6220918 Zoning Commission - Notice of Emergency Rulemaking: Case No. 04-33H(Text Amendment - 11 DCMR: Addition of Affordable Housing Required by District Law to Exemptions from Inclusionary Zoning)

ZONING COMMISSION FOR THE DISTRICT OF COLUMBIA

 

NOTICE OF EMERGENCY RULEMAKING

Z.C. Case No. 04-33H

(Text Amendment - 11 DCMR)

(Addition of Affordable Housing Required by District Law to Exemptions from Inclusionary Zoning)

 

The Zoning Commission for the District of Columbia (Commission), pursuant to its authority under § 1 of the Zoning Act of 1938, approved June 20, 1938, as amended (52 Stat. 797; D.C. Official Code § 6-641.01 (2012 Rep1.)) and the authority set forth in § 6(c) of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1206; D.C. Official Code § 2-505(c) (2012 Repl.)), hereby gives notice of the adoption, on an emergency basis, of amendments to Chapter 10 (Inclusionary Zoning), Subtitle C (General Rules) of Title 11 (Zoning Regulations of 2016) of the District of Columbia Municipal Regulations (DCMR).  Subtitle C is among the Title 11 Subtitles that constitute the Zoning Regulations for the District of Columbia.  See 11-A DCMR § 200.2.

 

The Inclusionary Zoning (IZ) Regulations are set forth in Chapter 10 of Subtitle C. Section 1001.6(a) exempts from the IZ Regulations any developments financed, subsidized, or funded in whole or in part by the federal or District Government and administered by the Department of Housing and Community Development, the District of Columbia Housing Finance Agency, or the District of Columbia Housing Authority and that meet the requirements set forth in 11‑C DCMR § 1001.6(a)(1)-(2). The amendments add to that exemption developments that are subject to a mandatory affordable housing requirement that exceeds the requirements of 11‑C DCMR Chapter 10 as a result of District law. The amendments also add language to encompass projects that are monitored, but not administered by the above-referenced District agencies. These same amendments appeared in a notice of proposed rulemaking published in the D.C. Register on July 8, 2016 at 63 DCR 9410, for which the comment period has ended.  The Zoning Commission will hold a hearing on these amendments on October 6^th.

 

This is not the first time the Commission has taken emergency action to adopt amendments exempting affordable housing required by District law from the IZ requirements. The Commission adopted an emergency amendment having the same effect on June 13, 2016. Those amendments would have ordinarily remained in place until October 11, 2016.  However, on September 6, 2016, all the provisions of Title 11 DCMR, including the emergency amendments, were repealed and replaced with the current Title 11 text, which, as noted, did not include the expanded IZ exemption.  Because the prior emergency amendments were repealed, and the justification for taking the initial emergency action continued to exist, the Commission took emergency action to adopt these amendments in order to continue the expanded exemption in place.

 

Emergency rulemaking action continues to be required because an ever-growing number of developments are, or will be, subject to the affordable housing requirement of the National Capital Revitalization Corps and Anacostia Water Corporation Reorganization Act of 2008 and the Disposition of District Land for Affordable Housing Amendment Act of 2014. Although such requirements arise from the disposition of District owned land, none will be considered subsidized and therefore all will have to meet the requirements of both the applicable statute and IZ.

 

As demonstrated by two recent cases before the Commission, the absence of an exemption will require developers to seek zoning relief; a process that can be time consuming and expensive. Without the immediate adoption of these amendments, projects with significant affordable housing components will be imperiled or unreasonably delayed. The immediate adoption of these amendments is therefore necessary for the “immediate preservation of public ... welfare.” D.C. Official Code § 2-505(c).

 

In a separate proceeding, Z.C. Case No. 04-33G, the Commission, after holding a public hearing authorized the publication of a notice of proposed rulemaking that included an amendment to Subtitle C § 1001.6(a) to specify a minimum level of income affordability that exempted projects must provide (the “income amendment”).  At present, that level is whatever is established by the federal or District funding source. Z.C. Case No. 04-33G also proposed several other amendments to the IZ Regulations.  Because of the nature of some of the amendments proposed, the Commission’s notice of proposed rulemaking, published on September 9, 2016, noted the Commission’s preliminary determination that all of the amendments should take effect six (6) months after the publication of a notice of final rulemaking. 

 

At its public meeting held September 12, 2016, the Commission took the emergency action described above for Z.C. Case 04-33H. At the same time, the Commission also voted to add the Z.C. Case No. 04-33G income amendment to this case, finding that there was no reason to delay the implementation of the mandated minimum levels of affordability for exempted projects.  Because the income amendment was intrinsically related to basis for the exemption, the amendment also was included in the emergency action taken.

 

This emergency rule was adopted on September 12, 2016, and became effective on that date.

 

The emergency rule will expire on January 10, 2017, which is the one hundred twentieth (120^th) day after the adoption of the rule, or upon the publication of a Notice of Final Rulemaking for Z.C.  Case No. 04-33H in the D.C. Register, whichever occurs first.

 

Title 11 of the District of Columbia Municipal Regulations, ZONING REGULATIONS OF 2016, was amended on an emergency basis as follows (new language is shown in bold and underlined text; deleted language is shown in strikethrough text):

 

Chapter 10, INCLUSIONARY ZONING, of 11-C DCMR, GENERAL RULES, is amended as follows:

 

§ 1001, APPLICABILITY, § 1001.6, is amended to read as follows:

 

1001.6             IZ requirements of this chapter shall not apply to:

 

(a)        Any development subject to a mandatory affordable housing requirement that exceeds the requirements of this chapter as a result of District law or financial financed, subsidies subsidized, or funded in whole or in part by the Federal or District Government and administered and/or monitored by the Department of Housing and Community Development (DHCD), the District of Columbia Housing Finance Agency (DCHFA), or the District of Columbia Housing Authority (DCHA); provided:

 

(1)        The development shall set aside, for so long as the project exists, for low or moderate income households, affordable dwelling units (“Exempt Affordable Units”) in accordance with the minimum income standards of Subtitle C § 1001.6(a)(2) and equal to at least the gross square footage that would have been otherwise required pursuant to the set-aside requirements in Subtitle C § 1003 for the zone in which the development is located;. The terms “low-income household” and “moderate-income household” shall have the same meaning as given them by the federal or District funding source, or financing or subsidizing entity, and shall hereinafter be referred to collectively as “Targeted Households”;

(2)        The Exempt Affordable Units shall be reserved as follows:

 

(i)         The square footage set aside for rental units shall be at or below sixty percent (60%) MFI; and

 

(ii)        The square footage set aside for or ownership units shall be at or below eighty percent (80%) MFI; and sold or rented in accordance with the pricing structure established by the federal or District funding source, or financing or subsidizing entity, for so long as the project exists;

 

(3)        The requirements set forth in subparagraphs (1) and (2), of this paragraph, shall be stated as declarations within a covenant approved by the District of Columbia; and

 

(4)        The approved covenant shall be recorded in the land records of the District of Columbia prior to the date that the first application for a certificate of occupancy is filed for the project; except that for developments that include buildings with only one (1) dwelling unit, the covenant shall be recorded before the first purchase agreement or lease is executed; and

                                   

(b)        Boarding houses, community based institutional facilities; or single room occupancy projects within a single building.