawful, and contravenes best practices in addressing unhoused encampments.7 Effective outreach to unhoused people requires developing relationships of trust and respect, which is inherently undermined when the City destroys unhoused people’s personal property. Studies confirm that encampment displacements harm the health of encampment residents.8 The Centers for Disease Control and Prevention (CDC) advises municipalities not to move people from encampments unless individual housing units are available.9 We strongly urge the City to disband its encampment removal program and replace it with voluntary outreach efforts that prioritize long-term housing placements. ***
To conclude, it is vital that the City invest in permanent and deeply affordable housing if it wants to fulfill its Housing First vision. It must also abandon harmful programs such as the City’s encampment removal and anti-camping enforcement plans. Thank you in advance, and please do not hesitate to contact me with any questions.

Sincerely,
Kath Rogers
Staff Attorney
7 See United States Interagency Council on Homelessness, 7 Principles for Addressing Encampments (June 15, 2022), https://www.usich.gov/tools-for-action/7-principles-for-addressing-encampments/ 8 See Joshua A. Barocas et al., Population-Level Health Effects of Involuntary Displacement of People Experiencing Unsheltered Homelessness who Inject Drugs in US Cities, JAMA. Published online April 10, 2023. doi:10.1001/jama.2023.4800; Jamie Suki Change et al., Harms of Encampment Abatements on the Health of Unhoused People, SSM-Qualitative Research in Health, 2 (December 2022); Diane Qi Ba et al., Health Impact of Street Sweeps from the Perspective of Healthcare Providers, Journal of General Internal Medicine, 37 (March 2022).
9 Centers for Disease Control and Prevention, Guidance on Management of COVID-19 in Homeless Services Sites and in Correctional and Detention Facilities (updated November 29, 2022). https://www.cdc.gov/coronavirus/2019- ncov/community/homeless-correctionalsettings.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019- ncov%2Fcommunity%2Fhomeless-shelters%2Funsheltered-homelessness.html Packet Page. 1582
290 North D St, San Bernardino, CA 92401 | P: 909-384-5357 | www.SBCity.org Community & Economic Development Department

SENT VIA EMAIL ONLY
January 30, 2024
Ms. Kath Rogers, Staff Attorney
American Civil Liberties Union of Southern California
Re: City of San Bernardino Response to November 20, 2023, Letter - Draft 2021-2029 Sixth Cycle Housing Element (January 2024 Revised Draft)
Dear Ms. Rogers:

Thank you for your letter dated November 20, 2023, regarding the City of San Bernardino Draft Housing Element noted above. This letter was prepared in response to that letter and follows the same format.

Responses are noted in red.

Program 5.6 (Homeless Services Program) Does Not Reflect the City’s Stated “Housing First” Approach The plan describes the City’s approach to addressing the needs of unhoused people as a commitment to the implementation of a “Housing First” strategy and “provision of a full continuum of housing and services to address homelessness,” as outlined in Program 5.6. We are encouraged by the City’s stated commitment to the Housing First model, which is a proven solution based on decades of empirical studies demonstrating that homelessness is most effectively solved by providing low-barrier access to permanent, stable housing.

While the City has done laudable work to secure initial grant funding to address the crisis of its growing unhoused population, its draft Housing Element does little to put the City on a path to achieve its Housing First vision.

Currently, the plan includes only several permanent housing developments for unhoused people. These include the All Star Lodge (already completed, at 4-17), the U.S. VETS Inland Empire project (at 4-17), and the Golden Springs project (at 6-4). However, the vast majority of the planned placements for unhoused people are emergency shelter beds and transitional shelter beds. Even with all the projects listed, the City will not come close to providing placements for its entire population of unhoused residents – especially as this number continues to rise.

Packet Page. 1583
City of San Bernardino Page 2 of 4
The planned buildup of emergency, temporary, and/or interim placements will create a bottleneck of unhoused community members waiting for permanent and affordable housing. To truly fulfill the City’s Housing First goal, the City must prioritize deep investments in permanent housing solutions.

Under the state’s official Housing First policy, placements for unhoused residents should be low- barrier, long-term, and should allow for people to stay with their loved ones, pets, and personal property.2 Studies have shown that congregate shelters are not an effective solution to the housing crisis and often do not provide pathways to permanent housing. Congregate shelters subject individuals to higher rates of communicable diseases like COVID-19, due to their tight quarters and requirements that many people share facilities.3 Further, crowding large numbers of people together can lead to social withdrawal, psychological distress, and other mental and physical health conditions, and often do not put residents on a path to obtaining permanent housing.4 Importantly, people do not want to live in congregate settings: in a recent research study of unhoused people in Los Angeles, 70% of individuals surveyed stated they would not accept offers to stay in group shelters, citing lack of privacy as a concern, suggesting a limited role for congregate shelters in effectively moving people off the streets.5 Rather than focusing on increasing its number of shelter beds, the City should prioritize moving people into dignified, permanent housing consistent with Housing First principles.

RESPONSE:

On the contrary, the Homeless Services Program does reflect the City’s “Housing First” approach. Keep in mind that the City of San Bernardino overall is in recovery stages, not only for the community but also the City infrastructure, due to the bankruptcy, the Great Recession, and the COVID-19 pandemic. Housing is a critical path to this recovery and the City is setting the groundwork for many next steps, especially in the Homeless Services Category. As discussed in the Housing Element, the City is dedicating staff resources, funding, grants, and land to address housing needs. With the number of unhoused people in the City and the potential increase, the need for emergency and temporary shelter, be it through shelter beds or motel vouchers, is critical. The City was recently awarded along with its partners Lutheran Social Services and Dignity Moves, approximately $35 Million for the Wellness Campus at their San Bernardino facility.

Further, the City is working on its own Navigation Center, which will provide that transitional approach to providing housing and assisting the unhoused with stability and resources.

To further permanent housing, the City is currently working with three housing partners to develop its Surplus Land Act properties, which are designed to provide permanent housing opportunities. Most properties are planned for 100% affordable units and very low and low-income ranges as well as exploring new micro units.

The City’s Homeless Outreach Team serves as its first contact with our unhoused population, and through their efforts, we are gaining an understanding of the next steps for San Bernardino. Therefore, the City approach is to address both increasing shelter beds, providing motel vouchers, and partnering with housing developers and non-profit organizations to build permanent housing.

Packet Page. 1584
City of San Bernardino Page 3 of 4
The City’s Anti-Camping Enforcement Plan (3-54) is Harmful, Unlawful, and Contravenes Best Practices The draft plan details the City’s commitment to ramping up enforcement of its anti-camping code against unhoused people. See 3-54. This anti-camping code (SBMC, Chapter 12.98) makes it unlawful to camp, occupy camp facilities or use camp paraphernalia in the following areas: (a) any street; (b) any public parking lot or public area, improved or unimproved; or (c) any park. In effect, the text of this code makes it unlawful for people to be unhoused within the City – anytime, anywhere.

The draft plan references the Ninth Circuit precedent in Martin v. City of Boise, which held that that cities may not criminalize people for their unhoused status. 920 F.3d 584 (9th Cir. 2019).

Even though the draft cites this binding case, it states that starting on December 1, 2023, the City plans to have an additional 200 beds and as a result "the City can enforce the anti-camping ordinance and be in compliance." It is unclear why the City believes it may enforce its anti- camping code when it will still be woefully lacking in placements for its 1,017 unsheltered residents. As long as there are more unhoused individuals in the City than housing options available to them, it remains unconstitutional to criminalize individuals for engaging in life- sustaining activities like camping in public.

Response:

Comment noted. The City is committed to assisting all citizens, including those that do not have housing.

Through the efforts to provide housing and services, the City is working diligently to assist its unhoused population.

The City’s Stated Encampment Removal Policies (3-54) Do Not Match the City’s Actual Practices The draft plan refers to the City’s encampment removal program (at 3-54). The draft plan states that when encampments are "proposed for closure,” residents are provided with notice, and opportunity to store Packet Page. 1585
City of San Bernardino Page 4 of 4
their belongings at the City's yard. See 3-54. However, the plan fails to mention widespread complaints that the City is destroying unhoused people’s personal property during these removals.

The City is currently facing litigation by unhoused residents whose essential items have been destroyed during these operations. The City has destroyed unhoused people’s medicine, medical equipment, tents, clothing, food, blankets, IDs, and much more. Further, these encampment removals have a disparate impact on unhoused people with disabilities, including people using 6 See e.g. Chris Herring, Dilara Yarbrough, Lisa Marie Alatorre, Pervasive Penality: How the Criminalization of Poverty Perpetuates Homelessness, Social Problems, Volume 67, Issue 1, February 2020, Pages 131– 149, https://doi.org/10.1093/socpro/spz004 wheelchairs and other mobility devices. These individuals are often unable to comply with the City’s removal orders in time to avoid having their essential items destroyed. These individuals are also regularly forced into remote, inaccessible areas – including ravines, washes, and flood control channels – after their encampments are destroyed.

Response:

Comment noted. The City is committed to assisting all citizens, including those that do not have housing.

Through the efforts to provide housing and services, the City is working diligently to assist its unhoused population.

To conclude, it is vital that the City invest in permanent and deeply affordable housing if it wants to fulfill its Housing First vision. It must also abandon harmful programs such as the City’s encampment removal and anti-camping enforcement plans. Thank you in advance, and please do not hesitate to contact me with any questions.

We look forward to the completion of the City’s 2021 – 2029 Housing Element, its adoption and certification by the Department of Housing and Community Development, and its implementation to assist our San Bernardino community.

Sincerely,
Mary E. Lanier
Interim Community Development and Housing Director
Packet Page. 1586

EXECUTIVE DIRECTOR
Tessie Solorzano, Esq.

BOARD OF DIRECTORS
Marvin Powell Jr., President
Erica Alfaro, Esq., Vice President
Goushia Farook, Esq., Secretary
Christina Perez, Treasurer
Daniel Aguilar
Rebecca Eckley, Esq.

Bob Garcia
Liliana Garcia Maytorena
Xingshuo Liu, Esq.

Andrew R. Morand, Esq.

Julie D. Neal, Esq.

Nithin B. Reddy, Esq.

Elaine S. Rosen, Esq.

ICLS is a non‐profit
501(c)(3) corporation
IRS Tax ID 95‐6124556
Donations are welcome.

Senior Line: 800.977.4257
Toll Free: 888.245.4257
InlandLegal.org
Indio
P.O. Box 10650
Indio, CA
92202‐2563
Executive Office
1040 Iowa Ave., #106
Riverside, CA
92507‐2106
Ontario
3500 Porsche Way, #200
Ontario, CA
91764‐4941
Riverside
1040 Iowa Ave., #109
Riverside, CA
92507‐2106
Victorville
15428 Civic Center Drive, Ste 175
Victorville, CA
92392

SENT VIA EMAIL ONLY
January 8, 2024
Travis Martin
City of San Bernardino- Community and Economic Development 201 North E Street, 3rd Floor
San Bernardino, CA 92401
Re: City of San Bernardino Draft 2021-2029 Sixth Cycle Housing Element (January 2024 Revised Draft)
Dear Mr. Martin:

Inland Counties Legal Services (ICLS) and The Public Interest Law Project (PILP) submit these comments regarding the City of San Bernardino’s (City) most recent 2021-2029 Sixth Cycle Draft Housing Element, revised January 2024. (Draft).

Housing Needs, Resources, and Constraints
Land Inventory Matters
The current Draft still does not include any programs with actions that commit to facilitating development and monitoring approvals of the pipeline projects that the City relies upon to meet its Regional Housing Needs Assessment (RHNA), per our previous letter to you regarding previous iterations of the Draft dated November 20, 2023 (11/20/2023 Letter), included as Exhibit 1. Further, while the Draft references at page 4-35 that it has a program that allows for by-right development on the identified sites when projects propose 20 percent of all units at an affordable rate, the Draft does not contain any information or any analysis of how the City will monitor the approvals of those projects to ensure that by-right development occurs and that the development has affordable units as required by Government Code section 65583.2(h), (i). The City must revise the Draft to include this analysis and information.

Site Inventory
While the City has provided information regarding the sites that will be rezoned to allow increased densities in the RH and RMH zones (Draft, pp. 4-23 to 4-31, Tables 4-5 and 4-6), the City has not revised the Draft to provide specific actions that the City will take to facilitate and encourage higher density development. Also, the City has not analyzed the likelihood of Packet Page. 1587
2 residential development where 100 percent nonresidential uses are allowed. This means the City is still in danger of violating the No Net Loss Law, should the sites it identified to meet its RHNA are deemed inadequate during the planning period. The City needs to revise the Draft accordingly.

Lynwood Drive). See City of San Bernardino Development Projects, located at the following link: https://www.sbcity.org/cms/One.aspx?portalId=17442546&pageId=18197247.

Additionally, the Draft only reflects a few RHNA lower-income pipeline sites on its website, with none of those sites corresponding with projects in the Pipeline projects referenced in the Draft. (Draft, pp. 4-6 to 4-11; Table 4-2.) The City must correct these discrepancies to come into compliance with Government Code sections 65583 and 65584. Additionally, if the Draft continues to rely on hundreds of lower income units in the City’s development pipeline, the City must state in the Draft how those units will be affordable. This information is required by law in the Housing Element. (See HCD Sites Inventory Guidebook, p. 5.) City-Owned Sites
Table 4-6, Draft, pages 4-28 to 4-31, does not have any of the suggested revisions the 11/20/2023 Letter stated that the City must include to comply with the Surplus Land Act. (11/20/2023 Letter, pp. 3-4.) Furthermore, the Draft still does not make it clear that the rezones will be completed by April 17, 2024. Ibid. The City needs to revise the Draft to address the suggested revisions on compliance with the Surplus Lands Act and rezoning obligation.

Sites with Zoning for a Variety of Housing Types
Single-Room Occupancy (SRO) Units
In the Draft, the City plans to develop Micro SROs units to meet some of the housing needs of its seniors and people living with disabilities. (See Draft, p. 3-15.) However, the City needs to include information and sufficient analysis on how the City will ensure that the Micro SRO units are suitable and accessible under California Building Code standards, Chapters 11A and 11B, for this special needs population, especially when considering that the Micro SROs are indeed small at 250 to 450 square feet. It is unclear in the Draft how these units will be suitable for seniors and persons living with disabilities who have health conditions that impact their mobility.

Packet Page. 1588
3 The Draft Has Not Fully Analyzed the Impact of Governmental Constraints on the Ability of the City to Develop Multi-Family Housing and Housing for People Living with Disabilities Government Code section 65583(a)(5) requires the City to identify, analyze, and explain efforts to remove governmental constraints upon the “maintenance, improvement, or development of housing for all income types. . .” While the City has revised the Draft regarding the impact of governmental constraints on its ability to develop housing, additional revisions are needed because the City has not provided enough analysis on the impact of illegal restrictions on density bonus for senior housing such as requiring market feasibility study and conditional use permits (CUP), which the City should analyze as constraints and clearly identify as an area needing correction on Table 3-8, regarding the necessary revisions to the City’s local density bonus ordinance, consistent with the stipulated judgment reached in Gracia, et al. v. City of San Bernardino, et al., CIVSB2301828 (filed February 10, 2023) (Gracia). (See Draft, p. 3-27.) Further, the Draft concludes without analysis that the Administrative Permit process does not constrain housing. (See Draft, p. 3-39.) The Draft should include the information the City relied upon to reach that conclusion, notwithstanding the City’s statement that the AP process only affects “small projects and is minimal.” Additionally, the Development Permit process, Draft, at page 3-40, which applies to units 5 or more units lacks any analysis of whether the process of four to eight weeks constrains the City’s ability to develop multifamily units in the City and if so what steps the City will take to ameliorate that issue. Finally, the Draft, at page 3-41, discusses CUPs, but does not include any analysis of how the CUP requirements have constrained housing, particularly housing for special needs populations (e.g., seniors and Persons with disabilities) in the City. (See e.g., Draft at p 3-51- City will be “amending reasonable accommodation provisions to allow for the consideration and permitting of land use permitting for facilities, where appropriate, that accommodate people with disability instead of requiring a conditional use permit for all cases,” emphasis added.) The City must revise the Draft to include this analysis.

