CC Ordinance No. 21-2230 Amending Sections 19.56.030a (Table 19.56.030) 19.56.030f Table 19.56.040a and Adding Section 19.56.080 (Density Bonus Ordinance)ORDINANCE NO. 21-2230
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AMENDING CUPERTINO MUNICIPAL CODE
SECTIONS 19.56.030A (TABLE 19.56.030), 19.56.030F, TABLE 19.56,040A
AND ADDING SECTION 19.56,080 (DENSITY BONUS ORDINANCE)
TO ALLOW DENSITY BOND.SES AND OTHER INCENTIVES AS
PROVIDED BY STATE LAW
SECTION I: PROTECT DESCRIPTION
Application No.:
Applicant:
Location:
MCA-2021-003
City of Cupertino
Citywide
SECTION II: RECITALS
WHEREAS, Cupertino Municipal Code Chapter 19.56 implements the requirements of
· Government Code Section 65915 (state dE:nsity bonus law) to incentivize the construction
of affordable units through the provisfon of density bonuses and other benefits; and .
WHEREAS, the California Legislature has adopted AB 2345 (Chapter 197, Statutes of
2020), which modified state density bonus law; and .
WHEREAS, the City Council of the City of Cupertino on April 20, 2021 introduced, and
on May 4, 2021 adopted, Ordinance No. 21-2226 to incentivize the development of
affordable housing by allowing density bonuses of up to 40 percent; and
WHEREAS, the City Council of the City of Cupertino on April 20, 2021 also directed staff
to return with a potential amendment to the housing program to allow a 50 percent
density bonus for higher percentages of BMR housing, to be considered with other
density bonus ordinance updates; and
WHEREAS; the City desires to amend Chapter 19.56 to permit density bonuses of 50
percent and concessions and incentives as provided in AB 2345; and
WHEREAS, the proposed amendments to the density bonus ordinance are consistent
with the City's General Plan, and the City's police power provides the City with the
authority to adopt an affordable housing program to further the public health, safety, and
welfare; and
Ordinance No. 21-2230
Page 2
WHEREAS, on September 14, 2021, at a duly and properly noticed public hearing, the
Planning Commission recommended on a 3-2 vote that the City Council find that the
proposed code amendments: (1) will not result in any direct or reasonably foreseeable
indirect physical change in the environment (CEQA Guidelines Section 15060(c)); (2) do
not constitute a project under CEQA (CEQA Guidelines Section 15378); and (3) can be
seen with certainty based on review of the facts to have no possible significant effect on
the environment (CEQA Guidelines Section 15061(b)(3)); and
WHEREAS, on September 14, 2021, at a duly and properly noticed public hearing, the
Planning Commission adopted Resolution No. 6928 and recommended on a 3-2 vote (No:
Madhdhipatla and Wang) that the City Council adopt the draft density bonus ordinance
presented to it, in substantially similar form to this ordinance; and
WHEREAS, all necessary public notices having been given as required by the Municipal
Code of the City of Cupertino and the Government Code, on October 5, 2021, the City
Council held a public hearing to consider the Ordinance; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Ordinance.
SECTI_DN III
NOW,.THEREFORE, BE IT ORDAINED:
That after careful consideration of facts, exhibits, testimony and other evidence submitted
in this matter the City Council hereby adopts the Ordinance based on the findings
described below, the public hearing, and the record, as follows:
Section 1. The recitals set forth above are true and correct and are hereby
incorporated herein by this reference as if fully set forth in their entirety.
Section 2. The City Council finds the following as set forth by Municipal Code
Sections 19.152.020C and 19.152.030D:
1. That the proposed zoning is in .accord with Title 19 of the Municipal Code and
the City's Comprehensive General Plan (Community Vision 2040) and the proposed
amendments are internally consistent with Title 19 of the Municipal Code.
