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Thread: Mother-in-law dwellings in single family zones

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    Cyburbian Streck's avatar
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    Mother-in-law dwellings in single family zones

    How does one zone residential areas so that there can be one primary residence while also allowing a "mother-in-law" cottage without this being a loop hole for two-family or duplex dwellings?

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    Cyburbia Administrator Dan's avatar
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    I've seen several different ways of doing this. The two more popular include:

    1) Limit the unit size: a percentage of the main residence area, square footage, or both.

    2) Require the accessory dwelling and its entrance to be at the rear of the main residence, if it's attached.
    Growth for growth's sake is the ideology of the cancer cell. -- Edward Abbey

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    Cyburbian Tide's avatar
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    I was working on this while at my last PD job. This is a great answer to affordable housing and supplemental income for a city or county. I do hope you will allow these units to be rented and not JUST for family members.

    The city of Santa Cruz has seen accessory dwellings (which is what they should be called) as a solution to their over crowding and affordable housing problems. In fact, they have several site designs that are pre approved (they call them prototype) that the city supplies if you want to build one of a few models. Here's a link to their page on accessory dwellings: http://www.cityofsantacruz.com/index.aspx?page=1150
    @GigCityPlanner

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    Cyburbian
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    If one is going to provide widespread regulatory accomodtion for them why continue to classify the area as "single family"?

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    Cyburbia Administrator Dan's avatar
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    Quote Originally posted by short timer View post
    If one is going to provide widespread regulatory accomodtion for them why continue to classify the area as "single family"?
    Because it describes the predominant character, not necessarily the sole permitted use. A single family house with a small household, with an ADU with no street visibility that has one resident, may have less of an impact than a single family house where a very large family lives. Also, in most zoning codes, SFR districts usually allow places of worship, civic uses, day care with six children or less, home occupations to varying degrees, and so on.
    Growth for growth's sake is the ideology of the cancer cell. -- Edward Abbey

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    Cyburbian terraplnr's avatar
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    Santa Barbara County (CA) allows for attached and detached second units on R-1, estate, rural residential, and ag zoned property. The principal dwelling must be owner-occupied; if not, the second unit must be converted to a guest house or other accessory unit (canít be rented out if the owner doesnít live on site). Minimum of 7,000 sf lot for attached second units, and 10,000 sf for detached second units. The size of the second unit is dependent upon the lot size (maximum of 1,200 sf on a 20,000 sf lot or larger). Then there are other restrictions/regulations as well, including that the second unit must have its own parking spot(s), be compatible with existing development, etc.

    http://www.sbcountyplanning.org/pdf/...ril%202012.pdf

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    Cyburbian Raf's avatar
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    Quote Originally posted by terraplnr View post
    Santa Barbara County (CA) allows for attached and detached second units on R-1, estate, rural residential, and ag zoned property. The principal dwelling must be owner-occupied; if not, the second unit must be converted to a guest house or other accessory unit (can’t be rented out if the owner doesn’t live on site). Minimum of 7,000 sf lot for attached second units, and 10,000 sf for detached second units. The size of the second unit is dependent upon the lot size (maximum of 1,200 sf on a 20,000 sf lot or larger). Then there are other restrictions/regulations as well, including that the second unit must have its own parking spot(s), be compatible with existing development, etc.

    http://www.sbcountyplanning.org/pdf/...ril%202012.pdf
    While i question the legality of mandating "owner occupied units" my jurisdiction allows them in single family lots. The units can be no grater than 1,200 sf (consistent with state law for 2nd units, and helping to meet affordable housing stock with the whole 2nd Unit Law). We have a whole slew of regulations in regards to setbacks, what constitutes a 2nd unit, and dealing with an attached/detached product. Most California Municipalities have these regulations on the books allowing for 2nd units as long as they are under 1,200 sf.
    Men do dumb $hit... it is what they do to correct the problem that counts.

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    Cyburbian
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    my experience in pressurized real estate markets is that the SFD with one or more ADU become the "sole predominant use". I've witnessed entire neighborhoods morph over a reltively limited time - 5 to 10 years.

