§ 25-2-586. DOWNTOWN DENSITY BONUS PROGRAM.

(A)

Definitions. In this section:

(1)

BONUS AREA means the greater of:

(a)

The gross floor area that exceeds the maximum allowable floor-to-area ratio allowed with the site's primary entitlements; or

(b)

The gross floor area contained within the portion of a structure that exceeds the maximum height allowed under the site's primary entitlements.

(2)

COMMUNITY BENEFIT is a public amenity that exceeds the Gatekeeper Requirements of the Downtown Density Bonus Program as described in (C)(1) of this section and that is provided by an applicant in order to obtain bonus area.

(3)

CULTURAL USES are uses that are eligible to participate in the City of Austin Core Cultural Funding Program.

(4)

DAY CARE SERVICES is the provision of one or more of the three day care services defined in Section 25-2-6 ( Civic Uses Described ) of the City Code.

(5)

DEVELOPMENT BONUS FEE means the dollar amount an applicant pays to the City per square foot of bonus area.

(6)

DIRECTOR means director of the Planning and Development Review Department.

(7)

DWELLING UNIT means a single unit providing complete, independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation.

(8)

FAMILY-FRIENDLY ELIGIBLE BEDROOM is any bedroom over one bedroom within a dwelling unit that provides on-site affordable housing that complies with all of the affordability requirements of Subsection (G) of this section.

(9)

GREAT STREETS STREETSCAPE STANDARDS means design standards for streets within the boundaries of the Great Streets Master Plan.

(10)

LIVE MUSIC USE is the performance of live music at least four days a week in an indoor public or private facility of at least 2,500 square feet that is open to the general public and readily equipped with sound, staging, lighting and safety accoutrements to accommodate professional and semi-professional live music needs on a daily basis.

(11)

MIXED-USE PROJECT means a project that has 25 percent or more of its floor area in a use different from a predominant use.

(12)

NON-RESIDENTIAL PROJECT means a project for which the predominant use is not listed in Section 25-2-3 ( Residential Uses Described ), and which has less than 25 percent of its floor area devoted to uses described in Section 25-2-3 ( Residential Uses Described ).

(13)

PRIMARY ENTITLEMENT means the height and floor-to-area ratio entitlement that a site derives from its current zoning. That entitlement may be derived from the base zoning or from a previous modification to the base zoning.

(14)

PUBLICLY ACCESSIBLE ON-SITE PLAZA is a publicly-accessible area provided by an applicant as a community benefit that complies with the Downtown Public Plaza Standards adopted by administrative rule.

(15)

RESIDENTIAL PROJECT means a project for which the predominant use is within one or more of the classifications described in Section 25-2-3 ( Residential Uses Described ).

(16)

URBAN DESIGN GUIDELINES means guidelines for public streetscapes, plazas, open space and buildings in a dense area, adopted by City Council.

(B)

Downtown Density Bonus Maps and Table.

(1)

The downtown district boundaries are shown on the Downtown Districts Map (Figure 1). Properties in the downtown district that are eligible for density bonuses under this section are shown on the Eligibility, Floor-to-Area Ratio and Height Maps (Figure 2).

(2)

Properties in the Rainey Street Subdistrict may participate in the Downtown Density Bonus Program only for floor-to-area ratio that exceeds 8:1. To achieve floor-to-area ratio up to 8:1, properties in the Rainey Street Subdistrict must comply with Subsection (C)(4) of Section 25-2-739 ( Rainey Street Subdistrict Regulations ) of the City Code.

(3)

The amount of floor-to-area ratio or height that may be achieved by a downtown density bonus for a site is limited by the maximum height or Floor-to-Area Ratio identified on Figure 2.

(4)

The maximum heights and maximum floor-to-area ratios on Figure 2 do not modify a site's primary entitlement. If the maximum height or maximum floor-to-area ratio allowed under a primary entitlement exceeds the height or floor-to-area ratio on Figure 2, the bonus area is calculated by using the site's primary entitlement that does not exceed the maximums shown on Figure 2.

