Category Archives: Development

Riemer Massively Understated Number of Existing ADUs

In his effort to push forward his zoning text amendment on accessory dwelling units (ADUs) that would radically alter building conditions and Master Plans throughout single-family neighborhoods, Councilmember Riemer has lamented the lack of existing ADUs, claiming that only 133 exist throughout Montgomery County.

Except that figure is completely false. It greatly understates the number of existing ADUs by a factor of at least 3.5 and probably more. The information showing it’s untrue is readily available on Montgomery County websites. Indeed, memos provided to the Council in the past directly contradict the claims made by Hans in his publicly funded communications.

The county’s own website says that there are 473 existing ADUs – over three times more than advertised by Hans Riemer and other advocates of his ZTA.

Look at the teeny-tiny print on the bottom left for the total count

A look at requests for ADU approvals under existing rules reveals 257 applications in recent years with only a small minority withdrawn or denied. The number of applications refutes Hans’s claim that virtually no one can legally build them under existing rules in Montgomery County. And this is before rules adopted just a few years ago to make it easier to build them have gone into effect and had a chance to have an impact.

In devastating follow-up testimony sent to Council President Nancy Navarro, Andy Leon Harney, explained in more detail that even these higher figures sorely underestimate the number of existing legal ADUs:

The figure often quoted that there are only 133 ADUs for a county of 1 million is simply false. In 2012, when the Council was considering ZTA 12-11, the Board of Appeals, which approved special exception accessory apartments said that between 1983 and 2012, they had approved 605 accessory apartments. Mr. Zyontz in memos to the Council at the time (10/8/12 p. 7 and 10/22/12 page 10) reported there were either 413 or 431 (probably a typo). At the same time, there were also 698 Residential Living Units—that is rent free accessory apartments approved for use by a relative, elderly parent or caregiver which are still legal and over time may well have been converted to rental units.  That would mean there were at least 1,111 ADUs plus guest houses which are no longer allowed but were grandfathered in with the passage of ZTA 12-11. The 133 number so often quoted is not accurate, and in fact there are 157 ADUs that have been approved since 2012, making the total ADUs closer to 1268, with others in the pipeline. If the Council is data driven, these facts should matter. If the Council allows itself to be persuade by an inaccurate number of “only 133 ADUs in a County of 1 million”, they are being misled.

Andy Harney is the Village Manager of Chevy Chase Section 3.

As I’ve previously explained, Hans’s legislation is deeply flawed for a number of reasons. In a post later this week, I hope to present a couple of easy amendments that would shift the focus back to the creation of smart-growth affordable housing and virtually eliminate most of the likely harms stemming from the misguided approach in the proposed ZTA.

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Update from Reader on Illegal AirBnB

A reader has also been curious about the illegal AirBnB that I profiled yesterday and contacted the Montgomery County office of the Maryland Department of Assessment and Taxation asking that the property be reclassified as commercial. (Note: this is a state, not a county office.) Here is the reply they received:

We have researched and found that the property is zoned R-60 for residential use and does not have any type of special use agreement with the Montgomery County Department of Permitting Services, Zoning and Site Plan Division .  Therefore we will not reclassify the account as commercial property.  Our records also show that the property is not owner occupied, so there is no further action to be taken by the State of Maryland. 

The owner doesn’t live there but continues to run a commercial youth hostel out of the house. The lack of commercial classification on the property seems woefully unfair to hotels engaged in the same business–renting out spaces in non-owner occupied structures. It is also quite different from an owner renting out a room or two in their own home, as AirBnB was originally conceived and presented.

In any case, it has been over a year since a county resident made a complaint about this illegal ADU and it’s still going strong. The use is not remotely consistent with the zoning code.

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It’s No Myth that AirBnBs arrive with ADUs

Supporters of accessory dwelling units (ADUs) claim that it’s a “myth” that they will be turned into AirBnBs or other short-term rentals.

Unfortunately, the law is not always a good guide to what happens.