Concerning the City’s reasonable accommodation procedures, in the Draft, at page 3-51, the City should include timeframes in decision making on applications requesting a reasonable accommodation and analyze whether the City’s current process has impeded the ability of developers in need of a reasonable accommodation to seek one. Additionally, the City needs to include a program to revise San Bernardino Municipal Code (SBMC) Chapter 19.63.050 regarding the denial of reasonable accommodation- state law is more protective- requires both to be present – not either or. (Cal. Code Reg., tit. 2, §12179(b)(2): “The requested accommodation would impose an undue financial and administrative burden on the person who is asked to provide the accommodation.” (Emphasis added).) Additionally, the requirement under SBMC Chapter 19.63, to make the reasonable accommodation in writing conflicts with state law that does not require a reasonable accommodation to be made in a particular manner or at a particular time. (Cal. Code Reg., tit. 2, §12176(f)(3).) Accordingly, the City needs to revise the Draft and Programs 2.8 and 5.3 to include objectives to revise SBMC Chapter 19.63 regarding its reasonable accommodation process to ensure that the City asks for information related to disability that is not prohibited by state or federal law. To protect the privacy rights of persons living with disabilities particularly to their medical conditions and records, state and federal law Packet Page. 1589
4 prohibit inquiries about nature or severity of person’s disability/disabling condition. (24 CFR §100.204(c); Cal. Code Reg., tit. 2, §12176(b)(1). See also HUD/DOJ Statement on Reasonable Accommodations, Questions 16-18, available at following link: huddojstatement.pdf.) The City needs to revise the Draft to make this clear and include an objective in Programs 2.8 and 5.3, to revise SBMC Chapter 19.63 accordingly.

Accessory Dwelling Units (ADUs)
As the City has not made any of the changes outlined in the 11/20/2023 Letter regarding our comment concerning the City’s overreliance on ADUs to meet the RHNA, we defer to that document regarding information that the City is required to provide with regards to ADUs in the City and its usage towards the RHNA. (See 11/20/2023 Letter, pp. 4-5.) Potential and Actual Government Constraints Pursuant to Government Code Section 65583(a)(5)
Land Use Controls
We once again defer to the 11/20/2023 Letter regarding this section (11/20/2023 Letter, pp. 5-6) and note further that the City did not make any of the changes or amend the Draft to include a footnote related to compliance with our ongoing litigation in Gracia.

Processing and Permitting Procedures
The Draft still states that emergency shelters can be developed by-right, which runs counter to Chapter 19.10-E of the San Bernardino Municipal Code, and does not analyze how the City’s processing and permitting procedures, specifically the City not permitting the development of emergency shelters in any area zoned for residential use, have constrained the development of housing in the city pursuant to Government Code Section 65583(a)(5). The City must conduct this analysis, even if the Municipal Code is amended to allow by-right development.

Codes and Enforcement
The Draft does not assert that the City will analyze its housing codes and enforcement programs to ensure compliance with state and federal fair housing law, which is consistent with the duty to affirmatively further fair housing under Government Code section 8899.50, as affirmed in Martinez v. City of Clovis (2023) 90 Cal.App.5th 193 (Martinez).

Zoning and Fees Transparency
The City still needs to revise Program 2.3 (Development Fee Study), Draft, p. 7-12, to include a goal that it “may offer deferrals for any development fee with approval of City Council if they find that such a deferral would help improve or make project financing better,” Draft, p. 3-59.

Packet Page. 1590
5 Fees and Exaction
While the City has added analysis to show that the fee burden is not a constraint, it neglected to mention whether or not those fees are current. The City needs to revise the Draft to include this information and analyze the constraints presented by the City’s fee structure.

Approval Time and Requests Lesser Densities
The City still must analyze the constraint of the City’s approval process for the development of multi-family developments, as it currently takes about four months or longer to process, approve, and issue permits for multi-family developments than for their single-family counterparts. It must also include a corresponding program to explain how it will plan to address the disparity between the approval and processing times for residential development in the City.

Environmental Constraints
The City has not made any changes to its environmental constraints section, and thus we once again defer to the 11/20/2023 Letter and our comments regarding the necessary changes thereto. (See 11/20/2023 Letter, p. 8.)
Affirmatively Furthering Fair Housing
While we are pleased to see that the City has made strides in its analysis of Racial/Ethnic Areas of Concentration of Poverty (R/ECAPs) and Racially Concentrated Areas of Affluence (RCAAs), the Draft still must fully analyze the location of the sites in its AB 686 Sites Analysis and of affordable opportunities in high resource areas, as required by Government Code Section 8899.50. The Draft needs to be revised to include this information. (See 11/20/2023 Letter, pp. 8-

9.)
Density Bonus Ordinance
The Draft still does not inform or analyze the constraints presented on the development of housing by those applicants seeking a density bonus who were subjected to outdated and illegal provisions of the local density bonus ordinance as requested by HCD.

Anti-Camping Ordinance
Even though City proposes to add 200 shelter beds through the Motels for Vouchers, the City acknowledges that its unhoused population, at 1,350 persons is the highest in the County, and has increased in 2023. (See Draft, p. 5-36). The Draft needs to analyze impacts of enforcing the anticamping ordinance, as a governmental constraint, on its unhoused population. Further, because the City lacks sufficient shelter to accommodate the needs of the unhoused as stated in the Draft, the proposed enforcement of the anti-camping ordinance conflicts with established 9th Circuit law that prohibits enforcement of criminal penalties for sitting, sleeping, or lying outside on Packet Page. 1591
6 public property where inadequate shelter exists. Martin v. Boise (9th Cir. 2018) 902 F.3d 1031, 1048. Johnson v. City of Grant Pass (9th Cir. 2023) 72 F.4th 868, 895.

San Bernardino’s Draft Relies on Public Housing Replacement Projects as New Construction In the 11/20/2023 Letter, we commented upon the City’s pipeline projects in the Draft Housing Element, summarized in Table 4-2. (11/20/2023 Letter, p. 3.) The Draft claims credit for public housing projects of the Housing Authority for the County of San Bernardino (HACSB) that were already developed. We also found that these public housing replacement projects are not new housing nor do they meet committed assistance requirements under Government Code section 65583.1. Therefore, these two projects claimed in Table 4-2, Arrowhead Grove, claiming 213 units, and Crestview Terrace, claiming 184 units, should be removed from the inventory so that a total of 397 units are reduced from sites available to meet the lower income RHNA.

Crestview Terrace – represented by the City as adding 184 new apartments to the City’s housing stock. (Draft, pp. 4-6, 4-9.) However, none of this housing is new, and does not add any additional units. Phase III was developed in 2020 and added 116 project-based units with tax credits and 31 tax-credit affordable units, but it replaced 182 units of existing public housing. (See 2022 and 2023 MTW Annual Report, Housing Authority County of San Bernardino, pp. 8, 129-131, available at the following link: HACSB-FY-2022-MTW-Annual-Report-HUDAccepted-2.27.23.pdf; 2023-MTW-Plan-FINAL-HUD-Approved-11.4.22.pdf (hacsb.com), pp. 64, 65, last visited on December 19, 2023.) The balance of the units at Crestview Terrace from Phase III – 35 units are market-rate units with no RAD, PBV or tax-credit restrictions, and would not qualify as replacement units under Government Code Section 65583.2(g)(3).

Arrowhead Grove is part of the former Waterman Gardens and was previously 251 public housing units that the City has redeveloped in multiple phases. Now in Phases IV and V, the City identifies a source of funds for the Phase IV development coming from HOME-assisted tenant based rental assistance funds. (See 2021 Annual Action Plan, City of San Bernardino Consolidated Plan, pp. 23, 33-34, available at the following link Attachment-22349.pdf, last visited on January 3, 2024.) This source of funds would not qualify under Government Code section 65583.1(d)(4), as the term “committed assistance” requires a “legally enforceable agreement” for that assistance, and it “does not include tenant-based rental assistance”. HACSB plans to develop 120 units in Phase V, but the City has not provided sufficient information about the source of the funds to be used to develop them to determine whether the units are eligible to be credited against the lower-income RHNA under Government Code sections 65583.1 and 65583.2. (See RFP-PC1346-Arrowhead-Grove-Developer-Partner-final.pdf (hacsb.com), p. 4; see also San Bernardino to start on next phase of affordable housing project (iebusinessdaily.com).)
All-Star Lodge – Draft, p. 4-17, 75 units of Permanent Supportive Housing, funded with Homekey moneys. (Draft, Table 4-2, p. 4.6.) The developer, Shangri-La Industries LLC (SLI), was recently found in breach of its Homekey agreement by the State of California for failing to record 55-year covenants of affordability against all parcels of the project. Notice-of-ViolationsFinal.12.4.23.pdf (calmatters.org), p. 19-20 (discussing breach of SLI, owner/developer of AllPacket Page. 1592 7 Star Lodge in City of San Bernardino); see also California homeless housing projects on holdCalMatters (discussing the various breaches and legal violations by SLI). These 75 units should be removed from the RHNA inventory, unless the City can provide sufficient information in the Draft that the rents charged for the units are indeed at an affordable rate. The information we have located calls the City’s representations that this project should be counted against its RHNA into question.

Table 4-3, Draft p. 4-14- ADU Survey – many of the lower-income units, unit types and type of units are not specified, so it calls into question whether City can realistically rely upon this housing type to meet its lower-income housing needs.

Housing Programs
We defer to the 11/20/2023 Letter regarding our comments to the following Programs contained in the Draft that still require revision: Program 1.5 (Accessory Dwelling Unit, pp. 7-9, 7-30, regarding revising the goals for this program to include the specific accessibility, affordability, and housing code requirements for ADUs to help assess the feasibility of this program to meet the needs of lower-income residents who live in the City and who are in need of housing to access them); Program 3.5 (Violence Prevention/Intervention, Draft, pp. 7-17, 7-34); Program

4.1 (Preservation of Assisted Multi-Family Housing, Draft, pp. 7-20, 7-36); Program 4.2 (Rent Control/Stabilization, Draft, pp. 7-20, 7-36 erroneously named “Mobile Home Parks”); Program

4.3 (Housing Choice Vouchers, Draft, pp. 7-21, 7.36); Program 4.4 (Emergency Rental Assistance, Draft, pp. 7-21, 7-36). (See 11/20/2023 Letter, pp. 10-12.) Further, the following programs not discussed in the 11/20/2023 Letter also need further revisions:

Program 2.8 – Constraints to Housing for People with Disabilities, Draft, p. 7-14, Program 5-3:

Housing for People with Disabilities, Draft, p. 7-25, As mentioned, the City’s reasonable accommodation ordinance requirement to disclose the nature of the disability in making a request for an accommodation violates state and federal law protections that prohibit asking a requestor of a reasonable accommodation about the nature of their disability/disabling condition. 24 CFR §100.204(c); Cal. Code Reg., tit. 2, §12176(b)(1). Accordingly, the City must revise these proposed programs to include objectives with specific metrics and timelines to revise SBMC Chapter 19.63 to bring that Chapter in compliance with state and federal law regarding reasonable accommodations.

Program 3.5- Objective 3.5c – We maintain our objection to the use of city funds to support the feasibility for a neighborhood watch program because of the exclusionary history of such programs and the concern of such a program serving as a proxy to exclude persons who have or have had negative interactions with law enforcement in violation of state and federal fair housing law from being able to find shelter in the City. (11/20/2023 Letter, p. 11.) As such, the City must revise this program and this objective to specifically state how it will comply with its duty to affirmatively further fair housing and remove barriers that cause impediments to fair housing opportunity, as required by Government Code section 8899.50 and Martinez, 90 Cal.App.5th at Packet Page. 1593
8 285-86, to ensure that no fair housing violations occur with exploring the feasibility of a neighborhood watch program in the City.

Public Participation
Lastly, we defer to the 11/20/2023 Letter with regards to this section, as the City did not make any of the changes outlined therein. (See 11/20/2023 Letter, p. 13.) The City’s Draft still does not substantially comply with Housing Element Law and we urge the City to revise the Draft accordingly so that it may comply with the law. We are happy to schedule time to speak with you about or comments and concerns about the Draft. Please contact us at [email protected], to schedule a date and time to meet about our comments.

Sincerely,
Anthony Kim
Staff Attorney, Inland Counties Legal Services
Ugochi Anaebere-Nicholson
Staff Attorney, The Public Interest Law Project
/s/
Packet Page. 1594
290 North D St, San Bernardino, CA 92401 | P: 909-384-5357 | www.SBCity.org Community & Economic Development Department

SENT VIA EMAIL ONLY
February 5, 2024
Anthony Kim
Staff Attorney, Inland Counties Legal Services
Ugochi Anaebere-Nicholson
Staff Attorney, The Public Interest Law Project
Re: City of San Bernardino Response to the January 8th, 2024, Letter - Draft 2021-2029 Sixth Cycle Housing Element (January 2024 Revised Draft)
Dear Mr. Kim and Ms. Anaebere-Nicholson:

Thank you for your letter dated January 8th, 2024, and our calls to discuss the City of San Bernardino Draft Housing Element noted above. I am pleased to provide this response, which covers the comments referenced in that letter and provides further clarification on the City’s Housing Element goals, policies, and programs, as discussed. The letter also refers to the City’s response dated January 16, 2024, to your November 23, 2023 letter, as the letters overlap due to the timing of responses provided by the City.

Responses are noted in red.

Response:

Please see response #2, which provides additional information and includes Program 2.5 and Action 2.5c.

See Moderate and Above Moderate Sites Inventory in Appendix A.

Packet Page. 1595
City of San Bernardino Page 2 of 10
Site Inventory
While the City has provided information regarding the sites that will be rezoned to allow increased densities in the RH and RMH zones (Draft, pp. 4-23 to 4-31, Tables 4-5 and 4-6), the City has not revised the Draft to provide specific actions that the City will take to facilitate and encourage higher density development. Also, the City has not analyzed the likelihood of residential development where 100 percent nonresidential uses are allowed. This means the City is still in danger of violating the No Net Loss Law, should the sites it identified to meet its RHNA are deemed inadequate during the planning period. The City needs to revise the Draft accordingly.

Response:

Please see response #3 A -F. A conservative approach was used in the unit calculations for the RMH-32 and RH-50, as noted on page 424 and Program 4.5, where 85% was assumed. In addition, as part of the Development Code update, various standards will be relaxed, facilitating higher residential densities. See Programs 2.4, Actions a. and b. Density bonus revisions in Program 2.2 will also provide further incentives to achieve higher densities intended for the respective zoning districts.

Realistic Capacity
The City still needs to revise the Draft to include additional information on the two projects explicitly listed as multi-family residential developments, the 20 Unit Multi-Family Residential Development on Eastside of Ferndale Avenue; South of East 39th Street; and the 27-unit Multi- Family Residential Complex on North Sterling Avenue (between E. Marshall Boulevard & E. Lynwood Drive). See City of San Bernardino Development Projects, located at the following link:
https://www.sbcity.org/cms/One.aspx?portalId=17442546&pageId=18197247.

This information is required by law in the Housing Element. (See HCD Sites Inventory Guidebook, p. 5.) Response:

Please see response #4.

City-Owned Sites
Table 4-6, Draft, pages 4-28 to 4-31, does not have any of the suggested revisions the 11/20/2023 letter stated that the City must include to comply with the Surplus Land Act. (11/20/2023 letter, pp. 3-4.) Furthermore, the Draft still does not make it clear that the rezones will be completed by April 17th, 2024.