(5)

The development bonus fee may vary by use and downtown district. The applicable development bonus fee within each of the nine districts is established by ordinance.

(6)

Notwithstanding the limitation provided for in (B)(3) of this section, the city council may grant to an applicant floor-to-area ratio that exceeds the maximum floor-to-area ratio in Figure 2 if:

(a)

The applicant has already achieved the maximum floor-to-area ratio in Figure 2 by participating in the Downtown Density Bonus Program;

(b)

The applicant submits a written request and rationale for the additional floor-to-area ratio to the director;

(c)

The director makes a written recommendation on the application and then submits the recommendation to the Planning Commission for its review and recommendation; and

(d)

The city council determines that the additional floor-to-area ratio should be granted because:

(i)

The applicant has offered additional community benefits described in (E)(1)-(12) above and beyond those offered to achieve the floor-to-area ratio in Figure 2;

(ii)

The applicant agrees to use the same methodology and bonus area granted for each community benefit as described in the downtown density bonus program to achieve the desired bonus area;

(iii)

The city council determines that awarding the additional floor-to-area ratio substantially furthers the goals and objectives of the Downtown Austin Plan and the Imagine Austin Comprehensive Plan; and

(iv)

the applicant has agreed that any residential parking space shall be offered separately from the dwelling unit.

(C)

Program Requirements.

(1)

Gatekeeper Requirements.

(a)

To receive bonus area, the director must determine that the project substantially complies with the Urban Design Guidelines.

(i)

The applicant must submit to the director a schematic level site plan, building elevations, and other drawings, simulations or other documents necessary to fully describe the urban design character of the project and relationship of the project to its surroundings.

(ii)

The Design Commission shall evaluate and make recommendations regarding whether the project complies with the Urban Design Guidelines and the director shall consider comments and recommendations of the Design Commission.

(b)

The applicant shall execute a restrictive covenant committing to provide streetscape improvements along all public street frontages, consistent with the Great Streets Standards.

(c)

The applicant shall execute a restrictive covenant committing to achieve a minimum two star rating under the Austin Energy Green Building program using the ratings in effect at the time the project is registered with the Austin Energy Green Building program. The applicant shall also provide the director with a copy of the project's signed Austin Energy Green Building Letter of Intent before the director may approve bonus area for a site.

(2)

After the director determines the applicant meets the gatekeeper requirements, the applicant shall provide sufficient written information so that the director can determine:

(a)

the site's primary entitlement;

(b)

the amount of bonus area that the applicant is requesting;

(c)

the total dollar amount the applicant will pay if the applicant chooses to obtain the entire bonus area exclusively by paying a development bonus fee, and the amount of the fee to be dedicated to each community benefit; and,

(d)

the community benefits the applicant proposes to provide to obtain bonus area if the bonus area will not be obtained exclusively by paying a development bonus fee.

(D)

Changes in Design of Proposed Building. If the design of a building changes after a bonus is granted under this section, the director shall review the new design for substantial compliance with the Urban Design Guidelines prior to building permit approval. A building permit for a final design will not be approved until the design substantially complies with the gatekeeper requirements and the restrictive covenants are amended to reflect new or revised community benefits.

(E)

Community Benefits. A person may achieve bonus area by providing community benefits outlined in this subsection. If the applicant chooses to achieve 100 percent of the desired bonus area by providing community benefits described in (E)(1) - (12), the director may approve the bonus area administratively.

(1)

Affordable Housing Community Benefits.

(a)

Affordable Housing Community Benefit. An applicant may use one or more of the following.

(i)

On-site affordable housing. A project may achieve bonus area by providing on-site affordable housing within the project. The amount of bonus area that may be achieved for each one square foot of dwelling unit space that is devoted to on-site affordable housing is established by ordinance.

(ii)

Family-friendly housing. A project providing on-site affordable housing may achieve additional bonus area by providing one or more family-friendly eligible bedrooms. The amount of bonus area that may be achieved for each family-friendly eligible bedroom is established by ordinance.

