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City of Bozeman Workforce Ho4sing Ordinance,
InclusionaO Housing Overview
6zeman City Gnm'MlwQn
Jyly,17,2006
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Field Guide to inclusionary Zoning (NAR Infonnation Central) Page 1 of 3
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Field Guide to
W c Inclusionary ary Zoning
g I By Frederik Heller, WIRC Manager
f i
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Inclusionary zoning is a land-use concept in which local ordinances
CONTENTS require builders to include a certain amount of housing for low-and
-- '• Id Inclus.ionary.2oni_ng moderate-income households. In contrast, exclusionary zoning is a
Basics technique that effectively drives up the cost of housing, excluding
W lower-income households from the community, Exclusionary
• •- - J Impacts_&Case. zoning practices have been under attack in communities around
Studies the country for decades, most notably in New Jersey,where the
historic, Mount Laurel decisions have led the way in promoting
t Policy Consid.e_..rations inclusionary zoning techniques and creating affordable housing.
&Sample.Ordinances This Field Guide includes background information on inclusionary
zoning, case studies on what works&what doesn't,considerations
New JerseY's Mount in developing inclusionary zoning ordinances, and information on
Laurel I_&_LI the Mount Laurel doctrine.
Books, eBDoks& WHAT'S THE PASSWORD?
Other Resources
Articles marked with a red Q are provided by ProQuest for
- NAR members only. Please enter NAR's 6roguest password if
required.
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Gi1 --Articles marked with the REALTOR@"R"are available on
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• •• - - - Inclusionary Zoning Basics
_ - 0 Inclusloi-rary zor7ing, (Wikipedia). :; r
LJ Inclusionary_zoninA._-.what is it?, (PolicyLink).
h
, Inclu�ic�r�dry zoning: A.key_tool_il the searct}for workable w
.' _ .. . _....._a.
affordable housing programs, (PM- Public Management, Apr.
2006).
Inclu.sipi armzoning The missing piece of the.affordable w�"�" .r
housing.puzzle, (on Common Ground, Winter 2003),
InClusiona_ryzoning' Pros and cons, (New Century Housing,
Oct, 2000).
littp://www.realtor.org/libweb.nsf/pages/fg8O6 8/24/2006
No Text
Field Guidc to InClusionary Zoning (NAR information Central) Page 2 of 3
r, J expanding.housing options through inc.lu_sionafy z.oninc�,
(ideas@work,June 2001),
Impacts & Case Studies
F lc using 4,.ipply_and housing affordability. Do affardablo hnWing mandates work?, (Reason
Public Policy Institute, Apr. 2004).
J Inclusionary zoning;.:f_he-California experience, (NHCAffordable Housing Policy Review, Feb.
2004).
J (rtr,lusionary zoning's irrapact ori-development, (Business&Professional People for the Public
Interest).
I'D I..,arge.-cities and mclusionaryzoning, (Business&Professional People for the Public Interest).
I] Study of inc!u5lonaryhousing initiatives, (Minnesota Housing finance Agency, Feb. 2002).
t] Inclusionary zoning L.essons..learned in M<a �:a.chusetts, (NHCAffordable Housing Policy
Review, Jan. 2002).
LJ Expanding affordable'; housing through inclirI.donary zoning lessons from the..Washington
n ietropollt n.area, (Discussion Paper- Brookings Institution Center on Urban & Metropolitan Policy,
Oct. 2001).
-J Inclusionary housing in California: I ix3 experience of two de-cades, (Journal of the American
Planning Association, Spring 1998).
U Incluslonary_hmising in California and.-New Jersey A-corraxaaratiVE� analysis, (Housing Policy
Debate, Vol. 8, No. 1, 1997).
Policy Considerations
Sample Inclusionary
f)eveloping an inclusion_ary zoning ordinance, (Business& Zoning Ordinances
Professional People for the Public Interest).
Madison, Wl
tEJ Inclusionary zoning: L_e.t al issues, (California Affordable
Housing Law Project Western Center on Law&Poverty, Dec. A Sacramento, CA
2002).
Barnstable County, MA
'!� lndusionary zoning: Policy considerations-and best
practices, (California Affordable Housing Law Project Western J Burlington, VT
Center on Law&Poverty, Dec. 2002).
.d Boulder. CO
J Inclusionary-_hcar.rsin _A discussion-of..rlolicy issues,
(Shirnberg Center for Affordable Housing - University of Florida,
June 2001).
J Inclusionary zoning;Program_design considerations(with(with
a prograrn_de_sign checklist?, (Enterprise Foundation Issue
Brief Dec. 1994).
New Jersey's Mount Laurel I &
Books, eBooks & Other Resources II
Q General welfare and regional
pinnriing_How the I aw_of unintended
011811 Books, Videos, consequences and the Mount Laurel
Research Reports & doctrinegaveNew Jersey.a. modern
More state plan, (St. John's Law Review, Fall
1999).
The following materials are available through Judges as agents cif so.c,ial change;
NAR's Information Central Library. Call 800/874- Can the courts break the affordable
6500 for assistance.A$10.00 fee may apply, housing-deadlock-in metropolitan
Click here for more information about the areas?, (Housing Policy Debate, Vol. 8,
Library's Service Pees. No. 3, 1997).
Inclusionary Zoning for tdousin ;�Affordable.housing.law in New
Afford-able.-
By Douglas Porter, (Washington, DC: Urban Land Jersey,-N.ew.York, and-Connecticut,
littp://www.realtor.org/libweb.iisf/pages/fg806 8/24/2006
No Text
Field Guide to Inclusionary "Zoning (NAR Information Central) Page 3 of 3
Institute, 2004). KF 5698 P67i (Pace Law Review, Spring 1998).
Inclusionary I lousing Programs: olicies and
Practices, By Alan Mallach, (New Brunswick, NJ:
Center for Urban Policy Research, 1984), NAC 765
R91
a Adaptions to and Activist Court After riiath of
the Mount. I...aurel II Decision for Lower-Income
HOLISing, By Marcia K. Steinberg, (Cambridge,
MA; Lincoln Institute of Land Policy, 1989). NAC
765 L63
Other Field Guides &
f% Power Totals
These Field Guides and Power Tools resources
in the Virtual Library may also be of interest:
A Field Guide to ZoningLaws&Ordi_na_nces.
Field Guide to Effects of Low-Income
Housing c?n Prop erty.Valra.es.
1A Field Guide to Fair Housing
The material on this page is presented by Need Help?
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"¢. r ,�,. online, or call NAR's
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Updated Apr. 2006
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PolicyLink - Inclusionary Zoning -- How to Use It Page 1 of 6
Development
Ully
15MR
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Developing and Inclusionary Zoning Policy
How jurisdictions structure inclusionary zoning (IZ) policies depends on
r development patterns in the community, the affordable housing needs of
,..,residents, and political feasibility. Indeed, there are trade-offs between
•different components of an IZ policy. Tailoring it to meet local needs is
"Ow TO w"air 'Tthe hallmark of its effectiveness.
Mandatory vs. Voluntary. Inclusionary zoning can be mandatory,
' ,,Mandatory
developers to build affordable units in exchange for
,�E h`development rights, or incentive-based, allowing developers to voluntarily
While voluntary programs receive less opposition from
developers, mandatory policies have produced far more affordable units.
N ` N'''�"Indeed, an analysis of programs nationally reveals voluntary programs
f,rsolw( sonly produce affordable units if they offer substantial subsidies to the
developer, or function as a mandatory policy by making it difficult for
developers to obtain discretionary building permits without including
affordable units in their projects.
California programs are illustrative. Of the 107 jurisdictions in California
employing inclusionary zoning, 101 are mandatory, according to a 2003
report by the Nonprofit Housing Association of Northern California
(h P-L/1www.nonpmfithousin_g org/index.atom.ic). The six voluntary
programs have produced little affordable housing. Two locales, Los
Alamitos and Long Beach , "blame the voluntary nature of their programs
for stagnant production despite a market rate boom." Three other
voluntary programs reported that no units had been built. The one
"voluntary" program that had produced ( Morgan Hill - 300 units in 26
years) is functionally mandatory because it uses a tight growth
management policy to make it difficult for developers to obtain building
permits without including affordable housing.
In sharp contrast, the 15 top producing jurisdictions in California ,
including Santa Barbara County , Monterey County , and Roseville , have
produced over 16,000 units of affordable housing-all through mandatory
requirements.
The different outcomes of voluntary and mandatory IZ are steering many
jurisdictions away from voluntary programs. Jurisdictions with once
voluntary programs (e.g., Cambridge , Massachusetts and Boulder ,
Colorado ) have found it necessary to amend their ordinances to
mandatory requirements in response to low production.
0
http://www.policylink.org/EDTK/IZ/How.html 8/24/2006
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PolicyLink - inclusionary Zoning -- How to Use It Page 2 of 6
....
Moving from Voluntary to Mandatary
Cambridge, Massachusetts. Between 1988 and 1998,Cambridge
operated a voluntary program and offered a density bonus for
developers choosing to add affordable housing to their projects in
select zoning districts, No affordable housing was created. In 1999
tho city shifted to a mandatory policy. Since then. 1,31 affordable
units,have f>fi'en produced, with anothor 130 in the pipeline,
Boulder,Colorado.Since lZ was first implernented in 1980, Boulder
has experimented wish both mandatory and voluntary requirements.
in the five year period that the program Vw.as voluntary,only one
private development contributed affordable unrts. 'The city
changed to a mandatory policy in 2000. Since then„private
developers have built ISO on-site affordable units, and ano lwf
150 affordable units through to-lieu fees,
Developer Compensation. Effective inclusionary zoning programs
usually offer developers a range of cost offsets to achieve a double
bottom line: affordable housing for residents and a reasonable, overall
return for developers. Minimum profitability is important to ensuring
private developers and their investors actually build. To determine the
need for cost offsets, in relation to other program parameters,
jurisdictions typically conduct an economic feasibility analysis that takes
into account various aspects of development (e.g., cost of land, normal
profit margins, construction costs, fees, etc.) and the jurisdiction's
housing needs and goals.
Cost-offsets rarely take the form of subsidy, as illustrated in Table 1.
Nonetheless they can have a substantial impact on reducing the overall
cost of construction.
Examples of Cost-Offsets Utilized by Jurisdictions with Inclusionary
Zoning
. ......... .... .....
;Type of What It floes and Why It Example
Cost-offsets Helps Developers
.. . ............ ..............................
Most jurisdictions offer
Allows developers to build density bonuses. Typically
at a greater density than they are equivalent to the
required set-aside
residential zones typically
Density ''..permit. This allows Percentage. Far example,
Santa Fe , which varies
'bonus developers to build -
its set-aside from 11 to 16
additional market-rate units ',
without having to acquire 'Percent depending on the
more land. character of the market-
rate units, matches its
density bonus accordingly.
..