Ibid. The City needs to revise the Draft to address the suggested revisions on compliance with the Surplus Lands Act and rezoning obligation.

Response:

Please see response #6.

Packet Page. 1596
City of San Bernardino Page 3 of 10
Sites with Zoning for a Variety of Housing Types
Single-Room Occupancy (SRO) Units
In the Draft, the City plans to develop Micro SROs units to meet some of the housing needs of its seniors and people living with disabilities. (See Draft, p. 3-15.) However, the City needs to include information and sufficient analysis on how the City will ensure that the Micro SRO units are suitable and accessible under California Building Code standards, Chapters 11A and 11B, for this special needs population, especially when considering that the Micro SROs are indeed small at 250 to 450 square feet. It is unclear in the Draft how these units will be suitable for seniors and persons living with disabilities who have health conditions that impact their mobility.

Response:

Please see response #7. In response to accessibility in smaller square footage units, the City will require projects to comply with Title 24 building requirements for accessibility. This will be further realized in projects that the City is participating in through land grants and funding. It is the City’s intent to facilitate both SRO and Mirco Unit projects as they are submitted for a project entitlement.

The Draft Has Not Fully Analyzed the Impact of Governmental Constraints on the Ability of the City to Develop Multi-Family Housing and Housing for People Living with Disabilities Government Code section 65583(a)(5) requires the City to identify, analyze, and explain efforts to remove governmental constraints upon the “maintenance, improvement, or development of housing for all income types. . .” While the City has revised the Draft regarding the impact of governmental constraints on its ability to develop housing, additional revisions are needed because the City has not provided enough analysis on the impact of illegal restrictions on density bonus for senior housing such as requiring market feasibility study and conditional use permits (CUP), which the City should analyze as constraints and clearly identify as an area needing correction on Table 3-8, regarding the necessary revisions to the City’s local density bonus ordinance, consistent with the stipulated judgment reached in Gracia, et al. v.

City of San Bernardino, et al., CIVSB2301828 (filed February 10th, 2023) (Gracia). (See Draft, p. 3-27.) Further, the Draft concludes without analysis that the Administrative Permit process does not constrain housing. (See Draft, p. 3-39.) The Draft should include the information the City relied upon to reach that conclusion, notwithstanding the City’s statement that the AP process only affects “small projects and is minimal.” Additionally, the Development Permit process, Draft, at page 3-40, which applies to units 5 or more units lacks any analysis of whether the process of four to eight weeks constrains the City’s ability to develop multifamily units in the City and if so what steps the City will take to ameliorate that issue. Finally, the Draft, at page 3-41, discusses CUPs, but does not include any analysis of how the CUP requirements have constrained housing, particularly housing for special needs populations (e.g., seniors and Persons with disabilities) in the City. (See e.g., Draft at p 3-51- City will be “amending reasonable accommodation provisions to allow for the consideration and permitting of land use permitting for facilities, where appropriate, that accommodate people with disability instead of requiring a conditional use permit for all cases,” emphasis added.) The City must revise the Draft to include this analysis.

Code Reg., tit. 2, §12176(f)(3).) Accordingly, the City needs to revise the Draft and Programs 2.8 and 5.3 to include objectives to revise SBMC Chapter 19.63 regarding its reasonable accommodation process to ensure that the City asks for information related to disability that is not prohibited by state or federal law.

To protect the privacy rights of persons living with disabilities particularly to their medical conditions and records, state and federal law prohibit inquiries about nature or severity of person’s disability/disabling condition. (24 CFR §100.204(c); Cal. Code Reg., tit. 2, §12176(b)(1). See also HUD/DOJ Statement on Reasonable Accommodations, Questions 16-18, available at following link: huddojstatement.pdf.) The City needs to revise the Draft to make this clear and include an objective in Programs 2.8 and 5.3, to revise SBMC Chapter 19.63 accordingly.

Response:

Additional analysis has been added in the Constraints chapter of the Housing Element. The City has also initiated an update of its Density Bonus Ordinance and in the meantime, will process applications in accordance with State law. The Housing Plan, Program 5.3b, proposes a revision to the reasonable accommodation ordinance consistent with state law. To date, the City is not aware of any reasonable accommodation requests, but if requested, it would address them as submitted and in compliance with State and Federal laws. Currently, there is no fee for reasonable accommodation requests. Prior responses demonstrate that the permitting processes and timelines are reasonable.

The City is currently working with three affordable housing developers to provide affordable housing on City owned surplus land, which will provide a range of housing. By doing so, the City continues its commitment to affordable housing and working with the development community. HCD has reviewed the City’s permitting processes and concurs with all recommended changes.

Accessory Dwelling Units (ADUs)
As the City has not made any of the changes outlined in the 11/20/2023 letter regarding our comment concerning the City’s overreliance on ADUs to meet the RHNA, we defer to that document regarding information that the City is required to provide with regards to ADUs in the City and its usage towards the RHNA. (See 11/20/2023 letter, pp. 4-5.)
Response:

Please see response #6. The City has provided documentation to support its use of ADUs to meet the RHNA. To ensure that the RHNA is being met, the City will annually monitor the construction of ADUs.

Also, through the City’s new General Plan and Zoning, additional residential land will be identified, and the City expects to exceed the amount of residentially zoned land required by the RHNA when completed.

Packet Page. 1598
City of San Bernardino Page 5 of 10
Potential and Actual Government Constraints Pursuant to Government Code Section 65583(a)(5) Land Use Controls
We once again defer to the 11/20/2023 Letter regarding this section (11/20/2023 Letter, pp. 5-6) and note further that the City did not make any of the changes or amend the Draft to include a footnote related to compliance with our ongoing litigation in Gracia.

Response:

HCD has concurred with changes made to land use controls; no other revisions are necessary. The Housing Element cites the Gracia litigation eight times in the housing element.

Processing and Permitting Procedures
The Draft still states that emergency shelters can be developed by-right, which runs counter to Chapter

19.10-E of the San Bernardino Municipal Code, and does not analyze how the City’s processing and permitting procedures, specifically the City not permitting the development of emergency shelters in any area zoned for residential use, have constrained the development of housing in the city pursuant to Government Code Section 65583(a)(5). The City must conduct this analysis, even if the Municipal Code is amended to allow by-right development.

Response:

Please see response #11.

Response:

The City has added a Program to review its Code Enforcement program for compliance with Federal Fair Housing laws. See program 3.3, action d.

Response:

Please see response #13.

Packet Page. 1599
City of San Bernardino Page 6 of 10
Fees and Exaction
While the City has added analysis to show that the fee burden is not a constraint, it neglected to mention whether or not those fees are current. The City needs to revise the Draft to include this information and analyze the constraints presented by the City’s fee structure.

Response:

Please see response #13.

Approval Time and Requests Lesser Densities
The City still must analyze the constraint of the City’s approval process for the development of multifamily developments, as it currently takes about four months or longer to process, approve, and issue permits for multi-family developments than for their single-family counterparts. It must also include a corresponding program to explain how it will plan to address the disparity between the approval and processing times for residential development in the City.

Response:

Please see response #14.

Environmental Constraints
The City has not made any changes to its environmental constraints section, and thus we once again defer to the 11/20/2023 letter and our comments regarding the necessary changes thereto. (See 11/20/2023 letter, p. 8.)
Response:

Please see response #15.

Affirmatively Furthering Fair Housing
While we are pleased to see that the City has made strides in its analysis of Racial/Ethnic Areas of Concentration of Poverty (R/ECAPs) and Racially Concentrated Areas of Affluence (RCAAs), the Draft still must fully analyze the location of the sites in its AB 686 Sites Analysis and of affordable opportunities in high resource areas, as required by Government Code Section 8899.50. The Draft needs to be revised to include this information. (See 11/20/2023 letter, pp. 8- 9.) Response:

Please see response #16. Note Programs 5.7 and 5.8 have been added to Table 7-1.

Density Bonus Ordinance
The Draft still does not inform or analyze the constraints presented on the development of housing by those applicants seeking a density bonus who were subjected to outdated and illegal provisions of the local density bonus ordinance as requested by HCD.

Packet Page. 1600
City of San Bernardino Page 7 of 10
Response:

Please see response #17. As with some other cities in California, the City of San Bernardino will process any and all requests for a Density Bonus in compliance with State law. The City is not aware of any applicants that were denied or processed under outdated provisions.

Anti-Camping Ordinance
Even though City proposes to add 200 shelter beds through the Motels for Vouchers, the City acknowledges that its unhoused population, at 1,350 persons is the highest in the County, and has increased in 2023. (See Draft, p. 5-36). The Draft needs to analyze impacts of enforcing the anti- camping ordinance, as a governmental constraint, on its unhoused population. Further, because the City lacks sufficient shelter to accommodate the needs of the unhoused as stated in the Draft, the proposed enforcement of the anti-camping ordinance conflicts with established 9th Circuit law that prohibits enforcement of criminal penalties for sitting, sleeping, or lying outside on public property where inadequate shelter exists. Martin v. Boise (9th Cir. 2018) 902 F.3d 1031, 1048. Johnson v. City of Grant Pass (9th Cir. 2023) 72 F.4th 868, 895.

Response:

Please see response #18. The City is working closely with its local non-profits to secure shelter beds in addition to motel vouchers. In addition to the recent HomeKey award to the City and partner Lutheran Social Services of Southern California for Wellness campus to include shelter beds for men, the City is also moving forward with an RFP for the design-build of its own Navigation Center to house and provide services for the City’s unhoused.

San Bernardino’s Draft Relies on Public Housing Replacement Projects as New Construction In the 11/20/2023 letter, we commented upon the City’s pipeline projects in the Draft Housing Element, summarized in Table 4-2. (11/20/2023 Letter, p. 3.) The Draft claims credit for public housing projects of the Housing Authority for the County of San Bernardino (HACSB) that were already developed. We also found that these public housing replacement projects are not new housing nor do they meet committed assistance requirements under Government Code section 65583.1. Therefore, these two projects claimed in Table 4-2, Arrowhead Grove, claiming 213 units, and Crestview Terrace, claiming 184 units, should be removed from the inventory so that a total of 397 units are reduced from sites available to meet the lower income RHNA.

Crestview Terrace – represented by the City as adding 184 new apartments to the City’s housing stock. (Draft, pp. 4-6, 4-9.) However, none of this housing is new, and does not add any additional units. Phase III was developed in 2020 and added 116 project-based units with tax credits and 31 tax-credit affordable units, but it replaced 182 units of existing public housing. (See 2022 and 2023 MTW Annual Report, Housing Authority County of San Bernardino, pp. 8, 129-131, available at the following link: HACSB-FY2022-MTW-Annual-Report-HUD- Accepted-2.27.23.pdf; 2023-MTW-Plan-FINAL-HUD-Approved11.4.22.pdf (hacsb.com), pp. 64, 65, last visited on December 19th, 2023.) The balance of the units at Crestview Terrace from Phase III – 35 units are market-rate units with no RAD, PBV or tax-credit restrictions, and would not qualify as replacement units under Government Code Section 65583.2(g)(3).

Packet Page. 1601
City of San Bernardino Page 8 of 10
Arrowhead Grove is part of the former Waterman Gardens and was previously 251 public housing units that the City has redeveloped in multiple phases. Now in Phases IV and V, the City identifies a source of funds for the Phase IV development coming from HOME-assisted tenant based rental assistance funds. (See 2021 Annual Action Plan, City of San Bernardino Consolidated Plan, pp. 23, 33-34, available at the following link Attachment-22349.pdf, last visited on January 3rd, 2024.) This source of funds would not qualify under Government Code section 65583.1(d)(4), as the term “committed assistance” requires a “legally enforceable agreement” for that assistance, and it “does not include tenant-based rental assistance”. HACSB plans to develop 120 units in Phase V, but the City has not provided sufficient information about the source of the funds to be used to develop them to determine whether the units are eligible to be credited against the lower-income RHNA under Government Code sections 65583.1 and 65583.2. (See RFP-PC1346-Arrowhead-Grove-Developer-Partner-final.pdf (hacsb.com), p. 4; see also San Bernardino to start on next phase of affordable housing project (iebusinessdaily.com).) All-Star Lodge – Draft, p. 4-17, 75 units of Permanent Supportive Housing, funded with Homekey moneys. (Draft, Table 4-2, p. 4.6.) The developer, Shangri-La Industries LLC (SLI), was recently found in breach of its Homekey agreement by the State of California for failing to record 55-year covenants of affordability against all parcels of the project. Notice-of-Violations- Final.12.4.23.pdf (calmatters.org), p. 19-20 (discussing breach of SLI, owner/developer of All-

Star Lodge in City of San Bernardino); see also California homeless housing projects on hold- CalMatters (discussing the various breaches and legal violations by SLI). These 75 units should be removed from the RHNA inventory, unless the City can provide sufficient information in the Draft that the rents charged for the units are indeed at an affordable rate. The information we have located calls the City’s representations that this project should be counted against its RHNA into question.

Response:

The Housing Element has updated the sections related to these units and provided clarification, as requested by HCD staff.

Housing Programs
We defer to the 11/20/2023 letter regarding our comments to the following Programs contained in the Draft that still require revision: Program 1.5 (Accessory Dwelling Unit, pp. 7-9, 7-30, regarding revising the goals for this program to include the specific accessibility, affordability, and housing code requirements for ADUs to help assess the feasibility of this program to meet the needs of lower-income residents who live in the City and who are in need of housing to access them); Program 3.5 (Violence Prevention/Intervention, Draft, pp. 7-17, 7-34); Program

4.1 (Preservation of Assisted Multi-Family Housing, Draft, pp. 7-20, 7-36); Program 4.2 (Rent Control/Stabilization, Draft, pp. 7-20, 7-36 erroneously named “Mobile Home Parks”); Program

4.3 (Housing Choice Vouchers, Draft, pp. 7-21, 7.36); Program 4.4 (Emergency Rental Assistance, Draft, pp. 7-21, 7-36). (See 11/20/2023 letter, pp. 10-12.)
Packet Page. 1602
City of San Bernardino Page 9 of 10
Response:

See Numbers 19-24.

Further, the following programs not discussed in the 11/20/2023 letter also need further revisions:

Program 2.8 – Constraints to Housing for People with Disabilities, Draft, p. 7-14, Program 5-3: Housing for People with Disabilities, Draft, p. 7-25, As mentioned, the City’s reasonable accommodation ordinance requirement to disclose the nature of the disability in making a request for an accommodation violates state and federal law protections that prohibit asking a requestor of a reasonable accommodation about the nature of their disability/disabling condition. 24 CFR §100.204(c); Cal. Code Reg., tit. 2, §12176(b)(1).

Accordingly, the City must revise these proposed programs to include objectives with specific metrics and timelines to revise SBMC Chapter 19.63 to bring that Chapter in compliance with state and federal law regarding reasonable accommodations.

Response:

An action item is included to revise the Ordinance.

Program 3.5- Objective 3.5c – We maintain our objection to the use of city funds to support the feasibility for a neighborhood watch program because of the exclusionary history of such programs and the concern of such a program serving as a proxy to exclude persons who have or have had negative interactions with law enforcement in violation of state and federal fair housing law from being able to find shelter in the City. (11/20/2023 Letter, p. 11.) As such, the City must revise this program and this objective to specifically state how it will comply with its duty to affirmatively further fair housing and remove barriers that cause impediments to fair housing opportunity, as required by Government Code section 8899.50 and Martinez, 90 Cal.App.5th at 285-86, to ensure that no fair housing violations occur with exploring the feasibility of a neighborhood watch program in the City.

Response:

No funding is proposed. Should the City be included in any program, it will comply with Fair Housing laws and requirements.

Public Participation
Lastly, we defer to the 11/20/2023 letter with regards to this section, as the City did not make any of the changes outlined therein. (See 11/20/2023 letter, p. 13.) Response:

See #25, which outlines the City’s public participation that occurred throughout the process.