Portlandia

Portland is often cited as the promised land by ADU supporters. Like Montgomery County, Portland’s ADU guidelines state that they are “designed for residential occupancy independent of the primary dwelling unit.”

But according to a survey prepared for a 2018 report prepared by the Institute for Sustainable Solutions (ISS) at Portland State University, 31% of ADUs are for short-term housing, defined as stays as less than one month. Only 56% are being used as someone’s primary residence. ISS is staunchly pro-ADU, so it’s hard to throw dirt on the statistics as part of a nefarious anti-ADU plot.

While intended as residential dwelling units, many are used as AirBnBs or the equivalent. The survey did not present statistics on what percentage were in compliance with Portland’s permitting requirements for short-term rentals.

Illegal AirBnBs

Councilmember Hans Riemer laudably wants to focus ADUs on housing rather than hotel space. In a recent email blast, he touted “the units could not be used for short-term rentals (i.e., Airbnb)” under his proposed legislation.

Unfortunately, illegal AirBnBs already exist with impunity in Montgomery County. Here is a photo of one operating in Bethesda:

A complaint was filed about this illegal AirBnB with the County last April. The complaint was “resolved” by kicking it over to the Department of Housing and Community Affairs (DHCA).

The county database shows no sign of an ongoing investigation. Apparently, they got a license after the complaint was filed but the current usage is not in compliance for these sorts of rentals. One also wonders if the county or the state is even capturing the appropriate tax from this usage since they don’t know it exists despite advertisements on AirBnB.

Increasing the burden on county enforcement authorities through the addition of hundreds of ADUs per year seems an unlikely way to solve the problem. As the County fails to keep on top of existing situations with complaints, it’s hard to have faith that a ban on AirBnBs in ADUs will be anything other than totally meaningless.

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Andy Leon Harney’s Testimony on ADU

Andy Leon Harney is the Village Manager of Chevy Chase Section 3. At the bottom of the post, you can find her testimony expressing concerns regarding Councilmember Hans Riemer’s efforts to loosen substantially the requirements for accessory dwelling units (ADUs).

Harney points out that the spread of impermeable surface due to building can cause storm water drainage problems. This may sound like some minor issue to some on the theory that it all just ends up in the drains but it’s not. When there is less land to absorb water, it has to go somewhere and that place can be your neighbor’s basement.

Unfortunately, we had experience with this problem in the Town of Chevy Chase due to people building larger homes and the county laws are very lax and don’t address the problem. We now require that people who add over a certain amount of square footage of impermeable surface must also build a water retention system to keep the water on the property until gradually absorbed into the ground.

Perhaps the County should include a similar requirement into the ADU law? After all, if most units will be small, then it won’t negatively impact building ADUs. To the extent it does, it prevents people from literally dumping a problem on their neighbors. (The Town also passed ordinances that I supported requiring greater setbacks, especially in the rear, and limiting home size more than the County.)

Proponents of the ADU changes assure us that “most” of the new homes will be small and thus not be a problem. But then why does the new legislation do away with the current limits on ADU size in favor of allowing the ADU to be 50% of the size of the house?

Harney also agrees with the county executive that the ADU proposal will not result in affordable housing. Again, if you want affordable, why allow bigger than now? Rents will be driven by the open market in any case and, as Harney points out, someone who just invested in building one will want to get their money back quickly.

Finally, and perhaps most importantly, Harney contends that the ADU plan is the thin edge of the wedge in an attack on existing single-family home neighborhoods. While I generally don’t rush to slippery slope arguments, there is some real justification in this case.

Beyond my arguments that people will circumvent the law legally or just ignore it due to lack of enforcement, this is a revision to expand ADUs when the previous legislation has just barely been implemented. Councilmember Riemer has long been a proponent of allowing higher density.

Many key proponents of this plan would like it just fine if it led to permitting multi-unit developments or apartment buildings in existing neighborhoods. (See Just Up the Pike or Greater Greater Washington for examples.) Residents are not in accord with this vision.