The proposed amendments have been adopted in accord with the requirements of Title 19, and
the proposed amendments to Section 19.56.030F are proposed to achieve consistency with AB
2345 adopted by the State in 2020.
Ordinance No. 21-2230
Page3
2. The proposed zoning is in compliance with the provisions of the California
Environmental Quality Act (CEQA).
It is not possible to predict which properties in the City, if any, may be proposed to be developed
with an increa'sed density bonus, given market conditions, building types desired, and developers'
individual decisions whether or, not to request bonuses; nor whether any increased development
or density will result from the proposed changes, whether any development or density will result
that would not already have occurred under the existing Municipal Code, nor whether any
possible significant environmental il:npacts peculiar to the adoption of the proposed zoning code
amendments would occur. Therefore, the proposed code amendments: (1) will not result in any
direct or reasonably foreseeable indirect physical change in the environment (CEQA Guidelines
Section 15060(c)) and so (2) do not constitute a project under CEQA (CEQA Guidelines Sectfon
· 15378).
Further, the City has been informed by the California Department of Housing and Community
Development (HCD) that its existing density bonus ordinance must be modified to be consistent
with AB 2345, and the ordinance amendments reflect HCD's interpretation of the requirements
of state laU?, The proposed zoning amendments do notpermit any bonuses, incentives, or waivers
· other those provided by State law. The amendments can therefore be seen with certainty based on
review of the facts to have no possible significant effect on the environment (CEQA Guidelines
Section 15061(b)(3)). These amendments do not authorize the development of housing on any
site where housing is not already permitted under the City's existing codes, and any housing
development project with a density bonus component must be reviewed under CEQA.
3. The site is physically suitable (including, but not limited to, access, provision of
utilities, compatibility with adjoining land uses, and absence of physical constraints) for
the requested zoning designation(s) and anticipated land use development(s).
. . .
The proposed ordinance amendments are not being applied to any specific site, nor is it reasonably
foreseeable which sites, if any, may elect to utilize the proposed ordinance amendments. The
environmental impact of a density bonus of 50 percent and the suitability of a site for that bonus
cannot be known and will be reviewed when an application is made for its use on a specific site.
4. The proposed zoning will promote orderly development of the City.
The proposed amendment is intended to promote the development of affordable housing in the
City, consistent with State Law.
5. That the proposed zoning is not detrimental to the health, safety, peace, morals
and general welfare of persons residing or working in the neighborhood of subject
parcels.
Ordinance No. 21-2230
Page4
The proposed ordinance amendments are not being applied to any specific site, nor is it reasonably
foreseeable which sites, if any, may elect to utilize the proposed ordinance amendments. The
impact of a density·bonus of 50 percent and the effect of that bonus on the health, safety, peace,
moral and general welfare of persons residing or working in the neighborhood of d site cannot be
known and will be reviewed when an application is made for its use on a specific site.
Section 3. The City Council hereby approves the following amendments to
the Cupertino Municipal Code:
1. Table 19.56.030 in Section 19.56.030 of the Cupertino Municipal Code is
hereby amended to read as follows:
Table 19.56.030: Density Bonus Calculations
Proportion of Total
Maximum Density Affordable Dwelling
Income Level of unit Units Bonus
5% 20%
6%-~11%(1) 22.5% -g!h.§35%
Very Low Income 12%-14%<2> 38.75% -46.25%
~15%ormore 4050%
10% 20%
11 % 4.2:20%(;,J) . 21.5%-~35%
Low Income
21%-23%(4) 38.75% -46.25%
2,g24% or more 4050%
10% 5%
Moderate Income 11 % -4440%(g~) 6%-~.3.5%
(Common interest
41 % ;. 43%(6) 38.75% -46.25% developments)
4344% or above 4050%
Affordable Housing 80% or as specified
100%(7) in Government Code Development Section 65915
(l) For each 1 % increase over 5% of the target units, the density bonus
shall be increased by 2.5%, up to a maximum of 4G35%.
