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2007 SESSION
071170520Be it enacted by the General Assembly of Virginia:
1. That § 15.2-2305 of the Code of Virginia is amended and reenacted, and that the Code of Virginia is amended by adding a section numbered 15.2-2305.1 as follows:
§ 15.2-2305. Affordable dwelling unit ordinances.
A. In furtherance of the purpose of providing affordable
shelter for all residents of the Commonwealth, the governing body of any
county locality, other than counties localities to
which § 15.2-2304 applies, city or town may by amendment to the zoning
ordinances of such locality provide for an affordable housing dwelling unit
program. Such program shall address housing needs, promote a full range of
housing choices, and encourage the construction and continued existence of
moderately priced housing affordable to low and moderate income citizens
by providing for optional increases in density in order to reduce
land costs for such moderately priced exchange for providing such
affordable housing. Any local ordinance of any locality providing optional
increases in density for provision of low and moderate income housing adopted
before December 31, 1988, shall continue in full force and effect. Any local
ordinance may authorize the governing body to (i) establish qualifying
jurisdiction-wide affordable dwelling unit sales prices based on local market
conditions, (ii) establish jurisdiction-wide affordable dwelling unit
qualifying income guidelines, and (iii) offer incentives other than density
increases, such as reductions or waiver of permit, development, and
infrastructure fees, as the governing body deems appropriate to encourage the
provision of affordable housing. Counties to which § 15.2-2304 applies shall be
governed by the provisions of § 15.2-2304 for purposes of the adoption of an
affordable dwelling unit ordinance.
B. A zoning ordinance establishing an affordable housing
dwelling unit program may adopted pursuant to this section shall
include, among other things, reasonable regulations and
provisions as to any or all of the following:
1. For a A definition of affordable housing and
affordable dwelling units.
2. For application of the requirements of an The
affordable housing dwelling unit program applies to any site, as
defined by the locality, or a portion thereof at one location property
which is the subject of an application for rezoning, conditional use permit
or special exception for residential use, including properties with a
combination of residential dwelling units and nonresidential uses, but only to
that portion of the property to be used for residential purposes.
However, the program shall not be applicable to property with only
nonresidential uses. or, at the discretion of the local governing body,
site plan or subdivision plat which yields, as submitted by the applicant,
fifty or more dwelling units at an equivalent density greater than one unit per
acre and which is located within an approved sewer area.
3. For The applicant may request, upon an application
for rezoning, conditional use permit or special exception, an increase of
up to twenty thirty percent in the developable density of each
site subject to the ordinance and for a provision requiring in
exchange for providing up to twelve and one-halfseventeen
percent of the total units approved, including the optional density
increase, to be as affordable dwelling units, as defined in
the ordinance. In the event a twenty thirty percent increase in
density is not achieved achievable, not offered by the applicant,
or not permitted in the zoning district where the property is located, the
percentage of affordable dwelling units required shall maintain the same ratio
of twenty thirty percent to twelve and one-half
seventeen percent.
4. For increases by up to twenty percent of the density or
of the lower and upper end of the density range set forth in the comprehensive
plan of such locality applicable to rezoning and special exception applications
that request approval of single family detached dwelling units or single family
attached dwelling units, when such applications are approved after the
effective date of a local affordable housing zoning ordinance amendment.
5. For a requirement that not less than twelve and one-half
percent of the total number of dwelling units approved pursuant to a zoning
ordinance amendment enacted pursuant to subdivision B 4 of this section shall
be affordable dwelling units, as defined by the local zoning ordinance unless
reduced by the twenty to twelve and one-half percent ratio pursuant to
subdivision B 3 of this section.
6. For increases by up to ten percent of the density or of
the lower and upper end of the density range, whichever is appropriate, set
forth in the comprehensive plan of such locality applicable to rezoning and
special exception or, at the discretion of the local governing body, site plan
and subdivision plat applications that request approval of nonelevator multiple
family dwelling unit structures four stories or less in height when such
applications are approved after the effective date of a local affordable
housing zoning ordinance. However, at the option of the applicant, the
provision pursuant to subdivision B 4 shall apply.
7. For a requirement that not less than six and one-quarter
percent of the total number of dwelling units approved pursuant to a zoning
ordinance amendment enacted pursuant to subdivision B 6 of this section shall
be affordable dwelling units, as defined in the local zoning ordinance. In the
event a ten percent increase is not achieved, the percentage of affordable
dwelling units required shall maintain the same ratio of ten percent to six and
one-quarter percent.