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    Cyburbian Streck's avatar
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    Short timer said: My experience in pressurized real estate markets is that the SFD with one or more ADU become the "sole predominant use". I've witnessed entire neighborhoods morph over a reltively limited time - 5 to 10 years.
    Yes, that is what I am concerned about. People like the protection of zoning and expect it to be enforced and something they can count on in order to maintain property values.

    Single Family is single family. I would not want it to morph into Two-family. If we had wanted Two-family, we would have zoned it Two-family.

    We also do not want isolated or "Contract" zoning to occur.


    Isn't it Single Family if the "mother-in-law cottage" is actually a related person regardless of configuration (assuming it still meets code)? Can we base the enforcement of our ordinance on that?

    What if "mother-in-law" passes on? Is it still a legally conforming dwelling?

    Must (should) it be attached to the prime dwelling to avoid possible claim of Two Family or Duplex zoning in the future?

  10. #10
    Cyburbian Tide's avatar
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    Quote Originally posted by Streck View post
    Isn't it Single Family if the "mother-in-law cottage" is actually a related person regardless of configuration (assuming it still meets code)? Can we base the enforcement of our ordinance on that?

    What if "mother-in-law" passes on? Is it still a legally conforming dwelling?

    Must (should) it be attached to the prime dwelling to avoid possible claim of Two Family or Duplex zoning in the future?
    This is exactly why you don't want it tied to family relationship. You can always do the zoning as an overlay and make it it's own zone so it's not a by right use in the general SFDU zone.

    As for converting an area I have seen plenty of areas in NJ, older neighborhoods upzone and allow smaller lots to wit you see a lot of tear downs, subdividing old 14,000 sq. ft. lots into 7000 sq. ft. lots and then there are two homes probably bigger than the original home on the same amount of property. Times change, neighborhoods do morph. I DO like the idea that the owner be the primary owner of the primary dwelling, but then again like the relationship to owner clause that's hard to enforce after several years and decades.

    It's been done over and over in this country, try to find out where it has worked best. In an area with vacation populations these accessory units would even work out as FRBO units? What would you or your commission say to that?
    @GigCityPlanner

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    Cyburbia Administrator Dan's avatar
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    Quote Originally posted by Streck View post
    Yes, that is what I am concerned about. People like the protection of zoning and expect it to be enforced and something they can count on in order to maintain property values.

    Single Family is single family. I would not want it to morph into Two-family. If we had wanted Two-family, we would have zoned it Two-family.
    What people will accept, though, varies from place to place. In my community, there's a lot more tolerance of ADUs. With an aging population in upstate New York, we're seeing more people who want their elderly relatives close to them, but zoning that permits only low-density residential uses makes aging in place difficult. Housing costs are very expensive for the region, and ADUs are seen as affordable housing; many also want the income from student rentals. Also, unconventional living arrangements such as houses shared by two couples, several unrelated adults who aren't students, informal communes, and the type are very common. When it comes time to rewrite the zoning code here, I probably won't be using the term "single family".
    Growth for growth's sake is the ideology of the cancer cell. -- Edward Abbey

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    Cyburbian Streck's avatar
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    Dan said:
    When it comes time to rewrite the zoning code here, I probably won't be using the term "single family".
    That sounds reasonable. "Single Dwelling" District might be a better term.

    Or are you suggesting that there should just be a Residential Zone, which would allow mulit-family (Multi-dwelling units), too, regardless of the number of occupants?

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    Cyburbian mgk920's avatar
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    Quote Originally posted by Streck View post
    Dan said:


    That sounds reasonable. "Single Dwelling" District might be a better term.

    Or are you suggesting that there should just be a Residential Zone, which would allow mulit-family (Multi-dwelling units), too, regardless of the number of occupants?
    I would not be opposed to that, especially in older places that were first developed before there was zoning. To me it is very possible that due to legal buildout at a level that is smaller than the market demand that that 'unconventional' thing (remember that Ithaca is very constrained by geography), a 'black market' of sorts, was forced by the zoning law. Single vs. multi-family zoning as we generally know it today is essentially a post-WWII thing.

