1507.1 The construction of penthouse habitable space on a building that is devoted to entirely non-residential or lodging use shall contribute funds to the Housing Trust Fund in accordance with the procedures and requirements of Subtitle C §§ 1507.6 to 1507.10.

1507.2 The construction of penthouse habitable space on a building that is partially or entirely devoted to residential use is subject to the Inclusionary Zoning set-aside provisions of Subtitle C, Chapter 10, Inclusionary Zoning, at 50% MFI in accordance with Subtitle C §§ 1003.7 and 1507.5, except for:

1. (a) Penthouse space on a multi-family building devoted exclusively to communal rooftop recreation or communal amenity space for the primary use of residents of the building; or
2. (b) Penthouse space on the roof of single household dwelling or flat.

1507.3 The requirements of this section shall not apply to properties owned by the District government or the Washington Metropolitan Area Transit Authority and used for government or public transportation purposes.

1507.4 The penthouse habitable space set-aside shall be calculated as gross floor area but shall mean “net residential floor area” for purposes of Subtitle C § 1003.

1507.5 Inclusionary units resulting from the set-aside required for penthouse habitable space as described in Subtitle C § 1507.2 shall be provided within the building, except that the affordable housing requirement may be achieved by providing a contribution to the Housing Production Trust Fund consistent with the provisions of Subtitle C §§ 1507.6 through 1507.10, provided that the calculation of the contribution shall be based on the maximum permitted residential FAR when:

1. (a) The new penthouse habitable space is being provided as an addition to an existing building which is not otherwise undergoing renovations or additions that would result in a new or expanded Inclusionary Zoning requirement within the building;
2. (b) The penthouse habitable space is being provided on an existing or new building not otherwise subject to Inclusionary Zoning requirements; or
3. (c) The building is not otherwise required to provide Inclusionary Units for

eligible households earning equal to or less than fifty percent (50%) of the MFI if the amount of penthouse habitable space would result in a net floor area set-aside less than the net floor area of the smallest dwelling unit within the building.

1507.6 When the construction of penthouse habitable space results in a contribution to the Housing Trust Fund, the contribution amount and timing shall be in accordance with the provisions of Subtitle C §§ 1507.7 through 1507.10.

1507.7 The required amount of the Housing Trust Fund contribution shall be determined as follows:

(a) First multiply the land area upon which the building is or will be located by the maximum by-right permitted FAR for the proposed use of the building to determine the maximum permitted gross square feet of development on the site;

(b) Second, divide the assessed value of land upon which the building is or will be located by the maximum permitted gross square feet of development to determine a value per square foot;

(c) Third, multiply the value per square foot by the total gross floor area of the penthouse habitable space to be constructed; and

(d) Finally, multiply this sum by fifty percent (50%) to determine the contribution.

1507.8 For the purposes of the calculation of Subtitle C § 1507.7:

(a) The land area upon which the building is or will be located shall include the entire record lot or combination of all tax and air lots comprising the entire record lot regardless of ownership;

(b) The maximum permitted by-right FAR shall be based on the existing or, when applicable, the approved zoning designations, and shall not include any bonuses, credits, zoning relief or flexibility granted, planned unit development density increases, or grandfathered conditions, and shall be determined as follows:

(1) For an entirely non-residential or lodging building, the maximum permitted non-residential FAR shall be used, regardless of the use of the habitable space;

1. (2) For buildings that are partially or entirely devoted to residential use, the maximum permitted residential FAR shall be used, regardless of the use of the habitable space;
2. (3) For the Downtown (D) zones, if not otherwise specified, the maximum permitted residential FAR permitted shall be 10 FAR; and
3. (4) In R and RF zones, projects with a maximum permitted lot occupancy of 40% or less shall use an equivalent of 1.2 FAR, and projects with a maximum permitted lot occupancy of 60% shall use an equivalent of 1.8 FAR;- (c) The assessed value of land shall be the fair market value of the land as indicated in the property tax assessment records of the Office of Tax and Revenue (OTR), at the time the payment is due to be submitted pursuant to Subtitle C §§ 1507.9 and 1507.10; and
4. (d) The total gross floor area of the penthouse habitable space shall be determined as follows:
5. (1) For entirely non-residential or lodging buildings, all forms of habitable space shall be included in the total gross floor area of the penthouse habitable space;
6. (2) For buildings that are partially or entirely devoted to residential use, all forms of habitable space, except space devoted exclusively to communal rooftop recreation or amenity space for the primary use of residents of the building, shall be included in the total gross floor area of the penthouse habitable space; and
7. (3) For purposes of (i) and (ii), total gross floor area of the penthouse habitable space includes enclosed hallways, vestibules, washrooms, and other service space serving any habitable or non-habitable space.

1507.9 Except as described in Subtitle C § 1507.10, not less than one-half (0.5) of the required total financial contribution shall be made prior to the issuance of a building permit for construction of the penthouse habitable space, and the balance of the total financial contribution shall be made prior to the issuance of a certificate of occupancy for any or all of the building's penthouse habitable space.

1507.10 Where the proposed penthouse habitable space or the building on which it is

located is subject to a Planned Unit Development, or is located on property for which the Zoning Commission approved a Map Amendment no more than five (5) years prior to the filing of the building permit application to construct the penthouse or building, the Housing Production Trust Fund payment required pursuant to Subtitle C §§ 1507.6 through 1507.8, shall be as follows:

(a) Prior to the issuance of a building permit for any penthouse space, not less than one-half (1/2) of the required total Housing Production Trust Fund contribution shall be made in accordance with the calculation of Subtitle C § 1507.7, based on the fair market value of the land as indicated in the property tax assessment records of the OTR at the time that the building permit application is accepted as complete by the Department of Consumer and Regulatory Affairs; and

(b) Prior to the issuance of a certificate of occupancy for any penthouse space, the calculations of Subtitle C § 1507.7 shall be repeated based on the fair market value of the land as indicated in the property tax assessment records of the OTR at the time of certificate of occupancy issuance; and the balance of the required total contribution, minus the amount paid pursuant to the contribution of Subtitle C § 1507.7(a), shall be made.

SOURCE: Final Rulemaking published at 63 DCR 2447, 2712 (March 4, 2016 – Part 2); as amended by Final Rulemaking published at 66 DCR 13705 (October 18, 2019); as amended by Final Rulemaking published at 68 DCR 7215 (July 23, 2021); as amended by Final Rulemaking published at 68 DCR 013834 (December 24, 2021).