A.

To meet certain land use objectives, positive incentives are needed to encourage developers to assist in broadening the selection of workforce housing. Two (2) types of incentives are contained in this Article: the allocation of development rights that can be transferred, and bonuses for certain types of development.

B.

The use of transferrable development rights allows development permitted on several properties to be concentrated on a single parcel, thus permitting several parcels to remain exclusively agricultural without significantly impacting the development value of the land.

C.

The preservation and renovation of historic resources serves to preserve the character and heritage of the County for future generations. It is anticipated that clustering, bonuses, and on occasion, transferable development rights, will be needed to ensure that these objectives can be met during the development process.

D.

Reserved.

(Ord. No. 97-172, § 3(ch. 13, div. 07.000), 12-31-1997; Ord. No. 07-150, § 1, 2-26-2008)

This Division governs the use and transfer of all development rights.

(Ord. No. 97-172, § 3(ch. 13, div. 07.200), 12-31-1997)

Development rights may be used on site, or they may be transferred to another site. The development rights shall be allocated to another property only upon submission of a plan to the Department that describes and depicts their transfer. Because the allocation is identical to the development yield of the site, there is no need for a formal allocation process beyond the plan approval process. If a property develops using any optional form of development, that development extinguishes all development rights.

(Ord. No. 97-172, § 3(ch. 13, § 07.205), 12-31-1997)

When development rights are transferred in the process of subdivision or land development, noncontiguous properties may be developed as a single unit pursuant to the provisions of this Article. The landowner shall provide the following information:

A.

At the time an exploratory plan is submitted a statement of intent to use development rights shall be included with the other application requirements. The statement shall indicate the number of development rights that are expected to be transferred to the site.

B.

Prior to exploratory plan approval a document indicating the pending sale of the development rights or common ownership of the noncontiguous parcels shall be part of the application. The document shall indicate rights available for transfer, those to be transferred, and any rights to remain on sending property.

C.

Except as provided in Subsection E, all the calculations required by Article 5 shall be submitted for both properties indicating the potential development rights of the two (2) parcels separately. In addition, a separate calculation shall be made for the site upon which the development rights are to be used according to the values in Table 40.07.221. These calculations shall determine:

1.

The base density of the site upon which the development rights are to be used.

2.

The number of rights available for transfer.

3.

The maximum development potential available if development rights are acquired.

D.

When a record plan is submitted, the following documents are required to consummate the transfer.

1.

A site plan or plans showing the use of the transferred development rights.

2.

A conservation easement indicating the number of development rights that have been transferred and any reservation which would extinguish any development rights that would remain on the parcel transferring rights.

3.

A settlement document indicating that the development rights transferred become final with the recording of the conservation easement and record plan by the Department.

4.

The conservation easement shall permit all uses of open space by classes of land in Table 40.10.210, and any other open space uses specifically approved by the Department as being consistent with Article 10.

E.

For purposes of complying with Article 11, any traffic impact study shall be based upon the proposed density of the receiving property including the transfer of all development rights.

(Ord. No. 97-172, § 3(ch. 13, § 07.210), 12-31-1997; Ord. No. 09-066, § 4, 10-13-2009; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

A.

In the Suburban Reserve and Suburban Districts, development rights may be transferred to concentrate development on one (1) property rather than having the permitted development occur on both properties. Both parcels shall lie within the same planning district.

B.

Development rights may also be transferred from the Suburban Reserve District to the Suburban District within the same planning district, but shall not be transferred in reverse. In a transfer from the Suburban Reserve District to the Suburban District, each such development right shall be counted toward the number of dwelling units as provided in Table 40.07.220. This table is designed to provide an incentive for transfers from Suburban Reserve to Suburban and to preserve the best agricultural land. Section 40.07.221 governs the development limits on the property. When such transfers are proposed, a soil map of the transferring property (certified by Department of Agriculture) shall be provided to verify the transfer bonus amount.

Table 40.07.220
DEVELOPMENT RIGHTS BONUS

C.

Development rights may be transferred from any zoning district to another zoning district within the same planning district for historic preservation consistent with the purpose of Article 15. The approval of the Historic Review Board shall be required prior to all such transfers.

(Ord. No. 97-172, § 3(ch. 13, § 07.220), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

In the Suburban Reserve and the Suburban Districts the maximum amount of development on a parcel shall be limited as follows:

A.

The density of development shall not exceed that permitted by the site capacity calculation in Article 5. If the transfer is from SR to S then the provisions of Section 40.07.220.B shall apply.

B.

On the property where development is to be concentrated, the standards in Table 40.07.221 for open space and density shall not be exceeded.

Table 40.07.221

(Ord. No. 97-172, § 3(ch. 13, § 07.221), 12-31-1997; Ord. No. 09-037, § 1, 10-13-2009)

Where property is limited by sewer concurrence calculations in Article 5, landowners may transfer development rights within the same sewer service subarea so long as they are also located within the same planning district. The transfer may be accomplished provided the following standards are met:

A.

