HomeMy WebLinkAboutcoa.lu.ca.Affordable Housing Credits.0033.2010 THE CITY OF ASPEN
City of Aspen Community Development Department
CASE NUMBER 0033.2010.ASLU
PARCEL ID NUMBER NO PARCEL
PROJECTS ADDRESS NO ADDRESS
PLANNER BEN GAGNON
CASE DESCRIPTION CODE INTERPRETATION
REPRESENTATIVE GARFIELD AND HECHT
DATE OF FINAL ACTION 6.25.10
CLOSED BY ANGELA SCOREY ON: 6.25.10
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CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE CODE INTERPRETATION
JURISDICTION: City of Aspen
APPLICABLE CODE SECTIONS: Section 26.470.050(B)5 +6
Section 26.470.070.4
EFFECTIVE DATE: June 24, 2010
WRITTEN BY: ' Ben Gagnon,
Special Projects Planner
APPROVED BY: Chris Bendon,
ate: G. Se -t,ft> Community Development Director
COPIES TO: City Attorney
City Planning staff
SUMMARY:
This Land Use Code interpretation clarifies the process by which Affordable Housing Credits are
used to satisfy mitigation requirements.
BACKGROUND:
On June 18, 2010, Attorney Michael Hoffman requested an interpretation regarding the process
by which Affordable Housing Credits are used to satisfy mitigation requirements. The issue
focused on whether the Planning and Zoning Commission would have the discretion to deny an
employee housing mitigation plan that included Affordable Housing Credits.
It is important to recognize the context for establishing Affordable Housing Credits, pursuant to
Ordinance No. 6, Series of 2010.
Prior to Ordinance No. 6, Series of 2010, Section 26.470.070.4 defined affordable housing for
mitigation purposes as "actual newly built units or buy -down units," and included various
specific prescriptions for those units, to be reviewed by the Planning and Zoning Commission,
using criteria a — d.
The intent of Ordinance No. 6, Series of 2010 was to equate Affordable Housing Credits with
"actual newly built units or buy -down units" in terms of their effectiveness as mitigation. In
order to establish the ability for an applicant to receive Affordable Housing Credits, Ordinance
No. 6 requires those actual, newly built or buy -down housing units be reviewed by the Planning
and Zoning Commission, using criteria a — d. The housing credits are then issued upon the
issuance of a Certificate of Occupancy.
Because criteria a — d have already been satisfied in order to establish the housing credits, to
require a further review to allow for their use as mitigation flies in the face of the intent of
Ordinance No. 6, Series of 2010, which is to equate housing credits with actual newly built units
or buy -down units. Therefore, housing credits can be used for mitigation under Title 26 as if they
are actually newly built or buy -down units.
DISCUSSION
Staff has relied on two (2) 'sections of the Land Use Code, to render this interpretation.
Following are the sections, emphasis added.
1) Section 26.470.050.B General requirements
All development applications for growth management review shall comply with the following
standards. The reviewing body shall approve, approve with conditions or deny an application for
growth management review based on the following generally applicable criteria and the review
criteria applicable to the specific type of development:
1. Sufficient growth management allotments are available to accommodate the proposed
development, pursuant to Subsection 26.470.030.D. Applications for multi -year development
allotment, pursuant to Paragraph 26.470.090.1 shall not be required to meet this standard.
2. The proposed development is consistent with the Aspen Area Community Plan.
3. The development conforms to the requirements and limitations of the zone district.
4. The proposed development is consistent with the Conceptual Historic Preservation
Commission approval, the Conceptual Commercial Design Review approval and the Conceptual
Planned Unit Development approval, as applicable.
5. Unless otherwise specified in this Chapter, sixty percent (60 %) of the employees generated by
the additional commercial or lodge development, according to Subsection 26.470.100.A,
Employee generation rates, are mitigated through the provision of affordable housing. The
employee generation mitigation plan shall be approved pursuant to Paragraph 26.470.070.4,
Affordable housing, at a Category 4 rate as defined in the Aspen/Pitkin County Housing
Authority Guidelines, as amended. An applicant may choose to provide mitigation units at a
lower category designation. If an applicant chooses to use a Certificate of Affordable Housing
Credit as mitigation, pursuant to Chapter 26540, such Certificate shall be extinguished
pursuant to Chapter 26.540.090 Criteria for Administrative Extinguishment of the Certificate.
6. Affordable housing net livable area, for which the finished floor level is at or above natural or
finished grade, whichever is higher, shall be provided in an amount equal to at least thirty
percent (30 %) of the additional free - market residential net livable area, for which the finished
floor level is at or above natural or finished grade, whichever is higher. Affordable housing shall
be approved pursuant to Paragraph 26.470.070.4, Affordable housing, and be restricted to a
Category 4 rate as defined in the Aspen/Pitkin County Housing Authority Guidelines, as
amended. An applicant may choose to provide mitigation units at a lower category designation.
