InclusionaryZoning in the District of Columbia: Opportunities for Improvement
Planning of cities and municipalities isimportant to ensure balanced growth and socially cohesiveneighborhoods. The main element of this planning is based on theimplementation of zoning laws. Zoning laws and regulations are theimplements of local governments in most cases to control developmentand to effectively segregate the kinds of activities or the intendeduse of a tract of land. Zoning laws can also be used to control otherfactors that are important to city planners. This paper will explorethe importance of zoning laws and the adoption of Inclusive Zoning,IZ by Washington DC. The discussion in this paper will illustratethat Inclusive Zoning program in DC is important, but should beimproved in terms of implementation to provide better housingsolution.
Imagine purchasing a home in the city of yourdreams in the United States. It is located on a quiet, PicturesqueStreet, surrounded by beautiful gardens and fountains. On the samestreet, the other homes look similar in terms of size and quality.The investment seems to be a good one with a perfect house in theperfect neighborhood for a good life. Then one day, you are drivinghome and to your horror, there is a sign right next to your drivewayannouncing construction of a soon-to-be-opened amusement park andbeer garden. A commercial business right in the middle of a quietresidential area is not a great plan and does not make sense. Theconstruction of the commercial property will cause a lot ofdisturbance for you and your family, together with other neighbors.You now start meeting with neighbors discussing how unfair andunplanned the investment in commercial property is in yourneighborhood. Soon enough, you start thinking of how you will sellthe house and buy a new house in another part of the city.
This case shows the reason why the UnitedStates of America, like most other developed countries have zoninglaws. Zoning laws are important in the control of other factors arenecessary for city planners. Among the important factors include thepopulation density and building appearance. Therefore, the stateauthorities impose restrictions on the population density of certainareas and building appearance requirements on the construction ofcertain zones. Effective and enforced zoning laws add an element ofstability to a defined geographic area so that residents, businessowners and developers all understand what kinds of development arepossible.
In the example above, the commercial parkwould not be approved to be built if the zoning laws were to beimplemented well. Alternatively, if the land was originally plannedto be commercial, the current residential houses would not have beenallowed to be built. The developers would have been advised earlyenough before the establishment of their residential investments. Theimplementation of the laws assures that a locality will enjoy betterresidential areas, safe homes and uninterrupted commercialestablishments. In the example of the homeowner in the example above,zoning laws also add assurances that one can buy his or her dreamhome without having to worry that the amusement park or a pig farmwill move in next door.
Effective implementation of Zoning Laws
Effective implementation of zoning laws isimportant for the balanced development of any city or country.Despite this importance, the implementation of the laws isaccompanied with controversy. Most people view the laws as extremecontrol or regulation by the government or state authorities thatinfringe their independence of using their land. Americans are anindependent lot, and many do not like government control orregulation over any part of their life. For many people, the ideathat the local government through the use of restrictive zoning lawsthat control what kinds of structures are built on a property thatthey own is an overreach by government to control their lives.
From a policy perspective, there are larger,more nefarious issues associated with how some zoning laws have beencreated, particularly about building, zoning that serves by design tosegregate the population either socially or by economic class. Theresults of some types of exclusionary zoning laws in the UnitedStates have effectively been used to advance the status quo of someregions in terms of social discrimination. For instance, some ofthese laws are alleged to have enabled some municipalities tosegregate people or zones by race or income by dictating residentiallocations and what kinds of retail goes where.
While those kinds of social engineering thatuse zoning laws have largely evolved, there are second and thirdorder effects of the laws that perpetuate segregation even if theregulations were not intended to do so. For example, an area zoned ashigh-density housing will inevitably be attractive to developers tobuild residential units that pack as many units as allowed by law.This leads to the development of high rise apartments andcondominiums, leaving a little open space or green spaces, andparking structures to support the people living in such dense areas.Because the units will be dense and small, the price theoreticallycan be cheaper for those who can afford a less dense area will chooseto live elsewhere. The result is these kinds of high-density areasare attractive to lower income people on the economic scale.
In some metropolitan areas, the greatestnumber of low income households also may share a common racialdemographic. Although such an outcome is not a desired zoning resultor a planning goal, it may by virtue of the type of housing alone,lead to a kind of segregation. The effect of this kind of economicand racial segregation ends up having far-reaching tangential impactsto people who live in non-integrated neighborhoods. Living in suchneighborhoods presents several disadvantages apart from the basicissues of not living in a diverse world with the opportunity to liveand work with people with different social levels.