The City’s Draft still does not substantially comply with Housing Element Law and we urge the City to revise the Draft accordingly so that it may comply with the law. We are happy to schedule time to speak with you about or comments and concerns about the Draft. Please contact us at [email protected], to schedule a date and time to meet about our comments.

Packet Page. 1603
City of San Bernardino Page 10 of 10
Response:

The City and its staff believe the Draft Housing Element does indeed comply with the Housing Element Law and is a document to guide the staff and decision-makers with measures and programs to implement through the Cycle.

As noted from our call on January 23, 2024, the City will prepare a reasonable accommodation letter, noting the City’s compliance with Federal and State laws and requirements. The letter will be similar to that, memorializing the City’s commitment to compliance with State Density Bonus Law.

Thank you again for your comments. We are pleased that through the letters and dialog, we were able to address many of your concerns, resulting in a better Housing Element.

We look forward to the completion of the City’s 2021 – 2029 Housing Element, its adoption, and certification by the Department of Housing and Community Development. We appreciate your input as we look to the Housing Element implementation to assist our San Bernardino community.

Sincerely,
Mary E. Lanier
Interim Community Development and Housing Director
Packet Page. 1604
From: Maribel Nunez
To: CommunityDevelopment
Subject: public comment: San Bernardino Housing element Date: Tuesday, January 23, 2024 2:29:52 PM
Caution - This email originated from outside the City - Verify that the Email display name and Email address are consistent. - Use caution when opening attachments.

Hello
Maribel Nunez from Inland Equity Community Land Trust and San Bernardino Tenants Union chapter. This is public comment for the San Bernardino Housing element in partnership with Uplift SB City of San Bernardino Housing Element - Ch. 7 Review
Feedback:

Program 1.1b and 1.4b: as revised would only allow 19.46 acres to be upzoned. The upzoned

19.46 acres is not enough land to meet the housing needs of San Bernardino residents.

The city should make an effort to identify additional parcels, vacant lots and vacant buildings in order to develop more housing infrastructure by considering the following:

The Affordable Housing and High Roads Jobs Act (SB 6) and the Middle Class Housing Act both (AB 2011) both address state housing needs, revitalize underutilized commercial land and generate well-paid construction jobs.

See reference here.

SB 432: removes the sunset of SB 35 (2017), which allows for ministerial approval of developments in communities that have not met their Regional Housing Needs Allocations or adopted a compliant housing element and extends the law to coastal communities.

AB 1033: repeals a current law that prohibits the separate conveyance of ADUs, enabling property owners in participating cities to build an ADU and sell it separately, providing a new homeownership option for families and the potential for wealth-building for homeowners.

AB 1449: extends CEQA exemptions to 100% affordable projects assisted through the LIHTC program as long as they meet specified labor and environmental requirements. As most affordable developments include tax credits, this bill will streamline the development process for affordable projects and bring new homes online faster.

AB 1418: prohibits cities and counties from enacting “crime-free” housing programs and nuisance ordinances that require landlords to evict people when a household member is a Packet Page. 1605
convicted felon.

AB 323 intergenerational housing developments for older adults with caregivers and transitional age youth.

Here is a link to the recent legislation that Governor Newsom signed. 56 housing bills signed into law.

Program 1.5:

Consider modeling the proposed ADU program after the City of San Diego’s ADU bonus program.

Program 1.5c and Program 2.5b:

Consider modeling the proposed “One Stop Shop” after City of Riverside’s “One Stop Shop”.

Program 2.7c and d:

Consider contracting the following developers to build micro units for unhoused populations and LMI communities:

Dignity Moves:

Units are built to FEMA emergency building codes as opposed to traditional building codes. This allows for a streamlined permitting process and quicker turn around time for units to come online.

Dignity Moves also leases land. ½ acre parcel, vacant lot, etc. can accommodate up to 70 rooms including common areas.

LifeArk:

Prefabricated modular housing that can also float on water, great for communities affected by heavy floods and rain. There is a site located in El Monte currently providing permanent supportive housing.

Program 3.1b and 4.2:

Leverage SB 940 which amends Civil Code Sections 798.7 and 798.45, which currently prohibit local rent stabilization ordinances from governing newly constructed mobile home spaces first offered for rent after January 1, 1990. SB 940 would allow local mobilehome rent regulations to govern a newly added mobile home space in an existing park regardless of when it was initially held out for rent. The bill also retains an incentive for the building of new mobile home parks by allowing for a “rolling” 10-year exemption for spaces in those parks, so as to Packet Page. 1606
allow investors to recoup their costs of acquisition and construction.

Also consider applying to the Manufactured Housing Opportunity and Revitalization Program (MORE).

Program 3.5b and 3.7:

Partner with the Continuum of Care Interagency Council on Homelessness to submit an application for YHDP funding to address youth and young adults experiencing homelessness and HHAP 5 funding to generally reduce homelessness across all populations.

Program 4.5:

Consider implementing first-time home buyer education at the high school level, partnering with SBCUSD and HUD approved counseling agencies: Neighborhood Partnership Housing Services, Neighborhood Housing Services of the Inland Empire, Credit.org provide these services.

Program 4.7:

Consider partnering with the following consultants:

1. LeSar Development Consultants

2. Terner Center UC Berkeley
Program 4.8:

Partner with SBCTA for the Regional Housing Trust Fund.

Program 5.4:

Persuade County Supervisors to provide municipal bonds for SBVC mixed-used student housing.

Program 5.6:

Consider partnering with Community Solutions for their Built for Zero initiative for cities to achieve functional zero homelessness.

Invest in shelter bed creation for interim and permanent supportive housing for populations experiencing homelessness.

Additional comments:

The City of San Bernardino can increase home ownership by setting aside new market rate housing builds for first time home buyers and restricting corporate buyers from purchasing in a Packet Page. 1607
community that receives support from the city.

Nothing against cars and public transportation, such as sbX is absolutely an amazing addition to E Street, but the COR-1 and COR-2 zoning as it is currently proposed conflicts with the city’s goal to plan towards the future and reduce reliance on cars.

Consider the Following Tenant Protection Models

1. Add TOPA/COPA (Tenant/Community Opportunity to Purchase Act) elements when the landlord is not complying. All jurisdictions should consider committing to adopt a local TOPA/COPA policy in their Housing Element in order to prevent displacement, stabilize current residents and existing communities, and preserve affordable housing for the long term.

Consider the Following Shared Equity Models

1. Community land trusts and co-op, work with existing CLT’s and co-op Concerns:

The City of San Bernardino does not have sufficient staff to support numerous endeavors, consider creating a pipeline of high school students and college students interning in multiple City departments Packet Page. 1608
that eventually lead to local career opportunities.

Typos:

Correct SB 2011 to AB 2011
Best,
Maribel Nunez
Inland Equity Partnership Executive Director
(562) 569-4051
Packet Page. 1609
290 North D St, San Bernardino, CA 92401 | P: 909-384-5357 | www.SBCity.org Community & Economic Development Department

SENT VIA EMAIL ONLY
February 5, 2024
Ms. Maribel Nunez
Inland Equity Community Land Trust and
San Bernardino Tenants Union Chapter
Re: City of San Bernardino Response to Email dated January 23, 2024 Draft 2021-2029 Sixth Cycle Housing Element (January 2024 Revised Draft) Dear Ms. Rogers:

Thank you for your email dated January 23, 2024, regarding the City of San Bernardino Draft Housing Element noted above. This letter was prepared in response to that email and follows the same format.

Responses are noted in red.

Maribel Nunez from Inland Equity Community Land Trust and San Bernardino Tenants Union chapter.

This is public comment for the San Bernardino Housing element in partnership with Uplift SB City of San Bernardino Housing Element - Ch. 7 Review
Feedback:

Program 1.1b and 1.4b: as revised would only allow 19.46 acres to be upzoned. The upzoned 19.46 acres is not enough land to meet the housing needs of San Bernardino residents. The city should make an effort to identify additional parcels, vacant lots and vacant buildings in order to develop more housing infrastructure by considering the following:
• The Affordable Housing and High Roads Jobs Act (SB 6) and the Middle Class Housing • Act both (AB 2011) both address state housing needs, revitalize underutilized commercial land and generate well-paid construction jobs.

Response:

The City has identified 19.46 acres to be upzoned. Through the rezoning and property inventory included in the Housing Element Appendix, there is enough land identified to meet the Regional Housing Needs Assessment, as required.

Packet Page. 1610
Ms. Maribel Nunez
Inland Equity Community Land Trust and San Bernardino Tenants Union Chapter February 5, 2024
Page | 2
City of San Bernardino Page 2 of 5
SB 432: removes the sunset of SB 35 (2017), which allows for ministerial approval of developments in communities that have not met their Regional Housing Needs Allocations or adopted a compliant housing element and extends the law to coastal communities.

SB 1033: repeals a current law that prohibits the separate conveyance of ADUs, enabling property owners in participating cities to build an ADU and sell it separately, providing a new homeownership option for families and the potential for wealth-building for homeowners.

AB 1418: prohibits cities and counties from enacting “crime-free” housing programs and nuisance ordinances that require landlords to evict people when a household member is a convicted felon.

AB 323 intergenerational housing developments for older adults with caregivers and transitional age youth.

Here is a link to the recent legislation that Governor Newsom signed. 56 housing bills signed into law.

Response:

Thank you for providing a list of recent legislation. The City will review these as applicable as development applications are submitted.

Program 1.5:

Consider modeling the proposed ADU program after the City of San Diego’s ADU bonus program.

Response:

Thank you for your comment.

Program 1.5c and Program 2.5b:

Consider modeling the proposed “One Stop Shop” after City of Riverside’s “One Stop Shop”.

Response:

Thank you for your comment.

Program 2.7c and d:

Consider contracting the following developers to build micro units for unhoused populations and LMI communities:

Dignity Moves: Units are built to FEMA emergency building codes as opposed to traditional building codes.

This allows for a streamlined permitting process and quicker turnaround time for units to come online.

Dignity Moves also leases land. ½ acre parcel, vacant lot, etc. can accommodate up to 70 rooms including common areas.

LifeArk: Prefabricated modular housing that can also float on water, great for communities affected by heavy floods and rain. There is a site located in El Monte currently providing permanent supportive housing.

Packet Page. 1611
Ms. Maribel Nunez
Inland Equity Community Land Trust and San Bernardino Tenants Union Chapter February 5, 2024
Page | 3
City of San Bernardino Page 3 of 5
Response:

Thank you for your comment. When partnering, the City must adhere to procurement and funding requirements that will dictate specific partnerships.

Program 3.1b and 4.2:

Leverage SB 940 which amends Civil Code Sections 798.7 and 798.45, which currently prohibit local rent stabilization ordinances from governing newly constructed mobile home spaces first offered for rent after January 1, 1990. SB 940 would allow local mobilehome rent regulations to govern a newly added mobile home space in an existing park regardless of when it was initially held out for rent. The bill also retains an incentive for the building of new mobile home parks by allowing for a “rolling” 10-year exemption for spaces in those parks, so as to allow investors to recoup their costs of acquisition and construction.

Also consider applying to the Manufactured Housing Opportunity and Revitalization Program (MORE).

Response:

Thank you for your comments and suggestions.

Program 3.5b and 3.7:

Response:

Thank you for your comments and suggestions.

Program 4.5:

Response:

Thank you for your comments and suggestions.

Program 4.7:

Consider partnering with the following consultants:

3. LeSar

4. Development Consultants

8. Terner

9. Center UC Berkeley
Response:

Thank you for your comment. When partnering, the City must adhere to procurement and funding requirements that will dictate specific partnerships.

Program 4.8:

Packet Page. 1612
Ms. Maribel Nunez
Inland Equity Community Land Trust and San Bernardino Tenants Union Chapter February 5, 2024
Page | 4
City of San Bernardino Page 4 of 5
Partner with SBCTA for the Regional Housing Trust Fund.

Response:

Thank Mayor and City Council approved a letter of Intent to join the SBCTA.

Program 5.4:

Persuade County Supervisors to provide municipal bonds for SBVC mixed-used student housing.

Response:

Thank you for your comments and suggestions.

Program 5.6:

Consider partnering with Community Solutions for their Built for Zero initiative for cities to achieve functional zero homelessness.

Response:

Thank you for your comments and suggestions.

Invest in shelter bed creation for interim and permanent supportive housing for populations experiencing homelessness.

Response:

The City recently approved a motel voucher program, establishing a Navigation Center, providing funding to local non-profits through the Community Development Block Grant Program, and working with with non-profit organizations through the HomeKey program.

Additional comments:

Response:

Thank you for your comments and suggestions.

The density the city is proposing for either COR-1 or COR-2 is not enough for a major corridor that should be made into a walkable and bikeable corridor. Both should be 80+ units per acre to achieve a high-enough density of people (and thus a high-enough demand of services such as grocery, restaurants and entertainment) that will allow a walkable and bikeable community to thrive. If the density is lower, then the E Street Corridor will just become a speedway for cars. Nothing against cars and public transportation, such as sbX is absolutely an amazing addition to E Street, but the COR-1 and COR-2 zoning as it is currently proposed conflicts with the city’s goal to plan towards the future and reduce reliance on cars.

Response:

Thank you for your comments and suggestions.

The General Plan update is currently underway and would be the document to evaluate the noted opportunities for higher density and circulation.

Packet Page. 1613
Ms. Maribel Nunez
Inland Equity Community Land Trust and San Bernardino Tenants Union Chapter February 5, 2024
Page | 5
City of San Bernardino Page 5 of 5
Consider the Following Tenant Protection Models
Add TOPA/COPA (Tenant/Community Opportunity to Purchase Act) elements when the landlord is not complying.

All jurisdictions should consider committing to adopt a local TOPA/COPA policy in their Housing Element in order to prevent displacement, stabilize current residents and existing communities, and preserve affordable housing for the long term.

Response:

Thank you for your comments and suggestions.

Consider the Following Shared Equity Models
Community land trusts and co-op, work with existing CLT’s and co-op Response:

Thank you for your comments and suggestions.

Concerns:

The City of San Bernardino does not have sufficient staff to support numerous endeavors, consider creating a pipeline of high school students and college students interning in multiple City departments that eventually lead to local career opportunities.

Response:

Thank you for your comments and suggestions.

Typos:

Correct SB 2011 to AB 2011
Response:

Comment noted.

Thank you for your comments and suggestions. We look forward to the completion of the City’s 2021 – 2029 Housing Element, its adoption and certification by the Department of Housing and Community Development, and its implementation to assist our San Bernardino community.

Sincerely,
Mary E. Lanier
Interim Community Development and Housing Director
Packet Page. 1614
General Plan Amendment 24-01 and
Development Code Amendment 24-01
2021-2029 Housing Element
Presented by Mary E. Lanier, Interim Director of Community Development and Housing Department
Packet Page. 1615
Overview:
 All cities and counties in California, including San Bernardino, are required by State law to prepare a Housing Element every 8 years.  The Housing Element assesses current needs for housing in the City and includes goals, policies and programs to address the unmet needs.  The Housing Element must comply with State and Federal regulations and is reviewed for compliance by the California Department of Housing and Community Development (HCD).