(iii)

Development bonus fee for affordable housing. The project may achieve bonus area by paying a development bonus fee at the dollar per square foot amount set by ordinance. The fee will be paid into the Affordable Housing Trust Fund.

(b)

Affordable housing community benefit percentages.

(i)

A project must achieve at least 50 percent of the desired bonus area by providing affordable housing community benefits.

(ii)

For any portion of the desired bonus area not achieved by providing affordable housing benefits, the applicant shall achieve bonus area by providing one or more of the community benefits described in (E)(2) - (12) below.

(2)

Rainey Street Subdistrict Historic Preservation Community Benefit.

(a)

A project may achieve bonus area for each historically significant building that is:

(i)

rehabilitated; and

(ii)

preserved on site, relocated to a site within the Rainey Street Subdistrict, or relocated to a location within the city limits as determined appropriate by the Historic Landmark Commission.

(b)

The amount of bonus area that may be achieved for on-site improvements for Rainey Street Subdistrict historic preservation is established by ordinance.

(c)

Buildings eligible for this community benefit include those buildings within the Rainey Street National Historic Register District that the City's historic preservation officer has determined contribute to the historic character of the Rainey Street National Historic Register District.

(d)

Requirements:

(i)

Development using this community benefit option shall maintain the architectural integrity of the building as determined by the Historic Landmark Commission (HLC) whether or not the building is zoned H-Historic or HD-Local Historic District.

(ii)

The HLC must review and approve modifications to a building before the City may grant a density bonus.

(iii)

Development may use this option only in cases where a substantial percentage of the external walls and internal structure remain intact at project completion.

(iv)

An applicant must provide a description of the rehabilitation that describes the existing conditions of the building and the proposed work. The applicant must submit photographs showing the major character-defining features of the building prior to the start of work.

(v)

Before the director may issue any type of certificate of occupancy, an applicant must submit documentation verifying that the work has been completed as proposed. The documentation must be submitted in a format similar to the Description of Rehabilitation portion of the United States Department of the Interior National Park Service Historic Preservation Certification Application.

(vi)

An applicant who cannot complete restoration as proposed must pay into the Historic Preservation Fund the applicable development bonus fee for the bonus area initially granted for this community benefit. The applicant's payment will be based on the development bonus fee in effect at the time the applicant pays the fee.

(3)

Day Care Services Community Benefit.

(a)

A project may achieve bonus area by providing day care services within the project. The amount of bonus area that may be achieved for each square foot of day care services that are provided is established by ordinance.

(b)

Requirements:

(i)

The applicant must execute a restrictive covenant that requires compliance with all relevant requirements of this section and that ensures continuation of operations and maintenance of the facility with the specified community benefit use for a period of at least 10 years, which is the life of the agreement.

(ii)

City of Austin must approve of the operator and the lease terms, which shall be for no less than ten years.

(iii)

The facility must comply with applicable state and local codes.

(iv)

The facility must be open during normal business hours at least five days each week and fifty weeks each calendar year.

(v)

The facility must be maintained and kept in a good state of repair throughout the life of the agreement.

(vi)

If the day care services use is non-operational for more than 180 consecutive days or for 180 days in any 365 day period, the owner must pay into the Affordable Housing Trust Fund the applicable development bonus fee for the bonus area initially granted for this community benefit. The payment will be a pro-rated amount based on the time left in the term of the agreement and based on the development bonus fee in effect when the owner pays.

(4)

Cultural Uses Community Benefit.

(a)

A project may achieve bonus area by providing on-site cultural uses within the project. The amount of bonus area that may be achieved for each square foot of cultural uses provided is established by ordinance.

(b)

Requirements:

(i)

The applicant must execute a restrictive covenant that requires compliance with all requirements of this section and that ensures continuation of operations and maintenance of the facility with the specified community benefit use for a period of at least 10 years, which is the life of the agreement.

(ii)

City of Austin must approve of the operator and the lease terms, which shall be for no less than ten years.

(iii)

Use must meet the definition of cultural uses and the space must be leased to a 501(c) organization.