It is highly likely that some of the peoplewill be alienated on some social-economic aspects such as income,ethnic, religious and social backgrounds. For instance, aneighborhood where most of the population is lower income will alsomost likely have schools that are under-resourced, teaching staffthat are inexperienced or underpaid. School performance may be belowaverage, which drives those who are only marginally able to spendmore in housing and look for homes elsewhere.
In addition, such neighborhoods may bedeveloped without considering the transportation hub infrastructurefor people to commute to work. Local business development may bestunted or precluded, which impacts the quality of life for aneighborhood’s residents and may cause potential businesses lookelsewhere. The effect is one where the people who are attracted to aplace by the lure of lower cost housing perpetuates a cycle ofdensely populated neighborhoods that:
1) Are underserved by multi-modaltransportation options.
2) Have public school systems that are under-resourced and maybebelow average in performance because the tax base of the area servedby the school generates less revenue for public spending.
3) Lack of basic retail options (grocery stores, drug stores) withmany vacant business spaces or businesses that are not economicallyviable
4) Lack little or no open/green spaces, which may have negativehealth consequences.
The result is a self-perpetuating cycle ofpeople who are caught up in a social-economic trap. The trap is basedon their location, baited by a life in these kinds of developmentswhose future for improving their economic circumstances is inhibitedby the very place they can afford to live. Their ability to achievefinancial stability, the chance for home-ownership, and to have theeconomic mobility to move to areas where schools and opportunitiesfor their families are improved is inextricably tied to the zoningplan or zoning law that created the neighborhood they live in.
In a rational, the scenario above and theeffects of zoning laws and zoning plans that are used to designmunicipalities are not all bad nor do they all end up in promoting asegregated society either by economic status or ethnicity. Goodzoning policy and thoughtful implementation of zoning laws to ensurethat the right developments are done in the right location is animportant part of urban design practice. In many major U.S. cities,though, failure to promote exclusive zoning has not produced thekinds of change in neighborhood demographics and integration thatlocal governments want to achieve. A new kind of zoning policy thatincentivizes planners and developers to create neighborhoods wherethere are affordable homes for low and middle-class citizens topurchase without competition from higher income homebuyers or rentersis the very essence of Inclusionary Zoning (IZ). In the graphicbelow, the areas included in the DC IZ policy are highlighted towhere the IZ policy is in effect.
Graphic 1: IZ Zoning Overlay inthe District of Columbia [ CITATION Dep09 l 1033 ]
The focus is on two components of the DHCD’smanagement of the inclusionary zoning program structure and toidentify the ways to improve it:
1) Options for streamlining the process and eliminating eligibilityand financing barriers for the IZ participants to purchase and sellhomes in the District (FHA loan eligibility, IZ covenants and sharedequity)
2) Changing DHCD IZ program structure and management oversight toleverage non-profit and existing affordable housing program expertise(Lottery and application timeline, City First)
DC InclusionaryZoning Overview
IZ as a zoning policy option and tool in theplanner’s toolkit has been part of the zoning and the plannerlexicon since the 1980’s, and has been implemented across theUnited States in many large metropolitan areas. Even with thatlegacy, IZ policy and the use of inclusionary zoning remains acontroversial topic. Opponents see IZ policy as the mechanism for amunicipality to socially engineer the makeup of citizens that live ina neighborhood instead of allowing them to self-integrate. Theobvious flaw in these arguments is that it is not an apples-to-applescomparison. Forced bussing to force schools to integrate disparatechildren based solely on ethnicity and to change the demographics ofa school system is not the same. Such an outcome is not even in thesame realm as using zoning law, policy to provide opportunities forlow and middle income families to buy or rent a house in aneighborhood that is outside of their affordability range. IZ policysets up the opportunity for people to buy or rent property indifferent neighborhoods. Developers also benefit because they can useIZ zoning to create an even denser neighborhood where they canmaximize their profit potential and compete for density bonuses.Nobody is forced to do anything, but an opportunity for both thedeveloper and citizen is created when IZ policy is used toincentivize buyers and sellers.