Ordinance No. 21-2230
Page5
<2> For each 1 % increase over 11 % of the target units. the density bonus
shall be increased by 3.75%, up to a maximum of 50%.
<~ For each 1 % increase over 10% of the target units, the density bonus
shall be increased by 1.5%, up to a maximum of 4G35%.
<4> For each 1 % increase over 20% of the target units. the ~ensity bonus
shall be increased by 3.75%, up to a maximum of 50%.
(JID For each 1 % increase over 10% of the target units, the density bonus
shall be increased by 1 %, up to a maximum of 4G35%.
<6> For each 1 % increase over 40% of the target units, the density bonus
shall be increased by 3.75%, up to a maximum of 50%.
<7> Must meet the requirements of Government Code Section
65915(b)(1)(G) or successor provision.
2. Section 19.56.030F of the Cupertino Municipal Code is hereby amended to
read as follows:
· F. Density Bonus Calculations:
1. A density bonus may be selected from only one category listed in
Section 19.56.020A(1\ except that density bonuses for land donation may
be combined with others, up to a combined maximum of 4G50 percent and
. an additional square-foot bonus may be granted for a child day care facility
as provided in Section 19.56.030C.
2. In determining the number of density bonus units to be granted, any
fractions of density bonus units shall be rounded up to the next whole
number.
3. Density bonus units authorized by this section shall not be included
when determining the number of affordable units required to qualify for
the density bonus. In determining the number of affordable units required
to qualify for a density bonus, any fractions of affordable units shall be
rounded up to the next whole number.
4. An applicant may request a lower density bonus than the housing
development is entitled to, but no reduction will be permitted in the
percentage of required afforda~le units as shown in Section 19.56.020 or
Section 19.56;020C.
5. Regardless of the percentage of affordable units, no housing
development will be entitled to a density bonus of more than 10 percent or
as-provided in Government Code Section 65915f, unless approved by the
City pursuant to Section 19.56.030F(6).
Ordinance No. 21-2230
Page 6
6. The City, at its discretion, may grant a density bonus higher than the
maximum set forth in Table 19 .56.030 or in paragraph (5) above to a housing
development where all units (except manager's unit(s)) are affordable to
lower income households.
· 7. For purposes of calculating a density bonus, the residential units do
not have to be based upon individual subdivision maps or parcels. The
bonus units shall be permitted in geographic areas of the housing
development other than the areas :where the affordable units are located ..
3. Table 19.56.040A in Section 19.56.040 of the Cupertino Municipal Code is
hereby amended to read as follows:
··Table 19.56.040A: Incentives or Concessions Calculations:
Unit Type Percent of Affordable Number of
Units Incentives/
Concessions
Very Low Income Units 5% or greater 1
10% or greater 2
15% or greater 3
Low Income Units 10% or greater 1
2,017% or greater 2
3Q24% or greater 3
Moderate Income Units 10% or greater 1
20% or greater 2
30% or greater 3
Affordable Housing 100°Lo* 1 Develo12ment
*Must meet the requirements of Government Code Section 65915(b)(l)(G) or
successor 12rovision.
Ordinance No. 21-2230
Page 7
4. Add a new Section 19.56.080 of the Cupertino Municipal Code to read as
follows:
19.56.080 Interpretation.
If any portion ofthis Chapter 19.56 conflicts with State Density Bonus Law
(Government Code Section 65915 et seq.) or other applicable state law, state
law shall supersede this Chapter. Any ambiguities in this section shall be
interpreted to be consistent with State Density Bonus Law. All code
references in this Chapter include all successor provisions.
Section 4. If any portion of this Ordinance or its application is for any reason
held to be invalid, unenforceable or unconstitutional, by a court of competent
jurisdiction, that portion shall be deemed severable, and such invalidity,
unenforceability or unconstitutionality shall not affect the validity or enforceability of
the remaining portio~s of the Ordinance, or its application to any other person or
circumstance. The City Council hereby declares that it would have adopted each section,
sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more
other sections, sentences, clauses or phrases of the Ordinance be declared invalid,
unenforceable or unconstitutional.