The density of development shall not exceed that permitted by the site carrying calculation in Article 5. Also, the total amount of open space required by Articles 4 and 5 shall not be reduced. Where an improvement is proposed that would alter the calculation, the calculation, plan, and bond (or other surety) for the improvement shall be submitted to the Department.

B.

The maximum density shall not exceed the resource site capacity density, and the total number of units built on both sites shall not exceed the densities in Subsection A.

(Ord. No. 97-172, § 3(ch. 13, § 07.222), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

Land located in planning district 7 (M-O-T) that is zoned suburban reserve shall be exempt from the provisions of this Article for purposes of calculating the value of transferable development rights and shall be considered under all former Code provisions and restrictions on development if the following conditions are met by the applicant:

A.

The transfer of development rights are made from the suburban reserve in planning district 7 into the suburban area of planning district 7.

B.

The rights to be transferred derive from property submitted to the Department for subdivision approval on or before July 1, 1997 (or for which a hardship exception was granted pursuant to the requirements of Ordinance 97-064) and the application has not expired, or from property submitted to the Department for subdivision approval prior to the adoption of this Chapter if the application was not subject to the provisions of Ordinance 97-064 and the application has not expired.

C.

When calculating transferable development right values, lot sizes may be reduced to no less than one-half (½) acre per dwelling unit so long as the overall density of the site as set forth on the transfer plan is in accordance with former Code provisions and restrictions excluding the limit on overall development lot size and density for septic systems.

(Ord. No. 97-172, § 3(ch. 13, § 07.223), 12-31-1997; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

The development rights provided for in this Article do not create any additional property rights and shall be subject to change by amendment of this Article by County Council at any time. However, transferred development rights that make up part of the development depicted upon an approved exploratory plan may not be changed or altered by subsequent amendments of this Article unless the exploratory plan approval expires or the sunsetting provisions of this Chapter extinguish the record plan.

(Ord. No. 97-172, § 3(ch. 13, § 07.224), 12-31-1997; Ord. No. 09-066, § 5, 10-13-2009)

Editor's note— Ord. No. 14-108, § 1, adopted February 3, 2015, repealed the former Division 40.07.300, §§ 40.07.301—40.07.353 in its entirety, which pertained to workforce housing incentives, and derived from Ord. No. 97-172, § 3, adopted December 31, 1997; Ord. No. 98-080, § 1, adopted September 22, 1998; Ord. No. 07-150, § 1, adopted February 26, 2008; Ord. No. 08-113, § 2, adopted December 9, 2008; Ord. No. 08-121, § 1, adopted February 24, 2009; Ord. No. 09-066, §§ 6, 7, adopted October 13, 2009; Ord. No. 10-113, § 1(Exh. A), adopted January 18, 2011; Ord. No. 13-089, § 1, adopted January 28, 2014, and Ord. No. 14-083, § 1, adopted October 21, 2014.

Land development applications that contain historic resources meeting the criteria for designation pursuant to Section 40.15.110 of this Chapter are eligible for bonuses to ensure the preservation of the historic resources.

A.

If the preservation of the required open space around historic properties as classified as an open context or enclosed context site, as defined in Subsection 40.15.111.B. or C., makes it impossible to plan the permitted number of lots, then the development is eligible for reduced lot sizes pursuant to Section 40.07.420, or transferable development rights.

B.

When a property is rezoned to an Historic overlay zoning district, the Historic Review Board may recommend to the Department that increased density to the development or transfer development rights be permitted. To receive such bonuses the developer must provide a preservation plan in accordance with the provisions of Subsection 40.15.310.B.

(Ord. No. 97-172, § 3(ch. 13, § 07.410), 12-31-1997; Ord. No. 02-075, § 1(Exh. A), 10-22-2002; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 20-071, § 6, 10-27-2020)

The purpose for requiring open space around historic properties as classified as an open context or enclosed context site, as defined in 40.15.111.B. or C. is to ensure preservation of the historic setting within the open space required for the open space subdivision or open space planned development. A radius is used to determine the area to be protected and can be modified by Subsection A. Because there is a minimum lot size for open space subdivision developments, it may in some cases prove impossible to develop the permitted number of lots pursuant to Section 40.05.421 due to the increased amount of open space required. If that occurs, the Department is authorized to make corrections using Subsections B, C or D. In planned developments, the developer has flexibility in selecting housing types, so adjustments will be unusual; however, should adjustments be needed, the Department is authorized to use the provisions of Subsections C or D to achieve the permitted density.

A.

The Department may adjust the boundaries of the open space, provided the total size of the open space is not reduced for historic properties classified as an open context site in 40.15.11.B. At the discretion of the Department, a different size buffer may be considered for historic properties classified as an enclosed context site in 40.15.111.C. The Department, upon recommendation from the Historic Review Board, shall consider traditional lotting patterns, land cover and vegetation, topography, views and view sheds, and pedestrian access in determining the shape of the protection area.

B.

The lot size and frontage for all or some of the lots may be reduced so that the developer may develop the permitted number of units.