Many programs allow unit
'size reduction while
Allows developers to build establishing minimum
sizes.
smaller or differently
'Unit size configured inclusionary 'Burlington, Vermont,
reduction 'units, relative to market '.requires that inclusionary
units be no smaller than
rate units, reducing
construction and land costs. 750 sgft. (1-bedroom),
1,000 sgft. (Z-bedroom),
1,100 (3-bedroom) or
1,250 sgft. (4-bedroom).
Allows parking space Denver, Colorado,
http://www.policylink.org/EDTK/IZ/How,litm] 8/24/2006
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PolicyLink - Inclusionary Zoning -- How to Use It Page 3 of 6
efficiency in higher density waives 10 required
Relaxed developments with parking spaces for each
Parking underground or structured additional affordable unit,
Requirements parking: reducing the up to a total of 20 percent
number or size of spaces, or of the original parking
allowing tandem parking. requirement.
..... ...... ....... . ....
Boston, Massachusetts ,
grants inclusionary
Grants flexibility in design housing projects
guidelines-such as reduced greater floor-to-area
setbacks from the street or ratio allowances.
.Design Sacramento, California ,
Flexibility property line, or waived permits modifications
minimum lot size of road width, lot
requirement-utilizing land coverage, and minimum
more efficiently. lot size in relation to
'design and
infrastructure needs.
Reduces costs by waiving Longmont, California,
the impact and/or permit waives up to 14 fees if
fees that support more affordable units (or
Fee waivers infrastructure development units at deeper levels of
'or affordability) are provided.
reductions and municipal services. A Average fees waived are
jurisdiction must budget for I$3,25Q per single family
this, since it will mean a ;home, $2,283 per
loss of revenue. ;apartment unit.
Allows delayed payment of
impact and/or permit fees.
One approach allows San Diego , California ,
Fee developers to pay fees upon 'allows deferral of
deferrals receipt of certificate of Development Impact Fees
occupancy, rather than and Facility Benefit
upon application for a ;Assessments.
building permit, reducing
carrying costs.
Sacramento, California,
Streamlines the permitting
' of
the permitting
process for development
of inclusionary zoning
projects, reducing
projects
Fast track developers' carrying costs
permitting (e.g., interest payments on !the usuall 90 days from
time frame of 9-
t
predevelopment loans and '12 months. The City
other land and property estimates an average
taxes). I savings of $250,000 per
;project.
. ...................................................... . . .................................... . .................................... .
The Set-aside. Inclusionary zoning programs require that a specific
percentage of units be earmarked as affordable. The percentage can vary
but is typically in the range of 10-25 percent. Some jurisdictions have
set-asides that vary based on the incomes targeted. In California
redevelopment areas, for example, six percent of units must serve very-
low-income households, three percent low income, and six percent
moderate income. Because the size of the set-aside percentage impacts
the affordability costs born by developers, the set-aside percentage
should be considered together with other program parameters, such as
the income target.
Project Trigger. The trigger determines what size developments are
subject to inclusionary requirements (e.g., 5, 10, 20 unit buildings).
http://www.policylink.org/EDTK/IZ/How.htnil 8/24/2006
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PolicyLink - Incli sionary Zoning -- How to Use It Page 4 of 6
Some jurisdictions apply inclusionary zoning policies to all new
developments within the community, requiring that larger developments
provide units while smaller ones pay a fee in-lieu of construction.
Income Targets. There are two ways in which an IZ policy ultimately
achieves affordable housing. First, the policy defines the income target(s)
at which the developer must produce housing. Second, some jurisdictions
identify the programs that will allow the municipality to subsidize those
units to reach even deeper affordability needs. Montgomery County , for
example, asks developers to produce units at 65 percent of AMI and then
authorizes its housing authority to purchase up to a third of those units to
serve even lower-income families.
Where the income target is set determines who benefits from the
inclusionary zoning policy. For example, a jurisdiction that wants to
provide housing for moderate-income households, such as public sector
employees, might set an income target at 80 percent of the AMI.
Jurisdictions seeking to create affordable units for lower-income wage
earners might choose an income target of 50 percent of AMI. Jurisdictions
with affordability challenges across income categories often tier their
income target to serve diverse needs (e.g., half the units at 50 percent of
AMI, half the units at 80 percent of AMI).
Target income levels should be guided by housing needs and goals in the
jurisdiction, but must be balanced with maintaining developer profit.
Nationally, inclusionary zoning has demonstrated success when requiring
developers to deliver affordable housing units at 50-120 percent of the
AMI, and when in combination with public resources, those units can be
made available to households between 0-50 percent of AMI.
There are three ways that jurisdictions utilize public resources to achieve
deeper levels of affordability:
• Mandate that some proportion of inclusionary units go to housing
choice voucher holders;
. Offer home buyer assistance to purchasers of IZ homeownership
units; and
• Enable public agencies or nonprofit organizations to purchase and
further subsidize inclusionary units.
Cambridge , Massachusetts achieves deep affordability through its IZ
program by mandating that a portion of inclusionary units go to housing
choice voucher holders. The Housing Choice Voucher Program (HCVP),
also known as Section 8, is a rental assistance program that increases
affordable housing choices for very low and extremely low income
households. Typically, the local housing authority pays the gap between
what the Housing Choice Voucher-holder can afford (30 percent of
household income), and the cost of the private market rent (up to 110
percent of fair market rate). By placing HCV holders in inclusionary units
priced lower than market rents, HCVP saves money that, in turn, allows it
to serve more families. It also addresses key challenges for the HCVP
program-insufficient units available for the number of voucher-holders,
and discriminatory screening out of voucher holders by landlords.
http://www.policylink.org/FDTK/IZ/How.html 8/24/2006
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PolicyI.,ink - Inclusionary Zoning -- flow to Use It Page 5 of 6
_..............._w w_....__._. ._. __..-._---
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Coupling Housing Choice Vouchers with lZ Deepens Affordability
Cambridge, Massachusetts helps sorne of their lowest income,renters
find affordable housing by tcquirincg that half of all rental units
• egenerated via It qo to Housing Choice Voucher holders The city
does this I)v managing the tcwmt selection procr.-ss. l lae Corrarraernity
Dev'_•lopment t'aeparvnent and Cambridge Housing Authority provide
anana9c,t5 of inchasionary units will)their prospective tenants. 'lhee,
onsitcl. manager perforiaas as credit check and landlord history re>vievf
before s0ection is finalized. Assurnino these are in ordor the
na.anaager nimt select and accept one of the qualified tenants. As
half of all units go to Housing Choice Voucher holders, Cambridge's
IZ program reoulady reaches families earning between 10 and 30
percent of AMI,their intended goal,clue to great need among
l am lkKs at these loa,ver income tiers, 'The Cambridge Community
DevelrrpmPnt M paartmentfills the other half from a waiting list of
iratc>rrrr •verifiad house haolds, The Department olives priority tea families
that already live in Cambridge,have Children, and face an emergency
housing need (e.g., no fault eviction,livin(l in overcrowded housing,
or paying more than 50 percent of incorne on housing.
Many cities and counties offer homebuyer assistance to families
purchasing inclusionary units. The additional assistance of the programs
allows households earning less than the AMI target to be eligible for IZ
units. Some programs offer homebuyer assistance on a first-come, first-
serve basis, while others prioritize inclusionary homebuyers.
Couple lnclusionary Zoning with Homebuyer Assistance
Fairfax County,Virginia.aggressively encourages households on its
hornebuyer waiting list to utilize First lime Horaaebuyer mortgage
assistance. from the state Housing L)evelopment Authority for
households that meet rninimuna credit criteria;:ind make lass than 70
percent of AMI,the<authorhy offers 3.5 percent interest rate nlortga es
covering i iD percent of housing casts(Le.,no dov a)payment is required),
Combined%,vrth the county's construction cost-based price target,
Fairfax County makes homeownership inclusionary units accessible for
very low and even extremely low-income luxiseholds. Thirty percent of
Fairfax County inclusionary homebuy rs earned less,than 40 percent
AMI, and 5 percent earned less than 30 percent.Alyll.
Granting public agencies or nonprofits first rights of refusal to purchase
and manage inclusionary units is another way to achieve deeper
affordability. The designated entities can further subsidize the unit below
the affordability level at which it was produced, and can target it to
special needs populations.
Montgomery County Purchases 1Z Units
Montgomery County grants their local public housing authority—the
Housing Opportunities Commission 11iOO—first right of refusal for
purchasincg up to a third of a project's inclusionary units,with the
understanding that they varier be rented or scald to very low ineczrri
households, HOC-approved nonprofits have second right of refusal on an
additional seven percent of inclusionary units. the polity has enabled HOC
to make approximately 1,50 inclusionary units available to very-low
and extremely low income renters since tfae procgrtam's inception in 1974.
HOC also helps very love-income households buy inclusionary units
that would be unaffordable withotrt additional assistance.
• Onsite vs. Offsite Construction. Some IZ programs require developers
to construct affordable units within the larger development, while other
programs allow developers to build the units offsite. Historically,
affordable housing had been concentrated in certain neighborhoods,
contributing to the concentration of poverty. This concentration of poverty
often isolates poor families from social and economic opportunities in the
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region. Building affordable units onsite, within the larger development,
leads to greater economic and racial integration, helping to connect low-
income communities to regional opportunity.
However, if construction is proposed in an area with very expensive land,
it may create a greater economic burden on developers (and greater
political resistance) than offsite construction. Assessing the political
climate and the costs associated with onsite vs. offsite construction is
critical to making the case for onsite development of affordable units.
Mandating Affordable Units vs. In-Lieu Fees. Some jurisdictions
require developers to construct affordable housing units while others
allow developers to pay into a fund that supports affordable housing.
Deciding between requiring developers to construct units or pay an in-lieu
fee is a complex one. It will be easier to garner political support for a
policy that allows in-lieu fees. However, in many jurisdictions the in-lieu
fees are insufficient and do not produce the resources to construct
affordable housing units. Therefore, it is more productive to require
developers to construct the units themselves. If in-lieu fees are part of an
IZ policy, they should be set at a level comparable to the costs associated
with producing affordable housing units. Otherwise, the IZ policy is
seriously weakened.
Similarity/Compatibility in outward Appearance. Many IZ policies
require developers to construct affordable units that are similar or
compatible in outward appearance to market rate units. This requirement
contributes to cohesiveness in the physical appearance of a neighborhood
helping to overcome negative perceptions of what constitutes "low
income" housing. Developers generally have a vested interest in adhering
to this requirement since units that are disparate in outward appearance
can lower the market value of the development.
Term of Affordability. Inclusionary zoning ordinances housing units
must remain affordable. Many programs have moved to requiring a
minimum of 30 years for ownership units, and 45 or more years for rental
units. Long affordability terms keeping housing units affordable for future
generations. Some programs, including Boulder , Cambridge and
Newton , Massachusetts , require affordability in perpetuity. Programs
with long affordability terms can build in a limited equity requirement for
homeownership units. This limits the return when someone sells an
affordable unit yet allows the owner to build equity.