Affordable housing units that are being provided absent a requirement ( "voluntary units ") may be
deed - restricted at any level of affordability, including residential occupied. If an applicant
chooses to use a Certificate of Affordable Housing Credit as mitigation, pursuant to Chapter
26.540, such Certificate shall be extinguished pursuant to Chapter 26540.090 Criteria for
Administrative Extinguishment of the Certificate, utilizing the calculations in Section 26470.100
Employee /Square Footage Conversion.
[emphasis added]
2) Section 26.470.070.4 Affordable Housing
The development of affordable housing deed - restricted in accordance with the Aspen/Pitkin
County Housing Authority Guidelines shall be approved, approved with conditions or denied by
the Planning and Zoning Commission based on the following criteria:
a. The proposed units comply with the Guidelines of the Aspen/Pitkin County Housing
Authority. A recommendation from the Aspen/Pitkin County Housing Authority shall be
required for this standard. The Aspen/Pitkin County Housing Authority may choose to hold a
public hearing with the Board of Directors.
b. Affordable housing required for mitigation purposes shall be in the form of actual newly built
units or buy -down units. Off -site units shall be provided within the City limits. Units outside the
City limits may be accepted as mitigation by the City Council, pursuant to Paragraph
26.470.090.2. If the mitigation requirement is less than one (1) full unit, a cash -in -lieu payment
may be accepted by the Planning and Zoning Commission upon a recommendation from the
Aspen/Pitkin County Housing Authority. If the mitigation requirement is one (1) or more units, a
cash -in -lieu payment shall require City Council approval, pursuant to Paragraph 26.470.090.3. A
Certificate of Affordable Housing Credit may be used to satisfy mitigation requirements by
approval of the Community Development Department Director, pursuant to Section 26.540.080
Extinguishment of the Certificate. Required affordable housing may be provided through a mix
of these methods.
c. Each unit provided shall be designed such that the finished floor level of fifty percent (50 %) or
more of the unit's net livable area is at or above natural or finished grade, whichever is higher.
d. The proposed units shall be deed - restricted as "for sale" units and transferred to qualified
purchasers according to the Aspen/Pitkin County Housing Authority Guidelines. The owner may
be entitled to select the first purchasers, subject to the aforementioned qualifications, with
approval from the Aspen/Pitkin County Housing Authority. The deed restriction shall authorize
the Aspen/Pitkin County Housing Authority or the City to own the unit and rent it to qualified
renters as defined in the Affordable Housing Guidelines established by the Aspen/Pitkin County
Housing Authority, as amended. The proposed units may be rental units, including but not
limited to rental units owned by an employer or nonprofit organization, if a legal instrument in a
form acceptable to the City Attorney ensures permanent affordability of the units. The City
encourages affordable housing units required for lodge development to be rental units associated
with the lodge operation and contributing to the long -term viability of the lodge. Units owned by
the Aspen/Pitkin County Housing Authority, the City of Aspen, Pitkin County or other similar
governmental or quasi - municipal agency shall not be subject to this mandatory "for sale"
provision.
e. Non - Mitigation Affordable Housing. Affordable housing units that are not required for
mitigation, but meet the requirements of Section 26.470.070.4(a -d). The owner of such non-
mitigation affordable housing is eligible to receive a Certificate of Affordable Housing Credit
pursuant to Section 26.540.
[emphasis added]
First, Section 26.470.050(B) 5 +6 specifically states that, "If an applicant chooses to use a
Certificate of Affordable Housing Credit as mitigation, pursuant to Chapter 26.540, such
Certificate shall be extinguished pursuant to Chapter 26.540.090 Criteria for Administrative
Extinguishment of the Certificate." This is evidence of the intent to make the use of housing
credits as mitigation an administrative matter, and not subject to other approvals.
Second, while Section 26.470.050(B)5 +6 requires the approval of an employee generation
mitigation plan under Section 26.470.070.4 Affordable Housing, there are a variety of methods
by which the plan could be approved prescribed therein.
For example, under Section 26.470.070.4(b), "Units outside the City limits may be accepted as
mitigation by the City Council ..." and further in the same section, "If the mitigation requirement
is less than one (1) full unit, a cash -in -lieu payment maybe accepted by the planning and Zoning
Commission ..." These two examples illustrate that Section 26.470.070.4 includes a variety of
methods and processes of mitigation approval.
Section 26.470.070.4(b) states that "A Certificate of Affordable Housing Credit may be used to
satisfy mitigation requirements by approval of the Community Development Department
Director." This sentence allows for the administrative approval of the use of Affordable Housing
Credits, and not requiring other approvals.