Packet Page. 1616
Background:
 2022 – Public workshops / Committee meetings
 May-June 2023 – 30 Day public review of draft Housing Element  July 2023 – Stakeholder and Community Meetings (3)
 July-August 2023 – Planning Commission / MCC hearings  August 2023 – Submitted to HCD for review (1st round)  November 2023 – Resubmitted to HCD for review (2nd round)  January 2024 – Resubmitted to HCD for review (3rd round) Packet Page. 1617
Outreach:

The City’s public participation program included the following:
Visioning Workshops
 Committee Meetings
 Website Presence
 Stakeholder Consultations
Packet Page. 1618
Analysis:

Housing Element Components:
 Chapter 1: Introduction
 Chapter 2: Needs Assessment
 Chapter 3: Constraints Analysis
 Chapter 4: Housing Resources
 Chapter 5: Fair Housing
 Chapter 6: Program Evaluation
 Chapter 7: Housing Plan
Site Inventory and Analysis – RHNA Allocation
Packet Page. 1619
Housing Plan:
 Goal #1: Facilitate and improve the development of safe, high-quality housing that is diverse in housing type, size of unit, tenure, affordability levels, and location for all.  Goal #2: Reduce, mitigate, or remove governmental and nongovernmental constraints to the production, maintenance, and improvement of housing for all residents of San Bernardino.
 Goal #3: Provide neighborhoods of well-maintained homes, ample public services and facilities, open spaces and recreation, and infrastructure that provide quality, safe, and healthful places to reside.
 Goal #4: Assist in the development of affordable housing through provision of homeowner and rental assistance, preservation of affordable housing, and other efforts to improve housing affordability and housing security.
 Goal #5: Affirmatively further fair housing opportunity in San Bernardino through proactive policy, outreach and education, and programs so that residents can live in dignity in their neighborhood.

Packet Page. 1620
Analysis:

HOUSEHOLD
INCOME

CATEGORIES

NUMBER OF

HOUSING UNITS

PERCENT OF

ALLOCATION
Extremely Low
Income 0–30% of AMI* 708 8.7%
Very Low Income 31–50% of AMI 707 8.7%
Low Income 51–80% of AMI 1,097 13.5%
Moderate Income 81–120% of AMI 1,448 17.8%
Above Moderate
Income Over 120% of AMI 4,163 51.3%
Total 8,123 100%
Table 1: City of San Bernardino – RHNA Allocation (By Income Group) *AMI – Area Median Income
Packet Page. 1621
Analysis:

Table 2: City of San Bernardino RHNA Status Summary
Packet Page. 1622
Rezoning:
 Privately-Owned Land
 11 multi-family (19.46 acres) parcels to be upzoned from (RM-24 and RMH-32) to (RM-31 and RMH-50)
 City-Owned Land
 27 commercial parcels (7.04 acres) to be rezoned from (CR-2, CG-1, and CO) to (RH-50)
 1 multi-family parcel (1.41 acres) to be rezoned from (RH-31) to (RMH32) Packet Page. 1623
Recommendation:

It is recommended that the Mayor and City Council:

It is recommended that the Mayor and City Council of the City of San Bernardino:

1. Adopt Resolution No. 2024-XX of the Mayor and City Council of the City of San Bernardino, California, adopting the Addendum to Final Environmental Impact Report (SCH No. 2004111132) under the California Environmental Quality Act, approving General Plan Amendment 24-01 establishing the Residential Medium High (RMH-30) and Residential High (RH-50) Zones and changing the General Plan Land Use Designation of specific parcels to meet the City’s Regional Housing Needs Allocation (RHNA), and adopting and implementing the City of San Bernardino 2021-2029 Housing Element (General Plan – Chapter 3) (Attachment 1);
Packet Page. 1624
Recommendation:

2. Introduce the first reading of Ordinance No. MC-XXXX of the Mayor and City Council of the City of San Bernardino, California, approving Development Code Amendment 24-01 changing the Zoning District Classification of specific parcels to meet the City’s Regional Housing Needs Allocation (RHNA), pursuant to the Addendum to Final Environmental Impact Report (SCH No. 2004111132) (Attachment 2); and

3. Schedule the second reading of the above Ordinances to the regularly scheduled meeting of the Mayor and City Council on March 6, 2024.

Packet Page. 1625

NOTICE OF PUBLIC HEARING

BEFORE THE MAYOR AND CITY COUNCIL
Notice is hereby given that the City of San Bernardino Mayor and City Council will hold a public hearing on Wednesday, February 21, 2024 at 7:00 p.m. in the Feldheym Public Library, Bing Wong Auditorium, 555 West 6
th Street, San Bernardino, California 92410, on the following item(s):

DEVELOPMENT CODE AMENDMENT 23-01 – A City-initiated amendment to Section 19.02.020 (Basic Provisions – Definitions) and Chapter 19.04 (Residential Zones) of the City of San Bernardino Development Code (SBMC Title 19) in order to establish a Short-Term Rental Program in the City of San Bernardino.

Environmental Determination: Categorically Exempt, pursuant to Section 15061(b)(3) (Common Sense Exemption) of the State CEQA Guidelines.

Applicant: City of San Bernardino – Community Development and Housing Department
DEVELOPMENT CODE AMENDMENT 23-03 – A City-initiated amendment to Chapter 19.04 (Residential Zones) in particular Table 04.03 (Residential Zones Specific Standards) and Section

19.04.030(2)(D) (Density Bonus) of the City of San Bernardino Development Code (SBMC Title 19) in order to update the Density Bonus provisions in compliance with State law.

Environmental Determination: Exempt, pursuant to Section 15061(b)(3) (Common Sense Exemption) of the State CEQA Guidelines.

Applicant: City of San Bernardino – Community Development and Housing Department
GENERAL PLAN AMENDMENT 24-01 AND DEVELOPMENT CODE AMENDMENT 24-01 – A City-initiated amendment to Chapter 19.04 (Residential Zones) of the City of San Bernardino Development Code (SBMC Title 19) to establish the Residential Medium High (RMH-30) and Residential High (RH-50) Zones; amend the General Plan Land Use Designation and Zoning District Classification of specific parcels to meet the City’s Regional House Needs Allocation (RHNA); and, adopt and implement the City of San Bernardino 2021-2029 Housing Element (General Plan – Chapter 3).

Environmental Determination: Addendum to Final Environmental Impact Report, pursuant to §15164(b) (Addendum to an EIR) of the State CEQA Guidelines Applicant: City of San Bernardino – Community Development and Housing Department
The Mayor and City Council of the City of San Bernardino welcomes your participation in evaluating these items. The Mayor and City Council will review the proposal and will consider the proposed environmental determination in making its decisions. The public is welcome to speak at the public hearing or to submit written comments prior to the hearing. For more information, please contact the City Clerk’s Office by phone at (909) 384-5002.

If you challenge the resultant action of the Mayor and City Council in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Planning Division at, or prior to, the public hearing.

Submitted: February 6, 2024
Publish: February 10, 2024 (Display Ad)
Please send first proof for verification or changes by e-mail to Jennifer Meamber: [email protected].

Please reference “MCC Display Ad” on the billing and send to the City of San Bernardino, Planning Division, 290 North D Street, San Bernardino, CA 92401.

Packet Page. 1626

PUBLIC HEARING
City of San Bernardino
Request for Council Action
Date: February 21, 2024
To: Honorable Mayor and City Council Members
From: Charles A. Montoya, City Manager
Mary E. Lanier, Interim Community Development and Housing Director
Department: Community Development and Housing
Subject: Development Code Amendment 23-03 (Density
Bonus)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino:

1. Introduce for first reading, read by title only, and waive further reading of Ordinance No. MC-1629 of the Mayor and City Council of the City of San Bernardino, California, approving Development Code Amendment 23-03 amending Chapter 19.04 (Residential Zones) Section 19.04.030 (Density Bonus) of the City of San Bernardino Development Code (SBMC Title 19) in order to update the Density Bonus section in compliance with State law; and finding that Development Code Amendment 23-03 is exempt from review under the California Environmental Quality Act;

2. Conduct the Public Hearing; and

3. Schedule the adoption of the above Ordinance to the regularly scheduled meeting of the Mayor and City Council on March 6, 2024.

Executive Summary
Approval of Development Code Amendment 23-03 will amend the City’s Density Bonus Ordinance to comply with the current provision of the State Density Bonus Law. Density Bonus Law allows increased residential density and concessions and waivers of zoning and development standards in exchange for an affordable housing covenant to be placed on a property. These provisions help encourage the development of affordable housing in the City.

Packet Page. 1627
Background
The State and its cities have a housing shortage, especially affordable housing, which can be described as the “housing crisis.”
The State adopted the Density Bonus Law (Gov. Code §§65915 - 65918) in 1979. The law permits a developer to increase density on a property above the maximum set under the City’s General Plan. In exchange for the increased density, a certain number of the new affordable dwelling units must be reserved at rents below market rate.

Qualifying applicants can also receive reductions in required development standards.

More significant benefits are available for projects with higher affordability percentages (with unlimited density available for certain transit-adjacent, 100-percent below-market rent projects).

Besides granting rights to housing and mixed-used developments to increase density, the law provides three provisions that require the City to grant qualifying projects: 1) incentives (or concessions) that provide cost reductions; 2) waivers of development standards that would physically preclude the development of a project at the density permitted and with the incentives granted; and 3) reductions in parking requirements.1 Section 19.04.030(2)(D) of Chapter 19.04 – Residential Zones was enacted to comply with the State Density Bonus Law (DBL).

Since the City’s Density Bonus section was adopted many years ago, the State has changed DBL numerous times. The pace of changes at the State level has increased in recent years. For example, in September 2020, the Governor signed a package of fifteen bills to increase affordable housing production and reduce housing costs.

Several of these bills were aimed at increasing the incentives to build more affordable housing and more housing near public transit. Each year, bills amending the DBL have been passed. This year, on October 11, 2023, Governor Newsom signed 56 bills that incentivize and reduce barriers to housing and support the development of more affordable homes. Three of these bills amended the DBL. The Density Bonus section was planned to be revised to be in compliance with the updated Development Code (underway).

As part of Housing and Community Development’s (HCD’s) October 2, 2023, letter regarding the City’s draft Housing Element, HCD requested a discussion of provisions of the City’s density bonus ordinance that constitute a constraint. This is included in the updated Housing Element.

Pursuant to the Stipulated Final Judgement and Order submitted in Gracia et al. v. City of San Bernardino states, it states that the City will update the density bonus ordinance as required by statute and stipulation agreement. In the meantime, the City has issued an interdepartmental memo directing staff to process and approve any application for 1 Density Bonus Law, What are Incentives/Concessions and Waivers, SCAG Development Streamlining Tools Packet Page. 1628
a density bonus consistent with Government Code 65915-65918. This Development Code Amendment 23-03 meets the requirements of State law.

Discussion
The Density Bonus Law (found in California Government Code Sections 65915 – 65918) provides developers with powerful tools to encourage the development of affordable and senior housing, including up to a 50% increase in project densities for most projects, depending on the amount of affordable housing provided, and an 80% increase in density for projects which are completely affordable. The Density Bonus Law is about more than the density bonus itself, however. It is a larger package of incentives intended to help make the development of affordable and senior housing economically feasible. Other tools include reduced parking requirements, and incentives and concessions such as reduced setback and minimum square footage requirements. Often, these other tools are even more helpful to project economics than the density bonus itself, particularly the special parking benefits. Sometimes these incentives are sufficient to make the project pencil out, but for other projects, financial assistance is necessary to make the project feasible.”2 At a minimum, the City must comply with State law regarding the DBL. Therefore, it is recommended that the City adopt the Government Code Section 65915 -65918 in its entirety. The City may amend the Section to allow for more significant incentives/concessions, parking reductions, and density, but the City cannot recommend anything less than State law.

Proposed Amendment
In order to ensure that the City’s Density Bonus section complies with State law, this amendment will update 19.04.030 to match State law completely. Attachment A; Exhibit A reflects the redline/strikeout of 19.040.030, showing the needed changes to comply with State law. Within the redline/strikeout, the blue/strikeout reflects the three bills recently signed by Governor Newsom on October 11, 2023 (AB 323, AB 1287, & SB 713), which go into effect on January 1, 2024. Rather than create another amendment in January, it is suggested that the City consider adopting these changes now so the Density Bonus section will be entirely current.

Implementation
The amendment to the Density Bonus section will take effect 30 days following the approval of Development Code Amendment 23-03 by the Mayor and City Council. 2 Guide to the California Density Bonus Law, Jon Goetz and Tom Sakai, Revised January 2023.

Packet Page. 1629
General Plan Goals and Policies
The City of San Bernardino General Plan includes goals and policies to guide future housing development within the City, including the following:

Land Use Policy Goal 2.1.4: Provide assistance in the form of grants, loans, home-improvement efforts, coordinated code and law enforcement, public right-of-way maintenance and enhancement, and trash collection to help improve San Bernardino’s residential neighborhoods. (LU-1 and LU-3) Land Use Policy 2.4.1: Quality infill development shall be accorded a high priority in the commitment of City resources and available funding.

Land Use Policy 2.4.2: Continue to provide special incentives and improvement programs to revitalize deteriorated housing stock, residential neighborhoods, major business corridors, and employment centers. (LU-3 and LU-4)
Housing Goal 3.3: Affordable Housing Assistance. Assist in the provision of affordable housing to lower-income and moderate-income households.

Housing Goal 3.4: Fair Housing Opportunity. Promote fair and equal housing opportunities for all persons in San Bernardino.

Housing Goal 3.5: Governmental Constraints. Reduce adverse effects of governmental actions on the production, preservation, and conservation of housing, particularly for lower-moderate-income households.

The adoption and implementation of Development Code Amendment 23-03 is consistent with the City’s General Plan by allowing for the development of affordable housing in a manner consistent with State law.
2021-2025 Strategic Targets and Goals
Development Code Amendment 23-03 aligns with Key Target Goal No. 3: Improved Quality of Life and 4(b): Economic Growth and Development – Update the General Plan and Development Code. Specifically, the amendment will update the Development Code for compliance with State law. The amendment to the Development Code will ensure consistency with State law.

Fiscal Impact
There will be no fiscal impact on the City’s General Fund as a result of this action.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino:

Packet Page. 1630

2. Conduct the Public Hearing; and

3. Schedule the adoption of the above Ordinance to the regularly scheduled meeting of the Mayor and City Council on March 6, 2024.

Attachments
Attachment 1 Ordinance No. MC-1629 (Approving Development Code Amendment 23-03)
Attachment 2 Ordinance No. MC-1629 (Approving Development Code Amendment 23-03) – Exhibit A
Attachment 3 Resolution No. 2023-049 - PC
Attachment 4 Newspaper Display Ad
Ward:

All Wards
Synopsis of Previous Council Actions:

N/A
Packet Page. 1631
Ordinance No. MC-1629
1 ORDINANCE NO. MC-1629

ORDINANCE OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING DEVELOPMENT CODE AMENDMENT 23-03
AMENDING CHAPTER 19.04 (RESIDENTIAL ZONES)
SECTION 19.04.030 (DENSITY BONUS) OF THE CITY OF

SAN BERNARDINO DEVELOPMENT CODE (SBMC TITLE
19) TO UPDATE THE DENSITY BONUS SECTION IN
COMPLIANCE WITH STATE LAW; AND FINDING THAT
DEVELOPMENT CODE AMENDMENT 23-03 IS EXEMPT

UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY
ACT.