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. State Issues Residential construction and housing prices are booming across
Clearinghouse the nation. But the supply of housing priced to match the incomes
of many American households has not kept up with needs. In
"• many metropolitan areas, construction of new housing has not kept
• "r pace with job growth and household formation. Construction of
multifamily rental housing is far below that of single-family homes.
• Little housing affordable to low-income people is being built and
existing affordable housing is being removed from the inventory by
price inflation, demolition and conversion. But housing affordability
is an issue that that reaches deep into non-poor segments of
society as well.
It affects young adults just entering the job market, professionals
with limited incomes, such as teachers, firefighters, and nurses,
•
and older people with restricted incomes.
For all these reasons, housing affordability is becoming a serious
issue in communities across the nation.And with rising concerns,
the concept of inclusionary zoning is attracting attention as an
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Inclusionary Zoning: The Missing Piece to the Affordable Housing puz?.le - On Common Ground - Wint... Page 2 of 6
effective regulatory approach to producing affordable housing.
Nationwide, the Center for Housing Policy estimates that upwards
I t i of 100 local governments have adopted various forms of
inclusionary zoning, and more are considering such programs-(1)
" • '• Inclusionary Zoning: What It Is and
• •e it � -
• • ' - - What It Does
Local governments enact inclusionary zoning to require or
establish a voluntary goal for new residential developments to
earmark a proportion of housing units for lower-income
households. That is, inclusionary zoning relies on the private
homebuilding industry to assist in meeting community needs for
affordable housing. Such programs tend to raise the hackles of
developers, builders and real estate salespeople, who view the
affordability problem as a public responsibility. Nevertheless, more
and more communities concerned with affordability perceive
inclusionary zoning as a productive approach to meeting real
housing needs.
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Most communities that adopt inclusionary zoning programs are
experiencing escalating housing markets that are driving housing
prices well beyond the means of many existing or would-be
residents.
Generally, price escalation occurs in growing suburban
jurisdictions that attract up-scale development, but housing prices
are also rising in many centrally located, often-historic existing
neighborhoods in both central cities and established suburbs. Most
public officials and community residents view development of mid-
to high-priced housing as beneficial, contributing to neighborhood
stability and expanding the local tax base.
For residents that can afford them, affluent neighborhoods provide
highly desirable living environments, served by high-quality public
facilities and services. For the building industry, up-scale housing
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Inclusionary :coning: The Missing Piece to the Affordable Housing puzzle - On Common Ground - Wint... Page 3 of 6
in desirable neighborhoods generates satisfying profit margins.
Inclusionary zoning is attracting attention as an effective regulatory
approach to producing affordable housing.
Over time, however, this trend produces communities and
neighborhoods made up almost
exclusively of affluent households and tends to displace lower-
income residents in older established neighborhoods experiencing
so-called "gentrification." Escalating housing prices in these areas
deny housing to people, such as teachers, policemen and nurses,
who contribute to the livability of every community. Also, residents
of such communities find that their children cannot afford to live
there. And low-income families find affordable housing almost
impossible to find.
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Escalating housing prices in these areas deny housing to
people, such as teachers, policemen, and nurses,who
contribute to the livability of every community.
For these reasons, many communities have initiated a variety of
programs to provide affordable housing, often using federal and
state grants and loans but also many types of local assistance
programs. Increasingly, they include inclusionary zoning programs.
Some programs allow residential developers to pay fees in lieu of
constructing units under certain conditions. Many programs are
tied in to local housing programs that may be assigned
responsibility for certifying potential residents and allocating units.
There are special regulations for dealing with condominium
ownerships. And the zoning can be targeted to certain
neighborhoods or applied community wide.
The most notable inclusionary zoning program was instituted in
Montgomery County, Maryland, in 1974. Called the"Moderately-
Priced Dwelling Units" (MPDU) law, the program has produced
more than 10,000 affordable units scattered in almost 300
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Inclusiortary Zoning: The Missing Piece to the Affordable (lousing puzzle - On Common Ground - Wint... Page 4 of 6
subdivisions. It requires that developments of 50 units or more set
f"w aside from 12.5 to 15 percent of the units
More and more communities concerned with affordability
perceive inclusionary zoning as a productive approach to
meeting real housing needs More and more communities
concerned with affordability perceive inclusionary zoning as a
productive approachhoeeds
as affordable units, with a compensating allowable increase in
density. The precise percentage of required units depends on the
density bonus requested, up to a maximum increase of 22 percent.
The County Planning Board that approves subdivisions attempts to
ensure that the appearance of MPDU units blends with market-rate
units. Resale prices are controlled for 10 years (with provision for
windfall profit recapture by the county) and rent levels for 20 years.
The county housing office oversees the program, including
certification of qualified applicants.
Many communities in states that require local governments to
promote affordable housing have adopted inclusionary zoning. In
California, according to a study by the California Coalition for Rural
Housing Project, 64 jurisdictions that had adopted inclusionary
zoning by 1994 had produced over 25,000 affordable housing
units. Two-thirds of the programs were mandatory and two-thirds
required 10 to 15 percent of proposed units to be affordable.
Almost all programs provided density bonuses and some offered
fee waivers and fast track permitting as well. New Jersey
communities, which are required by law to provide a "fair share" of
regional needs for affordable housing, have produced more than
55,000 affordable housing units. Many have adopted inclusionary
zoning approaches to meet fair share targets. Massachusetts has
an "anti-snob" law that requires local governments to plan and
zone for affordable housing. The City of Cambridge has taken this
assignment seriously, setting up a housing trust fund and working
with nonprofit housing groups to produce housing for low-and
moderate-income families. It also adopted an inclusionary zoning
program in 1998 that established mandatory requirements for
inclusion of low- and moderate-income units in every new
residential development of 10 or more units. Applied citywide, the
ordinance offered a density bonus of a 30-percent increase in the
permitted floor-area ratio and the right to build a market-rate unit
(above the as-of-right density) for each affordable unit. This
incentive was calculated to "hold harmless"the developer from the
significant costs involved in constructing the Commonly,
communities enact inclusionary zoning as a local ordinance that
lays out requirements and guidelines for inclusion of a certain
proportion of affordable units in residential development projects.
Typically, the ordinance:
, either mandates or invites developers' and builders' participation
in the program as they plan new residential developments;
establishes a minimum project size (number of housing units)
that triggers program participation;
provides density bonuses and other incentives as at least partial
compensation for producing affordable units;
defines an "affordable" level of housing prices or rents;
sets income limits to determine households eligible for affordable
units (usually a range of the regional median household income);
� establishes a period during which resale prices or rental
increases are controlled to maintain the supply of affordable
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InclUsionary "Zoning: The Missing Piece to the Affordable Housing puzzle - On Common Ground - Wint... Page 5 of 6
housing;
provides guidelines for the location and design of affordable units
within market-rate development;
' identifies an agency or other entity that will be responsible for
managing the program and monitoring the condition and turnover
of units developed under the program.
affordable units. Developers are also allowed to contribute to the
city's Affordable Housing Trust Fund in lieu of building units.
Issues and Outcomes
Inclusionary zoning programs often stir debate over the legal
grounds for such requirements. Builders and developers
sometimes raise the constitutional question of whether such a
requirement is an unlawful taking of private property for public
purposes. However, a paper prepared by the National Association
of Home Builders on inclusionary zoning (generally unenthusiastic
about the concept)concludes that"most inclusionary zoning laws
do not completely deprive developers of a reasonable economic
use ... ,"which is one of the criteria laid down by the Supreme
Court.As to the issue of communities requiring developers to cure
community wide housing problems, Bernard Tetreault, who
directed Montgomery County's housing program for many years,
reaches this conclusion:
"No, they should not. But, like all segments of the community,
[developers] have a role to play. And given that they produce the
housing stock, and that the density bonuses alleviate any
economic harm, the affordable housing requirement(like similar
infrastructure and amenity requirements) is not an undue
burden."(2)
Some economists argue that the cost of subsidizing a certain
number of housing units has the same effect as a development tax
or impact fee—the implicit tax is passed onto consumers (through
housing price increases) or back to landowners (by decreasing
land prices). In two forums on affordable housing sponsored in
2002 by the Urban Land Institute, builders who develop affordable
housing as part of market-rate projects in Montgomery County and
Chicago offered two observations on this issue: (1)inclusionary
requirements should be regarded as a cost of doing business in a
highly desirable housing market area; and (2)they, as builders,
have profited from developing such projects.
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Inclusionary Zoning: The Missing Piece to the Affordable Housing puzzlc - On Common Ground - Wint... Page 6 of 6
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Othbr ergui I` r ditdn raised about.inclusionary,zoning include
potential tsartfrlffet of 16wc6st units ond)olning market-rate
housing ( tsprn tdd by,`r any dies) the Ido",'klh t t dust nary
zoning is'a farm of social engit'etor�t gmirna ) i1 i ,0
extent), whether'developers loa Apo tan f,ifs
(most break even), and,the d6slr6btli f tl e�tharx
mandatory approach (voluntary po �irriI. .b Y
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Edith Netter, an attorney from Waltham, Massachusetts,
specializing in housing programs,
offers a final point: "The most important practical consideration,
because it is so often overlooked, is how inclusionary housing
programs are implemented. Carefully drafted
local decisions, effective monitoring systems and the legal
documentation to support long-term affordability are key elements
of a program's success."(3)
In conclusion, inclusionary zoning may be an imperfect policy
approach to a thorny community issue, but in many communities
the concept is proving to be effective in producing sorely needed
housing, especially in areas experiencing housing price escalation.
1 Robert Burchell and Catherine Galley, "Inclusionary Zoning: Pros
and Cons," New Century Housing (published by the Center for
Housing Policy), Vol.1, Issue 2, October, 2000, p. 5.
2 Bernard Tetreault, "Arguments Against Inclusionary Zoning You
Can Anticipate Hearing," New Century Housing
Volume 1, Issue 2, October, 2000, p. 19.
3 Edith M. Netter, "Inclusionary Zoning Guidelines for Cities &
Towns," a paper prepared for the Massachusetts
Housing Partnership Fund, September 2000, p.1.
Douglas Porter, President of the Growth Management Institute
in Chevy Chase, Maryland, is preparing a study of
inclusionary zoning for the Urban Land Institute under a grant
from the Ford Foundation and recently participated in two ULI
workshops on programs to produce affordable workforce
housing in urban infill locations.
