The Montgomery County Council approved one Council bill, five Zoning Text Amendments (ZTA) and one Subdivision Regulation Amendment (SRA) Nov. 30, aimed at strengthening the county’s affordable housing program.
The passage of the legislation is the end of a process that started in August 2003 when the Council staff began to research ways to improve the 30-year-old affordable housing program. Councilmembers proposed legislation earlier this year based on the staff report, which was released in February. The Councilmembers heard recommendations from the Planning Board and public testimony on the proposed legislation in September, and the Planning, Housing, and Economic Development Committee reworked the bills and amendments throughout October and November.
The legislation will become effective April 1, 2005.
The ZTAs and SRA passed with only minor amendments. The Council bill that passed combined provisions of three competing proposals, Council Bills 24-04, 25-04 and 27-03.
Some of the provisions of the combined bill are as follows:
*Control Period: The sale-control period for the affordable units will be extended from 20 years to 99 years for rental MPDUs and from 10 years to 30 years for sale units.
*Minimum Subdivision Size: The production of MPDUs will be required for subdivisions of 20 units or greater. Formerly the affordable units were required only in subdivisions of 35 or more units.
*Buyouts: The bill eliminates alternative agreements or “buyouts” wherein the developer makes a payment in lieu of producing MPDUs except in limited cases. Under the new law developers may “buy out” only when an indivisible package of condominium services would make the units unaffordable or where environmental conditions make MPDU production infeasible.
It also directs the county executive to return to the Council within one year with a proposal to wholly eliminate developer buyouts, except for those involving senior and special-needs housing and situations with environmental constraints.
The bill passed with a unanimous vote, but some of the zoning changes were more controversial. ZTAs 04-13, which would allow developers to exceed master plan height and density limits up to the limit allowed in the zone in order to provide MPDUs passed by 5-4 vote, as did ZTA 03-09, which will extend MPDU requirements and optional development standards to the "large lot" zones: RE-1, RE-2. RE-2C and RNC. SRA 04-01, which will allow an exception to master plan conformity requirements for a preliminary subdivision plan that includes on-site MPDUs and allow a reduction of right-of-way width on some roads in order to produce MPDUs, was initially defeated 4-5; after conferring with staff about the legal implications of the amendment’s defeat, Councilmember Tom Perez (D-5) changed his vote from no to yes.
Councilmember Howard Denis (R-1), who represents Potomac, voted against all of the proposed ZTAs. Denis voiced a concern that has surfaced throughout the legislative process: that the proposed changes undermine the work invested in area master plans. ZTA 04-13 allows developers to exceed master plan height and density limitations up to the limit of the zone in order to accommodate the production of MPDUs.
“IF YOU WANT TO DO something in a particular area, a particular part of the county that’s subject to a master plan that you believe is so different from what’s in the master plan, you can have the zoning text amendment now. … In other words, I think that maybe the arguments in support of this are a little bit overblown,” Denis said. “I keep on coming back to the master plan process and what I think is a terrible message that we would be sending out to the community if we adopted these zoning text amendments as they’ve been presented. Because I think the feeling would be, and I think it would be grounded in a lot of reality, that we’ve just rezoned the county and we short-circuited the master plan process that is so important to the county.”
But other Councilmembers expressed strong support for the changes in spite of Denis’ objections.
“The tradeoff couldn’t be any clearer. ... We’re talking about whether we go up a couple more floors to accommodate the economic feasibility of a project or we don’t,” Council President Steve Silverman (D-At large) said with reference to the zoning change that would allow taller buildings to accommodate affordable housing.
“But let’s not kid ourselves. If we do not support giving that flexibility to the planning board, then buildings will not get built. Because you cannot force a lender to lend money, and that’s basically what created this dilemma in the first place. This isn’t about developer profits; this is simply about whether a building can get financed.”
THE PIECE OF legislation that may most significantly affect Potomac is ZTA 03-09, which would require the production of MPDUs in the RE-1, RE-2, RE-2C and Rural Neighborhood Cluster Zones, in subdivisions having public sewer service. Councilmember Michael Subin (D-At large) was the only at-large Councilmember to oppose the measure.
“The [Rural Neighborhood Cluster] was put in there for a reason. The rural zones were put in there for a reason. Any discussion about putting in any other type of housing into that is going to be the beginning of the downfall of the agricultural zone, because you are now increasing the density of something that was just not meant to be,” Subin said.
“If this is going to open up a discussion about the agricultural zones and what we’re going to do with them, it should be saved for a different time. Because if you think this has been a massive debate, stand by. This is just a warm-up for what that would be,” Subin said.
LEGISLATORS EMPHASIZED that the MPDU program is only part of the solution to the county’s housing crisis.
“My major concern is simply that there’s been so much time spent on this issue … that there will be a misperception out there that we’ve solved the problem,” said Tom Perez. “In my judgment in the affordable housing pie, the MPDU debate is but a sliver. And I don’t mean that disrespectfully to anybody. I think that’s simply the reality of the world in which we live,” Perez said.