Denver CPD Proposes Extension to Exemption Deadlines Under EHA
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Denver CPD Proposes Extension to Exemption Deadlines Under EHA

Brownstein Client Alert, April 28, 2023

The City of Denver is considering changes to its Expanding Housing Affordability (EHA) ordinances that would extend the deadlines to receive final SDP approval in order to qualify for exemption from the EHA requirements. On April 18, the Denver Land Use, Transportation & Infrastructure Committee (LUTI) voted 5-1 to move two amendments to the EHA ordinances out of committee and on to Mayor-Council Meeting consideration at the recommendation of the Community Planning and Development Department (CPD).

The Denver City Council originally approved the EHA ordinances on June 8, 2022, and they became effective July 1, 2022. It requires projects with 10 or more residential units to provide affordable housing on site or pay a fee-in-lieu to the Department of Housing Stability (HOST), and projects that either have nine or fewer residential units or are entirely non-residential are required to pay increased affordable housing linkage fees. 

Under the EHA’s current language, projects that are subject to an SDP and (a) have submitted a concept site development plan prior to June 30, 2022, and (b) obtain approval for their formal SDP by Aug. 30, 2023, shall be exempt from those requirements. If the exemption applies, then the project can continue under the prior affordable housing linkage fees, instead ofthe new EHA framework’s increased linkage fees. If a project is subject to an SDP and a subdivision, or an SDP and a large development review (LDR), then the SDP (and subdivision or LDR) must be approved by Dec. 31, 2023 in order to be permitted to comply with the prior affordable housing linkage fees. 

The April 18 amendments would provide extensions of the final approval deadlines related to a project’s SDP (and subdivision or LDR, if applicable), thereby extending the timeline for receiving an exemption from compliance for those projects already in the queue. It is important to note that these amendments would not change the June 30, 2022, deadline for initial submission of concept SDPs. If enacted, the new final approval deadlines would be:

  • For projects subject to an SDP only (or SDP amendment):
  • Change approval deadline from Aug. 30, 2023, to May 17, 2024
  • If a project has received consolidated review comments by May 17, 2024, from their CPD project coordinator that will require a fourth round or more of formal SDP review, allow the project until Aug. 31, 2024, to receive SDP approval. Note: this is only for projects that are at the fourth round of review or later, indicating they are close to completion and a redesign at that stage would require considerable investment and work. Projects in earlier review cycles (third round or fewer) that are not approved by May 17, 2024, would become subject to the EHA requirements.
  • For projects subject to an SDP plus LDR/subdivision:
  • Change approval deadline from Dec. 31, 2023, to Sept. 13, 2024
  • If a project has received consolidated review comments by Sept. 13, 2024, from their CPD project coordinator that will require a fourth round or more of formal SDP review, allow the project until Dec. 31, 2024, to receive SDP approval for the same reasons as stated above.

The reason these amendments were brought before LUTI by CPD is because the average length of time for projects to receive SDP approval has grown significantly since the original EHA language was developed in October 2021, due in large part to the increased number of submittals that were made in May and June of 2022, just before the EHA became effective. 

CPD provided statistics indicating that as of June 30, 2022, there were 746 SDPs under review (both concept and formal). As of the date of the LUTI meeting, 200 concept SDPs have been released to submit for formal SDP and 226 formal SDPs have been approved. In order to try and address the backlog, CPD implemented two focused review weeks (“blitz weeks”) in December 2022, the first from Dec. 5-9 and the second from Dec. 12-16. The results were 144 completed reviews in these two weeks. The queue as of Feb. 21, 2023, was 315 SDPs under review.

The LUTI members that voted for moving the two amendments forward were Amanda Sandoval, Jamie Torres, Kendra Black, Jolon Clark and Chris Herndon. Candi CdeBaca was the only “no” vote, and Paul Kashmann was absent.

If the bills amending the EHA ordinances are approved at the next Mayor-Council meeting, both amendments would go next to first reading the week of May 1, and the amendment to the EHA ordinance related to the Denver Zoning Code will next have to go to a public hearing in front of the City Council on May 22.

This document is intended to provide you with general information regarding possible changes to Denver's Equal Housing Affordability ordinances. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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