4. The locality establish a local housing trust fund as part of its affordable housing dwelling unit program to assist in achieving the affordable housing goals of the locality pursuant to this section and § 15.2-2306. The local housing trust fund may be used to assist nonprofit organizations (i) to develop or preserve affordable housing for low and moderate income persons and families, (ii) to acquire land and improvements, or (iii) to construct buildings utilities, drainage, landscaping, lighting, walkways, or similar site improvements, other than the construction of streets.
5. The locality permit, at the option of the applicant, for the applicant to make a cash contribution into the local housing trust fund in lieu of providing affordable housing dwelling units, or a combination thereof, pursuant to this section and § 15.2-2306.
6. The increase in density offsets the costs of providing affordable housing dwelling units or a cash contribution to the local housing trust fund, or combination thereof, and the applicant does not suffer economic loss as a result of providing the affordable dwelling units. For purposes of this section, “economic loss” means that the applicant fails to recoup the cost of providing an affordable dwelling unit, exclusive of the cost of land acquisition and costs incurred by the applicant, upon the sale of that affordable dwelling unit.
8 7. For reasonable regulations requiring the
The affordable dwelling units to be provided by the applicant be built
and offered for sale or rental concurrently with the construction and
certificate of occupancy of a reasonable proportion of the market rate units.
9. For standards of compliance with the provisions of an
affordable housing dwelling unit program and for the authority of the local
governing body or its designee to enforce compliance with such standards and
impose reasonable penalties for noncompliance, provided that a local zoning
ordinance provide for an appeal process for any party aggrieved by a decision
of the local governing body.
C 8. Nothing contained in this section shall
apply to For any building which is elevator structure
four stories or above and has an elevator, the locality in consideration of
an application pursuant to this section, shall take into account the unique
ancillary costs associated with living in such a building including but not
limited to fees for parking, common area maintenance and association
management, and determine whether such fees prevent the housing from being
affordable, under the definition established by the locality in its ordinance
adopted pursuant to this section.
C. The locality may establish an affordable dwelling unit advisory board comprised of citizens, housing and real estate professionals and such other persons as the locality deems appropriate to provide advice on the affordable housing dwelling unit program in the locality.
D. Any ordinance adopted hereunder shall provide that the
local governing body shall have no more than 280 days in which to process site
or subdivision plans proposing the development or construction of affordable
housing or affordable dwelling units under such ordinance. The calculation of
such period of review shall include only the time that plans are in review by
the local governing body and shall not include such time as may be required for
revision or modification in order to comply with lawful requirements set forth
in applicable ordinances and regulations.
E. A locality establishing an affordable housing dwelling
unit program in its zoning ordinance shall establish in its general ordinances,
adopted in accordance with the requirements of § 15.2-1427 B, reasonable
regulations and provisions as to any or all of the following:
1. For administration and regulation by a local housing
authority or by the local governing body or its designee of the sale and rental
of affordable units.
2. For a local housing authority or local governing body or
its designee to have an exclusive right to purchase up to one-third of the
for-sale affordable housing dwelling units within a development within ninety
days of a dwelling unit being completed and ready for purchase, provided that
the remaining two-thirds of such units be offered for sale exclusively for a
ninety-day period to persons who meet the income criteria established by the
local housing authority or local governing body or the latter's designee.
3. For a local housing authority or local governing body or
its designee to have an exclusive right to lease up to a specified percentage
of the rental affordable dwelling units within a development within a
controlled period determined by the housing authority or local governing body
or its designee, provided that the remaining for-rental affordable dwelling
units within a development be offered to persons who meet the income criteria
established by the local housing authority or local governing body or its
designee.
4. For the establishment of jurisdiction-wide affordable
dwelling unit sales prices by the local housing authority or local governing
body or the latter's designee, initially and adjusted semiannually, based on a
determination of all ordinary, necessary and reasonable costs required to
construct the affordable dwelling unit prototype dwellings by private industry
after considering written comment by the public, local housing authority or
advisory body to the local governing body, and other information such as the
area's current general market and economic conditions, provided that sales
prices not include the cost of land, on-site sales commissions and marketing
expenses, but may include, among other costs, builder-paid permanent mortgage
placement costs and buy-down fees and closing costs except prepaid expenses
required at settlement.
5. For the establishment of jurisdiction-wide affordable
dwelling unit rental prices by a local housing authority or local governing
body or its designee, initially and adjusted semiannually, based on a
determination of all ordinary, necessary and reasonable costs required to
construct and market the required number of affordable dwelling rental units by
private industry in the area, after considering written comment by the public,
local housing authority, or advisory body to the local governing body, and
other information such as the area's current general market and economic
conditions.
6. For a requirement that the prices for resales and
rerentals be controlled by the local housing authority or local governing body
or designee for a period of fifty years after the initial sale or rental
transaction for each affordable dwelling unit, provided that the ordinance
further provide for reasonable rules and regulations to implement a price
control provision.
