9.64.060 Off-Site Option
The following requirements must be met to satisfy the off-site option of this Chapter:
A. An applicant for a multiple-unit dwelling project consisting of 20 or more units shall agree to construct 5% more affordable housing units than the number of affordable housing units required by Section 9.64.050 (B).
B. Fractions. Any fractional affordable housing unit that results from the formulas of this Section that is 0.5 or more shall be treated as a whole affordable housing unit (i.e., any resulting fraction shall be rounded up to the next larger integer) and that unit shall also be built pursuant to the provisions of this Section. Any fractional affordable housing unit that is less than 0.5 can be satisfied by the payment of an affordable housing fee for that fractional unit only pursuant to Section 9.64.070(B).
C. The off-site affordable housing units shall be affordable to 80% income households or lower.
D. The multiple-unit project applicant shall identify an alternate site suitable for residential housing which the project applicant either owns or has site control over (e.g., purchase agreement, option to purchase, lease) subject to City review to ensure that the proposed development is consistent with the City’s housing objectives and projects. 38 E. The off-site units may be located anywhere in the City except for within the area defined in Figure 9.64.060.A, Off-Site Affordable Housing Prohibition Area, below.
Figure 9.64.060.A – Off-Site Affordable Housing Prohibition Area F. The off-site units shall satisfy the requirements of subsections (D) through (J) of Section 9.64.050.
39 G. Pooling Units/No Double Counting. If two or more market rate projects elect to use the off-site option in a single project, the off-site affordable housing units in the project shall not be counted twice towards the satisfaction of any affordable housing obligation pursuant to this Chapter, but shall count towards eligibility for a density bonus in accordance with Chapter 9.22.
H. The off-site affordable units shall be owned in whole or part and operated by a nonprofit affordable housing provider for the life of the project, and the Final Construction Permit Sign Off or Certificate of Occupancy for the off-site affordable units shall be issued prior to or concurrently with the market-rate housing project.
I. The City Council may by resolution establish compliance monitoring fees which reflect the reasonable regulatory cost to the City of ensuring compliance with this Section when affordable housing units are initially being rented or sold, when the required annual reports are submitted to the City, and when the units are being re-sold or re-leased.
The following requirements must be met to satisfy the off-site option of this Chapter:
A. The multi-family project applicant for ownership projects of 4 or more units in multifamily residential districts shall agree to construct 25% more affordable housing units than number of affordable housing units required by Section 9.64.050(A) and (B).
B. For all other multi-family project applicants, the applicant shall agree to construct the same number of affordable housing units as specified in Section 9.64.050(C).
C. The multi-family project applicant shall identify an alternate site suitable for residential housing which the project applicant either owns or has site control over (e.g., purchase agreement, option to purchase, lease) subject to City review to ensure that the proposed development is consistent with the City’s housing objectives and projects. 40 D. The off-site units shall be located within a one-quarter mile radius of the market rate units.
E. The off-site units shall satisfy the requirements of subsections (D) through (J) of Section 9.64.050.
F. The off-site units shall not count towards the satisfaction of any affordable housing obligation that development of the alternative site with market rate units would otherwise be subject to pursuant to this Chapter.
G. Exceptions to the location of the off-site units specified in this Section may be granted by the Planning Commission on a case-by-case basis upon a showing by the multi-family project applicant, based upon substantial evidence, that the location of offsite units in a location different from that specified in this Section better accomplishes the goals of this Chapter, including maximizing affordable housing production and dispersing affordable housing throughout the City.
H. The City Council may by resolution establish compliance monitoring fees which reflect the reasonable regulatory cost to the City of ensuring compliance with this Section when affordable housing units are initially being rented or sold, when the required annual reports are submitted to the City, and when the units are being re-sold or re-leased.
9.64.070 Affordable Housing Fee
A multiple-unit project may satisfy the affordable housing obligations established by this Chapter by paying an affordable housing fee in accordance with the following requirements:
A. Multiple-unit projects of five units or less based on the following formula:
(Affordable housing unit base fee) x (floor area of multiple-unit project) 41 B. Multiple-unit projects of six units or more with fractional affordable housing units of less than 0.5 based on the formula established in Section 9.64.050 and 9.64.060:
(City’s affordable housing unit development cost) x (fractional percentage) A multi-family project applicant eligible to meet the affordable housing obligations established by this Chapter by paying an affordable housing fee shall pay the fee in accordance with the following requirements:
A. An affordable housing fee may be paid in accordance with the following formulas:
1. Affordable housing unit base fee x floor area of multi-family project;
2. Multi-family projects with fractional affordable housing units of less than
0.75 based on the formula established in Section 9.64.050:
(City’s affordable housing unit development cost) x (fractional percentage) CB. For purposes of this Section, the affordable housing unit base fee shall be established by resolution of the City Council. Commencing on July 1, 2006 and on July 1st of each fiscal year thereafter, the affordable housing unit base fee shall be adjusted based on changes in construction costs and land costs. The amount of the affordable housing fee that the multiple-unit multi-family project applicant must pay shall be based on the affordable housing unit base fee resolution in effect at the time that the affordable housing fee is paid to the City.
