Tag Archives: accessory dwelling units

Uncategorized, Zoning

Former Planning Board Member Meredith Wellington on Accessory Dwelling Unit Proposal

ACCESSORY DWELLING UNITS — ZTA 19-01— UPDATE

Background.  On January 15, 2019, County Councilmember Hans Riemer sponsored Zoning Text Amendment (“ZTA”) 19-01, a proposal to relax the restrictions that currently limit County homeowners from creating “Accessory Dwelling Units” (“ADUs”) on their property. ADUs are separate dwelling units on the same lot as a single-family principal residence. The dwelling may be traditional rental apartments or, after one year, may be converted to a short-term, “airbnb-type” unit. The latterrequires a different category of license, and it must not have a full kitchen.

After a hearing before the County Council, the Council’s Planning,Housing and Economic Development (“PHED”) Committee chaired by Councilmember Riemer held work sessions on ZTA 19-01, and it has now sent a revised version of the legislation to the full County Council for a vote likely next month. Over the objections of County Executive Marc Elrich and civic groups throughout the County, the PHED Committee is recommending a version of ZTA 19-01 that eviscerates current restrictions on ADUs that protect single-family neighborhoods. 

Current Proposal. Homeowners in small lot communities (those zoned R-60, R-90 or R-200) can already create separate rental apartments in their homes (“attached” ADUs). However, these ADUs are now subject to strict limitations designed to assure neighborhood preservation and compatibility. Under Councilmember Reimer’s original proposal and the PHED Committee’s revisions, most of the limitations on attached ADUs will no longer apply. 

Even worse, “detached” ADUs would for the first time be permitted in the backyards of 120,000 to 160,000 small lots in single-familyneighborhoods throughout the County. These ADUs could range fromtrailers and converted cargo containers to three-bedroom apartments in new structures and renovated garages, depending on the lot’s size. A table comparing the current rules for both attached and detached ADUs with those in ZTA 19-01 is attached.

Impacts on Single-Family Neighborhoods. Especially problematic are the provisions for detached ADUs, which are capable of altering the character of a neighborhood by blanketing the County without regard to location, lot size, compatibility, environmental concerns, best design practices for infill development, or provisions in existing master and sectorplans. These structures would be allowed without meaningful parking requirements to protect nearby homeowners or environmental requirements for sediment control, storm water management, or preservation of the existing tree canopy.

Contravention of Sound Planning Principles. According to Councilmember Riemer, ZTA 19-01 is intended to allow property owners to create “granny flats” and “in-law suites” inside their homes, and “tiny houses” and “cottages” in their backyards, all of which will increase the County’s affordable housing stock for lower income families and individuals. In fact, the proposal is “one-size-fits-all” legislation that is likely to produce the opposite result. Unless accompanied by dedicated public financing programs, this proposal may simply enable wealthy property owners and real estate developers to build expensive second homes on residential lots, thereby driving up rather than reducing housing costs.

In response to the myriad of concerns about the County’s failure to enforcecurrent zoning and rental licensing regulations with respect to existing ADUs, members of the PHED Committee promised during their work sessions to examine the budget and staffing of the County’s Department of Permitting Services (“DPS”) and its Department of Housing and Community Affairs. (“DHCA”). However, there is nothing on the Council’s agenda regarding these enforcement issues, and the PHED Committee is asking the Council to adopt ZTA 19-01 without addressingthe acknowledged deficiencies in County code enforcement. 

Recommendations for Detached ADUs. County planning officials should utilize sound planning tools to assure that detached ADUs will complement existing housing stock and in fact add to much-needed affordable housing. Here are some ideas for successful planning:• Detached ADUs should not be allowed as a housing type in small lots zoned R-60, R-90 and R-200. Instead, these structures should be permitted only on lots larger than 10,000 square feet, and only if recommended as part of an overlay zone in a master or sector plan for a specific community. If planned properly, detached accessory apartments can be compatible with the surrounding neighborhood as was done in Kentlands — a development oft-cited in the PHED Committee work sessions.• Technically, the property owner sis required to live in either the primary dwelling or the ADU, but County officials acknowledge serious problems with enforcement. Enforcement of this requirement should be a priority of both DPS and SHCA.• Detailed design guidelines should be provided to assure neighborhoods that valuable green space and trees will not be destroyed by dense over-building on small lots that leave only concrete in their wake.  • Planning officials should consider whether backyard trailers and cargo containers are appropriate building types even on larger lots throughout the County.• The PHED Committee should explore the need for a housing program that will help homeowners, rather than developers, finance detached ADUs to make their own homes and rental units more affordable.    