7. For establishment of an affordable dwelling unit
advisory board which shall, among other things, advise the jurisdiction on
sales and rental prices of affordable dwelling units; advise the housing
authority or local governing body or its designees on requests for
modifications of the requirements of an affordable dwelling unit program; adopt
regulations concerning its recommendations of sales and rental prices of
affordable dwelling units; and adopt procedures concerning requests for
modifications of an affordable housing dwelling unit program. Members of the
board, to be ten in number and to be appointed by the governing body, shall be
qualified as follows: two members shall be either civil engineers or
architects, each of whom shall be registered or certified with the relevant
agency of the Commonwealth, or planners, all of whom shall have extensive
experience in practice in the locality; one member shall be a real estate
salesperson or broker, licensed in accordance with Chapter 21 (§ 54.1-2100 et seq.)
of Title 54.1; one member shall be a representative of a lending institution
which finances residential development in the locality; four members shall
consist of a representative from a local housing authority or local governing
body or its designee, a residential builder with extensive experience in
producing single-family detached and attached dwelling units, a residential
builder with extensive experience in producing multiple-family dwelling units,
and a representative from either the public works or planning department of the
locality; one member may be a representative of a nonprofit housing
organization which provides services in the locality; and one citizen of the
locality. At least four members of the advisory board shall be employed in the
locality.
8. The sales and rental price for affordable dwelling units
within a development shall be established such that the owner/applicant shall
not suffer economic loss as a result of providing the required affordable
dwelling units. "Economic loss" for sales units means that result
when the owner or applicant of a development fails to recoup the cost of
construction and certain allowances as may be determined by the designee of the
governing body for the affordable dwelling units, exclusive of the cost of land
acquisition and cost voluntarily incurred but not authorized by the ordinance,
upon the sale of an affordable dwelling unit.
§ 15.2-2305.1. Affordable housing dwelling unit program through plan of development, site plan or subdivision process.
A. Any locality may adopt by ordinance an affordable housing dwelling unit program through its plan of development, site plan or subdivision process, as authorized by this section. Such program shall address housing needs, promote a full range of housing choices, and encourage the construction and continued existence of housing affordable to low and moderate income citizens by providing for optional increases in density in exchange for providing such affordable housing.
B. The ordinance establishing an affordable housing dwelling unit program pursuant to this section shall include the following:
1. The affordable housing dwelling unit program shall be at the election of the property owner such that the property owner may develop the property, pursuant to the locality’s applicable plan of development, site plan or subdivision process, without participating in the affordable housing dwelling unit program. However, if the property owner elects to participate in the program, the property owner will be entitled to the increases in densities as authorized by this section.
2. The affordable housing dwelling unit program shall be applicable to any property with residential dwelling units to be located thereon including properties with a combination of residential dwelling units and nonresidential uses, but only to that portion of the property to be used for residential purposes. However, the program shall not be applicable to property with only nonresidential uses.
3. The increases in density shall be calculated using the base density permitted for the property as it is zoned at the time of the plan of development, site plan or subdivision submission, with the increases in density being an additional density granted administratively through the locality’s plan of development, site plan or subdivision process.
4. A local housing trust fund may be established as part of its affordable housing dwelling unit program to assist in achieving the affordable housing goals of the locality pursuant to this section and § 15.2-2305. The local housing trust fund may be used to assist nonprofit organizations (i) to develop or preserve affordable housing for low and moderate income persons and families, (ii) to acquire land and improvements, or (iii) to construct buildings utilities, drainage, landscaping, lighting, walkways, or similar site improvements, other than the construction of streets.
5. The locality may permit, at the option of the applicant, for the applicant to make a cash contribution into the local housing trust fund in lieu of providing affordable housing dwelling units, or a combination thereof, pursuant to this section and § 15.2-2305.
6. The increase in density offsets the costs of providing affordable housing dwelling units or a cash contribution to the local housing trust fund, or combination thereof, and the applicant does not suffer economic loss as a result of providing the affordable dwelling units. For purposes of this section, “economic loss” means that the applicant fails to recoup the cost of providing an affordable dwelling unit, exclusive of the cost of land acquisition and costs incurred by the applicant, upon the sale of that affordable dwelling unit.
7. The affordable dwelling units to be provided by the applicant shall be built and offered for sale or rental concurrently with the construction and certificate of occupancy of a reasonable proportion of the market rate units.
8. A schedule of permitted increases in densities and affordable housing dwelling unit requirements shall be established by zoning district and made available to the property owner if the property owner elects to participate in the affordable housing dwelling unit program.