The DC IZ program is a very creative tool increating more affordable housing from a policy standpoint. Inaddition, the 2012 Mayor’s Task Force agreed with that premise aslaid out in the “Bridges to Opportunity: A New Housing Strategy forD.C” (District of Columbia Government, 2012). According to theDistrict of Columbia Government (2012) the inclusionary zoning policyrequires builders and developers to set aside 8-10% of the units innew rental/condominium of ten or more units and renovations ofexisting buildings expanding by 50% or more. In return, 20% densitybonuses and other incentives are offered to developers to offset thecost burden of incorporating the affordable units (DHCD, 2009). Onthe buyer’s side of the equation, the program IZ targets householdsearning less than 50% of AMI and between 50% and 80% of AMI.According to the Department of Housing and Community Development(2014), this depends on zoning and construction type of the unitbeing developed.
ProgramStructural Issue: Barriers to IZ plan participation
One of the mainbarriers to the effective implementation of the IZ plan is thestructural issue of affordability of the houses. When someone in theUnited States decides to purchase a house, the process isstraightforward. Based on verifiable income and financial status ofthe buyer, they are pre-qualified for a loan amount. That loan amountcreates the boundary for affordability and the types of homes thebuyer is eligible to buy. Therefore, the broker trying to sell homesknows what price range of houses and what neighborhoods offer themost choices for the buyer to choose. Once the buyer decides, anoffer is made to the seller, the seller accepts or rejects the offerand the final price is negotiated until both parties agree. The loanprocess begins and 30-45 days later, the property goes from being inescrow to a sold property.
Another barrier to the effectiveness of the IZprogram is the regulations that accompany the program. For people whoare purchasing a home through the DC affordable homes inclusionaryzoning process, the opportunity to purchase or rent an affordablehome that is well outside the range of homes they would normallyqualify for comes with the extra burden of regulations and processesthat can act as a barrier to participation. That barrier is createdby the length of time purchasing a home in an IZ area can take forlow and middle class families as well as the additional stepsrequired to get from finding the right home to closing on the loan.What may take a non-IZ homebuyer 3-4 months to complete could take anIZ homebuyer up to 26-30 months to complete based on the processcaptured in graphic 2 below.
Graphic 2: IZ Home Purchaseprocess[ CITATION Dep09 l 1033 ]
The same kinds of cumbersome regulations andcovenants under the DHCD IZ program exists for participants whenselling a home that was purchased using IZ housing stock. The resultis that homeowners, who afford the risks of home ownership, areburdened with the risks without the benefits enjoyed by those whopurchase homes. Therefore, the current program structure limits thefull participation in wealth creation by owning real estate, and theportability and mobility of that wealth. This limitation exists whenhome ownership through the IZ program is combined with otherregulatory barriers.
Financing/FHA Loan Restrictions andchallenges:
The Federal Housing Administration (FHA), anagency of the Department of Housing and Urban Development (HUD),provides several mortgage loan programs for low to moderate-incomehomebuyers. FHA loans have affordable market rates and have a lowerdown payment requirement. FHA loans require a minimum down paymentof 3% of the loan amount in cash to access the loan and get thecredit. FHA loans are appropriate for those below 80% AMI looking tobuy homes and is the primary mechanism that can enable IZparticipants to finance their home.
Due to covenant clauses, the FHA will notallow resale restrictions to survive foreclosure. The District doesmaintain the option to purchase properties in foreclosure, butcurrently has no way to anticipate those issues and to exercise theright to purchase the unit and keep it in the city’s affordablehousing stock (Hickey, Sturtevant, & Thaden, 2014). This issuehas made it increasingly hard for potential homeowners to securefinancing to purchase homes by trying to get other financing programslike Home Purchase Assistance Program (HPAP). This situation limitsnew families from outside the district and second time home buyers.
Although DCHD has established relationshipswith nonprofits to help finance the home and generate the required 3%down payment the process is long and has too many regulations tounderstand. The result is that IZ housing inventory sits on themarket unable to be sold because IZ home buyers cannot securefinancing. For example, the North Georgia Avenue properties added toIZ home inventory in 2012 were unsold and as non-performing assetsfor 18 months since the houses sat on the market waiting for loans tobe approved as laid out in the Manna report of 2013. DHCD has sinceincorporated detailed screening for applicants and relied onnonprofits such as City First to provide the mentoring andfacilitation of different finance tools to help new homeowners (DHCD,2014).