Back to 2003 Winter Magazine
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DC Office:500 New Jersey Avenue,NW,Washington, DC 20001-2020
1-800-874-6500
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olicyLink - Inclusionary Zoning -- What is it? Page 1 ol' 1
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Inclusionary zoning (IZ) requires developers to make a percentage of
housing units in new residential developments available to low- and
WHAT 15 IT?moderate-income households. In return, developers receive non-
monetary compensation-in the form of density bonuses, zoning variances,
r; e. r,and/or expedited permits-that reduce construction costs. By linking the
production of affordable housing to private market development, IZ
HUMP "'e-xpands the supply of affordable housing while dispersing affordable units
s r'r:r f,!,sthroughout a city or county to broaden opportunity and foster mixed-
";HALAFNi"",income communities.
roi.ic;~Anclusionary zoning, sometimes called "inclusionary housing," can take
many forms.
Some IZ programs are mandatory, while others are voluntary or
''"' `incentive-driven. Some jurisdictions require developers to construct
affordable units within the development, while The Maryland
others allow affordable units to be constructed in -ience
another location. Some require developers to build Passed in 1974
the units, while other communities allow Montgornery County,
developers to contribute to an affordable housing M IryrlandsIZprog(ani
fund. requires 12.5.15
Percent of new
Inclusionary zoning is a flexible strategy with a hotoingdevelopments
proven track record of meeting a community's of 35 of more units try
affordable housing needs. IZ has become a be affordable for
common tool in California, Massachusetts , New households in the
lowest one third of
Jersey , Colorado , and the DC Metropolitan Area, the county's income
as well as other cities like Santa Fe , New Mexico bracket. Between
and Burlington , Vermont . More than 100 1976 and 1003, over
jurisdictions employ inclusionary zoning in 11,000 affordable
California alone; a 2003 survey conducted by the housing units w'ver.e
Non-Profit Housing of Northern California and the developed throughout
California Coalition for Rural Housing found that in the county.
California more than 34,000 units of affordable housing had been created.
Once common only in suburban jurisdictions, IZ programs are
increasingly adopted by urban communities. Generally, IZ policies have
been most effective in areas that are experiencing growth, since
affordable units are only generated if private residential development is
occurring in the community.
This tool provides an overview of inclusionary zoning and considers the
key issues related to implementing an effective program.
next page ....(Why Use I1
http://www.policylink.org/EDTK/IZ/default.htmi 8/24/2006
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PolicyLink - Inclusionary Zoning Why use it'? Page 1 of 2
Eq
Link
For decades, zoning has been a highly effective tool of exclusion. Though
originally justified as a tool for separating incompatible land uses (like
" '"housing and polluting factories), zoning's most profound effect has been
WHY USE Irato segregate communities by income and race. Suburban jurisdictions in
,,,, s;;.: ..particular have used zoning powers to require minimum lot sizes,
minimum home sizes and prohibitions on apartment buildings that make
g.Vit next-to-impossible to build affordable housing in these communities.
result is a consistent, national pattern of large-lot, single-family-
_ (home enclaves that are off-limits to moderate, low- and very-low income
families. As consequence, lower income families are cut off from strong
' 'F'C schools, emerging job centers, and opportunity networks.
Inclusionary zoning reverses this trend by turning zoning into a tool for
°promoting mixed-income communities. IZ also allows innovative
communities to counter declining public-sector investment in affordable
housing, create housing for their workforce, and enable low- and
moderate-income families to benefit from urban reinvestment.
Benefits of Inclusionary Zoning
Creating Mixed-Income, Diverse, Integrated Communities. IZ
policies help build economically and racially integrated communities. The
need for integration is great. People in poor neighborhoods are typically
isolated from access to livable wage jobs, quality education, adequate
health services, and protection from criminal activities. Persistently high
unemployment can result in conditions in poor communities that are self-
reproducing. When neighbors have no jobs or bad jobs, social networks
are less helpful in connecting to available employment.
Mixed income communities broaden access to well-funded schools, strong
municipal services and emerging job centers. Mixed income communities
also provide openings through which low-wage earning families can buy
homes in appreciating housing markets, accumulate wealth, and share a
part of the American dream.
In order to foster mixed income communities, IZ policies must require
developers to build the affordable housing units within the larger
development , rather than developing affordable units offsite.
Furthermore, most inclusionary zoning programs require external
comparability between affordable and market-rate units so that lower-
income families can purchase homes indistinguishable from the rest of
the development. This has helped eliminate the harmful stigma that is so
• often attached to affordable housing.
Responding to the Affordable Housing Crisis with the Help of the
Private Sector.
Millions of households pay too much for housing. Harvard's Joint Center
for Housing Studies reports in The State.._of the_.Nation s_.Hous_ing (2003�.
that more than 14 million households were found to be severely cost-
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PolicyI_,ink- - Inclusionary "Zoning -- Why use it? Page 2 of 2
burdened (defined as spending more than half of one's income on
housing), and another 17.3 million are moderately cost-burdened (paying
between 30 and 50 percent of income). Households in the lowest income
quintile suffer the most. The National Low Income Housing Coalition's
report Out gf Reac:h 20.03 found that wages continued to lose ground in
2003 compared to sharply rising rental costs.
"Affordability remains America's most widespread housing challenge
the shortage of affordable housing directly affects the quality of
life for the millions who eke out their housing payments every
month, sacrifice the purchase of other essentials, commute long
distances to ifrork, anWor suffer overcrowded or unsafe Conditions,
Joint Center for Housing Studies of Harvard University
The State of the Nation's Housing, 2003
As federal cutbacks reduce the resources available to nonprofit
developers and public agencies for producing affordable housing,
jurisdictions have used inclusionary zoning to bring private residential
developers into efforts to solve the problem.
Asking private developers to share responsibility for creating affordable
housing is both appropriate and crucial. M arket rate housing generates a
need for affordable housing for janitors, public school teachers, civil
servants, childcare workers, and others whose services are needed to
support market rate unit occupants, but who earn too little to afford
average priced homes in the community.
Providing Housing for a Diverse Labor Force. A healthy community
requires a diverse labor pool, including professionals, service sector
employees, public servants, and others. In escalating housing markets,
lower-paid employees are the first to be driven out. Q Helps Prevent
Inclusionary zoning helps build a diverse housing Displacement
market, ensuring that lower income individuals, When coupled with
whose housing needs are not met through the other mechanisms to
market, can live in the community where they preserve and increase
work. This helps attract and retain businesses who the stock of affordable
know that holding on to good employees is easier housing, inclusionary
when they can afford to live within a reasonable zoning polic1es are an
commuting distance. Communities and regions also effective cornponent
of anantWisplacement
benefit from a resulting reduction in commute strategy,
times, air pollution and congestion.
Protecting Against Displacement when New Investment Occurs .
Inclusionary zoning policies are an effective tool for maintaining
affordability in housing markets. In communities facing displacement or
experiencing significant new investment, the housing market is often the
most acutely impacted. As higher income individuals move into a
neighborhood, housing prices rise, displacing low to moderate-income
residents. In communities planning for new investment or already
experiencing this pattern of displacement, IZ policies promote balanced
housing development by ensuring that some portion of new housing
development is affordable.
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PolicyLink - Inclusionary Zoning -- Policy Page I of I
Development MN
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Develop Statewide Inclusionary Zoning Policy. States such as
Massachusetts , New Jersey , Minnesota , and California have adopted
^" O']egislation supporting inclusionary zoning. Some states have mandatory
,,provisions (e.g., New Jersey ) while others have voluntary programs
(e.g., Minnesota ). Statewide policies are a promising model for achieving
°r ¢ greater scale in the production of affordable housing and greater equity
'm �rj "�Cbetween jurisdictions in the supply of affordable housing. Statewide IZ
C,Y,,, ,,,.,policies can effectively link the creation of affordable units to the larger
residential development process and create a mechanism to support a
'''' 'shared, cross-jurisdictional approach to creating mixed-income
roE.cycommunities. IZ is a key policy to advance smart growth with equity
DL ;N A 'K,,Practices.
f":'((" '"Mandate Inclusionary Zoning in Areas Of Reinvestment and
Redevelopment. Areas undergoing reinvestment often plan for market-
rate development as a strategy to re-infuse the tax base and build mixed-
income communities where concentrated poverty exists. These are key
• jurisdictions for mandating inclusionary zoning. With IZ, as new
development proceeds, the quality and integrity of affordable housing can
grow proportionately to build a revitalized mixed-income community. If
only market rate housing is promoted, it can result in either an upward
pressure on costs that eventually displaces current residents; or, create
significant housing disparities with dilapidated affordable units and new
market units. California has a mandatory, statewide inclusionary zoning
policy in place for redevelopment areas. Private developers are required
to have a 15 percent set-aside and public agencies must have a 30
percent set-aside. These set-asides provide deep levels of affordability.
Advocate Cross-Jurisdiction Collaboration. J urisdictions with
inclusionary zoning policies are scattered across the nation, with a
concentration in California and the northeast. Increased collaboration and
coordination across jurisdictions is necessary to ensure affordability
across jurisdictions, Without cross-jurisdiction commitment, developers
may draw to non-regulatory jurisdictions and a region's fair share goals
will be undermined.
Require Inclusionary Zoning for Mixed-Used Developments. For
developments that mix residential and commercial uses, the
implementation of inclusionary zoning on the residential component of
the project develops best practices of smart growth and equity-placing a
range of jobs and housing in proximity. For example, Montgomery County
applies their inclusionary zoning ordinance to mixed-use developments,
• thereby promoting a mixed-income component to these developments.
Next Page ,,.,(Tool in Action)
littp://www.policylink.org/EDTKAZ/policy.html 8/24/2006
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Legislation and Ordinances
�waue:c��
'Select City and County Ordinances
rmo� o�Boulder, Colorado. Boulder 'o indua|onary zoning program was first
wssoVmca`deve|oped in 1980 and revised in 2000. It requires that 20 percent of
pndect's units be affordable for all new residential developments
(regardless of project s}ze). The program also mandates that inc|us|onary
units remain affordable in perpetuity. (See Chapter 9-6.5 of the Boulder
Revised Code, 1981)
-- Cambridge,-Massachusetts. Cambridge has joined growing number
of urban communities that have adopted |no|uoionaryzon|ng. Cambridge
is notable for reaching very and extremely-low income residents with its
program, its firm adherence to on-site development, and its long-term
affordability requirements.
Montgomery County, Mr Passed in 1974, MontgorneryCnunty
'sModerately Priced Dwelling Units Law (MPDU) has produced over
11,000 units of affordable housing in 25 years.
San Die m, California. With over 1 million residents, San Diego became
the largest city to mandate indusionaryroning when itpassed on
ordinance |n28O3.
