23.58B.030

A. General 1. An applicant may request a modification, according to this Section 23.58B.030 , of the amount of mitigation calculated according to subsection 23.58B.040.A or subsection 23.58B.050.A. 2. An applicant requesting a modification according to subsection 23.58B.030.C or subsection 23.58B.030.D shall have requested a modification according to subsection 23.58B.030.B, if applicable, and an applicant requesting a modification according to subsection 23.58B.030.D shall have requested a modification according to subsection 23.58B.030.C, if applicable. The Director shall evaluate modification requests in the following order: subsection 23.58B.030.B, subsection 23.58B.030.C, and subsection 23.58B.030.D. 3. The decision on any modification according to subsection 23.58B.030.B, subsection 23.58B.030.C, or subsection 23.58B.030.D shall specify a mitigation amount expressed as dollars per square foot according to subsection 23.58B.040.A for the payment option and/or percentage per square foot according to subsection 23.58B.050.A for the performance option that shall be applied based on the final plans for the development or, in the case of a modification according to subsection 23.58B.030.D, may be expressed as an absolute payment amount for the payment option or square footage amount for the performance option along with a limitation in the degree of change in the final plans that is permissible without a redetermination of the modification. B. Modification in zones with height limits exceeding 85 feet. The Director shall modify the amount of mitigation if the development is in a zone with a height limit greater than 85 feet and the Director finds that applicable development standards prohibit the development from exceeding a height of 85 feet. The reduced mitigation shall be the payment calculation amount or performance calculation amount according to subsection 23.58B.040.A or subsection 23.58B.050.A for the zone that has a height limit of 85 feet or less that is most comparable to the zone in which the development required to mitigate affordable housing impacts according to this Chapter 23.58B is located. C. Modification based on mitigation greater than impact. The Director shall, as a special exception according to Chapter 23.76 , modify the amount of mitigation required according to subsection 23.58B.040.A or subsection 23.58B.050.A if the applicant demonstrates that the required amount of mitigation exceeds the amount that would be needed to mitigate the actual demand for affordable housing created by the development. A request for such a modification shall include information showing the affordable housing impacts created by the development, based on the actual characteristics of the development, including, for example, the unique characteristics and space utilization of the future workforce of the development and the demand of that workforce for housing expressed in terms of the number of employees in households with incomes at or below 60 percent of median income, and the number of employees in households with incomes higher than 60 percent of median income but not higher than 80 percent of median income, and such other factors the applicant believes justify a modification. D. Modification based on severe economic impact 1. The purpose of this subsection 23.58B.030.D is to allow the Director, as a special exception according to Chapter 23.76 , to modify the amount of payment according to subsection 23.58B.040.A or the amount of performance according to subsection 23.58B.050.A if the applicant can demonstrate facts supporting a determination of severe economic impact at such a level that a property owner's constitutional rights may be at risk. 2. For purposes of this subsection 23.58B.030.D, the Director is not making a determination of the constitutional rights of a property owner, but instead is reviewing the credibility and strength of facts demonstrating severe economic impact. 3. The Director may waive or reduce the amount of payment required according to subsection 23.58B.040.A or the amount of housing required to be provided according to subsection 23.58B.050.A if the applicant shows that application of the requirements according to this Chapter 23.58B would: a. Create severe economic impact by depriving a property owner of all economically beneficial use of the property; or b. Create severe economic impact, not reaching deprivation of all economically beneficial use, but reaching the level of an undue burden that should not be borne by the property owner. 4. In determining whether there is a severe economic impact reaching the level of an undue burden that should not be borne by the property owner, the Director may weigh the following nonexclusive factors: a. The severity of the economic impact caused by the application of the requirements according to this Chapter 23.58B ; b. The degree to which the requirements according to this Chapter 23.58B were or could have been anticipated; c. The extent to which alternative uses of the property or configurations of the proposed development would alleviate the need for the requested waiver or reduction; d. The extent to which any economic impact was due to decisions by the applicant and/or property owner; and e. Other factors relevant to whether the burden should be borne by the property owner. 5. The waiver or reduction may be approved only to the extent necessary to grant relief from the severe economic impact. 6. A request to the Director for a modification according to this subsection 23.58B.030.D shall include, at a minimum, all of the following: a. A description of the requested waiver or reduction, including the proposed payment and/or performance amount; b. Documentation showing that any relief available according to subsection 23.58B.030.B or subsection 23.58B.030.C would not eliminate the need for the requested waiver or reduction; c. The identity of the property owner and the date of the owner's acquisition of the property; d. Documentation showing the use of the property at the time of the request or, if the property is vacant at that time, the use of the property prior to commencement of vacancy; e. Documentation explaining and supporting the claim of economic impact; and f. Documentation showing that a different development configuration that satisfied the requirements according to this Chapter 23.58B would not alleviate the need for the requested waiver or reduction. 7. The applicant shall provide any additional information as may be required by the Director to make a determination on the request. The applicant shall have the burden of proving by a preponderance of the evidence that a waiver or reduction authorized according to this subsection 23.58B.030.D is justified. 8. None of the following, standing alone and without consideration of the full range of relevant factors including those according to subsection 23.58B.030.D.4, shall be a sufficient basis for the Director to grant a waiver or reduction authorized according to this subsection 23.58B.030.D: a. The fact of a decrease in property value; b. The fact that a property owner is unable to utilize the full amount of any increase in non-residential development capacity enacted in connection with implementation of this Chapter 23.58B in the zone in which the property is located; or c. The fact that any such increase in non-residential development capacity, combined with the requirements according to this Chapter 23.58B , did not leave the property owner in a better financial position than would have been the case with no increase in non-residential development capacity and no application of the requirements according to this Chapter 23.58B . 9. In any appeal to the Hearing Examiner, the parties will have an additional opportunity to make a record on the factual issues consistent with due process. (Ord. 125233 , § 7, 2016; Ord. 124895 , § 2, 2015)