DC. For purposes of this Section, the City’s affordable housing unit development cost shall be established by resolution of the City Council. Commencing on July 1, 2007 and on July 1st of each fiscal year thereafter, the City’s affordable housing unit development cost shall be adjusted based on changes in construction costs and land costs. The affordable housing fee that the multiple-unit multi-family project applicant must pay shall 42 be based on the affordable housing unit development cost resolution in effect at the time of payment to the City.
ED. The amount of the affordable housing unit base fee may vary by product type (apartment or condominium) and shall reflect, among other factors, the relationship between new market rate multiple-unit multi-family development and the need for affordable housing.
FE. The affordable housing fee shall be paid in full to the City prior to the City granting any approval for the occupancy of the project, but no earlier than the time of building permit issuance.
GF. The City shall deposit any payment made pursuant to this Section in a reserve account separate from the General Fund to be used only for development of affordable housing, administrative costs related to the production of this housing, and monitoring and evaluation of this affordable housing production program. Any monies collected and interest accrued pursuant to this Chapter shall be committed within five years after the payment of such fees or the approval of the multiple-unit multi-family project, whichever occurs later. Funds that have not been appropriated within this five-year period shall be refunded on a pro rata share to those multiple-unit multi-family project applicants who have paid fees during the period. Expenditures and commitments of funds shall be reported to the City Council annually as part of the City budget process.
HG. An affordable housing fee payment pursuant to this Section shall not be considered provision of affordable housing units for purposes of determining whether the multipleunit multi-family project qualifies for a density bonus pursuant to Government Code Section 65915.
43 9.64.080 Land Acquisition
A. A multiple-unit multi-family project applicant may meet the affordable housing obligations established by this Chapter by making an irrevocable offer:
1. Dedicating land to the City or a non-profit housing provider;
2. Selling of land to the City or a non-profit housing provider at below market value; or
3. Optioning of land on behalf of the City or a non-profit housing provider.
Each of these options must be for a value at least equivalent to the affordable housing obligation otherwise required pursuant to this Section.
B. The multiple-unit multi-family project applicant must identify the land at the time that the development application is filed with the City. Any land offered pursuant to this Section must be located within one-quarter mile radius of the market rate units unless the multiple-unit multi-family project applicant demonstrates that locating the land outside of this radius better accomplishes the goals of this Chapter, including maximizing affordable housing production and dispersing affordable housing throughout the City. The City may approve, conditionally approve or reject such offers subject to administrative guidelines to be prepared by the City Manager or designee. If the City rejects such offer, the multipleunit multi-family project applicant shall be required to meet the affordable housing obligation by other means set forth in this Chapter.
9.64.090 Fee Waivers
The Condominium and Cooperative Tax described in Section 6.76.010 of the Santa Monica Municipal Code or any successor thereto and the Park and Recreation Facilities Tax established in Chapter 6.80 of Article 6 of the Santa Monica Municipal Code or any 44 successor thereto, the Transportation Impact Fee required by Chapter 9.66, or any successor thereto, the Open Space Fee required by Chapter 9.67, or any successor thereto, and the Childcare Linkage Fee required by Chapter 9.65, or any successor thereto, shall be waived for required affordable housing units and for 30%, 50%, 80% and moderate-income dwelling units developed by the City or its designee using affordable housing fee. However, any multiple-unit multi-family project applicant who elects to pay an affordable housing fee shall not be eligible for any fee waiver under this Section.
9.64.100 Pricing Requirements for Affordable Housing Units The City shall publish, on an annual basis, the 30%, 50%, 80%, and moderate- income household levels, and affordable rents for affordable housing units, adjusted for household size appropriate for the unit.
9.64.110 Income Eligibility Requirements
A. Only 30%, 50%, 80% and moderate-income households shall be eligible to occupy or own and occupy affordable housing units. The City shall develop a list of incomequalified households. Multiple-unit Multi-family project applicants shall be required to select households from the City-developed list of income-qualified households, except applicants of ownership projects of four or more units in the City’s multi-family residential zones may themselves select income-qualified households which shall be subject to eligibility certification by the City.