Resale of Homes
The IZ for-sale units have resale restrictionsthat require the home to be sold at the IZ affordable market pricethat is determined by a resale formula. This restriction ensuresthat affordable housing stock is returned to inventory to keep a basenumber of units in rotation to provide housing options under the IZprogram. The resale price as an index-based formula that ispredicated using a ten-year compound annual growth rate of the areamedian income and the value of eligible capital improvements,replacements, and repairs done to the house. This resale modelprevents people from flipping houses for a quick profit and keeps theaffordable housing stock stable.
The problem with this model is that homeownersunder the IZ program do not benefit from rapid increases in realestate prices like those enjoyed by a typical non-IZ owners. For manypeople, their home is the single largest purchase and investment theywill ever make. Therefore, cutting the IZ homebuyer out of the upsideof investing in real estate does not only limit wealth creation, butalso acts as a barrier to IZ participation. Affordable Housingnonprofits like Manna have been leading advocates for allowing IZhomeowners the full benefits of homeownership and earning wealth byallowing the IZ homeowners to sell their homes at market rate value.After the city recaptures a predetermined IZ subsidy from the seller,they simply place the property back on the affordable housing market.The San Jose model allows people to build enough wealth when themarket is good and eventually enables IZ home sellers to get out ofthe affordable housing loop as their wealth amassed. Another benefitis because IZ homeowners are full participants as homeowners theyare incentivized to care for their homes as an investment in order tomaximize the potential for profit upon selling (Scruggs, 2013).
Rapidly increasing condominium Home OwnerAssociation (HOA) fees and expenses outside the cost of mortgage suchas insurance and tax payments have become an issue in the District,even for affordable home units. In some cases, over 2 to 3 years HOAfees increased by over 100% and added a lot of strain to affordablehousing participants (Davis, 2006). In the IZ Policy, the Office ofPlanning incorporated in the initial sales figures to account for a30% increase in HOA fees over time. However, as cited by affordablehousing nonprofit organizations like Manna, there is concern thatthis is not enough based on its study of the Affordable Dwelling Unit(Scruggs, 2013). HOA boards that represent mostly non-IZ homebuyersmay exacerbate the problem by approving new amenities or changes thatdrive HOA fees up and result in creating an environment where the IZbuyer exceeds 41% of income and becomes even more house poor. Thefact that HOA fees continue to increase with no cap on how high theycan be raised creates a barrier for potential IZ homebuyers. This isin addition to the almost unlimited risk of this non-mortgage costincreasing to the point where they can longer afford to live in acondominium.
Other metropolitan areas have alloweddevelopers and homeowner associations to use other methods to controlHOA cost increases. One interesting yet very controversial method insome New York City’s IZ zoned condos and apartment developmentsrecently implemented was for developers to add a separate entrancefor affordable home tenants and restricted them from enjoying theamenities that were available to non-IZ home buyers, but also did notcharge the IZ home buyer the increased HOA fee. The long-term effectsof this kind of policy are unknown at this point, but it coulddevalue properties for IZ units later down the line (Sorkin, 2014).
ProgramStructural Issue: DHCD IZ Program management
The District of Columbia’s IZ program isoften lauded as one of the most progressive and well-constructed IZprograms implemented in 2007. However, the program is regularlycriticized by opponents for issues such as not being sociallyinclusive, and for inflating the DC housing market. Regardless of theunderlying zoning law, the District has had a continuing problem withaffordable housing. Now that the real estate market in DC has largelyrecovered from the 2007-2011 housing bubble and economic recession,the affordable housing issue is more apparent than ever. Thechallenge for DHCD and city leaders is how to fairly createaffordable housing in a city-state that is geographically confined togrowing affordable housing needs.