C.

Depending on the historic character of the site, the open space may be used for detention or recreation, thus lowering the amount of open space required by Section 40.05.421.

D.

The site area requirement for planned developments shall be lowered so that a site which would not otherwise be eligible as a planned development may become eligible by using the planned option at the permitted open space subdivision density and without the increased open space.

(Ord. No. 97-172, § 3(ch. 13, § 07.420), 12-31-1997; Ord. No. 98-062, § 1(ch. 13, § 07.420), 9-22-1998; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)

Historic resources that are preserved and restored for use shall not be counted as part of the maximum permitted development as determined by Article 5 of this Chapter.

A.

A residence that is preserved for detached single-family use shall not be counted as one of the permitted residential lots as determined by Article 5, but shall be a bonus unit if it is preserved and restored.

B.

Historic structures larger than two thousand (2,000) square feet in gross floor area, excluding garages, unfinished basements, enclosed mechanical and storage areas, may be converted to a duplex and shall not be counted as one of the permitted dwelling units as determined by Article 5.

C.

Residential units that are preserved for multifamily uses shall not be counted towards the permitted units as determined by Article 5, but shall be a bonus for preservation and historic rehabilitation or restoration.

D.

When structures are preserved for nonresidential uses, the gross floor area of the historic resource shall not be counted towards the permitted gross floor area as determined by Article 5, and shall be a bonus for preservation and historic rehabilitation or restoration at a percentage determined by the Historic Review Board and in concurrence with the Department of Land Use.

E.

The preservation and historic restoration or rehabilitation of historic resources determined to be either an open context site or an enclosed context site in accordance with Section 40.15.120, shall be eligible for the following where included in passive open space as approved by the Department:

1.

The open space may be sold for use as a developable lot. The lot must be subject to a conservation easement that prevents any improvement on the property which would detract from the historic setting.

2.

The open space may be split into a lot and open space to be maintained by the maintenance organization. The lot and open space must be subject to a conservation easement that prevents any improvement on the property which would detract from the historic setting.

(Ord. No. 97-172, § 3(ch. 13, § 07.430), 12-31-1997; Ord. No. 20-071, § 6, 10-27-2020)

A land development plan containing an historic resource meeting the criteria for designation pursuant to Section 40.15.110 may qualify for a bonus when the applicant proposes rehabilitation or restoration of such historic resource. To qualify for consideration, the applicant must submit with the land development application a pro-forma indicating the cost of the historic rehabilitation or restoration versus the fair market value of the restored or rehabilitated property.

A.

The Historic Review Board may recommend to the Department an appropriate bonus (if any) for the land development plan.

B.

Upon receiving a recommendation from the Historic Review Board, the Department shall consider the following bonuses for the land development application that provide incentives to rehabilitate, restore, and preserve the historic resources:

1.

Bonus of dwelling units in a major residential land development plan.

2.

Additional floor area for nonresidential properties.

3.

Transferable development rights.

4.

Impact fee reduction.

5.

Utilization of an historic Moderately Priced Dwelling Unit(s) (MPDU) in accordance with Section 40.15.320.

(Ord. No. 97-172, § 3(ch. 13, § 07.440), 12-31-1997; Ord. No. 20-071, § 6, 10-27-2020)

Editor's note— Ord. No. 20-071, § 6, adopted October 27, 2020, changed the title of Section 40.07.440 from "Renovation incentive" to "Historic preservation incentive."

The intent of this Division is to promote moderately priced housing that is designed to be available to working families throughout the County, by requiring all major residential subdivisions with a rezoning application or variance application proposing an increase in density to include moderately priced dwelling units and to offer a density bonus for major residential subdivisions not requiring a rezoning if a portion of the dwelling units are designated as moderately priced. Any project that provides moderately priced dwelling units shall also make a designated contribution to the Housing Trust Fund to assist with the provision of affordable housing throughout the County. The primary purposes of this Division include:

A.

Implementing the housing strategies as defined in the New Castle County Comprehensive Development Plan and furthering the strategies identified in the five (5) year consolidated housing plan for New Castle County;

B.

Ensuring that diverse housing options exist throughout the County to accommodate a wide range of incomes; and

C.

Allowing working families to live in communities with better access to employment and educational opportunities and a range of housing types.

(Ord. No. 14-109, § 1, 12-9-2014; Ord. No. 22-024, § 2, 7-26-2022)

Required Moderately Priced Dwelling Units ("MPDUs"). MPDUs shall be required subject to the following conditions.

A.

On all rezoning applications proposing twenty-five (25) or more dwelling units.

1.

If the number of dwelling units proposed with the rezoning are increased by one hundred (100) percent or more over the number of dwelling units under the base density of the existing zoning, the required MPDU set-aside shall be based upon the number of housing types shown on the proposed plan.

a.

On plans proposing five (5) or more housing types, fifteen (15) percent of all dwelling units shall be set aside as MPDUs.

b.

On plans proposing less than five (5) housing types, twenty (20) percent of all dwelling units shall be set aside as MPDUs.