Sant0_Fe* New Mexico. Santa Fa 'ajnc|usionary zoning law ties
affordable housing requirements tothe prices ofmarket rate units. Areas
with higher market rote housing face steeper affordable housing
requirements. (See Santa Fe Development Ordinances Sec. 14-96
"Inc|uaionary Zoning C]rdinance")
Select State Ordinances
California. Redeve-loornent-Area L 'slati-om. California has statewide
legislation that applies toall redevelopment areas. Private developers are
required to have m 15 percent set-aside and public agencies must have m
30 percent set-aside. Of those units set aside for "affordable housing," six
percent of the units must serve very low-income households, three
percent must serve low-income households, and six percent must serve
moderate income.
dbo://wvvw.pu}iuylirik.org/E[)TK/7Z/reaourccs.litrul 8/24/2006
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PolicyLink - Inclusionary Zoning -- Resources Page 2 of 3
Massachusetts. In 1969, Massachusetts enacted Chapter 40B of the
General Laws which was, in effect, a statewide inclusionary zoning law. It
both facilitates and encourages the development of affordable housing by
allowing subsidized developments to be approved without being subject
to local regulatory limitations. (See Sections 20-23 of Chapter 40B: "Low
and Moderate Income Housing")
New_Jersey. The New Jersey Supreme Court ruled in 1983 (South
Burlington Count NAACP v. Mount Laurel) that every municipality has a
constitutional obligation to provide through its land use regulations a
realistic opportunity for a fair share of its region's present and prospective
needs for housing for low and moderate income families. The court left it
to the legislature to determine how these obligations should be met. (See
The New Jersey Fair Housing Act)
Readings
Bay Area Economics. City of Salinas Inclusionary Housing.Program
Feosibihty_Study. Berkeley , CA : Prepared for the City of Salinas by Bay
Area Economics, 2003.
Bay Area Economics. San Jose Inclusionary Housing-.Study. Berkeley ,
CA : Prepared for the City of San Jose Housing Department by Bay Area
Economics, 2002,
Brown, Karen D. Expanding Affordable Housing-Through. Cncic.rsior?Gary
Zoning: Lessons from the Washington Metropolitan Area. Washington ,
DC : Brookings Institution, Center on Urban and Metropolitan Policy,
. 2001.
Burchell, R., Conine, C. K., Dubin, R., Flanagan, D., Galley, C., Larsen, E.,
Rusk, D., Schnare, A., Tetreault, B., and Tustian, R. " Inclusionary
2onin_g A Viable S0.1t,it:ion to.-the Affordable Housing Crisis?" New Century
Housing , vol. 1, no. 2. Washington , DC : The Center for Housing Policy,
2000.
Business and Professional People for the Public Interest. Opening they
Door to Inclusionary Housing. Chicago , IL , 2003.
Calavita, N., Grimes, K., and Mallach, A. " Inclusionary Housing in
California and New Jersey: A Comparative Analysis." Housing Policy
Debate , vol. 8, no. 1. Washington , DC : Fannie Mae Foundation, 1997.
California Affordable Housing Law Project of the Public Interest Law
Project and Western Center on Law & Poverty. Indus_iion ary.Zoning; Legal
Issues. Oakland , CA : California Affordable Housing Law Project of the
Public Interest Law Project and
Western Center on Law & Poverty for the San Francisco Foundation,
2002.
California Affordable Housing Law Project of the Public Interest Law
Project and Western Center on Law & Poverty. Inclusionary Zonirig:...Policy
Considerations and Best_Practices. Oakland , CA : California Affordable
Housing Law Project of the Public Interest Law Project and Western
Center on Law & Poverty, 2002.
David Paul Rosen and Associates. City of Los_Angeles Inclusionary
Hausing__St.crdy._ Los Angeles , CA : Prepared by David Paul Rosen and
Associates for the Los Angeles Housing Department, 2002.
http://www.policylink.org/EDTK/[Z/resources,litm] 8/24/2006
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PolicyLink - Inclusionary Zoning -- Tool in Action Page I of l
Development Toolkit
}
Cambridge , Massachusetts. A city of just over 100,000 people,
Cambridge has recently adopted an innovative inclusionary zoning
program. Cambridge joins a growing number of cities that have adopted
IZ in urban settings, and is notable in reaching very and extremely-low
income residents, its firm adherence to on-site development, and its
N1.) WIT Along-term affordability requirements. More.(in Adobe Acrobat format)
Montgomery County , Maryland. Mandated by the Moderately Priced
Dwelling Units Law (MPDU) in 1974, over 13,000 affordable housing units
=have been developed throughout the county. Developers of 50 units or
,more must set aside 12.5 percent to 15 percent of units as affordable, in
exchange for density bonus of up to 22 percent. More. (in Adobe
TOOL IN 11T11"Acrobat format.)
Fairfax County , Virginia. Fairfax County originally passed an
inclusionary zoning ordinance before the much-heralded Montgomery
County ordinance, but the Virginia courts struck it down. In 1990 a new
• ordinance was adopted, a victory for the AHOME (Affordable Housing
Opportunity Means Everyone) coalition. More. (in Adobe Acrobat format)
Excerpted from Expanding Affordable Housing Through Inclusionary
Zoning: Lessons From the Washington Metropolitan Area , Karen Destorel
Brown. For a full copy of the report visit the Brook i_ngs.. nstit.uti.on Center
on Urban and Metropolitan Policy's website.
State of Minnesota . In 1999, the state legislature allocated $8 million
to create a voluntary "Innovative and Inclusionary Housing Program."
The grant program offers gap financing and regulatory relief for builders
who make at least 10 to 15 percent of their housing developments
affordable to lower income renters and buyers. The Alliance for
Metropolitan Stability, a coalition of groups working to address the
shortage of affordable and livable housing, was central to the creation of
inclusionary housing policy in Minnesota . M_o.re.....(.in_Adobe..Acrobat
format)
Excerpted from Smart Growth, Better Neighborhoods: Communities
Leading the Way, Leah Kalinosky . For a full copy of the report, visit the
Nation_al-_N.ighborhood.Coa.l.ition web site.
next .pag_e_•._!�._.(Reso.urces_
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Regional Inclusionary Housing Initiative
Policy Tools Series
POLICY TOOL#1
DEVELOPING AN INCLUSIONARY ZONING ORDINANCE
Inclusionary housing programs can effectively create affordable housing in a
variety of communities. The most common route to creating an inclusionary housing
program is through a zoning ordinance that sets the specific requirements linking the
development of new residential units with the creation of affordable housing units. This
Policy Tool provides a brief overview of inclusionary housing and a detailed analysis of
issues that need to be considered when developing an inclusionary zoning ordinance.
What is Inclusionary Housing? inclusionary zoning requires residential
developers to set aside a portion of the hornes they build as affordable for low- and
moderate-income families. In addition to increasing the supply of affordable housing,
inclusionary zoning disperses affordable housing throughout the growth areas of a region.
It enables low- and moderate- income families to live in homes indistinguishable from,
and adjacent to, market-rate housing, and to live in communities with better access to
employment and educational opportunities. Inclusionary zoning has been implemented
in a variety of locales, ranging from older cities, such as .Boston, to growing towns like
Longmont, Colorado.
What are the benefits of Inclusionary Housing? Inclusionary housing
programs help municipalities serve the needs of local employers, including business,
schools, and the municipalities themselves:
• Businesses find it easier to hire and retain employees who are able to live within a
reasonable commuting distance
• Municipal governments, school districts, fire and police departments benefit from
employees living in the communities they serve because they are more invested in its
future.
Inclusionary housing helps meet the needs of current and future residents:
• Senior citizens have the choice to remain in the communities where they have raised
their children.
• Younger parents and single parent families can find homes in communities with good
schools, parks and services.
Inclusionary housing is effective in a variety of housing market conditions:
• In gentrifying communities, the affordable units created through an inclusionary
program can help offset the displacement of residents.
• In new and growing suburban conununities, the inclusionary units can broadly
disperse affordable housing needed by area jobholders and prevent exclusive
communities.
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ISSUES TO CONSIDER IN DEVELOPING AN INCLUSIONARY ZONING ORDINANCE
The development of an incluslonary zoning ordinance requires coIlsideratlon of it range
of variables. The local decision making process that tailors the ordinance to local
conditions is critical. There is no perfect inclusiona.ry zoning ordinance but rather a
range of options that need to be viewed separately and then evaluated in terms of how
they work togetlacr. The following report addresses each variable and options to be
weighed in developing an effective ordinance. It should be used as a guidebook through
these issues, not as a. magic recipe.
#1 Findings
Many ordinances begin with findings about the need for affordable housing and
planning study results. The section would summarize any planning process the
community has undertaken, trends in housing stock, the need for and benefits of
affordable housing, and the benefits anticipated by enactment of an inclusionary zoning
ordinance. Findings sections are often lengthy. Below is language based on
Sacramento's ordinance.
The City Council makes the following findings:
• it is a public purpose of the City to achieve a diverse and balanced community with
housing available for households of all income levels. Economic diversity fasters social
and environmental conditions that protect and enhance the social fabric of the City and
arc beneficial to the health, safety, and welfare of its residents.
• The City is experiencing an increasing shortage of housing affordable to low income
households. New residential development does not provide housing opportunities for low
income households due to the high cost of newly constructed housing in the City. As a
result, low income families arc de facto excluded from many neighborhoods, creating
economic stratification detrimental to the public health, safety, and welfare. An
increasing number of low income persons live in overcrowded or substandard housing
and devote an overly large percentage of their income to pay for housing.
• The amount of land in the City available for residential development is limited by City
General Plan policies and principles embodied in state law pertaining to general plans
and annexation. Scarce remaining opportunities for affordable housing would be lost by
the consumption of this remaining land for residential development without providing
housing affordable to persons of all incomes.
• Therefore, to implement the City General Plan, to carry out the policies of state law, and
to ensure the benefits of economic diversity to the residents of the City, it is essential that
new residential development in the remaining new growth areas of the City contain
housing opportunities to low income households, and that the City provide a regulatory
and incentive framework which ensures development of an adequate supply and mix of
new housing to meet the fixture housing needs of all income segments of the community.
(Sacramento)
#2 Statement of Purpose
Purpose Statements typically are broad policy directives. The first purpose
statement below is based on language from Fairfax County, Virginia's ordinance, and the
second statement is based on language from Boulder, Colorado.
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This program is established to assist in the provision of affordable housing for persons of low
and moderate income. The program is designed to promote a full range of housing choices
and to require the construction and continued existence of dwelling units affordable to
households whose income is 1151/, or less than the median income for the Chicago Standard
Metropolitan Statistical Area. (Fairfax County)
The purposes of this chapter are to:
(a) Implement the housing goals of the City Master Plan;
(b) Promote the construction ol'housing that is affordable to the community's workiorce;
(c) Retain opportunities for people that work in the City to also live in the City;
(d) Maintain a balanced community that provides housing for people of all income
levels; and
(c) Insure that housing options continue to be available for very low-income, low-
income, and moderate-income residents, for special needs populations and for a
significant proportion of those who both work and wish to live in the City. (Boulder)
#3 Definitions
The terms that follow are typical of those that are defined in inclusionary zoning
ordinances:
Affordable Housing Price Eligible iIomebuyer Median Income
Affordable Rent Eligible Renter Moderate Income
Affordable Dwelling Unit Extreme Hardship Permanently Affordable
Control Period Housing Commission Residential Project
Developer Mousing Trust Fund Very Low income
Development Agreement Low Income
Dwelling Unit Market Unit
#4 Threshold Size
Some ordinances limit their application to developments exceeding a threshold
size. The first example below is based on language from Boulder's ordinance. In one
sentence, it sets a threshold size, a set-aside percentage, and a period of affordability.