B. The following individuals, by virtue of their position or relationship, are ineligible to occupy an affordable housing unit:
1. All employees and officials of the City of Santa Monica or its agencies, authorities, or commissions who have, by the authority of their position, policy-making 45 authority or influence over the implementation of this Chapter and the immediate relatives and employees of such City employees and officials;
2. The immediate relatives of the applicant or owner, including spouse, children, parents, grandparents, brother, sister, father-in-law, mother-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, sister-in-law, and brother-in-law.
C. For purposes of this Chapter, income eligibility is based upon the gross income of the household, including the income of all adult wage earners including elderly or disabled family members, and all other sources of household income from adults.
9.64.130 Deed Restrictions
Prior to issuance of a building permit for a project meeting the requirements of this Chapter by providing affordable units on-site or off-site, the multiple-unit multi-family project applicant shall record submit deed restrictions or other legal instruments setting forth the obligation of the applicant under this Chapter for City review and approval. Such restrictions shall be effective for at least 55 fifty-five years. In addition to the administrative guidelines specifically required by other provisions of this Chapter, the City Manager or designee shall be the designated authority to enter into recorded agreements with multiple-unit multi-family project applicants.
9.64.140 Enforcement
No building permit or occupancy permit shall be issued, nor any development approval granted, for a project which is not exempt and does not meet the requirements of this Chapter. All affordable housing units shall be rented or owned in accordance with this Chapter.
46 9.64.150 Annual Report
The City Manager or designee, shall submit a report to the City Council on an annual basis which shall contain information concerning the implementation of this Chapter. This report shall also detail the projects that have received Planning planning approval during the previous year and the manner in which the provisions of this Chapter were satisfied.
This report shall further assess whether the provisions of Proposition R have been met and whether changes to this Chapter or its implementation procedures are warranted. In the event the provisions of Proposition R have not been met, the City Council shall take such action as is necessary to ensure that the provisions will be met in the future. This action may include, but not be limited to, amending the provisions of this Chapter or its implementation.
9.64.160 Principles and Guidelines
The City Manager, or designee, shall develop guidelines to implement this Chapter, which guidelines shall be subject to approval of the City Council. The guidelines shall include, but not be limited to, the methodology for the establishment and periodic adjustment of the base fee and the affordable housing unit development cost; for-sale affordable unit requirements, tenant and purchaser eligibility procedures; and additional requirements for exercise of the off-site option and land acquisition option.
9.64.170 Adjustments or Waivers
A. A multiple-unit multi-family project applicant may request that the requirements of this Chapter be adjusted or waived based on a showing that applying the requirements of this Chapter would effectuate an unconstitutional taking of property or otherwise have an unconstitutional application to the property.
47 B. To receive an adjustment or waiver, the applicant must submit an application to the City Manager or designee, at the time the applicant files a multiple-unit multi-family project application. The applicant shall bear the burden of presenting substantial evidence to support the request and set forth in detail the factual and legal basis for the claim, including all supporting technical documentation.
C. In making a determination on an application to adjust or waive the requirements of this Chapter, the City Manager or designee, or City Council on appeal, may assume each of the following when applicable:
1. The applicant is subject to the affordable housing obligation requirement of this Chapter;
2. The applicant will benefit from the inclusionary incentives set forth in this Chapter and the City’s Municipal Code;
3. The applicant will be obligated to provide the most economical affordable housing units feasible in terms of construction, design, location and tenure.
D. The City Manager or designee shall render a written decision within ninety days after a complete application is filed. The City Manager’s or designee’s decision may be appealed to the City Council if such appeal is filed within fourteen consecutive calendar days from the date that the decision is made in the manner provided in Santa Monica Municipal Code Chapter 9.37, Common Procedures of this Code, or any successor thereto.
E. If the City Manager or designee, or City Council on appeal, upon legal advice provided by or at the behest of the City Attorney, determines that applying the requirements of this Chapter would effectuate an unconstitutional taking of property or 48 otherwise have an unconstitutional application to the property, the affordable housing requirements shall be adjusted or waived to reduce the obligations under this Chapter to the extent necessary to avoid an unconstitutional result. If an adjustment or waiver is granted, any change in the use within the project shall invalidate the adjustment or waiver.
If the City Manager or designee, or City Council on appeal, determines that no violation of the United States or California Constitutions would occur through application of this Chapter, the requirements of this Chapter remain fully applicable.