    Mike

  14. #14
    Cyburbian
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    I think you have to be careful of unintended consequences of regulations meant to limit ADU's. For example, one community limits ADU's to a certain percentage (35 of 40%) of total floor area, in a neighborhood where the logical location for ADU's was in a converted garden-level basement of a 1-story ranch house. This made in very difficult to create an ADU since the basement accounted for nearly 50% of floor area - hence requiring an owner to partition only part of the basement - not cost effective. Cumbersome regulations include requiring off-street parking, charging tap fees equal to a full-size single-family home, limiting # of ADU's and holding a lottery to get an ADU permit, etc.

    The intent seemed to be to say "we permit ADU's" while making it very unattractive to invest in one.

    Rather, I think a great approach that directly addresses your concerns would be to stipulate ADU's as a use that is permitted only in association with an owner-occupied home - the owner must occupy one of the two living spaces, the renter, relative, etc. can occupy the other. As I understand it, in this scenario an ADU is not a dwelling unit per se but rather a permitted use. This is easier to enforce if your jurisdiction requires rental licensing - but you could create a separate ADU licensing program. Of course enforcement is an issue, as with any code. To me this seems the most balanced way to allow ADU's while preventing the neighborhood from becoming a duplex zone.

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    Cyburbian Streck's avatar
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    CPSURaf said:

    While I question the legality of mandating "owner occupied units" my jurisdiction allows them in single family lots.

    I would agree that while well intended in order to allow a family have their mother-in-law live in a separate housekeeping unit on their property, when the dear lady "passes on" would they be required to tear down the Accessory Dwelling Unit (ADU) or board it up, or to remove any separate outside access?

    Does your jurisdiction require annual renewal of a permit so they can verify that it is not used as a separate rental unit (ie Two-family in a Single-Family zone)?

    Or do they just not care once the ADU has been built?

  16. #16
    Cyburbia Administrator Dan's avatar
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    Quote Originally posted by Streck View post
    Or are you suggesting that there should just be a Residential Zone, which would allow mulit-family (Multi-dwelling units), too, regardless of the number of occupants?
    Getting rid of the term, and using a term like "single household" (as in the code I wrote in Texas), "detached", or something similar. Why? It's less discriminatory, and better accounts for non-traditional households (singles, unmarried opposite- or same-sex couples with children from previous relationships).

    I'll admit occupancy limits and a definition for "household" will be a challenge in a college town. In the community where I work, communal living among adults is accepted, but the same can't be said for college students.
    Growth for growth's sake is the ideology of the cancer cell. -- Edward Abbey

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    Cyburbian
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    I have a few thoughts, though my POV is Canadian so your milage may vary...

    Regulating based on "owner-occupied" is pretty problematic. First of all, I'm pretty skeptical of the legality of that. Second, what a nightmare to enforce! Are you going to check back regularly to see if they still live there? What happens if the owner goes to Africa for 6 months and wants to do a short-term rental in the interim? Will they need to kick out Grandma?

    Regulating based on "family relationship" is definitely illegal here in Canada. There have been some landmark cases from students living together that have redefined "family". As such, we don't even use the term "single family dwelling", instead using "single-detached dwelling". Even if you can regulate based on family relationships where you work, again it's an enforcement nightmare. What happens when Grandma dies? Are you going to make them tear the unit apart?

    For suites WITHIN the primary structure, it seems to me that the answer is pretty simple: don't allow a locked division between the two "units", essentially keeping them as a single unit. I'd have no problem with my Grandma having unlocked access to my portion of the home, but I'd be more hesitant to rent the space to a non-family member. This also prevents absentee landlords renting out both units, because what renter is going to be okay with the unknown people upstairs having access to their suite? In order for this approach to work, you'd probably have to take a look at your definition of "unit". There may also be some complications with building codes (especially having two kitchens in what is technically a single unit), but I don't know the particulars of your area.

