For many cities, it can be difficult to find appropriate affordable housing sites where they can invest their in-lieu fees revenue. With access to land often the key bottleneck, some city inclusionary programs allow developers to donate land for affordable housing development to the city or to a nonprofit agency approved by the city.
Typically, these cities have a somewhat complex mechanism for ensuring that the proposed site is of equivalent value to the required housing units. This generally means that the donated site will ultimately accommodate many more affordable units than would have been built onsite.
Also, this option can’t be entirely up to the private developer; the city must carefully assess the site before accepting it in lieu of on-site units. For this reason, the land dedication option can be more challenging to implement than other common alternatives.
Davis has used land donated by market-rate developers to facilitate the development of a variety of special-needs affordable housing types, which would not typically be produced through an inclusionary housing ordinance. Land dedication projects in Davis include a domestic violence shelter, senior housing, family housing, housing for individuals leaving homelessness, transitional housing, and housing for those with developmental disabilities.
It depends: Off-site production can be a valuable tool for cities if it is done right. Offsite units can be constructed by the developer of the market-rate project that generates the requirement, by another private developer or by a nonprofit partner. In addition, a number of cities offer developers the option of donating land to the city or an approved partner which facilitates offsite production without requiring the market-rate developer to actively participate in the affordable project.
|Ensures access to high-opportunity neighborhoods||Can be more cost efficient (i.e., can often produce more total units)|
|Is easier to enforce design quality||Can leverage other affordable housing subsidies to produce additional units or serve lower-income residents.|
|Has low risk of ongoing maintenance problems||Can design and operate properties to meet the needs of the local population (family units, amenities, social services, etc.)|
|Provides integration in the same building, which can be symbolically important and help build public support|
|Can be difficult to monitor scattered units||May concentrate affordable units in lower-income areas|
|May produce fewer family sized units||May produce lower-quality buildings|
|May not be economically feasible for all project types||May lead to lower-quality long-term maintenance|
|Is harder to incorporate very low-income or special-needs residents||Presents risks of “double dipping,” whereby developers reduce their costs by relying on scarce affordable housing subsidies|
A few communities actively encourage developers to utilize other housing subsidies to help offset the cost of building required affordable units. This position seems to be more common in communities with a surplus of affordable housing funds. Many communities, however, face an acute need for affordable housing and high demand for scarce affordable housing subsidy funds. These cities will generally prohibit developers from ‘double counting’ units (i.e. using other affordable housing programs to subsidize units that are required by the inclusionary housing program) because these affordable housing funds are limited. To the extent that inclusionary developers are using public affordable housing funds to offset their costs, the program is not producing additional affordable housing beyond what would have been provided in any event.
Many cities adopt policies somewhere in the middle, allowing some affordable housing funds to be utilized but prohibiting others. In general, cities are more cautious about using funds that are highly limited. For example, many cities will allow developers to utilize tax abatements but prohibit the same projects from applying for housing grant funds. A second general guideline is that access to external funding should be balanced against the burdens required or requested of the developer. If cities wish to maintain their inclusionary policies, yet the inclusionary rules make development extremely difficult, they will often err on the side of allowing more external subsidies to be used.
Use of the Federal Low Income Housing Tax Credit (LIHTC) program can be more complicated in part because there are two different types of LIHTC. The so-called 9 percent credits provide a large share of the cost of eligible projects and as a result they are in very high demand and limited supply. The 4 percent credits provide relatively less subsidy and require relatively more investment from local sources and private debt, and as a result they are in less demand. An inclusionary project that accessed 9 percent credits might be ‘taking them away’ from another local affordable housing project while the same project could use the four percent credits without affecting other eligible local projects. For this reason there has been a trend for inclusionary housing programs to allow developers to use 4 percent but not 9 percent credits either in on-site or off-site projects.
San Francisco, California uses its tax credits to achieve deeper affordability. Generally, the city does not allow developments to use any subsidies (local, state or federal). However subsidies can be used, with written permission, to deepen the affordability of a unit beyond the level required by the program. Additionally, if 20 percent of their units are affordable to people making 50 percent of AMI, the four percent tax credit can be used. The percentage increases to 25 percent for off-site production.
It can be challenging for cities to ensure that developers actually build the offsite inclusionary units that are promised. Unless the off-site units are completed before a Certificate of Occupancy is issued for the market-rate project, the city may have limited options for enforcement if a developer fails to fulfill its obligations.
For example, in Santa Monica, California in 2010, JSM construction failed to build a 52-unit affordable project that had been required as part of permitting market-rate rental projects that were completed and occupied. Santa Monica allowed JSM to move forward on the market-rate projects only after it proved that it had begun construction on the affordable project, but when the developer stopped construction and allowed a bank to foreclose on the affordable site it became clear that the cost to the developer of failing to comply was far less than the cost of creating the affordable homes.*
Some cities like West Hollywood, California address this kind of risk by requiring that off-site units be occupied before completion of market-rate projects. Boulder, Colorado instead allows developers one year to produce offsite units if they provide a bond or other financial guarantee to ensure that the units actually get built. If the affordable units are not produced within one year, the city can collect the original in-lieu fee plus a penalty of 8 percent.