The inclusionary zoning program structure andhow the District’s Department of Housing and Community Development(DHCD) manages this task is complicated, lacks transparency, and isover regulated. This scenario creates barriers to the participationfor the people that the program was developed to serve. Another majorissue is that as a government office, DHCD is also beinginsufficiently resourced for the amount of bureaucratic overhead itmust manage for the program. Such incapacitation renders itsoversight role ineffective in the delivery of a robust, affordablehomes program to the citizens of DC, which makes its outcomes lessthan satisfactory. It is important to note that there are three majorDC agencies responsible for planning and implementation of theDistrict’s IZ program The Department of Housing & CommunityDevelopment (DHCD), Department of Consumer & Regulatory Affairs,and the DC Office of Planning. All these must work in partnership todevelop the program infrastructure and support each other to make theIZ policy work.
One only has to look at the results of the DCIZ program to see where there are challenges that must be addressedin order for the program to be successful. The inclusionary zoningpolicy was first adopted in 2007, implemented in 2009, and the firstunits were made available in 2012. The first two IZ units were addedto the available housing list in 2012 although these units remainedunfilled for 18 months because the applicants who participated in a6-month long lottery process could not secure a Federal HousingAdministration (FHA) home loan just one of the many administrativeissues potential IZ homeowners face (Cort, 2013). As of March 2014,only 53 IZ units have been produced with 47 rental and 6 for-sale.In addition, there are more than a 1,000 in the pipeline, which meansthat there will be some administrative challenges ahead (Hickey,Sturtevant, & Thaden, 2014).
Another management challenge for DHCD isassociated with managing what happens after an IZ dwelling is sold.Actively managing the housing inventory, providing a continuingprogram of education services and managing resources to help IZhomeowners maintain the home are all important to the success of theprogram. A shortfall in any aspect of these support programs can leadto an IZ home going into the foreclosure process, which becomes aburden for the IZ program staff to manage.
The DC IZ program advertises itself as beingbased on a shared-equity model, but the program is not reallystructured in a truly shared equity model. The deviation is becausethe IZ owner is limited to an AMI indexed profit plus any propertyimprovements made during the time the property was owned. In othershared equity programs, also known as third sector housing, theirplan is structured in a way that the homeowner receives some type ofsubsidy from a government agency or nonprofit group. This structurereduces the purchase and payment costs borne by the homeowners. Inreturn, the homeowner shares the rise in the home’s value with homeownership entity or ownership by a government agency or nonprofitorganization (Newman, 2008).
The result for this arrangement is that almost 70% of the participants in a shared equity IZ program go on topurchase a market-rate home, and foreclosure rates are 1/8th of thenational rate when post-purchase stewardship is available (Jacobus &Davis, 2010). Post-purchase stewardship gives nonprofit andgovernment entities the ability to coach and mentor participants tobe homeowners and to monitor the condition of the house, identifypotential foreclosure scenarios, and provide assistance to protectthe participant and their asset (Davis, 2006).
One example of a nonprofit entity doing thisin the District is City First Home. City first has made possible thedevelopment of over 120 new, transit-oriented affordable homes, mostof which are in transitioning neighborhoods where working familiesare increasingly priced out of the market and where preservation ofaffordability is increasingly challenging. To date they have investedin over 5,000 homes in the city. According to Newman (2008),
“Wemake sure homeowners make mortgage payments on time, areknowledgeable about needing home repairs and maintenance, takeadvantage of the tax and other benefits associated with owning ahome, and receive post-purchase financial counseling. Every homeownerreceives an initial home visit, regular communications aboutworkshops and events, and connection to affinity services (insurancediscounts, car and bike share, collective energy purchasing, etc”(Newman, 2008).
The author believes that a major issue withthe program structure and management of the IZ program can beattributed to an overly complicated process of reviewing, selectingIZ program candidates, and then matching IZ candidates with availableIZ housing units. Anomalies can be identified by an assessment of theprocess. For instance, it takes over in two years from when apotential IZ home buyer self-registers through the lottery process,and finally, the qualification and sale process (see graphic 2). Thatis a long and cumbersome process that not only detracts people fromthe interest in the program, but it sets up a heavily bureaucraticprogram. Consequently, the program is made process intensive systemsince it takes many people looking at data many times to get acandidate package through the process.
The entire lottery process to selectcandidates from the pool of available IZ candidates does not appearto add much value in either fairness or transparency. While thelottery process is supposed to be a tool that adds randomness to theselection process, and by extension an element of fairness, inreality, it adds virtually no value. What it does, it adds yetanother layer of bureaucratic overhead to an extraordinarily longprocess without the benefit of ensuring the candidate is stillqualified or interested in purchasing a home under the IZ program.