Section 5. The City Council finds that the proposed code amendments: (1) will
not result in any · direct or reasonably foreseeable indirect · physical change in the
environment (CEQA Guidelines Section 15060(c)) and so (2) do not constitute a project
· under CEQA (CEQA Guidelines Section 15378), because it is not possible tQ predict
which properties in the City, if any, may be proposed to be developed with an increased
density bonus, given market conditions, building types desired, and d~velopers'
individual decisions whether or not to request bonuses; nor whether any increased
development or density will · result from the proposed changes; whether any
development or density will result that would not already have occurred under the
existing Municipal Code; nor whether any possible significant environmental impacts
peculiar to the adoptic:m of the proposed zoning code amendments would occur.
Further, the City has been informed by the California Department of Housing
and Community Development HCD) that its existing density bonus ordinance must be
modified to be consistent with AB 2345, and the ordinance amendments reflect HCD' s
interpretation of state law. The proposed. zoning amendments do not permit any
bonuses, incentives, or waivers other those provided by State law. These amendments
do not authorize the development of housjng on any site where housing is not already
permitted under the City's existing codes, and any housing development project with a
Ordinance No. 21-2230
Page 8
density bonus component must be reviewed under CEQA. The City Council therefore
further finds that the amendments can be seen with certainty based on review of the
facts to have no possible significant effect on the environment (CEQA Guidelines
Section 15061(b)(3)).
The City Council further directs the Director of Community Development to file
a Notice of Exemption with the Santa Clara County Recorder in accordance with CEQA
and the CEQA guidelines.
INTRODUCED this 5th day of October, 2021, at a Regular Meeting of the City Council of
the City of Cupertino and ENACTED on the 19th day of October, 2021, at a Regular
Meeting of the City Council of the City of Cupertino by the following roll call vote:
Vote Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED :
C.u~_____c? fl /-z/ z.e. 7.. I
Date
City of Cupertino
ATTEST:
/ I j S" [7-i
Date
APPROVED AS TO FORM:
~~~ Oct 27, 2021
Christopher D . Jensen, City Attorney Date
ORD 21-2230, Amending Density Bonuses and
Other Incentives as Provided by State Law
Final Audit Report 2021-10-27
Created: 2021-10-27
By: Araceli Alejandre (aracelia@cupertino .org)
Status : Signed
Transaction ID : CBJCHBCAABAAvi_Sv4hiUeleZ7SelmlGOdjjeA6xavJ6e
"ORD 21-2230, Amending Density Bonuses and Other Incentive
s as Provided by State Law" History
~-Document created by Araceli Alejandre (aracelia@cupertino.org)
2021-10-27 -5:27 :36 PM GMT-IP address: 73.170.27.253
181. Document emailed to Christopher Jensen (chrisj@cupertino.org) for signature
2021-10-27 -5:29:05 PM GMT
~ Email viewed by Christopher Jensen (chrisj@cupertino.org)
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0'0 Document e-signed by Christopher Jensen (chrisj@cupertino.org)
Signature Date: 2021-10-27 -6:21 :46 PM GMT -Time Source : server-IP address: 136 .24.42 .212
0 Agreement completed.
2021-10-27 -6:21 :46 PM GMT
I
POWERtOSY
Adobe Sign
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, KIRSTEN SQUARCIA , City Clerk and ex-officio Clerk of the
City Council of the City of Cupertino , California, do hereby certify the
attached to be a true and correct copy of Ordinance No. 21-2230 which
was enacted on October 19, 2021 , and that it has been published or posted
pursuant to law (G.C. 40806).
IN WITNESS WHEREOF , I have hereunto set my hand and seal
this j day of f\Jo v~~vd,-~ 2021.
KIRSTEN SQUARCIA , City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California