Austin Downtown Density Bonus Program: how downtown projects exceed the base entitlement

Figure 2 sets the ceiling, and it does not change your base entitlement

Two maps govern eligibility. Figure 1 draws the downtown district boundaries. Figure 2 shows which properties are eligible for a bonus and the maximum floor-to-area ratio and height each may reach.

Two rules about Figure 2 that are easy to get backwards:

• §25-2-586(B)(3) — the bonus is limited by the maximum on Figure 2. It is a ceiling on what the program can deliver.
• §25-2-586(B)(4) — those maximums do not modify a site's primary entitlement. If your base entitlement already exceeds the Figure 2 number, Figure 2 does not cut it down; the bonus area is instead calculated from the primary entitlement up to the Figure 2 maximum.

So Figure 2 constrains the bonus, not the underlying zoning.

The development bonus fee varies by use and by district — there are nine downtown districts, and the fee applicable in each is set by ordinance rather than in this section.

Council can go above Figure 2 — and unbundled parking is the price

§25-2-586(B)(6) lets City Council grant floor-to-area ratio or height beyond the Figure 2 maximum. The route is demanding:

1. The applicant must have already achieved the Figure 2 maximum through the program — you cannot skip to the override.
2. A written request and rationale goes to the director.
3. The director makes a written recommendation, which goes to the Planning Commission for review and recommendation.
4. Council must then find all four of the following.

The four findings:

• additional community benefits from the same menu, above and beyond those already used to reach Figure 2;
• agreement to use the same methodology and bonus area per benefit as the program uses;
• a determination that the award substantially furthers the goals of the Downtown Austin Plan and the Imagine Austin Comprehensive Plan; and
• the applicant has agreed that any residential parking space shall be offered separately from the dwelling unit.

That last condition is a policy hook worth noticing. Going above the mapped maximum requires unbundling parking from housing — the parking space must be sold or leased separately rather than baked into the unit.

Three gatekeepers come before any benefit counts

The program trades bonus floor area and height for community benefits — but you do not reach the trade until three gatekeeper requirements in §25-2-586(C)(1) are satisfied:

1. Urban Design Guidelines. The director must determine the project substantially complies. The applicant submits a schematic site plan, elevations and whatever drawings or simulations are needed to describe the project's urban design character and its relationship to its surroundings. The Design Commission evaluates and recommends; the director must consider its comments.
2. Great Streets. A restrictive covenant committing to streetscape improvements along all public street frontages, consistent with the Great Streets Standards.
3. Green Building. A restrictive covenant committing to a minimum two star rating under the Austin Energy Green Building program — at the ratings in effect when the project is registered — plus a signed Letter of Intent handed to the director before any bonus area is approved.

Two of the three are restrictive covenants. These are commitments recorded against the land, not undertakings that expire with the permit.

The TxDOT frontage exception

Great Streets improvements are not always physically deliverable. Where a property sits on a Texas Department of Transportation frontage, §25-2-586(C)(1)(c) treats the applicant as having provided the streetscape improvements if they instead pay:

• a fee-in-lieu set by separate ordinance; and
• a one-time maintenance obligation fee, also set by separate ordinance.

The Transportation and Public Works director may then spend that money on Great Streets capital improvement projects elsewhere in Downtown. The benefit is relocated rather than waived.

Twelve categories of community benefit — and why staying inside them matters

Subsection (E) sets out twelve benefit categories. The incentive to use them is procedural and significant:

If the applicant chooses to achieve 100 percent of the desired bonus area by providing community benefits described in Subsections (E)(1)—(12), the director may approve the bonus area administratively.

Achieve everything through the menu and the director can approve it. Step outside the menu and you lose that route.

The twelve:

1. Affordable Housing
2. Rainey Street Subdistrict Historic Preservation
3. Day Care Services
4. Cultural Uses
5. Live Music
6. On-Site Improvements for Historic Preservation
7. Development Bonus Fee for Off-Site Historic Preservation
8. Green Building
9. Publicly Accessible On-Site Plaza
10. Off-Site Open Space Development Bonus Fee
11. Green Roof
12. Other Community Benefits

Only the affordable housing category is detailed below — it is the one the Rainey Street provisions route through. The mechanics of the other eleven are not reproduced on this page.

Affordable housing: three routes, and the rates are elsewhere

§25-2-586(E)(1) offers an applicant one or more of:

• On-site affordable housing — bonus area per square foot of dwelling unit space devoted to it, at a rate established by ordinance.
• Family-friendly housing — additional bonus area per family-friendly eligible bedroom, again at a rate established by ordinance, available only to a project already providing on-site affordable housing.
• Development bonus fee — a dollar-per-square-foot payment into the Affordable Housing Trust Fund.

And for mixed-use projects, §25-2-586(F) requires community benefits in proportion to the floor area devoted to residential uses.

The sequence, and where it can go wrong

Two provisions set hard timing, and both sit earlier in a project than people expect.

§25-2-586(H): before the director may issue any type of Certificate of Occupancy, the applicant must have fulfilled all obligations — fees paid, restrictive covenants executed. And the sting is in the second sentence: all approvals must be obtained and evidence provided to the director prior to site plan submittal. Not prior to permit. Prior to site plan submittal.

§25-2-586(I): once the submission requirements are met and the covenants executed, the director issues a written notice of approval stating the project's allowable floor-to-area ratio and height. That notice is the document that fixes the entitlement.

Compliance does not end at occupancy either. The Neighborhood Housing and Community Development Office conducts ongoing compliance and monitoring of the affordability requirements, under rules its director establishes.