(iv)

If the required use is non-operational for more than 180 consecutive days or for 180 days in any 365 day period, the owner must pay into the Affordable Housing Trust Fund the applicable development bonus fee for the bonus area initially granted for this community benefit. The payment will be a pro-rated amount based on the time left in the term of the agreement and based on the development bonus fee in effect when the owner pays.

(5)

Live Music Community Benefit.

(a)

A project may achieve bonus area by providing an on-site live music use. The amount of bonus area that may be achieved for each square foot of live music use is established by ordinance.

(b)

Requirements:

(i)

The applicant must ensure continuation of operations and maintenance of the facility with the specified community benefit use for a period of at least 10 years, which is the life of the agreement.

(ii)

City of Austin must approve of the operator and the lease terms, which shall be for no less than ten years.

(iii)

The operator of the facility must maintain proper permitting and documentation to play amplified music in said space.

(iv)

The space must meet the City of Austin's sound-proofing specifications.

(v)

If the required use is non-operational for more than 180 consecutive days or for 180 days in any 365 day period, the owner must pay into the Affordable Housing Trust Fund the applicable development bonus fee for the bonus area initially granted for this community benefit. The payment will be a pro-rated amount based on the time left in the term of the agreement and based on the development bonus fee in effect when the owner pays.

(vi)

Venues may not charge an up-front fee to performing artists for the use of their facilities or require performing artists to guarantee a minimum attendance through pre-show ticket sales.

(6)

On-Site Improvements for Historic Preservation Community Benefit.

(a)

A project may achieve bonus area by providing on-site improvements for historic preservation. The amount of bonus area that may be achieved for on-site improvements for historic preservation is established by ordinance.

(b)

Buildings Eligible for On-Site Improvements for Historic Preservation Community Benefit include:

(i)

Buildings designated as City landmarks, Recorded Texas Historic Landmarks, State Antiquities Landmarks, or listed on the National Register of Historic Places;

(ii)

Contributing properties within National Register or Local Historic Districts;

(iii)

Buildings determined by the City's Historic Preservation Officer to be historically significant; or

(iv)

Buildings determined eligible for listing on the National Register of Historic Places by the State Historic Preservation Officer.

(c)

Requirements:

(i)

Development using this community benefit option for on-site improvements shall maintain the architectural integrity of the building, as determined by the Historic Landmark Commission (HLC) whether or not the building is zoned H-Historic or HD-Local Historic District.

(ii)

The HLC must review and approve modifications to a building before the City may grant a density bonus.

(iii)

A project may be granted bonus area for on-site improvements for historic preservation only in cases where a substantial percentage of the external walls and internal structure remain intact at project completion.

(iv)

Applicant must provide a description of rehabilitation that describes the existing condition of the building and the proposed work. The applicant must submit photographs showing the major character-defining features of the building prior to the start of work.

(v)

Before the director may issue any type of Certificate of Occupancy, an applicant must submit documents verifying that the work has been completed as proposed. The documents must be submitted in a format similar to the Description of Rehabilitation portion of the United States Department of the Interior National Park Service Historic Preservation Certification Application.

(vi)

If restoration cannot be completed as proposed, the owner must pay into the Historic Preservation Fund the applicable development bonus fee for the bonus area initially granted for this community benefit. The owner's payment will be based on the development bonus fee in effect at the time the owner pays the fee.

(7)

Development Bonus Fee for Off-Site Historic Preservation Community Benefit.

(a)

The project may achieve bonus area by paying a development bonus fee at the dollar per square foot amount set by ordinance based on the district in which the proposed development is located. The fee will be paid into the Historic Preservation Fund.

(b)

Requirements:

(i)

The City of Austin will administer the Historic Preservation Fund.

(ii)

This option cannot be used if developer is proposing to demolish all or a substantial percentage of a building the Historic Preservation Officer deems historically significant.

(8)

Green Building Community Benefit.

(a)

An applicant may achieve bonus area by constructing a project to green building standards that exceed the Gatekeeper requirements. The amount of bonus area that may be achieved for constructing a project to green building standards is established by ordinance.