The second is based on Burlington, Vermont's ordinance, and is notable because it
applies to rehabilitation projects and the threshold level is applicable to development on
more than a single site. Either example could be abbreviated to simply state what size
developments trigger application of a set aside requirement.
Any development on a site larger than 10 acres or containing 50 or more dwelling units shall
include at least twenty percent of the total number of dwelling units within the development
as permanent affordable units. (Boulder)
The following residential development projects shall be Covered Projects and shall be subject
to the requirements of this Article: all development of residential property larger than 10 acres
or containing 50 or more dwelling units taking place through the construction of new
structures or through the substantial rehabilitation of existing structures. Covered Projects
shall include all development of residential property in excess of 10 acres or containing 50 or
more dwelling units in the City by the same responsible party in any calendar year.
(Burlington)
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#5 Set-Aside—Targeted
A critical decision in developing a inclusionary zoning ordinance is the
percentage of housing units required to be set aside as affordable. Often the set aside
requirements are linked to specific income eligibility targets. Two examples of
affordable housing set-asides targeted to specific income tiers follow below. The first
example is based on language from Sacramento's ordinance. The second example, based
on provisions of Davis, California's ordinance applicable to rental housing, also targets
affordable housing to different income tiers, but varies the target percentages based on
the size of the project. (Davis's numbers and percentages are used for case of
understanding.)
in developments covered by this section, the inclusionary housing component shall consist of
affordable units leased or sold as follows: x11/0 to very low income families (earning no more
than 50% of area median income); x% to low income (earning more than 501/0 of area median
income but no more than 80% of area median income); and x% to moderate income families
(earning more than 801/0 of area median income but no more than 115% of area median
income). (Sacramento)
A developer of multifamily rental developments containing 50 or more units shall provide at
least 25% of the units affordable to low income households (earning more than 50% of area
median income but no more than 80% of area median income) and at least 10%percent of the
units affordable to very low income households (earning no more than 50% of area median
income). A developer of multifamily rental developments containing between five and
nineteen units, inclusive, shall provide 15% percent of the units to low income households
and 10%percent to very low income households. (Davis)
#6 Housing Commission Right_to Purchase
Some ordinances give the municipality and not-for-profit entities a right to
purchase a fixed percentage of affordable units when they are first offered for sale or rent,
so that they can keep the units permanently affordable. The First example below is based
on language from Montgomery County, Maryland's ordinance, and the second is based
on Fairfax County, Virginia's ordinance. (The percentages identified are Montgomery
County's and Fairfax County's, respectively.)
The Housing Commission and any other not-for-profit corporation designated by the
Commission has the option to buy or lease, for its own programs or programs administered by
it, up to 40% percent of all affordable units, The Commission may buy or lease up to 33%.
Any other designated corporation may purchase or lease any affordable units in the first 33%
that the Commission has not bought or leased, and the remainder of the 40%. Units purchased
or leased under this option shall be assigned to very-low or low-income persons. The
Commission shall establish standards for designating not-for-profit corporations which shall
require the corporations to demonstrate their ability to operate and maintain affordable units
satisfactorily on a long-term basis. (Montgomery County)
The Housing Commission shall have an exclusive right to purchase up to one-third of the for
sale affordable dwelling units within a development for a 90 day period beginning on the (late
of receipt of written notification from the developer advising the Housing Commission that a
particular affordable dwelling unit is or will be completed and ready for purchase. The
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. remaining two thirds of the for sale affordable units within a development and any units which
the Housing Convnission does not elect to purchase shall be offered for sale exclusively for a
90 day period to persons who meet the income criteria established by the Housing
Commission. After the expiration of 60 days of the 90 clay period referenced above, the
affordable dwelling units not sold shall be offered for sale to nonprofit housing groups, as
designated by the Housing Commission, subject to the established affordable dwelling unit
prices. (Fairfax County)
#7 Desipn and Building Requirements
irements
Most ordinances require that affordable units be visually compatible with market
rate units in the same development. The language below illustrates how this preference is
drafted into an ordinance. The first example is based on Burlington's ordinance, the
second is based on Sacramento's, and the third is based on Fairfax County's.
Affordable inclusionary units may differ from the market units in a Covered Project with
regard to interior amenities and gross floor area, provided that:
(i) these differences, excluding differences related to size differentials, are not apparent
in the general exterior appearance of the Project's units; and
(ii) these differences do not include insulation, windows, heating systems, and other
improvements related to the energy efficiency of the Project's units;
(iii)the gross floor area of the affordable inclusionary units is not less than minimum
requirements established by the City.
(Burlington)
Inclusionary Units shall be visually compatible with Market Rate Units. External Building
materials and finishes shall be the same type and quality for Inclusionary Units as for Market
Rate Units. Upon application by the developer to the City, the City may, to the maximum
extent appropriate in light of project design elements as determined by the Planning Director,
allow builders to finish out the interior of Inclusionary Units with less expensive finishes and
appliances. (Sacramento)
The Housing Commission shall develop specifications for the prototype affordable housing
products both for sale and rental, which shall be structured to make the units affordable to
very low-, low-, and moderate-income households. All building plans for affordable dwelling
units shall comply with such specifications. Any applicant or owner may voluntarily
construct affordable dwelling units to a standard in excess of such specifications, but only 50
percent of the added cost for exterior architectural compatibility upgrades (such as brick
facades, shutters, bay windows, etc.) and additional landscaping on the affordable dwelling
unit shall be included within recoverable costs, up to a maximum of 2 percent of the sales
Price of the affordable dwelling unit, with the allowance for additional landscaping not to
exceed one half of the above-noted 2 percent maximum. (Fairfax County)
#8 Timing of affordable unit construction
Most municipalities require affordable units to be built concurrently with
market units to ensure integration of affordable and market units, and to prevent
. developers from abandoning projects prior to completing the affordable units. The
first example below is from Burlington's ordinance, and the second is from
Montgomery County's.
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• Inclusionary units shall be made available for occupancy on approximately the same schedule
as a Covered Project's market units, except that certificates of occupancy for the last ten
percent of the market units shall be withheld until certificates of occupancy have been issued
for all of the inclusionary units. A schedule setting forth the phasing of the total number of
units in a Covered Project, along with a schedule setting forth the phasing of` the required
inclusionary units, shall be established prior to the issuance of a building permit for any
development subject to the provisions of this Article. (Burlington)
The affordable dwelling unit agreement must include the number, type, location, and plan for
staging construction of all dwelling units and other such information as the Commission
requires to determine the applicant's compliance with this Chapter. The affordable dwelling
unit staging plan must be consistent with any applicable land use plan, subdivision, plan, or
site plan. The staging plan included in the affordable dwelling unit agreement for all dwelling
units must be sequenced so that:
(I) no or few market rate dwelling units are built before any affordable units are built;
(2) the pace of affordable unit production must reasonably coincide with the construction
of market rate units; and
(3) the last building built must not contain only affordable units.
(Montgomery County)
#9 Fee In Lieu Formula
Some municipalities pen-nit developers to pay a fee in lieu of developing hard
affordable units. While some municipalities permit payment as a right, others require
developers to show that constructing hard units would constitute a unique hardship, or
that a fee would produce a greater benefit.' Because the fee paid is typically linked to the
cost of producing a hard unit, fee in lieu formulas are necessarily dependent upon the
local housing market. The first example below is based on the Boston Executive Order,
and the second is based on Boulder's ordinance. The third and fourth examples, based on
Montgomery County's and Brookline, Massachusetts' ordinances, respectively, authorize
The following are summaries of the requirements that developers must satisfy to qualify to pay a fee in
lieu of development in some municipalities:
Montgomery County: Developers may pay a fee in lieu if they can show that a resident's housing
expenses for a hard unit would exceed what a participant in the affordable housing program could
pay. A developer must justify why fees for facilities and services should not reasonably be
excluded or reduced for affordable unit occupants. A fee paid must be sufficient to produce more
units or units that are more affordable to low and moderate income families. The County has
allowed fees in lieu of development on only 11 occasions.
Boulder: fees in lieu of half of the required affordable units is permitted as a right. Developers
may only pay fees in lieu of a larger percentage of units if a developer can demonstrate that
payment of a fee would accomplish more benefit to the City than construction on site.
Santa Fe: Developers may pay a fee in lieu of developing hard units if they show that as a direct
consequence of the inclusionary zoning ordinance they (1) are deprived of all economically viable
use of their property as a whole, or(2) would lose money on the development as a whole and can
demonstrate to the Housing Opportunity Program administrator's satisfaction that the loss is an
unavoidable consequence of the affordable housing requirement.
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a fee in lieu o('dcvcloprncnt and provide that procedures for implementing such a fee
shall be deten-nined by administrative regulations.
Subject to the approval of the head of the relevant City agency, developers may also propose to
achieve these affordable housing obligations by making a dollar contribution to an affordable
housing fund calculated by multiplying the total number of dwelling units in the proposed
residential development by 0.15, and by multiplying the result by the Affordable Housing Cost
Factor, currently standing at $52,000. This Affordable Housing Cost Factor is defined as the
average total public subsidy per new construction affordable housing unit pennitted in the City
for the previous calendar year, and will be adjusted annually on July 1 of' each year in an
amount conunensurate with the cost of producing affordable housing. (Boston)
Whenever this chapter pen-nits a cash-in-lieu contribution as an alternative to the provision of`a
single permanently affordable housing unit,the cash-in-lieu contribution shall be as follows:
(a) For each unrestricted detached dwelling unit, the cash-in-lieu contribution shall be the
lesser of$13,200.00, or $55.00 multiplied by twenty percent of the total floor area of
the unrestricted unit.'
(b) For each unrestricted attached dwelling unit, the cash-in-lieu contribution shall be the
lesser of$12,000.00, or $50.00 multiplied by twenty percent of the total floor area of
the unrestricted unit
The city manager is authorized to adjust the cash-in-lieu contribution on an annual basis to
reflect changes in the median sale price for detached an attached housing, using information
provided by County Assessor records for the City. (Boulder)
In exceptional cases, instead of building the required number of affordable dwelling units, a
developer may offer to contribute to the Housing Initiative Fund an amount that will produce
significantly more affordable dwelling units. The procedures for considering and implementing
contribution offers must be established by executive regulation. To implement an offer, the
developer must sign an agreement with the Director of the Department of Housing and
Community Development not later than a time provided in the regulations.
