Testimony before the Hon. Muriel Bowser, Chair, Committee on Economic Development and Housing Council of the District of Columbia regarding: DHCD Performance Oversight – Inclusionary Zoning

Please accept these comments on behalf of the Coalition for Smarter Growth. We are a regional organization based in the District of Columbia focused on ensuring transportation and development
decisions are made with genuine community involvement and accommodate growth while revitalizing communities, providing more housing and travel choices, and conserving our natural and historic areas.

We would like to comment on DHCD’s administration of the Inclusionary Zoning program. We have been involved with Inclusionary Zoning (IZ) since its beginning in 2003 and remain committed to ensuring that this important affordable housing program delivers on its promise. We are gratified that IZ is finally becoming a reality on the ground given the delays in issuing regulations, the housing market collapse, and extensive grandfathering. The start up of this program has faced many serious challenges, but we believe all these challenges can be overcome. We first want to remind the Committee of the importance of this affordable housing tool that produces below market rate units in matter of right developments throughout the city with no cash subsidy from the District. Of unique importance, IZ creates below market rate units in neighborhoods where few or no affordable units are likely to be produced in the future. This is a valuable affordable housing tool practiced by hundreds of jurisdictions throughout the country, including Montgomery County. This approach is credited with achieving economic integration is ways that other affordable housing programs are unable to achieve.

Montgomery County’s experience is instructive for looking at D.C.’s pathway to successful implementation. The county has produced over 13,000 IZ units since 1976. Due to short affordability terms, currently only 2,600 units are still affordable at 65 percent area median income (AMI). In addition, another 1,573 IZ units that were purchased by the county’s housing authority are rented to lower income families (this is through a provision in the county’s law that D.C.’s prohibits). The county’s IZ program provides nearly half of its affordable housing production. Among the changes the county has made to its program over the years are: extending the affordability term to 30 years for ownership and 99 years for rental; allowing income targeting to rise from 65 percent AMI to 70 percent AMI for high rise construction, and elimination of a troubled buy-out provision that allowed fees in lieu of on-site construction of units.

Administration of D.C.’s IZ program requires urgent and specific attention to ensure that as the over 900 units come online in the next 5 years, implementation will be smooth for all parties. We now face three key administrative challenges that can be fixed: severe understaffing, FHA rules, and overly rigid administrative regulations. Below are our recommendations for these key challenges.

Administrative problems that must be resolved immediately

1. Severe understaffing –1-2 overworked staff members are struggling to launch a new IZ program and provide oversight for roughly 2,000 affordable dwelling units (ADUs) already built or in process, created by PUDs (in lieu of IZ) and public land dispositions. Staff will be difficult to retain and attract if capacity is way below a realistic workload. Program applicants and developers will also not get the assistance they require.

Recommendation: Budget more staff and contract to a qualified homeownership organization
experienced in permanent affordability:

a. Add 2 additional staff positions;
b. Contract with a nonprofit group experienced in managing the homeownership purchase process and stewarding permanently affordable homes. Given the extra challenges of affordable home purchasing in a post-2008 economy, more assistance to homebuyers is needed to speed up the sales process. A nonprofit experienced in selling and stewarding permanently affordable homes could manage the homebuyer recruitment, preparation, qualification, selection and placement process. This nonprofit can also provide effective relationships with mortgage lenders and developers to secure financing, along with ongoing stewardship, enforcement, and resale assistance. This kind of close working relationship with buyers and owners is likely going to be more effectively created through a nonprofit dedicated to successful affordable homeownership and permanent affordability than a government agency;
c. Sustain housing counseling assistance for IZ applicants.

2. FHA conflict with local covenants regarding foreclosure – The Zoning Commission has revised the regulations to conform with FHA rules, and DHCD is working to get FHA’s final approval. After FHA clarifies its acceptance of the D.C. program, DHCD needs to educate mortgage lenders and recruit them to offer mortgages for IZ units. Bank of America, for example, reviews and approves IZ programs for their mortgage lending. DHCD should ensure that D.C.’s IZ program gets onto Bank of America approved list, along other lenders’ lists.

3. Rigid regulations – The administrative regulations are currently being revised but it is urgent that we expedite these revisions given the many barriers they place to an efficient matching process for applicants and units. Given the difficulty matching qualified and interested applicants to units, we suggest suspending overly prescriptive lottery requirements until a lottery is needed to fairly allocate a unit among a larger pool of qualified applicants.

Policy issues for future consideration

Beyond the immediate administrative issues that should be our top priority, longer term policy issues should be considered to fine tune the program. The robust recovery of the housing market in D.C. over the last few years demonstrates that IZ is not a deterrent to housing production. For example, over 4,500 housing unit permits were issued in 2011. This is 64 percent greater than the last peak in the market in 2005 when over 2,750 permits for housing units were issued. D.C. housing production has gone from a few percent to more than half of the region’s residential output.

The experience to date on the development review and financing phase of IZ is that the economics work. Over 900 IZ units are in the pipeline at various stages of development approvals, and construction, with a handful of completed projects. This development pipeline demonstrates that financing for projects subject to IZ is not a problem. IZ policy standards have also contributed to creating approximately 1,000 affordable dwelling units (ADUs) through PUDs since the mid-2000s.

We flag the following policy issues for further assessment, as we act immediately to fix the administrative problems discussed above.

1. Income targeting: Current income targeting is at 80 and 50 percent AMI. Given that market conditions have changed since 2006, is income targeting still at the right levels? How many 50 percent AMI units can we expect to produce? How effective is the 80 percent AMI income targeting in providing units sufficiently below market?

2. Condo fees – while IZ standards have avoided the problems that early ADUs experienced before IZ policies were developed, unpredictable rises in condo fees could pose a problem in the future.


a. Require par value assessments for condo fees for IZ and ADUs: Rising condo fees over time are potentially a problem even though IZ incorporates an initial fee based on what is projected to be a realistic fee to ensure that the overall housing payment by the buyer does not exceed a certain percent of her or his income. To avoid future excessive increases in condo fees, we suggest requiring that at least for IZ units and ADUs, par value tied to the affordable price of the unit be the basis for assessing the condo fee rather than a square footage basis. This will allow condo fees to rise as inflation and costs rise without subjecting the owner to a rapid escalation that would make the condo fee too expensive for the affordable unit owner.
b. Initial fee setting: This is already addressed by IZ regulations but could affect a building as a whole if a developer sets fees too low to support ongoing building costs. Given this problem for all condo owners, we recommend strengthening consumer protection against lowballing condo fees. Enabling OP and DHCD to comprehensively collect data on condo fee rates from existing buildings would provide these agencies the information they need to appropriately set condo fee rates as a part of the purchase price of an IZ unit or ADU. Secondly, consumer protection for condo purchasers can be improved by changing how the verification of the initial condo fee is set. Currently a certified third party is paid by the developer to verify the fee. We suggest charging the developer a fee that would have been paid to the third party, and have the city contract with a third party directly to verify the condo fee.

Overall, IZ is a sound policy that requires focused attention to address the administrative hurdles to a smooth-running program. The program promises to provide a substantial new source of below market rate housing throughout the city. While the program faces challenges, it is worth the effort. We thank the D.C. Council for its long-standing support for this innovative affordable housing policy.

Thank you for the opportunity to testify.

Cheryl Cort

Policy Director