WHEREAS, the State of California has adopted Government Code Sections 65915 – 65918 (State Density Bonus Law), which requires cities to provide density bonuses, concessions/incentives, waivers, and parking reductions for eligible housing development; and WHEREAS, Government Code Section 65918 provides that the State Density Bonus Law applies to charter cities, including San Bernardino; and WHEREAS, in recent years, in response to the State’s need for housing, the State’s Density Bonus Law has been amended to increase affordable housing production and reduce housing costs, requiring the City to update the Density Bonus Section of Chapter 19.04 (Residential Zones); and
WHEREAS, on October 2, 2023, the Community Development and Housing Department - Planning Commission received a letter regarding the City’s draft Housing Element noting that the provisions of the City’s density bonus ordinance constitute a constraint to affordable housing development; and
WHEREAS, in a Stipulated Final Judgement and Order submitted in Gracia et al. v. City of San Bernardino, it was stated that the City would update the density bonus ordinance as required by statute and the stipulation agreement; and
WHEREAS, Development Code Amendment 23-03 is a City-initiated amendment to Chapter 19.04 (Residential Zones) Section 19.04.030 (Density Bonus) of the City of San Bernardino Development Code (SBMC Title 19) to update the Density Bonus section in compliance with state law; and
WHEREAS, the Planning Division of the Community Development and Housing Department of the City of San Bernardino has prepared Development Code Amendment 23-03 in compliance with the California Government Code, consistency with the City of San Bernardino General Plan, and compliance with the City of San Bernardino Development Code; and Packet Page. 1632
Ordinance No. MC-1629
2 WHEREAS, pursuant to requirements of the California Environmental Quality Act (“CEQA”), the Planning Division of the Community Development and Housing Department evaluated Development Code Amendment 23-03 and determined that it is exempt from CEQA under 15061(b)(3) of the CEQA Guidelines; and
WHEREAS, on December 12, 2023, pursuant to the requirements of Section 19.52.040 (Hearings and Appeals - Hearing Procedure) of the City of San Bernardino Development Code, the Planning Commission held a duly-noticed public hearing and adopted Resolution No. 2023- 049 recommending the adoption of the Development Code Amendment 23-03 to the Mayor and City Council; and
WHEREAS, notice of the February 21, 2024 public hearing for the Mayor and City Council's consideration of Development Code Amendment 23-03 was published in The Sun newspaper on February 10, 2024, in accordance with Development Code Chapter 19.52 (Hearing and Appeals); and
WHEREAS, pursuant to the requirements of Chapters 19.52 (Hearing and Appeals) and Chapter 19.42 (Development Code Amendments) of the City of San Bernardino Development Code, the Mayor and City Council have the authority to take action on Development Code Amendment 23-03; and

NOW THEREFORE, THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, DO ORDAIN AS FOLLOWS:

SECTION 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein.

SECTION 2. Compliance with the California Environmental Quality Act. The Mayor and City Council having independently reviewed and analyzed the record before it, including written and oral testimony, and having exercised their independent judgment, finds that there is no substantial evidence supporting a fair argument that approval of Development Code Amendment 23-03 and this Ordinance No. MC-1629 will result in a significant effect on the environment, and thus the project is exempt pursuant to Section 15061(b) of the California Environmental Quality Act guidelines due to the fact that the activity does not result in a direct or reasonably foreseeable indirect physical change in the environment.

SECTION 3. Finding of Facts – Development Code Amendment 23-03 Finding No. 1: The proposed amendment is consistent with the General Plan.

Finding of Fact: Development Code Amendment 23-03 is consistent with the General Plan, as follows:

Land Use Policy Goal 2.1.4: Provide assistance in the form of grants, loans, home-improvement efforts, coordinated code and law enforcement, public Packet Page. 1633
Ordinance No. MC-1629
3 right-of-way maintenance and enhancement, and trash collection to help improve San Bernardino’s residential neighborhoods. (LU-1 and LU-3) Land Use Policy 2.4.1: Quality infill development shall be accorded a high priority in the commitment of City resources and available funding.

Land Use Policy 2.4.2: Continue to provide special incentives and improvement programs to revitalize deteriorated housing stock, residential neighborhoods, major business corridors, and employment centers. (LU-3 and LU-4)
Housing Goal 3.3: Affordable Housing Assistance. Assist in the provision of housing affordable to lower and moderate-income households.

Housing Goal 3.4: Fair Housing Opportunity. Promote fair and equal housing opportunities for all persons in San Bernardino.

Finding No. 2: The proposed amendment would not be detrimental to the public interest, health, safety, convenience, or welfare of the City.

Finding of Fact: The adoption and implementation of Development Code Amendment 23- 03 are in the interest or furtherance of the public health, safety, convenience, and general welfare through the establishment of regulations consistent with State law that will further the development of affordable housing for low and moderate-income households, seniors, and students.

SECTION 4. Adoption of Ordinance. Development Code Amendment 23-03 to amend Chapter 19.04 (Residential Zones) Section 19.04.030 (Density Bonus) of the City of San Bernardino Development Code (SBMC Title 19) to update the Density Bonus section in compliance with state law attached hereto and incorporated herein by reference as Exhibit “A”, is hereby approved.

SECTION 5. Notice of Exemption: The Planning Division of the Community Development and Housing Department is hereby directed to file a Notice of Exemption with the County Clerk of the County of San Bernardino within five (5) working days of final approval certifying the City’s compliance with the California Environmental Quality Act in approving Development Code Amendment 23-03.

Packet Page. 1634
Ordinance No. MC-1629
4 SECTION 6. Severability: If any section, subsection, subdivision, sentence, or clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective.

SECTION 7. Effective Date. This Ordinance shall become effective thirty (30) days after the date of its adoption.

SECTION 8. Notice of Adoption. The City Clerk of the City of San Bernardino shall certify to the adoption of this Ordinance and cause publication to occur in a newspaper of general circulation and published and circulated in the City in a manner permitted under section 36933 of the Government Code of the State of California.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________, 2024.
__________________________________
Helen Tran, Mayor
City of San Bernardino
Attest:
__________________________________
Genoveva Rocha, CMC, City Clerk
Approved as to form:
__________________________________
Sonia Carvalho, City Attorney
Packet Page. 1635
Ordinance No. MC-1629
5 CERTIFICATION

STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO

CITY OF SAN BERNARDINO
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Ordinance No. MC-1629, introduced on February 21, 2024, and adopted by the City Council of the City of San Bernardino, California, at a regular meeting held at the ___ day of _______, 2024 by the following vote:

Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of ____________ 2024.
______________________________
Genoveva Rocha, CMC, City Clerk
Packet Page. 1636

EXHIBIT A
Development Code Section 19.04.030
(Density Bonus)

19.04.030(2) shall be modified to read as follows:

D. DENSITY BONUS

1. Purpose
The purpose of this Chapter is to:
a. Establish procedures for implementing State Density Bonus requirements, as set forth in California Government Code Sections 65915, and b. Facilitate the development of affordable housing consistent with the goals, objectives, and policies of the Housing Element of the City's General Plan. c. This Chapter establishes incentives available to developers to produce housing affordable to very-low, low and moderate-income households, transitional foster youth, disabled veterans, homeless persons, lower-income students, and senior citizens, consistent with State Density Bonus law.

2. Government Code 65915 – 65918
a.
(1) When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the City shall comply with this section. The City shall adopt an ordinance that specifies how compliance with this section will be implemented. Except as otherwise provided in subdivision(s), failure to adopt an ordinance shall not relieve the City from complying with this section.
(2) The City shall not condition the submission, review, or approval of an application pursuant to this chapter on the preparation of an additional report or study that is not otherwise required by state law, including this section. This subdivision does not prohibit the City from requiring an applicant to provide reasonable documentation to establish eligibility for a requested density bonus, incentives or concessions, as described in subdivision (b)(d), waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in subdivision (p).
(3) In order to provide for the expeditious processing of a density bonus application, the City shall do all of the following:
(A) Adopt procedures and timelines for processing a density bonus application.
(B) Provide a list of all documents and information required to be submitted with the density bonus application in order for the density Packet Page. 1637

EXHIBIT A
bonus application to be deemed complete. This list shall be consistent with this chapter.
(C) Notify the applicant for a density bonus whether the application is complete in a manner consistent with the timelines specified in Government Code Section 65943.
(D)
(i) If the City notifies the applicant that the application is deemed complete pursuant to subparagraph (C), provide the applicant with a determination as to the following matters:
(I) The amount of density bonus calculated pursuant to
subdivision (f), for which the applicant is eligible.
(II) If the applicant requests a parking ratio pursuant to subdivision (p), the parking ratio for which the applicant is eligible.
(III) If the applicant requests incentives or concessions pursuant to subdivision (d) or waivers or reductions of development standards pursuant to subdivision (e), whether the
applicant has provided adequate information for the City to decide as to those incentives, concessions, or waivers, or reductions of development standards.
(ii) Any determination required by this subparagraph shall be based on the development project at the time the application is deemed complete. The City shall adjust the amount of density bonus and parking ratios awarded pursuant to this section based on any changes to the project during the course of development. b.
(1) The City shall grant one density bonus, the amount of which shall be as specified in subdivision (f), and, if requested by the applicant and consistent with the applicable requirements of this section, incentives or concessions, as described in subdivision (d), waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in subdivision (p), if an applicant for a housing development seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this section, that will contain at least any one of the following:
(A) Ten percent of the total units of a housing development, including a shared housing building development, for rental or sale to lower income households, as defined in Section 50079.5 of the Health and Safety Code.
(B) Five percent of the total units of a housing development, including a shared housing building development, for rental or sale to very lowPacket Page. 1638

EXHIBIT A
income households, as defined in Section 50105 of the Health and Safety Code.
(C) A senior citizen housing development, as defined in Sections 51.3 and

51.12 of the Civil Code, or a mobilehome 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. For purposes of this subparagraph, “development” includes a shared housing building development.
(D) Ten percent of the total dwelling units of a housing development are sold to persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code, provided that all units in the development are offered to the public for purchase.
(E) Ten percent of the total units of a housing development for transitional foster youth, as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in Section 18541, or homeless persons, as defined in the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.). The units described in this subparagraph are shall be subject to a recorded affordability restriction of 55 years and shall be provided at the same affordability level as very low-income units.
(F)
(i) Twenty percent of the total units for lower income students in a student housing development that meets the following
requirements:
(I) All units in the student housing development shallwill be used exclusively for undergraduate, graduate, or
professional students enrolled full time at an institution of higher education accredited by the Western Association of Schools and Colleges or the Accrediting Commission for
Community and Junior Colleges. In order to be eligible
under this subclause, the developer shall, as a condition of receiving a certificate of occupancy, provide evidence to the City that the developer has entered into an operating agreement or master lease with one or more institutions of higher education for the institution or institutions to occupy all units of the student housing development with students from that institution or institutions. An operating agreement or master lease entered into pursuant to this subclause is not violated or breached if, in any subsequent year, there are insufficientnot sufficient students enrolled in an institution of higher education to fill all units in the student housing development.

Packet Page. 1639

EXHIBIT A
(II) The applicable 20-percent units shallwill be used for lower income students.
(III) The rent provided in the applicable units of the
development for lower income students shall be calculated at 30 percent of 65 percent of the area median income for a single-room occupancy unit type.
(IV) The development shallwill provide priority for the applicable affordable units for lower income students
experiencing homelessness. A homeless service provider, as defined in paragraph (3) of subdivision (e) of Section 103577 of the Health and Safety Code, or institution of higher education that has knowledge of a person’s
homeless status may verify a person’s status as homeless for purposes of this subclause.
(ii) For purposes of calculating a density bonus granted pursuant to this subparagraph, the term “unit” as used in this section means one rental bed and its pro rata share of associated common area facilities. The units described in this subparagraph areshall be subject to a recorded affordability restriction of 55 years. (G) One hundred percent of all units in the development, including total units and density bonus units, but exclusive of a manager’s unit or units, are for lower income households, as defined by Section 50079.5 of the Health and Safety Code, except that up to 20 percent of the units in the development, including total units and density bonus units, may be for moderate-income households, as defined in Section 50053 of the Health and Safety Code. For purposes of this subparagraph, “development” includes a shared housing building development. (2) For purposes of calculating the amount of the density bonus pursuant to subdivision (f), an applicant who requests a density bonus pursuant to this subdivision shall elect whether the bonus shall be awarded on the basis of subparagraph (A), (B), (C), (D), (E), (F), or (G) of paragraph (1). c.
(1)
(A) An applicant shall agree to, and the City shall ensure, the continued affordability of all very low and low-income rental units that qualified the applicant for the award of the density bonus for 55 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.
(B)
Packet Page. 1640

EXHIBIT A
(i) Except as otherwise provided in clause (ii), rents for the lower income density bonus units shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code. (ii) For housing developments meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b), rents for all units in the development, including both base density and density bonus units, shall be as follows:
(I) The rent for at least 20 percent of the units in the development shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code.
(II) The rent for the remaining units in the development shall be set at an amount consistent with the maximum rent
levels for lower income households, as those rents and
incomes are determined by the California Tax Credit
Allocation Committee.
(2)
(A) An applicant shall agree to ensure, and the City shall ensure, that a for-sale unit that qualified the applicant for the award of the density bonus meets either of the following conditions:
(i) The unit is initially occupied by a person or family of very low, low, or moderate income, as required, and it is offered at an affordable housing cost, as that cost is defined in Section 50052.5 of the Health and Safety Code and is subject to an equity sharing agreement.
(ii) The unit is purchased by a qualified nonprofit housing corporation pursuant to a recorded contract that satisfies all of the requirements specified in paragraph (10) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code and that includes all of the following:
(I) A repurchase option that requires a subsequent purchaser of the property that desires to resell or convey the property to offer the qualified nonprofit corporation the right to repurchase the property prior to selling or conveying that property to any other purchaser.
(II) An equity sharing agreement.
(III) Affordability restrictions on the sale and conveyance of the property that ensure that the property will be preserved for lower income housing for at least 45 years for owneroccupied housing units and will be sold or resold only to persons or families of very low, low, or moderate income, as defined in Section 50052.5 of the Health and Safety
Code.

Packet Page. 1641

EXHIBIT A
(B) For purposes of this paragraph, a “qualified nonprofit housing corporation” is a nonprofit housing corporation organized pursuant to Section 501(c)(3) of the Internal Revenue Code that has received a welfare exemption under Section 214.15 of the Revenue and Taxation Code for properties intended to be sold to low-income families who participate in a special no-interest loan program.
(C) The local government shall enforce an equity sharing agreement required pursuant to clause (i) or (ii) of subparagraph (A) unless it is in conflict with the requirements of another public funding source or law or may defer to the recapture provisions of the public funding source. The following apply to the equity sharing agreement:
(i) Upon resale, the seller of the unit shall retain the value of any improvements, the downpayment, and the seller’s proportionate share of appreciation.
(ii) Except as provided in clause (v), the local government shall recapture any initial subsidy, as defined in clause (iii), and its proportionate share of appreciation, as defined in clause (iv), which amount shall be used within five years for any of the purposes described in subdivision (e) of Section 33334.2 of the Health and Safety Code that promote homeownership.
(iii) For purposes of this subdivision, the local government’s initial subsidy shall be equal to the fair market value of the home at the time of initial sale minus the initial sale price to the moderateincome household, plus the amount of any downpayment assistance or mortgage assistance. If upon resale the market value is lower than the initial market value, then the value at the time of the resale shall be used as the initial market value. (iv) For purposes of this subdivision, the local government’s proportionate share of appreciation shall be equal to the ratio of the local government’s initial subsidy to the fair market value of the home at the time of initial sale.
(v) If the unit is purchased or developed by a qualified nonprofit housing corporation pursuant to clause (ii) of subparagraph (A) the local government may enter into a contract with the qualified nonprofit housing corporation under which the qualified nonprofit housing corporation would recapture any initial subsidy and its proportionate share of appreciation if the qualified nonprofit housing corporation is required to use 100 percent of the proceeds to promote homeownership for lower income households as defined by Section 50079.5 of the Health and Safety Code Section 50079.5 within the jurisdiction of the local government.