    For suites DETACHED from the primary structure, it gets a little more complicated. I would suggest looking at Vancouver for inspiration. They've recently allowed "garden suites". I don't know the details but I suspect there might be something you could take from that.

  18. #18
    Cyburbian Raf's avatar
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    Quote Originally posted by Streck View post
    when the dear lady "passes on" would they be required to tear down the Accessory Dwelling Unit (ADU) or board it up, or to remove any separate outside access?

    Does your jurisdiction require annual renewal of a permit so they can verify that it is not used as a separate rental unit (ie Two-family in a Single-Family zone)?

    Or do they just not care once the ADU has been built?
    Based on our City Attorney and our housing consultant, the Federal Fair Housing Law states we cannot discriminate against "for-sale" versus "rental" property in our ordinance. With this interpreatation, similar to what dan said, we still call housing "single family residence" however our code defines single family as follows:

    An attached or detached building not to contain more than one (1) kitchen wherein the occupants of the dwelling unit are living and functioning together as a single housekeeping unit, meaning that they have established ties and familiarity with each other, jointly use common areas, interact with each other, membership in the single housekeeping unit is fairly stable as opposed to transient, and members have some control over who becomes a member of the single housekeeping unit.
    As such, we advise applicants that the 2nd unit can either be a rental or owner occupied (i.e. inlaw, etc.). We also advise compliantants that we do not enforce the number of rental units in a neighborhood, etc. per Federal Fair Housing Law. We do not track entitlement permits, as 2nd units are allowed, by right, thanks to State Legislation. We do track legally permitted units and we do code enforcement on un-permitted 2nd units similar to un-permitted construction/buildings.

    Getting a 2nd unit in my muni is pretty expensive through because we do charge development impact fees. Here is a general breakdown of fees:
    • Development Impact Fee - $18,600
    • Water Meter Fee - $19,000
    • School Impact Fee - $3.20 per sf
    • Building Permit - $3,500-5,000
    • Roadway Frontage Improvements - $2,500-$3,500


    Usually when all is said and done, 2nd units run roughly $35-45,000 in permit and fees alone. And that's on the cheap end here in my area.

    This is how California as a whole deals with 2nd Units. Some good insight to our process throughout the state.
    Men do dumb $hit... it is what they do to correct the problem that counts.

  19. #19
    Cyburbian
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    I'd like to revisit the whole debate about "owner occupancy."

    I completely agree that requiring the occupant of an ADU to be a relative, etc. is probably legally questionable and frankly weird (sorry to be opinionated) for a community allowing ADU's.

    But IME many communities in the US require one of the units to be owner occupied in order to have the other unit rented out ... i.e. you cannot simply live somewhere else and rent out two separate units as if it was an investor-owned duplex. The ADU is rather considered a use accessory to a single-family use, not a dwelling unit on its own. Admittedly this can be cumbersome, but here in the U.S. as opposed to Canada we're generally so restrictive that allowing rental ADU's at all is a huge step in the right direction. I'd be curious if anyone thinks this sort of regulation would get into trouble in the courts.

    As for the below - are these numbers actually based on any study of impacts? How much impact does an ADU actually have on the school systems and water use - considering the likely number of occupants. I've seen studies showing that no more than 40% of ADU's tend to even be rented at any given time. I would guess a very small % have school children living there. Sadly, I've seen this kind of math elsewhere, where a 1 BR apartment pays almost as much in development fees as a 4-bedroom house. I wonder if these could stand up to a challenge on nexus?

