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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) 2021-10-27-6:21 :30 PM GMT-IP address : 104.47 .74 .126 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