2.

If the number of dwelling units proposed with the rezoning are increased by seventy (70) percent or more but less than one hundred (100) percent over the number of dwelling units under the base density of the existing zoning, fifteen (15) percent of all dwelling units shown on the proposed plan shall be set aside as MPDUs.

3.

If the number of dwelling units proposed with the rezoning are increased less than seventy (70) percent over the number of dwelling units under the base density of the existing zoning, ten (10) percent of all dwelling units shown on the proposed plan shall be set aside as MPDUs.

4.

Base density prior to the rezoning shall be determined by completing a site capacity calculation pursuant to Articles 4 and 5 of this Chapter. The site capacity calculations shall be based upon a by-right development type for the existing zoning district and minimum site area pursuant to Table 40.04.110. The calculations shall be based on the same or equivalent development type proposed by the rezoning.

a.

If no equivalent development type exists under the existing zoning district, the calculation may be based upon the by-right development type that yields the greatest number of dwelling units.

b.

If the rezoning application proposes a change from a non-residential zoning district to a residential zoning district, the number of dwelling units under the base density prior to the rezoning shall be calculated utilizing the Suburban (S) zoning district.

B.

Any variance application proposing an increase in density over the density permitted by-right shall be required to provide MPDUs subject to the percentages provided in Subsection A if the land development application proposes a total of twenty-five (25) or more dwelling units.

C.

Payment-in-lieu of MPDU construction. Where a developer can provide evidence that the inclusion of MPDUs within the rezoning plan poses a significant hardship or would not further the purpose or intent of this division, the Department may allow the payment of a fee-in-lieu of constructing MPDUs, as set forth below.

1.

The Department may consider payment-in-lieu only if the developer can demonstrate that the mandatory community maintenance, membership and recreation fees will create a severe cost burden to a qualified household if the MPDUs were constructed as part of the rezoning application. For purposes of determining severe cost burden, the meanings and definitions promulgated by the United States Department of Housing and Urban Development ("HUD") shall control.

2.

The payment-in-lieu amount shall be the difference between the listed sales price of a market rate dwelling unit and the maximum sales price of an MPDU of the equivalent type.

a.

The maximum sales price of an MPDU shall be based upon the County's Maximum Allowable Sales Price Calculation Chart at the time of payment of the in-lieu fee.

b.

If the sales price of a market rate dwelling unit exceeds five hundred thousand dollars ($500,000.00), the in-lieu fee amount shall be calculated using five hundred thousand dollars ($500,000.00) as the listed sales price. This amount shall be increased by three (3) percent, compounded annually, beginning January 1, 2016.

3.

The in-lieu fee shall be paid for each required MPDU that will not be provided.

4.

All payments-in-lieu shall be deposited in the Housing Trust Fund.

D.

This section shall not apply to rezoning applications where dwelling units are required to meet the residential requirements of a mixed use development.

E.

This Section shall not apply to the acreage associated with the rezoning of historic resources to be preserved in accordance with Division 40.15.300.

F.

On a multifamily conversion application proposing twenty-five (25) or more residential units, ten (10) percent of all units must be set aside as MPDUs.

G.

On a mixed use or transit oriented development application proposing one hundred (100) or more residential units, ten (10) percent of all units must be set aside as MPDUs.

H.

On all pocket neighborhood (Division 40.25.333) and hamlet and village design (Division 40.25.100) development plans proposing twenty-five (25) or more dwelling units fifteen (15) percent of all dwelling units shall be set aside as MPDUs.

(Ord. No. 14-109, § 1, 12-9-2014; Ord. No. 17-094, § 1, 3-27-2018; Ord. No. 20-071, § 7, 10-27-2020; Ord. No. 24-057, § 3, 9-24-2024; Ord. No. 24-137, § 4, 12-10-2024)

Editor's note— Ord. No. 24-137, § 4, adopted December 10, 2024, enacted provisions intended for use as Subsection G. Inasmuch as there are already provisions so designated, and at the discretion of the editor, said provisions have been redesignated as Subsection H.

MPDUs may be provided on a voluntary basis subject to the following provisions.

A.

Density bonus. Any major subdivision proposing dwelling units may receive a density bonus if such plan provides MPDUs.

1.

The residential density incentive shall be up to twenty (20) percent of the base density.

a.

Base density shall be determined by completing a site capacity calculation pursuant to Articles 4 and 5 of this Chapter. The site capacity calculations shall be based upon a by-right development type for the existing zoning district and minimum site area pursuant to Table 40.04.110.

b.

The density bonuses shall be added to the yield produced by the site capacity calculations set forth in Article 5.

B.

Set-aside. The number of MPDUs that shall be set-aside shall be based upon a percentage equaling fifty (50) percent of the density bonus. If the density bonus is twenty (20) percent, ten (10) percent of all dwelling units shall be designated as MPDUs.