It should be noted that any substantial development application subject to Planning and
Commission and/or City Council approval that requires housing mitigation is subject to many
sets of standards and criteria, and there are many issues of public policy included in debate,
discussion and negotiation.
INTERPRETATION
Staff's interpretation is that Affordable Housing Credits may be used for mitigation through an
administrative review and decision, according to Section 26.540.080 Extinguishment of the
Certificate.
LIMITATIONS OF DECISION:
This interpretation relies on the City's Land Use Code currently in effect, which is subject to
change. An amendment regarding this provision of the City's Land Use Code is currently in
process. This interpretation shall be valid until such time as the Land Use Code is amended.
This interpretation does not create a vested right. This interpretation will be maintained in the
official record of all interpretations as provided under Section 26.306.010.E.
APPEAL OF DECISION
Any person with a right to appeal an adverse decision or determination shall initiate an appeal by
filing a notice of appeal on a form prescribed by the Community Development Director. The
notice of appeal shall be filed with the Community Development Director and with the City
office or department rendering the decision or determination within fourteen (14) days of the
date of the decision or determination being appealed. Failure to file such notice of appeal within
the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision
or determination.
.
RECEIVED
60, F,IsENOFFI OFFICE GARFIELD & HECHT, P. I'�
Aspen, Colorado 81611 JVIV 2010
Tekpinne (9701 925 -1936 ATTORNEYS AT LAW CITY OF aSPEN
Facsimile (970) 925 -3008 Since 1975
COMMUNITY DEVELOPMENT
www.garfi eldhechtcom
June 18, 2010
Mr. Ben Gagnon
Special Projects Planner
City of Aspen Community Development
130 E. Galena Street
Aspen, Colorado 81611
Re: Request for Code Interpretation
Dear Ben:
Thanks for the time you spent with me yesterday going over the City's new Certificate of Affordable
Housing Credit program. As we discussed, I have a couple of follow -up questions which require
some response on the part of the Community Development Department.
First, you and Chris Bendon, in your subsequent conversation with him, agreed that the language of
Section 26.540.040 of the City's Land Use Code ( "LUC ") should be changed to eliminate the
discretion apparently granted to the Planning and Zoning Commission in establishing a Certificate of
Affordable Housing Credit (a "Certificate "). The first part of that section now reads "[a] Certificate
of Affordable Housing Credit may be established by the Planning and Zoning Commission, pursuant
to the adoption of a Resolution, if all of the following criteria are met:" Yesterday you informed me
that the Community Development Department will process a code amendment which changes this
section to read as follows: "[a] Certificate of Affordable Housing Credit shall be established by the
Planning and Zoning Commission, pursuant to the adoption of a resolution, if all of the following
criteria are met:" You said the Department will process this change the next time someone requests
that a Certificate be created. Thank you in advance for making that change.
Second, you and I discussed how a developer's plan to utilize Certificates will be processed by the P
& Z pursuant to LUC Section 26.470.070.4. Code Sections 26.470.050 B. 5. and 6. provide that a
developer may utilize Certificates to satisfy the affordable housing requirements of the Growth
Management System for commercial and residential development, respectively. In both cases, the
Code requires that the P & Z review the employee housing mitigation proposal pursuant to LUC
Section 26.470.070.4. That section of the Code includes subsections a., b., c., d., and e. Subsection e.
relates to non - mitigation affordable housing and is not applicable to our question here. The other
subsections appear to have some application to the P & Z's consideration of the proposed use of
Certificates to satisfy all or some of a project's required affordable housing mitigation requirement,
except that the language of subsection b., provides that "[a] Certificate of Affordable Housing Credit
Ben Gagnon
Aspen Community Development Department
June 18, 2010
Page 2
may be used to satisfy mitigation requirements by approval of the Community Development
Department Director, pursuant to Section 26.540.080 Extinguishment of the Certificate."
Our understanding of this language, taken as a whole, is that to the extent an applicant plans to use
one or more Certificates to satisfy its employee housing mitigation requirement, approval from the P
& Z under Section 26.470.070.4 is automatic and that no further consideration of the issue of
employee housing mitigation will be necessary or required.
This conclusion is supported by the fact that the other requirements of Section 26.470.070 will be
fully addressed in the creation of the Certificate pursuant to processes described in LUC Section
26.540.
Please provide a code interpretation which either confirms or rejects our understanding of the effect of
an applicant's planned use of a Certificate in connection the process described in Section 26.470.070.
If staff does not support our understanding, please explain the scope of, and review criteria applicable
to, the P & Z's review of an application to use a Certificate to satisfy a project's employee housing
mitigation requirement.
Thanks for your help.
Sincerely,
E. Michael Hoffman
.
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