There are two recommendations to help theDHCD, and associated planning agencies address the program structuralissues that lead to the inability to deliver the number of IZ homesand rental to the market for affordable housing solution. First theIZ process should be reviewed from development for sale in order toidentify ways of reducing or eliminating activities that do notspecifically support getting a candidate IZ owner to pair with aplanned dwelling. Instead of having the lottery process as a randomevent in the middle of the affordable housing program, the programcould use a prioritization scheme like the first in, first out. Sucha scheme would have a regular, audited results that are made publicto ensure transparency of how and who was selected to participate inthe program.
In addition, the process should focus onpre-qualifying self-registered candidates and getting them in thepipeline for a home or the IZ rental unit as quickly as possible andto use any slack time in the process to educate and providecounseling to IZ candidates instead of waiting on current processesthat add nothing to the result.
The second recommendation is for the Districtto commit fully to the IZ program by resourcing the DHCD with enoughpeople to manage the caseload of IZ buyers and developer projectswith affordable unit dwellings. Every level of government these daysare not looking to grow more staff and the costs associated withhaving more people coming to work, but in the case of DHCD, that lackof staff has been an impediment to making this critical program work.
Another alternative that the DHCD shouldconsider is the impact of adding permanent staff on the cost of theproject. This will lead to the consideration of outsourcing majorityof the candidate screening, developer relationship, candidateselection, financial counseling, loan program support and advocacywork to nonprofit organizations that have experience in managingthese kinds of activities in the capacity of a non-governmentorganization (NGO).Partnering with a nonprofit entities like CityFirst to manage the day-to-day administration of the program addsinstant and credible experts to the DHCD staff to get the programmoving. In addition, it also brings in experts to help reduce thebarriers to IZ program participation and ownership discussed abovethrough home loan supplement programs and other tools that areoutside the purview of the DHCD staff to provide. According to Atlasand Shoshke (1997),
“Focusingresources on this nonprofit sector is not the same as handing overpublic services to the private marketplace, as with tax vouchers forprivate schools, or government subsidies to private, profit-seekingdevelopers and landlords. Subsidizing profit-seeking developers topreserve housing for the poor – feeding the horses to feed thesparrows – as we did in the 1960s and 1970s provided windfalls forthe wealthy while helping only a small proportion of the poor.” Spending money on community-based institutions, as this report shows,can lead to efficiency and success. Policies that build on thesesuccesses will help convince the public that such programs are thetype of government we need” (Atlas & Shoshke, 1997)
The IZ program by the District of Columbia canbe very proud of how far the implementation has come in a shortperiod in the quest of addressing affordable housing throughinclusive zoning. The DHCD has shown over the past 6 years that theIZ program is evolving and that they are amenable to make changes tothe program structure when shortfalls are identified as the programoperates. It takes time for policy based decisions like the IZprogram to show effects and targeted problems. Therefore, the DHCDprogram is starting to make inroads in getting affordable dwellingunits to the people who really need assistance in a market wherehousing costs are increasing at a fast pace.
There are challenges the IZ program willcontinue to face in the short term especially staffing challenges. Inaddition, the current DHCD office will be hard-pressed to keep pacewith the projected additions to IZ housing inventory in the nearterm. The time is right for the IZ program structure and processesthat are used to administer the program to be critically reviewed toidentify anomalies and eliminate them. For instance, it is importantto identify non-value steps or sub-processes and eliminate them tospeed up identifying and pairing affordable housing candidates withavailable homes. The continued focus on transparency in howcandidates are selected and offered ownership opportunities will becritical to the program going forward if the decision is made to movefrom the lottery-based selection system.
Finally, DHCD can learn a lot from others inthe affordable housing arena through continued evaluation of bestpractices and lessons learned from other municipalities. In addition,partnership with nonprofit organizations can add capacity to the IZprogram management structure. Nonprofit entities and NGO’s whospecialize in providing affordable housing solutions such as CityFirst are examples of beneficial partners. The District shouldconsider outsourcing IZ homes for sale to a nonprofit partner toprovide a streamlined, centralized support structure. Moreover, IZprograms should provide post-purchase stewardship that will reduceneglecting of homes, prevent foreclosure, and help families achievemobility.
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