(Ord. No. 14-109, § 1, 12-9-2014)

A contribution shall be made for all dwelling units that are not designated as MPDUs on all Traditional Neighborhood Housing Program plans. The contribution shall be twelve dollars ($12.00) per one thousand dollars ($1,000.00) of permit construction valuation and shall be payable at the time of issuance of a Certificate of Occupancy. All monies shall be deposited in the Housing Trust Fund.

(Ord. No. 14-109, § 1, 12-9-2014)

A.

Alternative dwelling unit types may be used to accommodate MPDUs.

B.

MPDUs shall be dispersed and located throughout the development according to dwelling unit type and should not appear as noticeably segregated from the market rate dwelling units of the same type.

C.

The exterior appearance of the MPDUs should be similar to market rate dwelling units of the same type, by providing similar architectural style and similar exterior building materials, finishes, and quality of construction. Prior to exploratory plan approval, the applicant shall submit architectural renderings or design guidelines for the project that are in compliance with the standards of Article 25.

(Ord. No. 14-109, § 1, 12-9-2014)

A.

All Traditional Neighborhood Housing Program plans shall undergo a pre-application sketch plan review/conference and the submission of a concept plan showing the number, type, and location of all dwelling units and the general layout of site improvements.

B.

Prior to record plan submittal, the developer shall submit a staging plan that identifies the locations of the MPDUs. The location of off-site units also must be identified on the staging plan. The staging plan may be modified administratively and shall be considered a construction document for the purpose of record keeping.

(Ord. No. 14-109, § 1, 12-9-2014)

It is the intent of this Division that MPDUs be located within Traditional Neighborhood Housing plans. However, MPDUs may be located off-site where the developer provides evidence that inclusion of MPDUs within the major subdivision plan would pose a significant hardship; or, locating the off-site unit serves a better public purpose than if the unit were to be located in the market rate development. The Department may approve off-site MPDUs subject to the following limitations.

A.

No more than fifty (50) percent of the total required MPDUs are located off-site.

B.

The MPDU is offered for ownership and not as a rental unit.

C.

The off-site MPDU is located:

1.

Within a Market Value Analysis ("MVA") market cluster equal or greater to the record plan site but no more than one letter less. Thus, if the record plan is located in MVA Cluster B, the offsite MPDUs shall be located in MVA A, B, or C. The MVA market clusters are identified in the Delaware Housing Needs Assessment 2015-2012, as may be amended and updated, issued by the Delaware State Housing Authority; or

2.

On a property that is residentially zoned and designated as a problem property or is otherwise abandoned or distressed.

a.

A property is abandoned if: (a) property tax payments are at least ninety (90) days delinquent; (b) a code enforcement inspection has determined that the property is not habitable and the owner has taken no corrective actions within ninety (90) days of a violation notice; or, (c) the property is subject to court ordered nuisance abatement related to property maintenance violations.

b.

A property can be deemed distressed upon approval of the Department pursuant to its policies and procedures.

c.

A property is considered a problem property if it is listed on the Department's problem property list.

D.

Any off-site unit that is not newly constructed pursuant to the standards and requirements of the current County building code, Chapter 6 of the New Castle County Code, must be improved to comply with the rehabilitation standards applicable to the New Castle County Neighborhood Stabilization Program.

E.

A private, public, for-profit or non-profit organization that has been building, rehabilitating and providing affordable housing units within the County or some other similar jurisdiction for at least five (5) years may agree to develop the off-site MPDUs in partnership with the developer pursuant to a memorandum of agreement with the developer and for the benefit of New Castle County. Such agreement shall be approved by the Department and the Office of Law prior to record plan approval.

(Ord. No. 14-109, § 1, 12-9-2014)

A.

MPDUs shall be made available for sale concurrently with the market rate dwelling units for the project. The issuance of building permits for market rate dwelling units shall be stopped at the levels indicated below:

1.

Twenty-five (25) percent pending the issuance of twenty-five (25) percent of building permits for MPDUs;

2.

Fifty (50) percent pending the issuance of certificates of occupancy for twenty-five (25) percent of the MPDUs;

3.

Seventy-five (75) percent pending the issuance of certificates of occupancy for fifty (50) percent of the MPDUs; and

4.

Ninety (90) percent pending the issuance of one hundred (100) percent of building permits for MPDUs.

B.

Payment-in-lieu fees shall be payable at the same percentage and at the same time MPDUs would have been made available. Issuance of building permits shall be stopped at the percentages designated in Subsection A until it is confirmed that payment is made.

C.

The Department may allow a variation to the stop levels listed above at the request of the applicant and based good cause shown and unforeseen circumstances.

D.

If a private, public, for-profit or non-profit organization is providing the MPDUs subject to a memorandum of agreement with the developer, the timing of construction of the MPDUs shall be controlled by the memorandum of agreement.

(Ord. No. 14-109, § 1, 12-9-2014)

Income eligibility and pricing standards shall be based upon the current annual Area Median Income ("AMI") determined by income information and adjusted by household size published by HUD for Metropolitan Statistical Areas (MSA). New Castle County is within the Philadelphia-Camden-Wilmington Metropolitan Statistical Area as defined by the federal Office of Management and Budget.