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County Executive Elrich Testifies Against ADU Bill

While County Executive Elrich is not opposed to accessory dwelling units (ADUs), he is opposed to this zoning text amendment (ZTA) for several reasons. You can read his testimony in full at the bottom of post.

Interestingly, Elrich points out that the changes made from the previous effort to encourage ADUs just went into effect in October of last year, so it is too early to see its effect and Councilmember Hans Riemer is jumping the gun in calling the previous legislation a failure.

Additionally, the ZTA does nothing to encourage more ADUs in areas near transit where we higher density and thus isn’t smart growth. Nor are there any tests or been any effort to make sure that existing streets and other infrastructure can accommodate them.

Most importantly to Elrich, a huge advocate for affordable housing, ADUs won’t serve the population that needs affordable housing. As the proposed ZTA eliminates the current cap on the maximum size of ADUs, the ZTA actually encourages the construction of larger ADUs with higher rents.

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Former Takoma Park Director of Housing Services Expresses Serious ADU Concerns

Sue Present, the former Director of Housing Services of Takoma Park, has submitted testimony to the County Council on the proposed zoning text amendment (ZTA) that would substantially relax requirements for accessory dwelling units (ADUs).

In particular, she suggests two amendments to the proposal: (1) buildings that are already out of compliance with code requirements or exist due to the granting of a special exception should not be eligible for conversion to ADUs, and (2) parking for ADU occupants must be independently accessible and the absence of sidewalks should disqualify a unit from off-street parking waivers.

Like myself, Present is distressed by the failure of either the Planning Board or the County Council to properly evaluate the impact on infrastructure, rents, and taxes. On infrastructure, Present raises concerns about the added burden on aging water and sewer lines, school capacity, and street capacity for parking and emergency vehicles. Similarly, she asks whether ADU rents near employment or transit would be affordable and whether they would reduce the property value of neighboring homes.

Read her testimony in full below:

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Former Takoma Park Director of Housing Services Expresses Serious ADU Concerns

Sue Present, the former Director of Housing Services of Takoma Park, has submitted testimony to the County Council on the proposed zoning text amendment (ZTA) that would substantially relax requirements for accessory dwelling units (ADUs).

In particular, she suggests two amendments to the proposal: (1) buildings that are already out of compliance with code requirements or exist due to the granting of a special exception should not be eligible for conversion to ADUs, and (2) parking for ADU occupants must be independently accessible and the absence of sidewalks should disqualify a unit from off-street parking waivers.

Like myself, Present is distressed by the failure of either the Planning Board or the County Council to properly evaluate the impact on infrastructure, rents, and taxes. On infrastructure, Present raises concerns about the added burden on aging water and sewer lines, school capacity, and street capacity for parking and emergency vehicles. Similarly, she asks whether ADU rents near employment or transit would be affordable and whether they would reduce the property value of neighboring homes.

Read her testimony in full below:


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Riemer Issues Conflicting Statements on Development and ADUs

During the past month, Councilmember Hans Riemer (D-At Large) has sent out communications touting the real success of his legislation in promoting affordable housing and others decrying both the affordability crisis and lack of significant development. From a February 19th email blast:

Housing affordability is one of our County’s greatest challenges. We have a housing shortage, which drives up sale and rental prices and creates affordability problems particularly for those with moderate or low incomes.

With this in mind, last year I authored legislation that raises the requirement for affordable units in the County’s most expensive areas. The Council supported my plan and now we are already getting results in Bethesda, White Flint, and Rock Spring. Read the Council staff report and news coverage of the legislation.

From a February 4th email blast:

The projected slowdown of housing growth results in a massive reduction of tax revenues, even with our developer impact tax rates that are among the highest anywhere. With a much lower baseline of anticipated housing growth, not only will the housing crunch worsen (a huge issue in and of itself) but immediate infrastructure needs cannot be met.