(b)

Requirements:

(i)

The applicant shall execute a restrictive covenant committing to achieve a specified rating under the Austin Energy Green Building (AEGB) program using the ratings in effect at the time the ratings application is submitted for the project or Leadership in Energy & Environmental Design (LEED) program using the most recently launched version of the LEED for New Construction rating at the time of the project's registration.

(ii)

The applicant shall also provide the director with a copy of the project's signed Austin Energy Green Building Letter of Intent for projects seeking AEGB rating or a copy of the completed LEED registration for projects seeking LEED rating before the director may approve bonus area for a site.

(iii)

An applicant must submit an AEGB or LEED checklist indicating the measures the project intends to complete to meet the applicable green building requirement before the director may approve bonus area for a site.

(iv)

A project seeking an AEGB rating will be subject to at least one inspection during construction and an inspection at substantial completion. A project seeking LEED certification must submit the LEED design review results and an updated LEED checklist or scorecard indicating the project will be able to obtain LEED certification by substantial completion.

(v)

If the specified AEGB rating or LEED certification is not achieved within nine months from time of occupancy, an owner must pay into the Affordable Housing Trust Fund the applicable development bonus fee for the bonus area initially granted for this community benefit. The owner's payment will be based on the development bonus fee in effect when the owner pays.

(9)

Publicly Accessible On-Site Plaza Community Benefit.

(a)

A project may achieve bonus area by providing a publicly accessible on-site plaza. The amount of bonus area that may be achieved by providing a publicly accessible on-site plaza is established by ordinance.

(b)

Requirements:

(i)

If the required plaza is non-operational for more than 180 consecutive days or for 180 days in any 365 day period, the owner must pay into the Downtown Open Space Fund the applicable development bonus fee for the bonus area initially granted for this community benefit. The payment will be based on the development bonus fee in effect when the owner pays.

(10)

Off-Site Open Space Development Bonus Fee Community Benefit.

(a)

The project may achieve bonus area by paying a development bonus fee for off-site open space at the dollar per square foot amount set by ordinance based on the district in which the proposed development is located. The fee will be paid into the Downtown Open Space Fund.

(b)

Requirements:

(i)

City will administer the Downtown Open Space Fund.

(ii)

The development bonus fee option is only available for open space beyond what is already required by City Code.

(iii)

The applicant must deposit a nonrefundable cash payment with the City.

(11)

Green Roof Community Benefit.

(a)

A project may achieve bonus area by providing green roofs. The amount of bonus area that may be achieved for the construction of green roofs is established by ordinance.

(b)

Requirements:

(i)

Green Roofs must be built to the Vegetated ("Green") Roof Performance Standards in Appendix W of the Environmental Criteria Manual. The percent of vegetated roof cover is calculated as a portion of total roof area excluding mechanical equipment, photovoltaic panels, swimming pools, and skylights.

(ii)

If the green roof fails to meet the Vegetated ("Green") Roof Performance Standards for more than 180 consecutive days or for 180 days in any 365 day period, the owner must pay into the Downtown Open Space Fund the applicable development bonus fee for the bonus area initially granted for this community benefit. The payment will be based on the development bonus fee in effect when the owner pays.

(iii)

Green roof areas used to achieve bonus area through the Green Roof Community Benefit may not be used to achieve bonus area through the Publicly Accessible On-Site Plaza Community Benefit.

(12)

Other Community Benefits.

(a)

An applicant may offer to provide other community benefits not described in (E)(1) - (11). The applicant must provide sufficient information about the other community benefits for the director to determine whether the other community benefits serve a public and municipal purpose considering the criteria listed below.

(b)

The director will consider the following to make a determination:

(i)

if members of the general public will be able to enjoy the proposed other community benefit without paying for its access, use or enjoyment;

(ii)

if the proposed other community benefit will connect to and be accessible from public right-of-way or other publicly-accessible space;

(iii)

if the proposed other community benefit will provide a public amenity that is particularly lacking in the proposed location;

(iv)

if the proposed other community benefit will impose a significant burden on public resources for maintenance, management, policing, or other reasons; and,

(v)

any other information provided by the applicant that shows the other community benefit serves a public and municipal purpose and furthers the City's comprehensive planning goals.