(Ord. No. 14-109, § 1, 12-9-2014)

A.

Maximum Sales Price (MSP). The MSP shall be established for unit size based on presumed household size and the qualifying level for the applicable AMI target. The MSP shall be reflected on Allowable Sales Price Calculation Charts maintained by the Department of Community Services.

B.

AMI targets. MPDUs designated for homeownership shall be made available to homeowners at two (2) income levels calculated as AMI.

1.

Ninety (90) percent AMI target. Fifty (50) percent of the MPDUs shall be affordable to qualified households with household income up to ninety (90) percent of AMI.

2.

Seventy-five (75) percent AMI target. Fifty (50) percent of the MPDUs shall be affordable to qualified households with household income up to seventy-five (75) percent of AMI.

(Ord. No. 14-109, § 1, 12-9-2014; Ord. No. 17-094, § 2, 3-27-2018)

A.

Rental MPDUs shall be permitted as follows:

1.

In land developments designed as rental communities such as apartment complexes or rental townhouse communities, one hundred (100) percent of the MPDUs may be rental.

2.

In land developments not designed as rental communities, up to fifty (50) percent of the MPDUs may be rental.

B.

MPDUs designated for homeownership may be designated for rental only when all reasonable efforts are made to sell the MPDU to an eligible income qualified household for no less than three hundred sixty-five (365) days and such efforts have failed to result in an offer by an eligible income qualified household for MSP.

1.

Reasonable efforts shall mean listing the MPDU with a licensed real estate salesperson or offering the MPDU through continuous advertisement through a media generally accepted for the marketing of real estate.

2.

Any change in the sale or rental designation of a MPDU shall be documented on the staging plan.

3.

Documentation of reasonable efforts must be provided prior to modification of the staging plan.

C.

Maximum Allowable Rent (MAR). MAR shall be determined by the Department of Community Services upon the submission of the request for affordable rent determination form. MAR shall be established at rates affordable to qualified households with incomes equal to seventy-five (75) percent of AMI.

D.

Household eligibility. Rental MPDUs shall be made available only to qualified households with incomes up to seventy-five (75) percent of AMI.

(Ord. No. 14-109, § 1, 12-9-2014; Ord. No. 17-094, § 3, 3-27-2018)

Qualified household. To determine whether a household is eligible to purchase or rent a MPDU, the household must complete a certification or developer process that has been approved by the Department of Community Services. At the time of purchase, the household must submit an owner-occupancy declaration to the Department of Community Services, declaring that it is income eligible and that the unit is its primary residence. The Department of Community Services will issue a certificate of qualification to a qualified household. All applicants must complete no less than eight (8) hours of HUD approved housing counseling prior to receiving a certificate of qualification.

(Ord. No. 14-109, § 1, 12-9-2014)

MPDUs established by a multifamily conversion, mixed use, or transit oriented development must remain subject to the restrictions contained in this Division for a fifteen (15) year affordability period calculated from the date of first sale or rental of each unit. All other MPDUs shall remain subject to the restrictions contained in this Division for a ten (10) year affordability period calculated from the date of first sale. All resales during the affordability period shall be subject to the following restrictions:

A.

Resale Maximum Sales Price (RMSP). The RMSP of the MPDU shall be calculated as the sum of the original purchase price multiplied by the Consumer Price Index plus the cost of: (1) documented improvements at the time of sale, (2) customary closing costs, and (3) costs of real estate commissions paid by the seller if a licensed real estate salesperson is employed.

B.

All reasonable efforts shall be made to resell the MPDU to an eligible income qualified household for no less than one hundred eighty (180) days. If the MPDU is marketed for resale by a qualified household either through a licensed real estate salesperson or through documented and continuous advertisement through a media generally accepted for the marketing of real estate, and the qualified household fails to receive an offer for maximum price as calculated pursuant to Subsection A above, the MPDU can be sold to any bona fide purchaser at an arms-length transaction. If the seller receives consideration for such transfer in excess of the RMSP, such amount shall be considered the resale profit. The seller and purchaser are jointly and severally liable for and agree to pay the resale profit, multiplied by one (1) minus a fraction, the numerator of which is the number of complete calendar months since the date that the initial purchaser purchased the MPDU, and the denominator of which is one hundred twenty (120) to New Castle County ("NCC's Resale Profit"). The NCC Resale Profit shall be reflected on HUD-1 Settlement Statement. In the event that the seller or purchaser fail to pay the NCC Resale Profit to the County on the date of transfer of title to the MPDU, the County shall have a lien against the MPDU for NCC's Resale Profit, plus interest thereon at the rate of ten (10) percent per annum. Any and all Resale Profit paid to the County shall be deposited into the New Castle County Housing Trust Fund. In the event that a seller or purchaser defaults on any term of the deed restrictions, the County may pursue default remedies in accordance with the terms of the deed restrictions deed rider.

C.