(Montgomery County)
At the option of the City, the requirements of this Section may be met through a cash payment to
the City or its designee in an amount based on the guidelines adopted as per(f) below if the cash
payment is found by the City, in its discretion, to be advantageous to the City in creating or
preserving affordable housing. Cash contributions shall be used only for purposes of providing
affordable housing for very low, low, and moderate income persons. . . .
(f) The Planning Commission, in consultation with the Housing Commission and after public
notice and hearing, shall adopt guidelines to aid in the interpretation and determination of the
requirements of this Section. (Brookline)
#10 Cost Offsets
As is contemplated in the language below, some municipalities allow developers
to request waivers from development standards such as set-back requirements, parking
and landscaping requirements, or building material requirements, which reduce the cost
of constructing affordable units. These cost offsets allow a municipality to decrease the
'The 20%floor area calculation reflects Boulder's 20%set-aside. The fee is based on 20%of the floor
area of a development rather than 20%of the number of units. To determine the amount of the fee,
Boulder conducted a study to determine the gap between the allowable sales price of an affordable unit and
the actual cost to construct a unit;the gap figure was then lowered to a politically feasible amount.
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burden placed on developers of affordable housing, and minimize the possibility of a.
developer showing that inclusionary zoning causes an excessive loss such that it effects a
taking. The offsets in the examples below are incorporated into the ordinances, but
municipalities may implement cost offsets in a variety of ways. For example, Brookline
does not include offsets in its set-aside ordinance, but provides for an offset,-- a floor area
bonus-- in a separate ordinance. "Though l am not aware of a municipality which has
done so, an ordinance could generally authorize cost offsets which would be detailed in
administrative regulations.3 The first example below is based on the Santa Fc ordinance,
and incorporates cost offsets mentioned in the Highland Park Affordable Housing Plan.
The second is based on provisions in the Sacramento ordinance, and lists offsets from
that ordinance to provide a sense of the range of offsets available.
Impact ices, building permit fees, and tap-on fees (or portions thereof) may be waived for
affordable units, subject to agreement of the entities receiving revenues from such fees. Any
developer of affordable units may submit a request for a waiver of other City development
standards, and the City shall respond within thirty calendar days of its receipt. The City shall
approve a waiver if each of the following requirements are met:
(a) The proposed waiver will make the housing more affordable. ".f.he developer must
show how real costs will be reduced and how the savings will be passed on
affCrrdable home buyers or renters.
(b) The proposed waiver does not compromise health, safety or welfare as determined
by the City.
(C) Vehicular and pedestrian circulation, storm drainage and utilities are provided for
adequately
(Santa Fe)
Upon application as provided herein, (1) the City shall make available to a Residential Project
Developer a program of waiver, reduction or deferral of development fees, administrative and
financing fees for affordable units; (2) the City may modify for affordable units, to the extent
feasible, in light of the uses, design, and infrastructure needs of the Development Project,
standards relating to road widths, curbs and gutters, parking, lot coverage, and minimum lot
sizes; and (3) the City may, to the maximum extent appropriate in light of project design
elements, allow builders to finish out the interior of affordable units with less expensive
finishes and appliances. The Planning Director may issue Special Permits for Inclusionary
Projects, and shall develop further procedures for streamlining and priority processing which
relieve affordable units of permit processing requirements to the maximum extent feasible
consistent with the public health, safety, and welfare. The developer may apply to the City's
IIousing Trust Fund for assistance in the financing and development of the affordable units in
a development. (Sacramento)
#11 Density Bonus
A number of municipalities grant a density bonus--permission to develop more
units than zoning would otherwise allow. Like other cost offsets, density bonuses may
decrease the likely success of a taking claim by mitigating the economic impact of
developing affordable housing. Though some communities tout density bonuses as the
most effective cost offsets, others that do not desire denser development avoid them
}Such a provision could look much like the Montgomery County and Brookline provisions which authorize
fees in lieu of development, but leave determination of a fee formula or amount to administrative
regulations.
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altogether. Some municipalities automatically award a density bonus to developers of
affordable housing, while others permit smaller developments as of right without any set-
aside, and set up larger developments with increased density as a desirable variance, to
which an affordable housing set-aside is attached. The first example below, based on
Cambridge, Massachusetts' density bonus, follows the former strategy, and permits
developers to split the additional density between affordable and market rate units. The
bonus is structured so that the developer's profit on additional market units directly
offsets the loss on affordable units. The second example is based on Somerville,
Massachusetts' ordinance, and follows the latter strategy. In Somerville, up to 7 units
may be developed as of right, but development of 8 or more units requires a special
permit and a concomitant obligation to set aside 12.5% of all units as affordable. Some
argue that structuring a density bonus as a variance with an accompanying affordable
housing set-aside may prevent the set-aside from being labeled an exaction--a land use
decision conditioning approval of development on the dedication of property to public
use. This is advantageous because exactions are more vulnerable to taking claims than
zoning of general application.
To facilitate the objectives of this Section, modifications to the dimensional requirements in any
zoning district shall be permitted as of right for an Inclusionary Project, as set forth below:
(i) The Floor Area Ratio (FAR) normally permitted in the applicable zoning district for
residential uses shall be increased by 401/0 percent, and at ]cast 50"/, of the additional
FAR should be allocated for the Affordable Units required by this Section. In a Mixed
Use Development, the increased FAR permitted in this paragraph (i) may be applied to
the entire lot; however, any gross floor area arising from such increased FAR shall be
0 occupied by residential uses, exclusive of any hotel or motel use.
(ii) The minimum lot area per dwelling unit normally required in the applicable zoning
district shall be reduced by that amount necessary to permit up to 2 additional units on the
lot for each I affordable unit required by this Sections
(Cambridge)
The affordable housing requirements of this Article shall apply to all residential developments
seeking special pennits with site plan review to develop 8 or more dwelling units, whether new
construction, substantial rehabilitation, or adaptive reuse. Developments shall not be segmented
or phased in a manner to avoid compliance with these provisions. Developers providing more
than 12.5`%, of the total units in the development as affordable units may apply for an additional
density bonus under the terms of this Article. Bonuses may be awarded on the basis of a 2 to I
ratio of market rate units to affordable housing units. For every additional unit provided beyond
the 12.5.%required, 2 additional market rate units may be authorized.
(Somerville)
4 Floor Area Ratio is the ratio of gross floor area(the sutra, in square feet,of the gross horizontal areas of all
floors of a building)to the total area of the lot.
5 Implementation of a density bonus under this section would work as follows: Assume a 50 unit
development, and a 20%set-aside. Thus, 10 of the 50 units must be affordable. Paragraph(ii)of the
density bonus above awards a bonus of two market units for every one affordable unit,so 70 units would be
permitted. In addition,paragraph(i)would permit a 40%increase in the lot's FAR,which corresponds to
the 40%increase in units over the original 50. If considered in reference to the base number of units,the
developer essentially gets 10 additional market units to offset the 10 required affordable units.
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#12_MarketinLy
Some ordinances and regulations provide extensive instructions for marketing to
and certifying buyers and renters of affordable units. The first example below is based on
Santa Fe's ordinance pertaining to for-sale units, and provides broad guidance with
regard to marketing. The second example is based on Santa Fe detailed regulations
which implement. the ordinance.
A. Developers shall market affordable homes in accordance with [lie requirements set forth in the
administrative procedures. There shall be an efficient matching of the incomes of prospective
affordable unit buyers to specific affordable unit prices. There shall be a reasonable matching of
the household sizes of prospective affordable unit buyers to the sizes and types of affordable
units. Any marketing materials shall clearly state the policies of the affordable housing program
with regard to the pricing of affordable units and buyer eligibility.
B, In marketing affordable units the City or seller shall give preference to individuals who are
citizens of the City or are presently employed or under contract with an employer within the City-
C. The City or its agent shall maintain and make available lists of prospective affordable unit
buyers who have passed preliminary prequalifications for financing. For affordable developments
for which the city expects immediate effective demand to outstrip supply, the city or its agent, at
the city's sole discretion, may establish and maintain an equitable process for allocating rights to
purchase the homes. For developments other than those described above, the developer shall
establish and maintain an equitable process of marketing homes, including waiting lists where
demand exceeds supply.
D. Prior to executing a purchase contract for any affordable unit, the prospective affordable unit
. buyer shall be certified as meeting affordable housing program requirements by the City or its
agent. The certification process shall be set forth in the administrative procedures_ Developers
and affordable unit buyers may execute only purchase agreements that are approved as to form by
the City and include language provided by the City which shall require that an appropriate
disclosure form be provided to and explained to the affordable unit buyer prior to execution of the
contract. The disclosure form shall explain any deed restrictions, restrictive covenants and/or
liens that are placed on the affordable unit to ensure long-tern affordability. (Santa Fe ordinance)
Developers shall market affordable homes in accordance with the following requirements:
(1) There should be an efficient matching of the incomes of prospective affordable
home buyers to specific home prices, as follows:
Household income of a buyer should not exceed the price level of a home by
more than five percent. For example, only households with incomes at or below
65 percent of median income should be allowed to buy a home made affordable
to households at 60 percent of median income. Thus, lower priced homes will be
reserved for lower-income households. Alteration of this requirement may be
based only on the unavailability of a qualified buyer with the required level of
income for a period of 30 days or more after the home was legally ready for
occupancy (assuming good-faith marketing efforts by the developer to find a
qualified buyer).
(2) There should be reasonable matching of the household sizes of prospective
affordable hornebuyers to the sizes/types of affordable homes as follows:
3 BR, 1.5 BA ------- Minimum household size=4
4 BR,2 BA ------- Minimum household size= 5
The City shall not market or sell an affordable home to a household which is smaller
than the household sizes indicated, unless the City approves in writing fewer
persons based on the unavailability of a buyer of the proper household size for a
period of 30 days or more after the home was legally ready for occupancy
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(assuming good-faith marketing efforts by the developer to find a qualified buyer),
or the demonstrated need of a household for a dwelling unit with more bedrooms
than allowed in this section.
(3) In marketing affordable hoines the City or seller shall give preferences to
individuals who arc citizens of the City or are presently employed or under contract
with an employer within the City.
(4) Brochures, advertisements and other marketing inaterials shall clearly state the
policies of the affordable housing program with regard to the pricing of affordable
units and buyer eligibility-
(5) The City or its agent may maintain lists of prospective affordable homebuyers who
have passed preliminary pre-qualifications for financing. Such lists will be made
available to developers for marketing purposes.
(6) For developments for which the City expects immediate effective demand to
outstrip supply, the City or its agent, at the City's sole discretion, may establish and
maintain an equitable process for allocating rights to purchase the homes. For
example, the City could require a lottery or use of a ranked waiting list.
