805.1 No credits generated by residential, arts, or preferred uses may be transferred unless the generation of credits has been acknowledged by the Zoning Administrator by a covenant filed with the Zoning Administrator and recorded in the land records of the District of Columbia.
805.2 The covenant shall be for the benefit of the District of Columbia, signed by the owner of the property generating the credits and the owner of the credits, if different, and shall burden the generating lot and present and future owners to reserve and maintain in perpetuity the square footage of uses that generated the credits.
805.3 The Zoning Administrator, in his or her discretion, may request the General Counsel of the Department of Consumer and Regulatory Affairs or the Office of Zoning Legal Division to undertake a legal sufficiency review.
805.4 The covenant shall be signed by the Zoning Administrator as evidence of its compliance with the provisions of this chapter.
805.5 The signature of the Mayor of the District of Columbia is not required.
805.6 Upon notification by the Zoning Administrator that the covenant has been signed, the owner of the credits shall take the covenant to the Recorder of Deeds, who shall record the covenant with the lot that generated the credit and provide the owner with two (2) certified copies of the certificate.
805.7 The owner of the credits shall provide one (1) certified copy of the covenant to the Zoning Administrator and one (1) to the Office of Planning.
805.8 The covenant shall be effective as of the recordation date of the certificate unless a later time is requested by the owner of the credits.
805.9 The procedures for transferring and re-transferring credits acknowledged by the covenant is described in Subtitle I §§ 901 and 902.
805.10The covenant shall, at a minimum, contain the following information or attachments:
(a) Name and contact information for the person or entity that will own the generated credits;(b) Name and contact information for, the person or entity owning the property upon which the project that generated the credits is located, if different than in Subtitle I § 805.9(a); (c) If the credits are claimed to be owned by a person who does not also own the property that generated the credits, proof that the person or entity owns the credits and a provisions indemnifying the District of Columbia against any and all claims by persons or entities claiming to own the credits;(d) A map and plat of the lot;(e) Legal description and street address of the lot;(f) Surveyed area of the lot; (g) Gross floor area calculations for the entire building and for each portion of the building that will be occupied by the residential, arts, or preferred uses that generate the credits;(h) The FAR limits applicable to the lot including FAR limits for non-residential uses and minimum FAR requirements for residential uses and for arts uses;(i) Calculation of and basis for credits generated; (j) A form Certificate of Credit Transfer as described in Subtitle I § 901.3(e) to be used for any transfer of credits under the covenant;(k) A certificate of occupancy for the use except that for credits generated by development of residential gross floor area the covenant may include either: (1) A certification by the project architect that construction of the residential use is fifty percent (50%) complete; or(2) Proof that an escrow account has been established with a financial institution, including a title insurance company, that is recognized to be in good standing by the District of Columbia or other jurisdiction in which it conducts business that is funded in accordance with Subtitle I § 805.7; (l) In the case of a child development center or child development home, a certification by the Director of the Department of Human Services that the facility meets standards for a child development center or child development home;(m) In the case of a CBE, a certification from the Director of the Department of Small and Local Business Development business occupying the space has been certified as a local, small or disadvantaged business enterprise;(n) Signatures of the owners of the generating lot and the owners of the credits, if different; and(o) Any additional information required by the Zoning Administrator.805.11 If the owner of the credits intends to satisfy the requirement of Subtitle I § 805.9(l) through the funding of an escrow, as permitted by Subtitle I § 805.9(i)(2), the covenant shall contain:
(a) An acknowledgment by the owner of the credits that it has voluntarily established or consented to the establishment of an escrow account;(b) An attached escrow agreement that, among other things, requires the release of the escrow funds and any accrued interest thereon as a fee to be paid to the D.C. Housing Production Trust Fund, or other entity as directed by the Zoning Commission, under the circumstances stated in Subtitle I § 805.12(b);(c) An acknowledgment by the owner of the property generating the credits that the provision of an escrow neither negates the present or future owners' obligations under the covenant and this chapter to reserve and maintain in perpetuity an area on the lot generating the credits equal to the gross floor area of residential gross floor area generating the credits, nor constitutes such an extraordinary or exceptional circumstance or condition as to justify the grant of a variance from the strict application of the requirements of this chapter;(d) A certification by the financial institution of the amount of funds received; and(e) An acknowledgment by the financial institution that the funds will be disbursed only in accordance with the mandatory escrow terms in Subtitle I § 805.8.805.12 The escrowed funds shall be equal to the amount computed according to either the formula E = GFA (AV / LA) / NRFAR x 50%, or the formula E = GFA x $30, whichever is less, where:
(a) E = The amount deposited into escrow;(b) GFA = The gross floor area in square feet of additional nonresidential uses that will be achieved on the lot using the credits above that which the lot would have been permitted as a matter of right;(c) AV = The total assessed value as is indicated on the records of the Office of Tax and Revenue of the lot using the credits as of thirty (30) days prior to the escrow funding date;(d) LA = The number of square feet of land included in the lot using the credits;(e) NRFAR = The permitted nonresidential FAR before the transfer; and(f) 50% = The proportion of commercial value that has been determined to be appropriate for the escrow.805.13 The escrow account agreement shall include terms providing that:
(a) Upon certification by the project architect to both the financial institution holding the funds and the Zoning Administrator that construction of all the residential uses required for the credits are at least fifty percent (50%) complete on the receiving lot, the funds held in the escrow account shall be disbursed in accordance with the applicable terms of the escrow agreement; and(b) If the above certification is not made within five (5) years after the filing date of the credit, or such further period of time as may have been permitted by the Zoning Commission pursuant to Subtitle I § 805.8, escrowed funds and any accrued interest shall be paid as fee to the District of Columbia Housing Production Trust Fund and designated for the financing of housing in the same Trade Area as the generating lot. The escrow agent shall advise the Zoning Commission if the funds cannot be released in accordance with this provision and, in that event, shall release the funds as the Zoning Commission may thereafter direct, consistent with the purposes of this chapter.805.14 The owner of the credits may request the Zoning Commission to allow an additional period, up to a maximum of three (3) years, to make the certification set forth in Subtitle I § 805.8(a). The request shall identify why the certification could not be made within the five (5)-year period provided and be accompanied by a timetable for construction and occupancy of the residential uses required for the credit. The Zoning Commission may grant the request upon a showing that the owner of the property generating the credits has proceeded with due diligence and in good faith in constructing the required residential uses.
D.C. Mun. Regs. tit. 11, r. 11-I805
Final Rulemaking published at 63 DCR 2447 (9/6/2016); amended by Final Rulemaking published at 63 DCR 10932 (9/6/2016); amended by Final Rulemaking published at 68 DCR 892 (2/4/2022)