A private, public, for-profit or non-profit organization that has been building, rehabilitating and providing affordable housing units within the County or some other similar jurisdiction for at least five (5) years shall be exempt from following the controls if their own affordability controls that meet or exceed the requirements herein and obtain the approval of the Department of Community Services.

(Ord. No. 14-109, § 1, 12-9-2014; Ord. No. 24-057, § 3, 9-24-2024)

Prior to record plan approval, the developer shall execute a master development agreement in favor of the County, which shall be recorded upon approval of the County's Office of Law.

(Ord. No. 14-109, § 1, 12-9-2014)

Prior to the conveyance of an MPDU, the buyer shall execute a buyers agreement with New Castle County, acknowledging the buyer's acceptance and understanding of the terms and conditions of ownership subject to the Traditional Neighborhood Housing Program.

(Ord. No. 14-109, § 1, 12-9-2014)

Restrictions to ensure continued affordability of MPDU's during the affordability period shall be contained in legally binding covenants and restrictions running with the MPDU property. The covenants and restrictions shall be recorded upon approval of New Castle County prior to the conveyance or rental of the MPDUs. The covenants and restrictions shall be recorded against the MPDU only.

(Ord. No. 14-109, § 1, 12-9-2014)

A written agreement delineating the terms and conditions of the sale or rental shall be required for every sale or rental of a MPDU.

A.

Unless approved in writing by New Castle County, each sales or rental agreement shall reference that the dwelling unit is an MPDU and subject to the affordability controls contained in this Division.

B.

All sales and rental agreements shall be forwarded to the Department of Community Services with thirty (30) days of execution for as long as the affordability period applies to the MPDU.

(Ord. No. 14-109, § 1, 12-9-2014)

The Department of Community Services shall provide County Council with an annual report on the use and effectiveness of this program which shall be discussed at a Council Committee Meeting open to the public. The annual report may recommend amendments to this Division and this Chapter. The report shall include details about how well the program is providing diverse housing options, how well MPDUs are being distributed throughout the County and what factors are contributing to the success or failure of the program. The recommendation report may include suggestions such as increasing or decreasing incentives, modifying restrictions, changing fees, imposing additional requirements or any other recommendation that would further the purpose of the Traditional Neighborhood Housing Program.

(Ord. No. 14-109, § 1, 12-9-2014)

In addition to the County's remedies outlined in Article 31 and elsewhere in the New Castle County Code, the County may take any legal action at law or equity to void property transfers for MPDUs not sold to qualified income-eligible households during the designated affordability period.

(Ord. No. 14-109, § 1, 12-9-2014)

This Division provides incentives for developments that combat sprawl, enhance the viability of older commercial areas, provide employment opportunities, or encourage transit use.

(Ord. No. 97-172, § 3(ch. 13, div. 07.600), 12-31-1997; Ord. No. 24-057, § 4, 9-24-2024)

Editor's note— Ord. No. 24-057, § 4, adopted September 24, 2024, changed the title of Division 40.07.600 from "Infill development bonuses" to "Development bonuses." The historical notation has been preserved for reference purposes.

The following development types shall be eligible for a development bonus.

A.

Community development. These sites are located in areas identified by the comprehensive plan as community development areas.

B.

Corridor redevelopment. These sites are nonresidential zoned sites located in Type 1 commercial corridor development areas.

C.

Transit oriented infill. The site shall be within one thousand (1,000) feet of a transit stop, or have an agreement that a transit stop will be built within one thousand (1,000) feet based on a Delaware Transit Corporation certification that the facility is in the capital budget.

D.

Employment infill. The proposed infill project must be a generator of at least four hundred (400) jobs, and shall be located within one thousand (1,000) feet of a transit stop, or have an agreement that a transit stop will be built within one thousand (1,000) feet based on a Delaware Transit Corporation certification that the facility is in the capital budget. Further, the development shall be required to implement a travel demand management program approved by the Department.

(Ord. No. 97-172, § 3(ch. 13, § 07.610), 12-31-1997; Ord. No. 98-080, § 1(ch. 13, § 07.610), 9-22-1998; Ord. No. 01-112, § 1(Exh. A), 3-12-2002; Ord. No. 06-007, § 2, 3-28-2006; Ord. No. 10-113, § 1(Exh. A), 1-18-2011; Ord. No. 24-057, § 4, 9-24-2024)

Except for uses identified in Section 40.33.270, a land development plan in an area identified as a Community Development Area and consistent with the Community Area Master Plan Key Recommendations in the Comprehensive Plan are eligible for the Community Development incentive. The following apply to land a development plan that includes the Community Development incentive:

A.

A nonresidential land development plan is reviewed as a redevelopment plan under Subsection 40.08.130.B.6 without the requirement to demolish GFA.

B.

The permitted density or floor area ratio is increased by fifteen (15) percent.

C.

The minimum open space ratio or landscape surface ratio in Article 4, Table 40.04.110A is reduced to 0.15.

D.

The development must include elements of building design, site design and amenities identified in the applicable Character Area set forth in Appendix 7.