    Getting a 2nd unit in my muni is pretty expensive through because we do charge development impact fees. Here is a general breakdown of fees:

    * Development Impact Fee - $18,600
    * Water Meter Fee - $19,000
    * School Impact Fee - $3.20 per sf
    * Building Permit - $3,500-5,000
    * Roadway Frontage Improvements - $2,500-$3,500

  20. #20
    Cyburbian Raf's avatar
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    Quote Originally posted by docwatson View post
    I wonder if these could stand up to a challenge on nexus?
    Yes..they can. We did a development impact fee study that established these fees about 4 years ago. The fiscal analysis is a requirement per state law. While granted, i feel that 2nd units should be a lower fee (and our fees reflect a lower fee for multi-family developments), the fact is most our 2nd units are single family homes, thus we have to plan for worst case scenario and most of our 2nd units are occupied with either renters or family members, but than again, vacancy rates in CA, particularly on my portion of the coast, tend to always be less than 5%
    Men do dumb $hit... it is what they do to correct the problem that counts.

  21. #21
    In some neighborhoods in the bay area, an accessory unit can add $250 to 300,000 in additional value to a property. So the fees aren't as high as they might seem. But this only works, obviously, where property values are well north of $500,000 (more likely to be over $750,000) for a single household home on what Is locally a large lot (over 6,000 square feet).

  22. #22
    Cyburbian
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    In some neighborhoods in the bay area, an accessory unit can add $250 to 300,000 in additional value to a property. So the fees aren't as high as they might seem. But this only works, obviously, where property values are well north of $500,000 (more likely to be over $750,000) for a single household home on what Is locally a large lot (over 6,000 square feet).
    Its a very good observation. I've seen the figure for Santa Cruz being quoted around $100,000 (I think just to construct, not fees). I would still ask if the vacancy rate for ADU's truly reflects the market? My guess is if a jurisdiction is able to tie ADU's to owner-occupied primary units, you'd get a rental rate similar to what we've seen at Prospect New Town in Colorado - around 40%, maybe higher in a tight market. I would guess if you allow both units to be rented out, the rental rate will be much higher, by owners who treat the property as a duplex. But this is just conjecture.

    At some point does this call into question the idea that ADU's are a policy for market-rate "affordable housing"? I get that ADU's add rentals onto the market (and with a 1,200 sq ft limit there is clear intent by California to bring larger rentals on the market - a different intent than many ADU ordinances I've seen elsewhere). But if owners are taking what might be a modest home for its area and adding so much to its resale value (creating an incentive to add a rental unit), are we removing what are often "starter homes" from the market? I had the same question in Boulder where we were proposing ADU's in relatively affordable neighborhoods with the last homes that one could buy in the 300's.

    I guess the market-oriented side of me says this is fine, but then again if we were truly market oriented we'd let these lots be subdivided for townhomes, or replaced with infill apartment buildings if there is demand. In tight markets, it seems to me one of the primary effects of typical planning regulation is to constrain supply (or push it farther out).

    At the point where ADU's are looking like single-family homes and are being placed on larger lots, might it make more sense to allow some form of subdivision - perhaps a flag lot?

  23. #23
    I am only really familiar with the experience ib San Jose. There, most of the units have been added in upper income neighborhoods. I am pretty sure they call for a minimum lot size of 7,000, most likely making them off limits to the standard 5.000 sq ft lot. Thus ninety percent of the city is not eligible to participate in the program.

    Yes. The policy was promoted as producing affordable housing, but .....

  24. #24
    Cyburbian
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    Quote Originally posted by docwatson View post
    But if owners are taking what might be a modest home for its area and adding so much to its resale value (creating an incentive to add a rental unit), are we removing what are often "starter homes" from the market?
    I think that depends on whether or not banks in your area will consider the income from the ADU towards buyers' debt servicing ratio on mortgage applications. If so, then the effect on affordability of housing may be neutral.

    That being said, even if the effect is neutral from an approval POV it still might not be desirable. If only 40% of ADUs are actually being rented out (let's be honest, being a land lord is a hassle), then people may be approved based on income they don't actually receive - in essence, stretching household finances.

  25. #25
    Cyburbian Streck's avatar
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    In order to comply with one's own zoning ordinance, and to protect the "Single Family" (or Single Dwelling Unit) Zone, should a "Mother-in-law" Cottage be only allowed in zones that allow at least two dwellings per lot?

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