By: Stuart R. Barr
Lerch, Early & Brewer's Legal Update
Montgomery County and the City of Rockville each have worked recently on legislation which could dramatically impact the development community.
In Montgomery County, there has been a recent focus on the gap between those residents who can afford market rate housing units in the County and those of moderate income who are eligible for the County’s Moderately Priced Dwelling Unit (MPDU) program or other similar programs. Those caught in the gap often include residents who are important members of the County’s workforce such as teachers, police officers, firefighters, and nurses. In order to try to bridge the gap and provide some additional affordable housing relief to certain residents, County Councilmember Steven Silverman introduced legislation recently to facilitate the construction of “workforce housing.”
The workforce housing legislation is designed to make housing more affordable for residents who earn between 80 percent and 120 percent of the area-wide median annual income (roughly between $71,000 and $107,000). If adopted, it would require developers of certain new residential housing projects to construct an additional number of workforce housing units. The number of workforce housing units would be 10% of the number of market rate housing units proposed to be constructed. For example, if a project proposes to build 100 market rate housing units, then an additional 10 workforce housing units must be provided. The number of workforce housing units would be in addition to any MPDU units also required.
The proposed workforce housing program would be administered by the County’s Department of Housing and Community Affairs in a manner similar to the County’s MPDU program, and would apply only under certain circumstances. The proposed legislation focuses on zones surrounding Metro stations with a certain minimum density and would only apply to developments of a certain minimum size (35 or more units). Once constructed, the workforce housing units would remain in the program for certain control periods (10 years for sale and 99 years for rental). Although no “bonus” market rate units will be available to the developer, such as may be available under the MPDU program, the density limits of the zone can be exceeded in order to provide the workforce housing units.
In the City of Rockville, the Mayor and Council adopted a new Adequate Public Facilities Ordinance (APFO) in late October 2005, which will be a significant tool for the City to use to regulate the pace of growth. The APFO generally requires that before allowing development projects to move forward, public facilities such as the adequacy of roads, school capacity, fire and rescue response, and water and sewer service need to be analyzed. Certain projects such as elderly housing and minor subdivisions may be eligible for waivers from the APFO requirements, but waivers can be granted only by a super-majority vote of the applicable agency (either the Mayor and Council, Rockville Planning Commission, or Rockville Board of Appeals).
Although the City’s APFO is similar in many respects to Montgomery County’s adequate public facilities law and the County’s related Growth Policy, the City struck its own path in some areas, particularly with respect to the standards which apply to determine whether public facilities are adequate. For example, while the County and the City both consider the capacity of public schools to be one of the factors which must be analyzed, the way in which each jurisdiction determines whether or not the schools have adequate capacity is different.
The City will employ a “program capacity” test (which is different from the County’s “building capacity” test, in which each school’s classroom is rated according to the size of the class it can theoretically hold). The “program capacity” measures each school’s actual class sizes based on the programs in the school (e.g., some classrooms may have 10 students in a class based on that particular program even though the classroom itself can theoretically hold 20 students). Under the new APFO, the City will not approve new residential development in an area in which public school enrollment is at more than 110 percent of program capacity.
These tighter standards are significant since recent data shows that several schools in the City exceed the permitted thresholds under the “program capacity” analysis. Thus, the APFO could have the practical effect of creating a moratorium on new development in certain portions of the City. Although the APFO legislation went into effect immediately, previously approved projects have a period of time within which to complete the project before triggering a new APFO review.
Stuart R. Barr is an attorney in our firm’s Land Use and Zoning group. He can be reached at (301) 961-6095 or srbarr@lerchearly.com.