(Ord. No. 24-057, § 4, 9-24-2024)

Editor's note— Ord. No. 24-057, § 4, adopted September 24, 2024, repealed and reenacted Section 40.07.620 in its entirety to read as herein set out. Formerly, Section 40.07.620 pertained to a mixed use bonus and derived from Ord. No. 97-172, § 3(ch. 13, § 07.620), adopted December 31, 1997.

Editor's note— Ord. No. 06-007, § 3, adopted March 28, 2006, repealed § 40.07.630 in its entirety. Formerly, said section pertained to redevelopment bonus as enacted by Ord. No. 97-172, § 3(ch. 13, § 07.630), adopted Dec. 31, 1997.

Corridor redevelopment occurs on developed nonresidential land identified by the Comprehensive Development Plan as a Type 1 Commercial Corridor Development Area. The following apply to land development plans that include the Corridor Redevelopment incentive:

A.

A nonresidential land development plan is reviewed as a redevelopment plan under Subsection 40.08.130.B.6 without the requirement to demolish GFA.

B.

The development must include elements of building design, site design and amenities identified in the applicable Character Area set forth in Appendix 7.

(Ord. No. 24-057, § 4, 9-24-2024)

Editor's note— Ord. No. 24-057, § 4, adopted September 24, 2024, repealed and reenacted Section 40.07.640 in its entirety to read as herein set out. Formerly, Section 40.07.640 pertained to an infill bonus and derived from Ord. No. 97-172, § 3(ch. 13, § 07.640), adopted December 31, 1997.

A bonus for transit oriented development shall be provided as follows:

A.

Rail transit oriented infill shall receive a bonus of up to thirty (30) percent to be granted pursuant to the rules of this Section.

1.

The development shall be zoned and built to Suburban Transition (ST), Commercial Neighborhood (CN), or Commercial Regional (CR) standards, except:

a.

The minimum open space in Table 40.04.110 shall be reduced by twenty-five (25) percent to accommodate the extra density.

b.

Mixed uses within four hundred (400) feet of the transit stop may go to five (5) stories or seventy-five (75) feet.

c.

Multi-family developments shall meet the lot and bulk requirements of Table 40.04.112 except that the units may be five (5) stories or sixty (60) feet in height.

2.

The minimum parking for mixed use, higher density, attached or multi-family units is reduced by twelve (12) percent.

3.

The rail transit station may have structured parking incorporated into a mixed use building. The Department may modify the mixed use requirements to provide the needed commercial and residential parking in close proximity to the station.

B.

Bus transit oriented infill, zoned for Suburban Transition, shall receive a bonus of up to twelve (12) percent and to be granted pursuant to the rules of this Section.

1.

The maximum open space in Table 40.04.110A shall be reduced from twenty (20) or twenty-five (25) percent to fifteen (15) or twenty (20) percent to accommodate the extra density.

2.

The highest intensities shall be located so as to have direct pedestrian access to the bus stop.

3.

Shall be located within one thousand (1,000) feet of the transit stop.

(Ord. No. 97-172, § 3(ch. 13, § 07.650), 12-31-1997; Ord. No. 24-057, § 4, 9-24-2024)

An employment generator shall submit a travel demand management program that specifies the reduction of peak hour trips to be provided by the plan. Based on a parking and traffic analysis, the reduction in peak hour trips shall be translated into a lower trip generation rate. That lower rate shall be used in Table 40.05.110 to calculate the permitted floor area. Further, an additional ten (10) percent shall be granted if the project is a mixed use project. In granting the bonus the following shall be required:

A.

Total parking spaces shall be reduced to take into account the reduction in peak hour trips. A contingency plan to require structured or at grade parking shall be submitted that must conform to required landscape surface ratios.

B.

A special service district shall be created to ensure that the transit or other capital or fiscal elements of the plan are funded over time.

(Ord. No. 97-172, § 3(ch. 13, § 07.660), 12-31-1997)

In order to increase the quantity and suitable housing stock for older New Castle County citizens, and in recognition of the fiscal advantages of age-restricted communities, developments comprising of single-family detached and single-family attached housing types (including twins) intended for occupancy and use by individuals age fifty-five (55) and older pursuant to the provision of the Housing for Older Peoples Act (HOPA) of 1995 of the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq. may, at the Department's discretion, receive up to a twenty (20) percent density bonus as indicated in the Age Restricted Development Options contained in Table 04.110 A. In addition, all of the following provisions shall be satisfied:

A.

The density bonus shall be applicable only to proposed residential developments in the S (Suburban) and ST (Suburban Transition) zoning districts.

B.

All provisions of the Federal Fair Housing Act (42 U.S.C. § 3601 et seq.) shall be complied with by the applicant to the satisfaction of the Department and County Council.

C.

All dwelling units that are to be part of the age restricted community shall be deed restricted to contain all necessary living arrangements on the first floor. This shall include at least one (1) bedroom and full sanitary facilities, including shower/tub installation, on the first floor of the dwelling.

(Ord. No. 00-011, § 2, 6-13-2000; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)