Packet Page. 1642

EXHIBIT A
(3)
(A) 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 five-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, and either of the following applies:
(i) The proposed housing development, inclusive of the units replaced pursuant to this paragraph, contains affordable units at the percentages set forth in subdivision (b).
(ii) 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.
(B) For the purposes of this paragraph, “replace” shall mean either of the following:
(i) If any dwelling units described in subparagraph (A) are occupied on the date of application, the proposed housing development shall provide at least the same number of units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those households in occupancy. If the income category of the household in occupancy is not known, it shall be rebuttably presumed that lower income renter
households occupied these units in the same proportion of lower income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban
Development’s Comprehensive Housing Affordability Strategy database. For unoccupied dwelling units described in
subparagraph (A) in a development with occupied units, the proposed housing development shall provide units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as the last household in occupancy. If the income category of the last household in occupancy is not known, it shall be rebuttably presumed that lower income renter households occupied these units in the same proportion of lower income renter households to all renter households within the Packet Page. 1643

EXHIBIT A
jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban
Development’s Comprehensive Housing Affordability Strategy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been vacated or demolished within the five-year period preceding the application, the proposed housing development shall provide at least the same number of units of equivalent size as existed at the highpoint of those units in the five-year period preceding the application to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those persons and families in occupancy at that time, if known. If the incomes of the persons and families in occupancy at the highpoint is not known, it shall be rebuttably presumed that low-income and very low income renter households occupied these units in the same proportion of low-income and very low income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing
Affordability Strategy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2). (C) Notwithstanding subparagraph (B), for any dwelling unit described in subparagraph (A) that is or was, within the five- year period preceding the application, subject to a form of rent or price control through a local government’s valid exercise of its police power and that is or was occupied by persons or families above lower income, the City may do either of the following:
(i) Require that the replacement units be made available at affordable rent or affordable housing cost to, and occupied by, low-income persons or families. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2).

Packet Page. 1644

EXHIBIT A
(ii) Require that the units be replaced in compliance with the jurisdiction’s rent or price control ordinance, provided that each unit described in subparagraph (A) is replaced. Unless otherwise required by the jurisdiction’s rent or price control ordinance, these units shall not be subject to a recorded affordability restriction.
(D) For purposes of this paragraph, “equivalent size” means that the replacement units contain at least the same total number of bedrooms as the units being replaced.
(E) Subparagraph (A) does not apply to an applicant seeking a density bonus for a proposed housing development if the applicant’s application was submitted to, or processed by, the City before January 1, 2015.
d.
(1) An applicant for a density bonus pursuant to subdivision (b) may submit to the City a proposal for the specific incentives or concessions that the applicant requests pursuant to this section and may request a meeting with the City. The City shall grant the concession or incentive requested by the applicant unless the City makes a written finding, based upon substantial evidence, of any of the following:
(A) The concession or incentive does not result in identifiable and actual cost reductions, consistent with subdivision (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 subdivision (c).
(B) The concession or incentive would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to lowincome and moderate-income households. (C) The concession or incentive would be contrary to state or federal law. (2) The applicant shall receive the following number of incentives or concessions:
(A) One incentive or concession for projects that include at least 10 percent of the total units for lower income households, at least 5 percent for very low-income households, or at least 10 percent for persons and families of moderate income in a development in which the units are for sale.
(B) Two incentives or concessions for projects that include at least 17 percent of the total units for lower income households, at least 10 Packet Page. 1645

EXHIBIT A
percent for very low-income households, or at least 20 percent for persons and families of moderate income in a development in which the units are for sale.
(C) Three incentives or concessions for projects that include at least 24 percent of the total units for lower income households, at least 15 percent for very low-income households, or at least 30 percent for persons and families of moderate income in a development in which the units are for sale.
(D) Five Four incentives or concessions for a project meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b). If the project is located within one-half mile of a major transit stop or is located in a very low vehicle travel area in a designated county, the applicant shall also receive a height increase of up to three additional stories, or 33 feet.
(E) One incentive or concession for projects that include at least 20 percent of the total units for lower income students in a student housing development.
(F) Four incentives or concessions for projects that include at least 16 percent of the units for very low income households or at least 45 percent for persons and families of moderate income in a developments in which the units are for sale.
(3) The applicant may initiate judicial proceedings if the City refuses to grant a requested density bonus, incentive, or concession. If a court finds that the refusal to grant a requested density bonus, incentive, or concession is in violation of this section, the court shall award the plaintiff reasonable attorney’s fees and costs of suit. This subdivision shall not be interpreted to require a local government to grant an incentive or concession that has a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.

This subdivision shall not be interpreted to require a local government to grant an incentive or concession that would have an adverse impact on any real property that is listed in the California Register of Historical Resources. The City shall establish procedures for carrying out this section that shall include legislative body approval of the means of compliance with this section.
(4) The City shall bear the burden of proof for the denial of a requested concession or incentive.
e.
(1) In no case may the City apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted by this section. Subject to paragraph (3), an applicant Packet Page. 1646

EXHIBIT A
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 of subdivision (b) at the densities or with the concessions or incentives permitted under this section and may request a meeting with the City. If a court finds that the refusal to grant a waiver or reduction of development standards is in violation of this section, the court shall award the plaintiff reasonable attorney’s fees and costs of suit. This subdivision shall not be interpreted to require a local government to waive or reduce development standards if the waiver or reduction would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. This subdivision shall not be interpreted to require a local government to waive or reduce development standards that would have an adverse impact on any real property that is listed in the California Register of Historical Resources, or to grant any waiver or reduction that would be contrary to state or federal law. (2) A proposal for the waiver or reduction of development standards pursuant to this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d). (3) A housing development that receives a waiver from any maximum controls on density pursuant to clause (ii) of subparagraph (D) of paragraph (3) of subdivision (f) shall only be eligible for a waiver or reduction of development standards as provided in subparagraph (D) of paragraph (2) of subdivision (d) and clause (ii) of subparagraph (D) of paragraph (3) of subdivision (f), unless the City agrees to additional waivers or reductions of development standards.
f. For the purposes of this chapter, “density bonus” means a density increase over the otherwise maximum allowable gross residential density as of the date of application by the applicant to the City, or, if elected by the applicant, a lesser percentage of density increase, including, but not limited to, no increase in density. The amount of density increases to which the applicant is entitled shall vary according to the amount by which the percentage of affordable housing units exceeds the percentage established in subdivision (b).
(1) For housing developments meeting the criteria of subparagraph (A) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows:

Percentage Low-Income Units Percentage Density
Bonus
10 20
11 21.5
12 23
Packet Page. 1647

EXHIBIT A
Percentage Low-Income Units Percentage Density
Bonus
13 24.5
14 26
15 27.5
16 29
17 30.5
18 32
19 33.5
20 35
21 38.75
22 42.5
23 46.25
24 50
(2) For housing developments meeting the criteria of subparagraph (B) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows:

Percentage Very Low-Income Units Percentage Density Bonus 5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50
(3)
Packet Page. 1648

EXHIBIT A
(A) For housing developments meeting the criteria of subparagraph (C) of paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the number of senior housing units.
(B) For housing developments meeting the criteria of subparagraph (E) of paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the number of the type of units giving rise to a density bonus under that subparagraph.
(C) For housing developments meeting the criteria of subparagraph (F) of paragraph (1) of subdivision (b), the density bonus shall be 35 percent of the student housing units.
(D) For housing developments meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b), the following shall apply:
(i) Except as otherwise provided in clauses (ii) and (iii), the density bonus shall be 80 percent of the number of units for lower income households.
(ii) If the housing development is located within one-half mile of a major transit stop, the City shall not impose any maximum controls on density.
(iii) If the housing development is located in a very low vehicle travel area within a designated county, the City shall not impose any maximum controls on density.
(4) For housing developments meeting the criteria of subparagraph (D) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows:

Percentage Moderate-Income Units Percentage Density
Bonus
10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
Packet Page. 1649

EXHIBIT A
Percentage Moderate-Income Units Percentage Density
Bonus
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
41 38.75
42 42.5
43 46.25
44 50
(5) All density calculations resulting in fractional units shall be rounded up to the next whole number. The granting of a density bonus shall not require, or be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval.

Packet Page. 1650

EXHIBIT A
g.
(1) When an applicant for a tentative subdivision map, parcel map, or other residential development approval donates land to the City in accordance with this subdivision, the applicant shall be entitled to a 15-percent increase above the otherwise maximum allowable residential density for the entire development, as follows:

Percentage Very Low Income Percentage Density
Bonus
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
18 23
19 24
20 25
21 26
22 27
23 28
24 29
25 30
26 31
27 32
28 33
29 34
30 35
(2) This increase shall be in addition to any increase in density mandated by subdivision (b), up to a maximum combined mandated density increase of 35 percent if an applicant seeks an increase pursuant to both this subdivision and subdivision (b). All density calculations resulting in fractional units Packet Page. 1651

EXHIBIT A
shall be rounded up to the next whole number. Nothing in this subdivision shall be construed to enlarge or diminish the authority of the City to require a developer to donate land as a condition of development. An applicant shall be eligible for the increased density bonus described in this subdivision if all of the following conditions are met:
(A) The applicant donates and transfers the land no later than the date of approval of the final subdivision map, parcel map, or residential development application.
(B) The developable acreage and zoning classification of the land being transferred are sufficient to permit construction of units affordable to very low-income households in an amount not less than 10 percent of the number of residential units of the proposed development. (C) The transferred land is at least one acre in size or of sufficient size to permit development of at least 40 units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at the density described in paragraph (3) of subdivision (c) of Section 65583.2, and is or will be served by adequate public facilities and infrastructure. (D) The transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units on the transferred land, not later than the date of approval of the final subdivision map, parcel map, or residential development application, except that the local government may subject the proposed development to subsequent design review to the extent authorized by subdivision (i) of Section 65583.2 if the design is not reviewed by the local government before the time of transfer. (E) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with paragraphs (1) and (2) of subdivision (c), which shall be recorded on the property at the time of the transfer.
(F) The land is transferred to the local agency or to a housing developer approved by the local agency. The local agency may require the applicant to identify and transfer the land to the developer. (G) The transferred land shall be within the boundary of the proposed development or, if the local agency agrees, within one-quarter mile of the boundary of the proposed development.
(H) A proposed source of funding for the very low-income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application. h.

Packet Page. 1652

EXHIBIT A
(1) When an applicant proposes to construct a housing development that conforms to the requirements of subdivision (b) and includes a childcare facility that will be located on the premises of, as part of, or adjacent to, the project, the City shall grant either of the following:
(A) An additional density bonus that is an amount of square feet of residential space that is equal to or greater than the amount of square feet in the childcare facility.
(B) An additional concession or incentive that contributes significantly to the economic feasibility of the construction of the childcare facility. (2) The City shall require, as a condition of approving the housing development, that the following occur:
(A) The childcare facility shall remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable pursuant to subdivision (c).
(B) Of the children who attend the childcare facility, the children of very low-income households, lower income households, or families of moderate income shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very lowincome households, lower income households, or families of moderate income pursuant to subdivision (b).
(3) Notwithstanding any requirement of this subdivision, the City shall not be required to provide a density bonus or concession for a childcare facility if it finds, based upon substantial evidence, that the community has adequate childcare facilities.
(4) “Childcare facility,” as used in this section, means a child daycare facility other than a family daycare home, including, but not limited to, infant centers, preschools, extended daycare facilities, and school age childcare centers.
i. “Housing development,” as used in this section, means a development project for five or more residential units, including mixed-use developments. For the purposes of this section, “housing development” also includes a subdivision or common interest development, as defined in Section 4100 of the Civil Code, approved by the City and consists of residential units or unimproved residential lots and either a project to substantially rehabilitate and convert an existing commercial building to residential use or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of Section 65863.4, where the result of the rehabilitation would be a net increase in available residential units. For the purpose of calculating a density bonus, the residential units shall be on contiguous sites that are the subject of one development application, but do not have to be based upon individual subdivision maps or parcels. The density bonus shall be permitted in geographic areas of the housing Packet Page. 1653

EXHIBIT A
development other than the areas where the units for the lower income households are located.
j.
(1) The granting of a concession or incentive shall not require or be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, study, or other discretionary approval. For purposes of this subdivision, “study” does not include reasonable documentation to establish eligibility for the concession or incentive or to demonstrate that the incentive or concession meets the definition set forth in subdivision (k). This provision is declaratory of existing law. (2) Except as provided in subdivisions (d) and (e), the granting of a density bonus shall not require or be interpreted to require the waiver of a local ordinance or provisions of a local ordinance unrelated to development standards.
k. For the purposes of this chapter, concession or incentive means any of the following:
(1) A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required that results in identifiable and actual cost reductions, 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 subdivision (c). (2) 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. (3) Other regulatory incentives or concessions proposed by the developer or the City that result in identifiable and actual cost reductions 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 subdivision (c).
l. Subdivision (k) does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the City, or the waiver of fees or dedication requirements. m. This section does not supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code). Any density bonus, concessions, Packet Page. 1654

EXHIBIT A
incentives, waivers or reductions of development standards, and parking ratios to which the applicant is entitled under this section shall be permitted in a manner that is consistent with this section and Division 20 (commencing with Section 30000) of the Public Resources Code.
n. If permitted by local ordinance, nothing in this section shall be construed to prohibit the City from granting a density bonus greater than what is described in this section for a development that meets the requirements of this section or from granting a proportionately lower density bonus than what is required by this section for developments that do not meet the requirements of this section. o. For purposes of this section, the following definitions shall apply:
(1) “Designated county” includes the Counties of Alameda, Contra Costa, Los Angeles, Marin, Napa, Orange, Riverside, Sacramento, San Bernardino, San Diego, San Francisco, San Mateo, Santa Barbara, Santa Clara, Solano, Sonoma, and Ventura, and the City and County of San Francsico. (2) “Development standard” includes a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, a minimum lot area per unit requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law, policy, resolution, or regulation. (3) “Located within one-half mile of a major transit stop” means that any point on a proposed development, for which an applicant seeks a density bonus, other incentives or concessions, waivers or reductions of development standards, or a vehicular parking ratio pursuant to this section, is within one-half mile of any point on the property on which a major transit stop is located, including any parking lot owned by the transit authority or other local agency operating the major transit stop.
(4) “Lower income student” means a student who has a household income and asset level that does not exceed the level for Cal Grant A or Cal Grant B award recipients as set forth in paragraph (1) of subdivision (k) of Section 69432.7 of the Education Code. The eligibility of a student to occupy a unit for lower income students under this section shall be verified by an affidavit, award letter, or letter of eligibility provided by the institution of higher education in which the student is enrolled or by the California Student Aid Commission that the student receives or is eligible for financial aid, including an institutional grant or fee waiver from the college or university, the California Student Aid Commission, or the federal government.
(5) “Major transit stop” has the same meaning as defined in subdivision (b) of Section 21155 of the Public Resources Code.
(6) “Maximum allowable residential density” or “base density” means the greatestmaximum number of units allowed under the zoning ordinance, specific plan, or land use element of the general plan, or, if a range of density Packet Page. 1655

EXHIBIT A
is permitted, means the greatestmaximum number of units allowed by the specific zoning range, specific plan, or land use element of the general plan applicable to the project. If the density allowed under the zoning ordinance is inconsistent with the density allowed under the land use element of the general plan or specific plan, the greater shall prevail. Density shall be determined using dwelling units per acre. However, if the applicable zoning ordinance, specific plan, or land use element of the general plan does not provide a dwelling-units-per-acre standard for density, then the local agency shall calculate the number of units by:
(A) Estimating the realistic development capacity of the site based on the objective development standards applicable to the project, including, but not limited to, floor area ratio, site coverage, maximum building height and number of stories, building setbacks and stepbacks, public and private open-space requirements, minimum percentage or square footage of any nonresidential component, and parking requirements, unless not required for the base project. Parking requirements shall include considerations regarding number of spaces, location, design, type, and circulation. A developer may provide a base density study and the local agency shall accept it, provided that it includes all applicable objective development standards.
(B) Maintaining the same average unit size and other project details relevant to the base density study, excepting those that may be modified by waiver or concession to accommodate the bonus units, in the proposed project as in the study.
(7)
(A)
(i) “Shared housing building” means a residential or mixed-use structure, with five or more shared housing units and one or more common kitchens and dining areas designed for permanent residence of more than 30 days by its tenants. The kitchens and dining areas within the shared housing building shall be able to adequately accommodate all residents. If a local ordinance further restricts the attributes of a shared housing building beyond the requirements established in this section, the local definition shall apply to the extent that it does not conflict with the requirements of this section.
(ii) “shared housing building” may include other dwelling units that are not shared housing units, provided that those dwelling units do not occupy more than 25 percent of the floor area of the shared housing building. A shared housing building may include 100 percent shared housing units.
(B) “Shared housing unit” means one or more habitable rooms, not within another dwelling unit, that includes a bathroom, sink, refrigerator, and Packet Page. 1656