(7) Prior to executing a purchase contract for any affordable home, a prospective buyer
must be certified by the City or its agent as meeting prograln requirements. The
certification must have been made within 90 calendar days immediately prior to the
full execution of the purchase contract. Developers may sign purchase contracts
with non-certified prospective buyers, conditional upon certification within 10
working days, if the developer is reasonably certain that he prospective buyer can be
certified.
(8) Developers and buyers of affordable units may execute only purchase contracts that
are approved for form by the City and include language provided by the City, which
will require that an appropriate disclosure form be provided to and explained to the
buyer prior to execution of the contract. The disclosure form will explain any deed
restrictions, restrictive covenants, and/or liens that are placed on home to insure
long-term affordability.
(Santa Fe regulations)
#1.3 Administration of Affordability Control
Original sales prices and rental rates for affordable units are typically regulated so
that that a low- or moderate-income purchaser or renter need not spend more than 30% of
his or her income on housing expenses. Most municipalities also impose price
restrictions which keep units affordable when they pass to new occupants. The first three
examples below deal with the resale pricing of for-sale affordable housing. The first
example is from Highland Park's Central Avenue Senior Development, and the second is
based on the Boulder and Montgomery County ordinances. The third example is based
Santa Fe regulations, and provides only general guidance on the subject of resale pricing.
The last example, based on language from the Sacramento and Santa Fe ordinances deals
with maintaining affordability of rental units, and is less complicated.
The resale price shall be the lower of:
(a) the then-fair market value of the unit as determined by an appraisal performed by an
appraiser approved by the Housing Commission taking into account applicable use and
occupancy restrictions which may be binding on the unit; and
(b) the purchase price under the agreement by which the unit owner purchased the unit,
increased by an amount equal to the lesser of(i)three percent(3%) for each year(or part
thereof)after the closing date during which the unit owner resided in the unit and(ii)
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inflation as measured by the Consumer Price Index (All Urban Consumers, All Cities
average, residential real estate) for the period of lime that the unit owner resided in the
unit.
(Highland Park, IL)
The resale price of any permanently affordable housing unit shall not exceed the purchase
price paid by the seller of that unit plus:
(a) A percentage of the unit's original purchase price equal to the increase in the cost of
living since the unit was purchased by the seller, as determined by the Consumer
Price Index;
(b) The fair market value of improvements made to the unit by the seller6;
(c) Customary closing costs and costs of sale; and
(d) Costs of a real estate commission paid by the seller if a licensed real estate agent is
employed.
(Boulder/Montgomery County)
The City requires that developers impose resale controls which are designed to achieve the
following purposes;
(a) reducing the potential for windfall profits by an owner-occupant;
(b) recapturing any such windfall profits for use in an approved housing trust fund;
(c) providing incentives for owner-occupants to resell to lower-.income households,
which are most in need of affordable housing;
(d) maintaining the affordability of affordable units to subsequent buyers to a reasonable
extent,while considering the sellers' rights to reasonable returns on equity; and
(e) preventing speculative profits on affordable units by renting theta to another
household.
(Santa Fe)
The owner of affordable rental units shall be responsible for certifying the income of eligible
tenants to the IIousing Commission at the time of initial rental and annually thereafter.
Rental rates shall be in accordance with the formula set forth in the administrative
procedures.' This requirement shall be made applicable to successors in title, if any, by
means of a deed restriction. (Santa Fe/Sacramento)
Municipalities typically maintain affordability through deed restrictions or
covenants recorded against the property. These affordability controls often specify that a
unit must be sold or rented to an income eligible buyer at an affordable price; others give
the municipality a right of first refusal to purchase affordable units. For a discussion of
the validity and permissible duration of such affordability controls, please see the
attached memorandum from BPI intern, Rebecca Ome.
6 In evaluating whether to allow sellers to recoup the value of capital investments in their homes,
municipalities weigh a desire to provide sellers with some of the benefits of ownership against a desire to
keep the sale price of the unit affordable. Some ordinances,such as Montgomery County's, Fairfax
County's,and Santa Fe's do not impose restrictions on the capital expenditures homeowners may recover
upon the sale of their homes. In contrast, Davis,California,in its]one for-sale development with resale
restrictions,does not allow homeowners to recoup capital investments. (Davis is rethinking this issue with
regard to future developments.) Boulder requires homeowners to obtain city approval for capital
. improvements, and limits recovery of expenditures to approximately$1000 for each year the homeowner
has owned the property. (Boulder's 2001 Homeownership Capital Improvements Policy is attached.)
7 Both ordinances target rental rates at 30%of a family's income less an allowance for tenant-paid utilities.
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#14 Other Issues for Consideration
Land Dedication
Another possibility that may interest some municipalitites is allowing a developer, at the
City's discretion, the option to satisfy some of his affordable housing obligation via
dedication of land to the City's contemplated land trust. For example, tinder Boulder's
ordinance developers may satisfy their affordable housing obligation either by:
(1) conveying land to the City of equivalent value to the fee-in-lieu contribution that
would otherwise be required, plus an additional fifty percent, to cover costs
associated with holding, developing, improving, or conveying the land; or
(2) conveying land to the City that is of equivalent value to land upon which the
required affordable units would otherwise have been constructed. Such land must
be zoned to allow construction of at least as many affordable units as would
otherwise have been required.
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What is Inclusionary Zoning ?
• Promotes the production of affordable
housing by requiring developers to set
aside a certain percentage of the
housing units in a proposed
development to be priced to be
affordable to low- and moderate income
households .
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The Nine Basic Elements
• Threshold
• Applicability
• Mandatory or Voluntary _ 4D
• Set-Aside Requirements
• Developer Incentives
• Income Targeting
• Price Control Period
• In Lieu of Alternatives
• Housing Provider
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Threshold
• The Size of the
Development that triggers the
Inclusionary Zoning
Requirements _.
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A Survey of Threshold Points for 1Z Compliance
3% 126 Communities Surveyed
2%
5°/o
- ❑ 1 to 4 Units
33%
m 5 to 9 Units ;
g
28% 3_ ❑ 10 Units
❑ 20 Units
s 30 Units
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50 or More
29%
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Applicability
• The kinds of development to be
covered by the ordinance
• Possibilities include :
— New Construction
— Substantial rehabilitations
— Condo conversions
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Set-Aside Requirement
• The Percentage of
Units within a
Proposed
Development that a
Developer is
required to price as
Affordable.
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Inclus ionary Zoning Set-Aside Thresholds
144 Communities Surveyed
2%
6% 6% m < 10% Affordable Units
1 q% 10% Affordable Units
❑ 11-15% Affordable Units ,
37% ❑ 15-19% Affordable Units j
■ 20% Affordable Units
28% 25% Affordable Units
7% im 30% Affordable Units
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Developer Incentives
• Benefits to Compensate Developers for
Pricing Units as Affordable
• Examples
— Density Bonus
— Expedited Permit Process
— Fee Waivers
— Relaxed Design Standards
— Direct or Indirect Subsidy
— Alternative Housing Product Type
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Types of Developer Incentives
• Density Bonus :
— Definition : a Percentage or number of units that
the Municipality permits the Developer to
construct above the Zoning Designation .
— Example:
• 10% Set-Aside; 15% Density Bonus
• Development of 100 units
= 10 Affordable Units
= 15 Additional Market Rate Units
= Total of 115 Units
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Types of Developer Incentives
• Expedited Permit Process : Speed up
the processing time for municipal
permits
• Fee Waivers : Waive impact fees and
permit fees for some or all units
• Relaxed Design Standards : Minimum
Lot Sizes,, Landscaping Requirements,,
Parking Requirements, etc .
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Types of Developer Incentives
• Direct/Indirect Subsidy : Cash subsidies
from local, state or federal housing
programs; second mortgages;
marketing assistance .
• Alternate Housing Product Type : Allow
the construction of some townhomes in
a single family detached housing
development.
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Income Targeting
• The Income Range to which the
affordable Units are priced .
• Usually Percentage of Area median
Income (AMI) .
• Example :
— Rental Units : At or Below 50% AMI
— Ownership Units : At or Below 80% AMI
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A Survey of Income Targeting by
Communities with IZ Ordinances
• No communities surveyed target
households under 30% of AMI .
• A majority (80% ) of communities target
households at various incomes, most
commonly targeting some units for
households under 50% AMI, under
80% AMI and under 120% AMI .
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Price Control Period
• The Length of Time a Unit is required to
be priced as Affordable.
— Example : 30 years for rental units; 20
years for homeownership units
• Examples of Resale Restrictions :
— Deed Restrictions
— Covenants
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A Survey of Price Control Periods
144 Communities Surveyed
17fl/° 5% 4% ; ❑ 6 Years
_ 14% ■ 15 Years
3% j ❑ 20-25 Years
rt ❑ 30 Years
180'° = I ■ 40-45 Years
113 50-60 Years
i
99 Years
5a/o 34°Io ❑ Permanent
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In Lieu Of Options
• Off-Site Development
— Allowing the Developer to Build or Rehab the
Affordable Units in a Different Location .
• Fee In-Lieu
- Allowing the Developer to make a Cash Payment.
• Land Donation
— Allowing the Developer to donate land that will
support the amount of units required under the
ordinance.
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Housing Provider
• Provide non-profit or public entities with
the, 'first right of refusal, : to purchase
some percentage (%) of the affordable
homeownership units produced in any
covered development.
• Examples :
— City, Housing Authority or non-profit
housing entities like CHDOs.
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Montgomery County, Maryland
• Montgomery County is Maryland's most
populous jurisdiction,, estimated to be
855,,000 in the year 2000,, an increase of
100,000 since 1990 .
• Median Housing Price : $449,000
( December, 2005)
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Highlights of Montgomery
County"s MPDU Program
• Oldest (adopted 1973) and most
comprehensive inclusionary zoning policy,
known as the Moderately Priced Dwelling Unit
(MPDU) Program .
• The MPDU Program has resulted in the
creation of 111000 units of affordable
housing, 72% were home ownership units.
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• Ordinance Requires Mandatory Compliance
• Threshold Size of Project that Ordinance
Applies To : 35 Units or More (this was
recently lowered from 50 units) of newly
constructed housing .
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• Set-Aside Requirements : 12, 50/o to 150/o
depending on the density bonus
provided.
• Developer Incentives : Density Bonuses of
up to 220/o are provided . Additionally,
developers can receive fee waivers.
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• Income Targeting_ Priced to households
with incomes less than or equal to 65%
AMI
• Price Control Period : 30 Years
(Previous control periods were 20 years for
ownership units and 10 years for rental
u n its) .
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• "In Lieu Of"' Alternatives : Fee in Lieu, Land
Donation, and Units (significantly greater
number required), or Built Off-site in
"extreme cases"
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Internet Resources for Additional
Information
• www. policylink.org
• www.gamaliel .org/Strategic/strategicpartners
RuskLibrary. htm
• www. knowledgeplex.org/
• www. hud .ca .gov/inclusionary0805 . pdf
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