‘Putting the Ordinance in Black and White’ in Fairfax City

City Council hears affordable dwelling unit proposal.

The City of Fairfax needs more affordable housing. But exactly how to make that happen has yet to be determined. So at a recent work session, Fairfax City Council heard details about a possible affordable dwelling unit (ADU) ordinance and program. If eventually approved, it would be an amendment to the City’s zoning ordinance.

In the past, Fairfax could negotiate with developers to either include a certain amount of ADUs in their residential projects or make a cash contribution to the City. But since the 2016 Virginia General Assembly made that no longer possible, the City has to develop a new plan.

Under a draft of a proposed ADU ordinance now under consideration, ADUs would have to be included in rezonings, planned developments, special-use permit and special-exception requests, and in administrative approvals of subdivisions and site plans. And any of these projects containing 10 or more homes would trigger the need for ADUs to be part of them.

“Fairfax and Loudoun counties have a 50 dwelling unit threshold,” said Patrick Taves, the consultant whose Fairfax law firm helped the City draft its proposed ADU ordinance. “But we chose 10-plus units [for here] because of the built-out nature of the City.”

FOR SINGLE-FAMILY homes or townhouses, 10 percent of the units would have to be ADUs. In multifamily or mixed-use developments, 6 percent of the units would have to be ADUs. However, justification for the ADUs would be required, and cash contributions or land dedication may be accepted in lieu of building the ADUs. However, said Taves, “The number of dedicated ADUs cannot be reduced by more than 50 percent.”

Another part of the ordinance deals with giving a density bonus to projects containing ADUs. Although there are some exceptions, generally, the development would get to have a 20-percent increase in density, in exchange for including ADUs.

Eric Forman, a planner with the City, gave examples of how this proposal would have affected some previously built projects here. For instance, Cameron Glen consists of 48 market-rate townhouses on 3.5 acres, and no ADUs.

But if it were built under the proposed ordinance, the developer would have been allowed to construct 58 homes total; 52 of them would be market rate, and the other six would be ADUs. “The additional units would go on the open space,” said Forman. “Or the townhomes would have to be narrower to fit in the 10 extra units.”

Forman said the draft ordinance also specifies what types of households could qualify for ADUs in Fairfax City. For owned units, households with an income 70 percent or less of the AMI (Area Median Income) would be eligible. For rental units, the figure would be 60 percent or less of AMI.

“Income is a total of all, adult wage-earners in the home who aren’t full-time students,” explained Forman. “AMI [in the Washington, D.C. region] is $117,200/year – but even at 70 percent, people might still not be able to buy an ADU.”

After the presentation, the Council members asked questions. Councilman Sang Yi wanted to know what economic impact ADUs would have on the City. “Do [their owners] pay property tax and are these homes assessed the same as other homes?” he asked.

Brooke Hardin, the City’s director of Community Development and Planning, answered yes to both questions. Yi noted that the prices of ADUs would be “significantly lower” than other comparable homes. “Yes,” said Hardin. “And the county would first assess the ADU resident’s ability to buy it and pay the taxes.”

“What about people who own small businesses and, some years, have 0 percent AMI?” asked Yi. “Could they sell their existing home and then buy an ADU, even if their income increases later on?” Taves said no because ADU purchasers will also be required to be first-time homeowners.

Yi also said the 20-percent bonus density to developers seems “pretty high” to him. But Taves said the percentage could be changed by Council to some other number it prefers, such as 15 percent.

Hardin further explained that the density bonus was seen as making a project “more attractive to the builder,” while precluding him from challenging the ADU requirement legally as an economic loss to the property owner.

“I’d like to see a higher threshold of triggering for ADUs – I think 50 is a strong number – and a lower density bonus,” said Yi. “I’d rather fight for open spaces and quality of life. I’d also like to learn more about the ADU policies in other jurisdictions.”

COUNCILWOMAN So Lim asked if ADU buyers would be required to stay in their homes for 30 years. Hardin said no, but added, “They wouldn’t be allowed to sell them for extreme amounts of money.”

Councilwoman Janice Miller asked how they arrived at the 20-percent density-bonus number. Hardin said it was to offset a financial loss to the developer for including ADUs. And if that number were any less, then the number of ADUs he’d have to build would also be decreased.

“If the developer didn’t want to use the density bonus and build additional [market-rate] units, he wouldn’t have to,” said Hardin. “But the option would be there. However, he’d still have to build the ADUs.”

“Why would the developer want to provide, for example, $250,000 ADUs in his million-dollar development?” asked Councilman Michael DeMarco.

“They could have a duplex or triplex that would be large like a single-family home, but would actually be two or three ADUs,” replied Taves.

Or, added Hardin, “They could give cash [to the City] in lieu of [building] 50 percent of the ADUs.”

Currently, the proposal doesn’t allow developers to add the extra density in height. But if it did, said DeMarco, “It could solve the problem of open-space, sidewalk, parking and RPA [Resource Protection Area] issues. It could be [made] either/or.”

Councilman Jon Stehle called the ordinance “just another tool in our toolkit [so] teachers and police officers can afford to live here. But I think there’s a better process [than this].”

“This puts the ADU ordinance in black and white,” said Hardin. “But I agree, it’s not as flexible as other approaches.” He said additional Council guidance would be welcome, and Mayor David Meyer said he envisioned another work session on this matter in the near future.

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