Recommendations for Attached ADUs. Unfortunately, ZTA 19-01 removes most of the protections in the current zoning code that protectsmall lot communities from the adverse impacts of attached ADUs. which would be largely unregulated in the future. Here are somerecommendations for these dwelling units:• Spacing requirements for attached ADUs in the current zoning ordinance should be retained (e.g., 300 feet between attached ADUs on same block in the small lot zones; 500 feet for attached ADUs on the same block in large lot zones). 
 • ​Parking requirements should be adopted based on data showing neighborhood road widths, as well as the volume of cars normally parked on the streets in question, with homeowners given priority for parking space in front and near their homes. Proximity to transit should not be the only consideration, and one mile from transit is too far.• ​Maximum square foot limits for attached ADUs should be maintained. Large basement areas and additions should not be transformed into large housing units within a single-family home, thereby creating a new form of “mansionization” incompatible with small-lot neighborhoods.• If the principal dwelling is a new home, all the current infill requirements (height, set back, lot coverage, and other restrictions) should apply to any space used to create an attached ADU. • The protection in the current zoning code against over-concentration should be reinstated (i.e., in small lot zones, the ADU must be located at least 300 feet from any other attached or detached ADU along the same block face).• Workable strategies should be established to assure that the owner either lives in the primary or accessory residence. Right now, this requirement is not being properly enforced.

Conclusions.  The County needs housing legislation that will result in exciting new communities with mixed affordable housing, as well as a housing program that makes new dwelling units available to large, diversecommunities of residents. This can be accomplished by identifying appropriate locations in master plans, and by adopting innovative housing programs that provide financing together with code enforcement.

The current proposal offers the worst of all worlds. Without a financing program, only wealthy property owners will be able to create ADUs,which in all likelihood will increase housing prices throughout the County and generate new housing types that will irrevocably overwhelm and degrade the County’s single-family neighborhoods. 

What can you do? Contact County Council members and let them know your concerns: 

Gabe Albornoz                 240-777-7959, Councilmember.Albornoz@montgomerycountymd.gov;

Andrew Friedson            240-777-7828,Councilmember.Friedson@montgomerycountymd.gov;

Evan Glass                         240-777-7966, Councilmember.Glass@montgomerycountymd.gov;

Tom Hucker                      240-777-7960, Councilmember.Hucker@montgomerycountymd.gov;

Will Jawando ​  240-777-7811, Councilmember.Jawando@montgomerycountymd.gov;

Sidney Katz                       240-777-7906, Councilmember.Katz@montgomerycountymd.gov;

Nancy Navarro                240-777-7968, Councilmember.Navarro@montgomerycountymd.gov;

Craig Rice                         240-777-7955, Councilmember.Rice@montgomerycountymd.gov;

Hans Riemer                     240-777-7964, Councilmember.Riemer@montgomerycountymd.gov.

Meredith Wellington

Share
Development

Riemer Admits ADU Error and Responds

Even if a reply on twitter isn’t quite the same as a publicly-funded email blast, this is the first time I’ve seen Hans correct the record, so that’s a positive step. Except the inaccurate 133 number has been bandied about and propagated a lot, including by Hans at his own forum on ADUs, if memory serves, and without correction by either Casey Anderson or Lisa Govoni from Planning at the meeting.

Additionally, Hans continues to underestimate the number of ADUs. As Andy Harney points out, the number on the county website arbitrarily excludes many ADUs given a different classification but that are ADUs. While 473 is over 3.5 times the figure given by Hans, the 1268 identified by Harney is over 9.5 times Hans’s inaccurate numbers.

I don’t why Hans ended up inadvertently using incredibly outdated information – there were far more than 133 ADUs even in 2012. But the existence of nearly 10 times more ADUs than he claims exists would seem to be an important difference to many, though reasonable people can disagree on this as on so many issues.

Moreover, I have had both detractors and supporters of ADUs point out that the count excludes many illegal or unregistered ADUs. As a result, the legal ADU count greatly underestimates the number of ADUs in reality. The unknown true number is well off from Hans’s erroneous representation.

ADU supporters hope that Hans’s legislation will make it easier to legalize illegal units. While perhaps so in some cases, I’d hope that units that, say, don’t meet the fire code would not be legalized. Either way, the presence of many illegal units reinforces the truth of claims regarding the total inability or unwillingness of the County to enforce its laws.

Share
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.

Share
Development

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.

Share
Development

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.

Share
Development

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.

Share
Development

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.

Share
Development

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:

Share
Development, Takoma Park

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:


Share
Development, Montgomery County

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.

Share