Section 11-C1006. OFF-SITE COMPLIANCE WITH INCLUSIONARY ZONING

1006.1   The Board of Zoning Adjustment is authorized to permit some or all of the set-aside requirements of Subtitle C § 1003 to be met by off-site construction upon proof, based upon a specific economic analysis, that compliance on-site would impose an economic hardship.

1006.2   Among the factors that may be considered by the Board of Zoning Adjustment in determining the existence of economic hardship are:

(a) Exceptionally high fees in condominium developments that cannot be reduced to levels affordable to eligible households;

(b) The inclusion of expensive and specialized social or health services in a retirement housing development or a development that principally provides housing for the disabled, if such services are not severable from the provision of housing and render units in the development unaffordable to eligible households; or

(c) Proof that continuation of the existing rental inclusionary development is no longer economically feasible, when the owner wishes to change the property's use to a non-residential use or to one (1) meeting the exemption requirements of Subtitle C § 1001.5.

1006.3   An applicant who has demonstrated the existence of economic hardship shall further demonstrate that the off-site development:

(a) Is located within the same census tract as the inclusionary residential development;

(b) Consists of new construction for which no certificate of occupancy has been issued;

(c) Is at a location suitable for residential development;

(d) Has complied with or will comply with all on-site requirements of this chapter as are applicable to it;

(e) Has not received any development subsidies from Federal or District Government programs established to provide affordable housing;

(f) Will provide inclusionary units with gross floor areas for each unit type of not less than ninety-five percent (95%) of the gross floor area of the off-site market-rate unit types, and of a number no fewer than the number of units that would otherwise have been required on-site; and

(g) Will not have more than thirty percent (30%) of its gross floor area occupied by inclusionary units.

1006.4   The requirement of Subtitle C § 1006.3(a) may be waived upon a showing that the off-site development is owned by the applicant, is located in the District of Columbia, and meets all the other requirements of Subtitle C § 1006.3.

1006.5   Inclusionary units permitted to be constructed pursuant to this section shall not be counted toward any set-aside requirement separately applicable to the off-site development or to any other inclusionary residential development.

1006.6   No order granting off-site compliance shall become effective until a covenant, found legally sufficient by the Office of the Attorney General, has been recorded in the land records of the District of Columbia between the owner of the off-site development and the Mayor. A draft covenant, executed by the owner of the off-site property, shall be attached to an application for relief under this section.

1006.7   The covenant shall bind the owner and all future owners of the off-site development to:

(a) Construct and reserve the number of inclusionary units allowed to be accounted for off-site, in accordance with the plans approved by the Board of Zoning Adjustment and the conditions of the Board's order;

(b) Sell or rent, as applicable, such units in accordance with the provisions of this chapter and the IZ Act for so long as the off-site development remains in existence;

(c) Neither apply for nor accept any development subsidies from Federal or District Government programs established to provide affordable housing;

(d) Acknowledge that the owners are legally responsible for the set-aside requirement accepted as if the requirement had been imposed directly on the off-site development; and

(e) Not request special exception or variance relief with respect to the obligations accepted or its own obligations under this chapter.

1006.8   Upon the recordation of the covenant, the set-aside requirements permitted to be accounted off-site shall be deemed to be the legal obligation of the current and future owners of the off-site development. All dwelling units as are required to be reserved in the off-site development in accordance with the Board of Zoning Adjustment’s order shall be deemed inclusionary units for the purposes of this chapter and the IZ Act.

1006.9   No application for a certificate of occupancy for a market-rate unit on the inclusionary development shall be granted unless construction of the off-site inclusionary units is progressing at a rate roughly proportional to the construction of the on-site market-rate units.

1006.10 Inclusionary units resulting from the set-aside required for penthouse habitable space as described in Subtitle C § 1001.2(d) shall be provided within the building, except that the affordable housing requirement may be achieved by providing a contribution to a housing trust fund, consistent with the provisions of Subtitle C §§ 1505.13 through 1505.16 when:

(a) The new penthouse habitable space is being provided as an addition to an existing building which is not otherwise undergoing renovations or additions that would result in a new or expanded Inclusionary Zoning requirement within the building;

(b) The penthouse habitable space is being provided on an existing or new building not otherwise subject to Inclusionary Zoning requirements; or

(c) The building is not otherwise required to provide inclusionary units for low income households and the amount of penthouse habitable space would result in a gross floor area set-aside less than the gross floor area of the smallest dwelling unit within the building.

 

authority

§ 1 of the Zoning Act of 1938, approved June 20, 1938 (52 Stat. 797, as amended; D.C. Official Code § 6-641.01 (2012 Repl.)).

source

Final Rulemaking published at 63 DCR 2447, 2712 (March 4, 2016 – Part 2); as amended by Final Rulemaking published at 63 DCR 8118 (June 3, 2016); as amended by Final Rulemaking published at 63 DCR 15404 (December 16, 2016).