(c)

If a proposed other community benefit provides a partial benefit to a project, it will not be disqualified; the director will allocate only the cost of the public portion of the benefit to the other community benefits.

(d)

If the director determines that the proposed benefit qualifies as a community benefit, the director shall:

(i)

quantify the monetary cost for the proposed other community benefit by using standard industry sources as well as locally based data on development costs to quantify the monetary cost, without mark-up, for the proposed other community benefit; and,

(ii)

determine the cost to be applied towards achieving the desired bonus area.

(e)

The amount determined by the director may be applied to achieve bonus area on the same basis as the development bonus fee applicable to the type and location of the project.

(f)

The director's recommendation concerning the proposed other community benefit and the monetary value that is applied to achieve the bonus area shall be presented to the planning commission for recommendation and the city council for approval.

(g)

If the applicant proposes to achieve bonus area by providing other community benefits, the value of the public portion of the proposed other community benefits must be equal to or greater than the total dollar amount the applicant would pay if the payment were based on the applicable development bonus fee required to earn that requested bonus area.

(F)

Community Benefit Calculations for Mixed-Use Projects. Mixed-use projects shall provide community benefits in proportion to the amount of floor area in the project that is devoted to different use categories.

(G)

Affordability Requirements. For purposes of this section, a unit is affordable for purchase or rental if, in addition to the other requirements of this section, the household is required to spend no more than 30 percent of its gross monthly income on mortgage or rental payments for the unit.

(1)

Affordability requirements for owner-occupied units.

(a)

On-site for sale affordable housing units shall be reserved, sold and transferred to an income eligible buyer subject to a resale restricted, shared equity agreement approved by the director of Neighborhood Housing and Community Development, for not less than 99 years from the date a certificate of occupancy is issued.

(b)

The units shall be made available for ownership and occupancy by households earning no more than 120 percent of the Annual Median Family Income for the City of Austin Metropolitan Statistical Area as determined by the director of Neighborhood Housing and Community Development.

(2)

Affordability requirements for rental units.

(a)

On-site rental affordability housing units shall be reserved as affordable for a minimum of 40 years following the issuance of the certificate of occupancy.

(b)

The units shall be made available for rental by households earning no more than 80 percent of the annual median family income for the City of Austin metropolitan statistical area as determined by the director of Neighborhood Housing and Community Development.

(c)

An applicant may not deny a prospective tenant affordable rental housing based solely on the prospective tenant's participation in the Housing Choice Voucher Program or in any other housing voucher program that provides rental assistance.

(3)

Rules. The Neighborhood Housing and Community Development Office shall conduct compliance and monitoring of the affordability requirements of this ordinance. The director of Neighborhood Housing and Community Development shall establish compliance and monitoring rules and criteria for implementing the affordability requirements of this ordinance.

(H)

Applicant's obligation. Before the director may issue any type of Certificate of Occupancy, an applicant must fulfill all obligations including but not limited to the payment of all fees and execution of restrictive covenants in order to ensure that the applicant provides all required community benefits. All approvals must be obtained and evidence of the approvals must be provided to the director prior to site plan submittal.

(I)

Director's approval. Once an applicant meets the submission requirements of the downtown density bonus program and executes the necessary restrictive covenants to ensure that the applicant provides all required community benefits, the director will issue a written notice of approval that indicates the project's allowable floor-to- area ratio and height.

(J)

Appeal.

(1)

An applicant may appeal to the city council the director's determination that the gatekeeper requirements have not been met.

(2)

An applicant must appeal the determination within 30 days from the date of the director's denial.

(3)

An appeal is subject to the procedures set forth in Section 25-2-282 ( Land Use Commission Public Hearing and Recommendation ) and Section 25-2-283 ( City Council Zoning Hearing and Action ) of the City Code.

Source: Ord. 20080131-132; Ord. 20130627-105; Ord. 20140227-054, Pts. 1, 3, 3-10-14 .