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Council clarifies affordability calculations on PUD Ordinance

Monday, October 7, 2013 by Elizabeth Pagano

Moving with a swiftness seldom seen at City Hall, City Council members approved changes to the city’s Planned Unit Development Ordinance at last week’s meeting.


Council voted 5-2 to approve the new ordinance, with Council Members Kathie Tovo and Laura Morrison voting in opposition.


The changes are a result of a lack of clarity in the original PUD ordinance which left a wide difference of opinion on how affordability requirements are calculated for PUDs (See In Fact Daily, June 7.) While some argued the requirement was based on the total square footage of the project, others maintained it should be determined based only on the “bonus” square footage gained through the zoning change.


As of last Thursday, the calculations will be based on the bonus square footage. Though Morrison and Tovo hoped to find a silver lining to the rewrite and include a requirement for on-site affordable housing that could increase affordability across the city, the majority of City Council did not embrace that theory.


On-site affordable housing will be an option for developers. They may also pay a fee-in-lieu to the city’s affordable housing trust fund. City Council retains the power to eliminate either of those options and require one or the other.


“There was a point at which, this evening, I thought I could support this,” said Tovo, who believes that the original ordinance did intend to calculate affordability requirements based on a project’s total square footage (though this continues to be a point of debate).


“What we’ve done with this ordinance is really provide fewer affordable housing benefits than the original ordinance did. I think there was a point this evening where we could have made that a net positive by requiring that those development bonuses be on-site housing in the Planned Unit Developments that go forward. I think that would have represented a pretty good trade-off. But in my book the ordinance that is before us represents a step back in helping us achieve affordable housing,” said Tovo.


Morrison echoed Tovo’s concerns, saying that she was searching for something that could be an improvement to the original ordinance that would allow her to vote for the rewrite, but was unable to find that something.


Council Member Chris Riley, who voted in favor of the new ordinance, argued that on-site affordable housing might not always be the most efficient use of resources, and explained that he was in favor of retaining both options and the flexibility to decide which was appropriate on a case-by-case basis.


Much of Council’s discussion centered on establishing a “baseline” standard for the new definition. Since the fee-in-lieu will be calculated by the bonus area gained by the change in zoning, which is what developers are allowed to build beyond what they would without the zoning, the development community had considerable interest in the outcome.


Though the baseline was established by the original zoning, both Riley and Morrison noted that this could be complicated in areas where there is are additional overlay, combined zoning district, NCCD, or compatibility standards.


In the end, Council members changed the ordinance language to say that, unless City Council establishes a different baseline, the baseline will be determined by the “applicable site development standards” as well as the zoning.


“You would be limited by compatibility or setbacks or any other development regulations, that is going to affect your baseline,” said Riley. “Even if you might otherwise be able to get additional square footage under some bonus provision, you aren’t allowed to take advantage of those bonuses unless you could actually achieve those bonuses within the current rubric of development regulations applicable to the site.”


Council also gave staff the authority to recommend changes to the baseline. These recommendations will be brought to Council as part of the development assessment report which is a briefing that will now precede any PUD zoning.


Tovo proposed an amendment that would delete the section that allowed developers to pay a fee-in-lieu, instead of providing on-site affordable housing, though she did note that the Council could waive those requirements under “extraordinary circumstances.” She stressed the need for affordability throughout the city, and worried that goal was not being met by paying money into the affordable housing trust fund.


“I think if we’re ever going to start getting affordable housing in different parts of town, we’re going to have to start using the tools that we have at our disposal, and I think this is one,” said Tovo. “I believe it would be helpful if we sent a message to the development community that we prefer that those units be on-site.”


Riley rejected Tovo’s amendment as friendly, and even with the “extraordinary circumstances” removed that amendment subsequently failed in a vote of 3-4 with Council Members Spelman, Tovo and Morrison voting in its favor.

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