(A) Except as provided in § 1-6A-5.1 below, any applicant, in order to record a final plat of subdivision or obtain a building permit, must submit to the Division of Planning and Permitting, with the application for a permit, a written MPDU agreement approved by the Director and the County Attorney. Each agreement must require that:
(1) A specific number of MPDUs, not less than 12.5% of the total number of dwelling units in the development, must be constructed on an approved time schedule;
(2) In all developments MPDUs constructed must be equivalent in bedroom count to all market rate units constructed. For example, if the market rate units consist of 30% 3-bedroom units, 20% one-bedroom units, and 50% 2-bedroom units, then the constructed MPDUs must also include the same percentages of units with the same bedroom counts, to the extent practicable, as determined by the Director.
(B) (1) A one-to-one density bonus is provided when the development at one location includes construction of at least 12.5% of the total number of dwelling units in the development; and
(a) Is covered by a plan of subdivision; or
(b) Is covered by a plan of development or a site plan.
(2) A two-to-one density bonus may be approved by the Planning Commission for MPDUs constructed in specified growth areas as identified in the Livable Frederick Master Plan.
(C) Density bonuses are permitted as part of the MPDU program in the following districts: Residential (MXD), R1, R3, R5, R8, R12, R16, PUD, Village Center (VC), and MX. Density bonuses shall not be allowed if an applicant elects to pay a "per square foot payment in lieu" as outlined in § 1-6A-5.1.
(D) In planned development zones and mixed use zones containing flexible development standards, the number of MPDUs must not be less than either the number of density bonus units or 12.5% of the total number of dwelling units, whichever is greater.
(E) (1) In exceptional cases, instead of building the required number of MPDUs, an applicant may offer to:
(a) Build at least 10% more MPDUs at 1 or more other sites in the same or an adjoining area in the county;
(b) Contribute to the Housing Initiative Fund an amount that will produce at least 10% more MPDUs; or
(c) Do any combination of these alternatives that will result in building at least 10% more MPDUs than required hereunder.
(2) If the Director finds that:
(a) In the project or subdivision originally proposed by the applicant, an indivisible package of resident services and facilities to be provided to all households would cost the occupants of the MPDUs so much that it is likely to make the MPDUs effectively unaffordable by eligible households; and
(b) An offer made by an applicant under subsection (E)(1) will achieve at least 10% more MPDUs or units which moderate- income households can more easily afford; and
(c) These public benefits outweigh the benefit of constructing MPDUs in each subdivision throughout the county and acceptance of the applicant’s offer will achieve the objective of providing a broad range of housing opportunities throughout the county; the Director may accept the offer made by the applicant instead of requiring the construction of MPDUs by the applicant. If the applicant can feasibly build at least 10% more MPDUs at another site in the county, the Director must not approve any other alternative under subsection (E)(1).
(3) The procedures for considering and implementing alternative offers must be established by regulation. To implement an offer, the applicant must sign an agreement with the Director not later than the time provided in the regulation.
(F) The MPDU agreements must be signed by the applicant, any other parties having an interest in the property and all other parties whose signatures are required by law for the effective and binding execution of contracts conveying real property. The agreements must be executed in a manner that will enable them to be recorded in the land records of the county. If the applicant is a corporation, the agreements must be signed by a duly authorized officer on behalf of the corporation. Partnerships, associations or corporations must not evade this chapter through voluntary dissolution. The agreements may be assigned if the county approves and if the assignees agree to fulfill the requirements of this chapter.
(G) An MPDU agreement must be drafted prior to Planning Commission approval of preliminary plans and site plans. The preliminary plan and site plan must document the number, type, location, and staging of construction, or otherwise document how the requirements of this chapter will be met. The DPP must not record final subdivision plats and must not issue a building permit in any subdivision or housing development in which MPDUs are required until the applicant submits an executed MPDU agreement which applies to the entire development. The MPDU agreement must include the number, type, location, and plan for staging construction of all dwelling units and such other information as the Department requires to determine the applicant’s compliance with this chapter. The MPDU staging plan must be consistent with any applicable land use plan, subdivision plan, or site plan. The staging plan included in the MPDU agreement for all dwelling units must be sequenced so that:
(1) MPDUs are built along with other dwelling units;
(2) The pace of MPDU production must reasonably coincide with the construction of market rate units;
(3) The constructed MPDUs must be equivalent in bedroom count to all market rate units constructed or to be constructed; and
(4) The last building built must not contain only MPDUs. This subsection applies to all developments, including any development covered by multiple preliminary plans of subdivision.
(I) If an applicant does not build the MPDUs contained in the staging plan along with or before other dwelling units, the Director of the Department of Permits and Inspections must withhold any later building permit to that applicant until the MPDUs contained in the staging plan are built.
(J) Recording of covenants. The applicant must execute and record covenants assuring that:
(1) The restrictions of this chapter run with the land for the entire period of control; and
(2) The covenants will bind the applicant, any assignee, mortgagee, or buyer, and all other parties that receive title to the property. These covenants must be senior to all instruments securing permanent financing except when MPDUs are built under § 1-6A-5.2; and
(K) Later deeds. The grantor must state, in any deed or instrument conveying title to an MPDU, that the conveyed property is an MPDU and is subject to the restrictions contained in the covenants required under this chapter during the control period until the restrictions are released.
(L) Letter of credit. The applicant must submit a letter of credit at the time of permit application for 125% of the average value of 1 MPDU unit. Once all MPDUs are completed the letter of credit will be released. Failure to complete the MPDUs according to the staging plan will cause the letter of credit to be forfeited and the funds will be deposited in the Housing Initiative Fund.
(M) Subordinate lien. A lien must be placed on each individual MPDU property at settlement secured by a second position deferred principal mortgage in favor of the county. The dollar amount of the lien and mortgage will be 80% of the difference between the market rate value of the MPDU and the MPDU sale price (including settlement costs) at the time of initial purchase. (Example: Market rate value $150,000 minus MPDU price including settlement costs $100,000=$50,000 x 80% = $40,000).
(Ord. 02-25-321, 11-21-2002; Ord. 10-26-561, 11-9-2010; Ord. 11-20-586, 9-6-2011; Ord. 11-25-591, 10-27-2011; Ord. 11-28-594, 11-22-2011; Ord. 12-08-603, 4-17-2012; Ord. 14-23-678, 11-13-2014; Bill No. 16-08, 8-15-2016; Bill No. 17-10, 6-13-2017; Bill No. 22-27, 10-18-2022)