You can’t legally implement an affordable housing program under MAC

Posted on July 11, 2018

I have been hearing that affordable housing is one of the desirable goals of MAC zoning.  But, now that I look closely, it surely looks to me as if MAC was literally written in a way that prevents the imposition of any affordable housing requirements on the builders.

All zoning power derives from Commonwealth of Virginia statute.  E.g., the fact that we have a Planning Commission is literally mandated by the Commonwealth.  Requirements for most of the zoning process are all spelled out in Commonwealth of Virginia statute.

And, statute clearly states how towns may implement an affordable housing program.  You can read it here:  Virginia statute regarding zoning and affordable housingThe key phrase is this:  ” … by providing for increases in density to the applicant in exchange for the applicant providing such affordable housing.

The gist of it is the following:  The only way you can implement affordable housing, as part of zoning, is to trade off increased density (housing units per acre) for affordable housing.  If a builder requests to build at a density higher than the zoning allows, for an increase of up to 30 percent above the allowable density,  the town can require 17 percent of the total units have to be affordable housing.  And then they can define what they mean by that, e.g., I believe they could literally limit the rent to 30% of the occupant’s income, or something similar.

When I first found that out, I had to ask, did anything bar Vienna from doing something like that?  First, 2016 Virginia legislation reforming “proffers” from builders to local governments affected affordable housing, but that was only for affordable housing fees unrelated to density, not the law as cited above.  Second, Commonwealth statute says affordable housing can be implemented by ” …the governing body of any locality, other than localities to which § 15.2-2304 applies, …”.  That section refers to counties such as Fairfax County.  That doesn’t seem to bar the Town of Vienna from having affordable housing, but possibly there is some mysterious legal barrier to the Town including affordable housing in the zoning regulations.

Falls Church zoning regulations shows how one nearby jurisdiction went about adding affordable housing to their mixed-use development.   First, they define who is eligible, based on income, and then they show who gets priority for the subsidized (affordable) housing.  Their order-of-preference is:

Then they tell developers the rules, just as Commonwealth statute says they can.

So they chose to limit it to 12.5 percent of the units in a development, in exchange for allowing the builder a 20% increase in density.  And if they’d rather just contribute cash to the City’s affordable housing fund, they can do that instead.

Here’s the problem.  MAC has no density limit.  If there’s no density limit, then … there’s no way to trade building at higher density for affordable housing.  Zoning-driven affordable housing is literally impossible under MAC zoning.

So, at present, affordable housing is just wishful thinking.  The Town is asking the marketplace to provide affordable housing in Vienna.  Not to state the obvious, but if the market would provide affordable housing in Vienna — it would have already done so.  Hence, all we have is some warm thoughts about affordable housing.

Possibly there is some quirk of Virginia statute that prevents towns, as opposed to cities, from having an genuine zoning-driven affordable housing program.  But if so, that was not obvious to me when reading the law.

The reality of affordable housing is that it requires cross-subsidy.  In other words, the money has to come from somewhere.  If somebody gets to pay a below-market rent for their apartment, then one of three things must happen.  1)  The taxpayers directly pay the difference, or 2) the property owner gets a lower return on investment, or 3) other apartments in the same building rent for more.

Commonwealth of Virginia statute is a good-faith effort to make the builder pay for it, in return for making more profit on the building than would otherwise be possible.  In practice, the effect may well be to make the builder and other renters in that building pay for it through a combination of lower return on investment and higher rents than would otherwise be the case.

But for 444 Maple West, we have simply lost the opportunity.  This project will be passed or denied based on current MAC zoning rules.  And under those rules, affordable housing is no more than wishful thinking.