EXHIBIT A
microwave, is used for permanent residence, that meets the “minimum room area” specified in Section R304 of the California Residential Code (Part 2.5 of Title 24 of the California Code of Regulations) and complies with the definition of “guestroom” in Section R202 of the California Residential Code. If a local ordinance further restricts the attributes of a shared housing building beyond the requirements established in this section, the local definition shall apply to the extent that it does not conflict with the requirements of this section. (8)
(A) “Total units” or “total dwelling units” means a calculation of the number of units that:
(i) Excludes a unit added by a density bonus awarded pursuant to this section or any local law granting a greater density bonus. (ii) Includes a unit designated to satisfy an inclusionary zoning requirement of the City.
(B) For purposes of calculating a density bonus granted pursuant to this section for a shared housing building, “unit” means one shared housing unit and its pro rata share of associated common area facilities.
(9) “Very low vehicle travel area” means an urbanized area, as designated by the United States Census Bureau, where the existing residential development generates vehicle miles traveled per capita that is below 85 percent of either regional vehicle miles traveled per capita or city vehicle miles traveled per capita. For purposes of this paragraph, “area” may include a travel analysis zone, hexagon, or grid. For the purposes of determining “regional vehicle miles traveled per capita” pursuant to this paragraph, a “region” is the entirety of incorporated and unincorporated areas governed by a multicounty or single-county metropolitan planning organization, or the entirety of the incorporated and unincorporated areas of an individual county that is not part of a metropolitan planning organization. p.
(1) Except as provided in paragraphs (2), (3), and (4), upon the request of the developer, the City shall not require a vehicular parking ratio, inclusive of parking for persons with a disability and guests, of a development meeting the criteria of subdivisions (b) and (c), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: one and one-half onsite parking spaces. (C) Four and more bedrooms: two and one-half parking spaces. (2)
(A) Notwithstanding paragraph (1), if a development includes at least 20 percent low-income units for housing developments meeting the Packet Page. 1657

EXHIBIT A
criteria of subparagraph (A) of paragraph (1) of subdivision (b) or at least 11 percent very low income units for housing developments meeting the criteria of subparagraph (B) of paragraph (1) of subdivision (b), is located within one-half mile of a major transit stop, and there is unobstructed access to the major transit stop from the development, then, upon the request of the developer, the City shall not impose a vehicular parking ratio, inclusive of parking for persons with a disability and guests, that exceeds 0.5 spaces per unit.

Notwithstanding paragraph (1), if a development includes at least 40 percent moderate-income units for housing developments meeting the criteria of subparagraph (D) of paragraph (1) of subdivision (b), is located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code, and the residents of the development have unobstructed access to the major transit stop from the development then, upon the request of the developer, the City shall not impose a vehicular parking ratio, inclusive of parking for persons with a disability and guests, that exceeds 0.5 spaces per bedroom.
(B) For purposes of this subdivision, “unobstructed access to the major transit stop” means a resident is able to access the major transit stop without encountering natural or constructed impediments. For purposes of this subparagraph, “natural or constructed impediments” includes, but is not limited to, freeways, rivers, mountains, and bodies of water, but does not include residential structures, shopping centers, parking lots, or rails used for transit.
(3) Notwithstanding paragraph (1), if a development meets the criteria of subparagraph (G) of paragraph (1) of subdivision (b), then, upon the request of the developer, the City shall not impose vehicular parking standards if the development meets any of the following criteria:
(A) The development is located within one-half mile of a major transit stop and there is unobstructed access to the major transit stop from the development.
(B) The development is a for-rent housing development for individuals who are 55 years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code and the development has either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day. (C) The development is either a special needs housing development, as defined in Section 51312 of the Health and Safety Code, or a supportive housing development, as defined in Section 50675.14 of the Health and Safety Code. A development that is a special needs housing development shall have either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.

Packet Page. 1658

EXHIBIT A
(4) If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number. For purposes of this subdivision, a development may provide onsite parking through tandem parking or uncovered parking, but not
through onstreet parking.
(5) This subdivision shall apply to a development that meets the requirements of subdivisions (b) and (c), but only at the request of the applicant. An applicant may request
parking incentives or concessions beyond those provided in this subdivision pursuant to subdivision (d).
(6) This subdivision does not preclude the City from reducing or eliminating a parking requirement for development projects of any type in any location.
(7) Notwithstanding paragraphs (2) and (3), if the City or an independent consultant has conducted an areawide or
jurisdiction wide parking study in the last seven years, then the City may impose a higher vehicular parking ratio not to exceed the ratio described in paragraph (1), based upon substantial evidence found in the parking study, that includes, but is not limited to, an analysis of parking availability, differing levels of transit access, walkability access to transit services, the potential for shared parking, the effect of parking requirements on the cost of market- rate and subsidized developments, and the lower rates of car ownership for lowincome and very low income individuals, including seniors and special needs individuals. The City shall pay the costs of any new study. The City shall make findings, based on a parking study completed in conformity with this paragraph, supporting the need for the higher parking ratio.
(8) A request pursuant to this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d). q. Each component of any density calculation, including base density and bonus density, resulting in fractional units shall be separately rounded up to the next whole number. The Legislature finds and declares that this provision is declaratory of existing law.
r. This chapter shall be interpreted liberally in favor of producing the maximum number of total housing units.
s. Notwithstanding any other law, if the City has adopted an ordinance or a housing program, or both an ordinance and a housing program, that incentivizes the development of affordable housing that allows for density bonuses that Packet Page. 1659

EXHIBIT A
exceed the density bonuses required by the version of this section effective through December 31, 2020, the City is not required to amend or otherwise update its ordinance or corresponding affordable housing incentive program to comply with the amendments made to this section by the act adding this subdivision, and is exempt from complying with the incentive and concession calculation amendments made to this section by the act adding this subdivision as set forth in subdivision (d), particularly subparagraphs (B) and (C) of paragraph (2) of that subdivision, and the amendments made to the density tables under subdivision (f).
t. When an applicant proposes to construct a housing development that conforms to the requirements of subparagraph (A) or (B) of paragraph (1) of subdivision (b) that is a shared housing building, the City shall not require any minimum unit size requirements or minimum bedroom requirements that are in conflict with paragraph (7) of subdivision (o).
u.
(1) The Legislature finds and declares that the intent behind the Density Bonus Law is to allow public entities to reduce or even eliminate subsidies for a particular project by allowing a developer to include more total units in a project than would otherwise be allowed by the local zoning ordinance in exchange for affordable units. It further reaffirms that the intent is to cover at least some of the financing gap of affordable housing with regulatory incentives, rather than additional public subsidy. (2) It is therefore the intent of the Legislature to make modifications to the Density Bonus Law by the act adding this subdivision to further incentivize the construction of very low, low-, and moderate-income housing units. It is further the intent of the Legislature in making these modifications to the Density Bonus Law to ensure that any additional benefits conferred upon a developer are balanced with the receipt of a public benefit in the form of adequate levels of affordable housing. The Legislature further intends that these modifications will ensure that the Density Bonus Law creates incentives for the construction of more housing across all areas of the state.
(v)
(1) Provided that the resulting housing development would not restrict more than 50 percent of the total units to moderate-income, lower income, or very low income households, a City shall grant an additional density bonus calculated pursuant to paragraph (2) when an applicant proposes to construct a housing development that conforms to the requirements of paragraph (1) of subdivision (b), agrees to include additional rental or forsale units affordable to very low income households or moderate income households, and meets any of the following requirements:

Packet Page. 1660

EXHIBIT A
(A) The housing development conforms to the requirements of subparagraph (A) of paragraph (1) of subdivision (b) and provides 24 percent of the total units to lower income households.
(B) The housing development conforms to the requirements of subparagraph (B) of paragraph (1) of subdivision (b) and provides 15 percent of the total units to very low-income households. (C) The housing development conforms to the requirements of subparagraph (D) of paragraph (1) of subdivision (b) and provides 44 percent of the total units to moderate-income households. (2) A City shall grant an additional density bonus for a housing development that meets the requirements of paragraph (1), calculated as follows:

Percentage Very Low Income Units Percentage Density Bonus 5 20
6 23.75
7 27.5
8 31.25
9 35
10 38.75
Percentage Moderate-Income Units Percentage Density Bonus 5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50
(3) The increase required by paragraphs (1) and (2) shall be in addition to any increase in density granted by subdivision (b).

Packet Page. 1661

EXHIBIT A
(4) The additional density bonus required under this subdivision shall be calculated using the number of units excluding any density bonus awarded by this section.

This section contains two density bonus provisions. The first entitlement is based upon the provision of affordable housing pursuant to State Government Code Section 65915. The second provision is intended to provide density bonus incentives for the incorporation of on-site amenities.

1. Affordable Housing
State Government Code Section 65915 provides for the granting of a density bonus or other incentives of equivalent financial value when a developer of housing agrees to construct at least 1 of the following:
a. Twenty percent of the total units of a housing development for persons and families or lower income, as defined in Section 50079.5 of the Health and Safety Code.
b. Ten percent of the total units of a housing development for very low income households, as defined in Section 50105 of the Health and Safety Code. c. Fifty percent of the total dwelling units of a housing development for qualifying residents, as defined in Section 51.2 of the Civil Code.

A request for a density bonus and regulatory concessions and/or incentives shall require Conditional Use Permit review and be subject to the following provisions:
a. For the purpose of this Section, "density bonus" shall mean a density increase of 25% over the otherwise maximum allowable residential density under this Development Code and the General Plan. When determining the number of housing units which are to be affordable, the density bonus shall not be included.
b. The purposes for implementing this section are as follows:
1) The City shall within 90 days of receipt of a written proposal, notify the developer in writing of the procedures governing these provisions. 2) The Council may approve the density bonus and regulatory concessions and/or incentives only if all of the following findings are made:
a) The developer has proven that the density bonus and adjustment of standards is necessary to make the project economically feasible; b) That additional adjustment of standards is not required in order for the rents for the targeted units to be set, pursuant to Government Code Section 65915(c); and
c) The proposed project is compatible with the purpose and intent of the General Plan and this Development Code.

Packet Page. 1662

EXHIBIT A
c. The density bonus shall only apply to housing developments consisting of five or more dwelling units.
d. The density bonus provision shall not apply to senior citizen and senior congregate care housing projects that utilize the senior citizen housing density provisions of this Development Code.
e. Prior to the issuance of a building permit for any dwelling unit in a development for which "density bonus units" have been awarded or incentives have been received, the developer shall submit documentation which identifies the restricted units and shall enter into a written agreement with the City to guarantee for 30 years their continued use and availability to low and moderate-income households. The agreement shall extend more than 30 years if required by the Construction or Mortgage Financing Assistance Program, Mortgage Insurance Program, or Rental Subsidy Program. The terms and conditions of the agreement shall run with the land which is to be developed, shall be binding upon the successor in interest of the developer, and shall be recorded in the Office of the San Bernardino County Recorder.

The agreement shall include the following provisions:
1) The developer shall give the City the continuing right-of-first- refusal to purchase or lease any or all of the designated units at the fair market value; 2) The deeds to the designated units shall contain a covenant stating that the developer or his/her successor in interest shall not sell, rent, lease, sublet, assign, or otherwise transfer any interests for same without the written approval of the City confirming that the sales price of the units is consistent with the limits established for low- and moderate-income households, which shall be related to the Consumer Price Index; 3) The City shall have the authority to enter into other agreements with the developer or purchasers of the dwelling units, as may be necessary to assure that the required dwelling units are continuously occupied by eligible households.
f. "Density bonus units" shall be generally dispersed throughout a development project and shall not differ in appearance from other units in the development.
g. The City shall provide, in addition to a density bonus, at least 1 of the following regulatory concessions and/or incentives to ensure that the multifamily residential project will be developed at a reduced cost:
1) A reduction or modification of Development Code requirements which exceed the minimum building standards approved by the State Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 123 of the Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required.

Packet Page. 1663

EXHIBIT A
2) Approval of mixed use development in conjunction with the multi-family residential project if commercial, office, industrial, or other land uses will reduce the cost of the development and if the project will be compatible internally as well as with the existing or planned development in the area where the proposed housing project will be located.
3) Other regulatory incentives or concessions proposed by the developer or the City which result in identifiable cost reductions.

2. Amenities Bonus Provision
This provision allows an increase in the maximum permitted density of 15% in only the RU, RM, RMH, RH, CO-1 & 2, CG-2, and CR-2 land use zoning districts. Increases of up to 15% may be granted based upon the finding(s) that any proper combination of the following amenities are provided in excess of those required by the applicable zone:
a. Architectural features that promote upscale multi-family development; b. Additional on-site or off-site mature landscaping which will benefit the project; c. Additional useable open space;
d. Attached garages;
e. Additional recreational facilities (i.e., clubhouse, play area, pool/Jacuzzi, tennis court, etc.); and
f. Day care facilities.

This amenity bonus provision shall not be used as an addition to the affordable housing density bonus provision.

Packet Page. 1664
Packet Page. 1665
Packet Page. 1666
Packet Page. 1667
Packet Page. 1668
Packet Page. 1669
Packet Page. 1670
Packet Page. 1671
Packet Page. 1672
Packet Page. 1673
Packet Page. 1674
Packet Page. 1675
Packet Page. 1676
Packet Page. 1677
Packet Page. 1678
Packet Page. 1679
Packet Page. 1680
Packet Page. 1681
Packet Page. 1682
Packet Page. 1683
Packet Page. 1684
Packet Page. 1685
Packet Page. 1686
Packet Page. 1687
Packet Page. 1688
Packet Page. 1689
Packet Page. 1690
Packet Page. 1691
Packet Page. 1692
Packet Page. 1693
Packet Page. 1694
Packet Page. 1695
Packet Page. 1696
Packet Page. 1697

NOTICE OF PUBLIC HEARING

Environmental Determination: Categorically Exempt, pursuant to Section 15061(b)(3) (Common Sense Exemption) of the State CEQA Guidelines.

19.04.030(2)(D) (Density Bonus) of the City of San Bernardino Development Code (SBMC Title 19) in order to update the Density Bonus provisions in compliance with State law.

Environmental Determination: Exempt, pursuant to Section 15061(b)(3) (Common Sense Exemption) of the State CEQA Guidelines.

Submitted: February 6, 2024
Publish: February 10, 2024 (Display Ad)
Please send first proof for verification or changes by e-mail to Jennifer Meamber: [email protected].

Please reference “MCC Display Ad” on the billing and send to the City of San Bernardino, Planning Division, 290 North D Street, San Bernardino, CA 92401.

Packet Page. 1698

CLOSED SESSION
City of San Bernardino
Request for Council Action
Date: February 21, 2024
To: Honorable Mayor and City Council Members
From: Sonia Carvalho, City Attorney
Department: City Attorney's Office
Subject: Closed Session
Recommendation:

A) CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Pursuant to Government Code Section 54956.9(a) and (d)(1):
i. Kim Mannion v. City of San Bernardino, San Bernardino Superior Court Case No. CIVSB2215977
B) CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION Significant exposure to litigation (Pursuant to Government Code Section 54956.9(d)(2)):

Notice of Claim, Enrique Gonzalez, dated June 27, 2023, Claim No. GHC0059695 Packet Page. 1699

Mayor and City CouncilFebruary 21, 2024

Mayor and City Council
February 21, 2024