Hans similarly lamented the lack of affordable housing and development at a public forum on January 19th:

We heard some very bad news this week. In all of 2018, there were only 800 housing units added to the tax rolls of Montgomery County. . . . That is how you get a housing crunch, my friends. That is how you get an affordability crisis.

These conflicting claims parallel diametrically opposed arguments regarding his proposal to make it easier to build accessory dwelling units (ADUs). While Hans has repeatedly touted his proposal as part of the “tiny house” movement and designed to allow grandma units over the garage, his proposal removes the 1200 foot cap on the size of such units. If we want small and affordable, the cap promotes this goal and Hans’s legislation should be amended to maintain it.

Even more problematically, Hans has downplayed the number of units that would be constructed but proposal supporters also claim that this will be a major step in adding affordable units and that the increased supply should help depress housing prices more broadly. Of course, if the units aren’t small, they may not be very affordable.

The proposal similarly cuts parking requirements because many owners may take transit but doesn’t tie the reduced parking requirements to location near a Metro line or even frequent bus service let alone actual limits on the number of cars. If we’re trying to promote smart growth, tying the proposal to transit and transit use would seem, well, smart.

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Riemer’s Zoning Proposal Breaks Trust and Will Be Abused (Part III)

Councilmember Hans Riemer has proposed making much easier to build additional accessory dwelling units (ADUs) with the best of intentions. Yesterday’s post looked at why it will likely raise housing costs, even though it is intended to do the opposite, and burden county infrastructure. Today, I look at why the proposal breaks trust with residents and remains open to serious abuses.

Breaking Trust with Residents

The county literally just finished revising its entire zoning code in a pro-development direction. We also just revised the rules on ADUs only a few years ago. Yet here we are once again revising the code in a major way. And the changes are all uni-directional to allow more. Always.

In a single stroke, Hans’s legislation undermines all of the county master plans by drastically increasing the number of potential units in any area. In Bethesda, we just finished the process and already upped the existing density considerably. Is it any wonder so many county residents are mistrustful of planning processes and county government?

Homeowners value stability in neighborhoods. After all, buying a home is the single largest and more personally important investment most people will ever make. While some will welcome the changes, others will feel that they’ve just been cheated. As one resident articulated at the forum, not everyone wants to live on a congested street next to an AirBnB.

Why We Can’t Have Nice Things

“Never assume a good motive when a bad motive will do” is not the most positive outlook on life but a very good approach when thinking about how some people will do their best to stretch and to misuse new rules.

While ADUs may help some achieve the positive goals emphasized by Hans, one can easily imagine how these rules will be abused despite Hans’s commendable attempt to build in protections. The law requires that ADUs can only be built by people on their principal home’s property. In theory, this should prevent a developer from buying a home, tearing it down and building either a duplex (in apartment or attached townhouse form) or two detached houses with one twice the size of the other.

Except that it won’t. Someone who flips houses can just buy it, say he plans to move into it, tear it down, build a duplex or two detached houses, sell, and repeat. Alternatively, I imagine developers could construct contracts with existing homeowners that pre-arrange the sale to maintain the fiction that the new duplex or second house is the idea of the existing homeowner. As often occurs in such situations, county planners will determine that it complies with the letter of the law and have no choice but to approve the plans.

I bet someone with more knowledge of housing law could come up with even more ways to accomplish the same goal without breaking a sweat. Heck, by the time that lawyers for developers are done, we’ll be thanking them for only building two units.

Making it possible to build more will make the land more valuable, and thus less affordable. Existing residents who can’t afford the higher property taxes will have to sell. Others will leave because they thought they were living in a neighborhood but found themselves in a construction zone. Either way, the hiked prices render the Montgomery dream out of reach for many more more families–all in the name of affordable housing.

It could well result in tearing down entire neighborhoods to build pricey duplexes. Why not make a killing doing something its supporters have labelled building affordable housing? Some would undoubtedly cheer and call it “smart growth” but that’s not how it’s being sold. Moreover, there is no guarantee that the new homes won’t be placed far from transit.

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