On Monday, the County Council will hold a second work session on a change to the zoning code that would significantly alter the rules and requirements for accessory dwelling units (ADUs), also known as accessory apartments and granny flats. This is a complicated zoning change but here is a summary of what’s involved, as the Council has been working on it in terms of what it would mean to our neighborhood:
Where can detached ADUs (structures separate from the main house) be and how large can they be?
Currently a detached ADU cannot be built on a property of less than an acre, which effectively prohibits them from our neighborhood as none of our lots are that large. This zoning change would allow them everywhere, regardless of lot size. Proposed limits are the least of the following - 10% of lot size, 50% of the gross floor area of the principal residence, or 1200 square feet. Two amendments have so far been proposed - one that would change 50% of gross floor area to 50% of the footprint of the principal dwelling (example: if your house has a footprint of 1000 square feet but 3 floors, 50% of the footprint would be 500 square feet, but 50% of the gross floor area would be 1500 square feet); and one that would limit the maximum size of a detached ADU to 800 square feet rather than 1200 square feet.
How far away must they be from the property lot line?
This is a little complicated. New detached ADUs must have the same setbacks (distance from lot line) as the principal residence. In our neighborhood, that is usually 12’ in the rear and 8’ on each side or combined side of 18’.. Height is limited to 20 feet in our R-60 zone. An amendment will be offered requiring a 6’ fence for any newly constructed detached ADU in this zone and the next larger zone, R-90.
However, if you have an accessory structure - a shed or garage - that was legally constructed before May 31, 2012 (that is, it met the accessory structure setbacks required at the time it was built) it may be converted even if those setbacks would not be legal today, as long as the structure is not expanded up or out. Generally such setbacks are 5’ each rear and side, but sometimes they are less. I think we have a few of these. This may raise issues around privacy, sound, and light.
Another related concern is the setback standard for prefab detached ADUs. These can be as long as 32’. Current law is that any building longer than 24’ must have one additional foot of setback for each foot of length beyond 24’. The PHED committee recommends exempting ADUs up to 32’ from this requirement. For the normative rectangular R-60 lot, with frontage of 60’ and a depth of 100’, this would meet the current setback requirements for an accessory ADU - but in older neighborhoods like ours, there are many lots that have less than 60’ street frontage and at least a few that are smaller than 6000 square feet, grandfathered when the code was first adopted. This may be a problem for some properties and neighbors. In addition, as I understand it the larger prefabs need to be put in place by crane, which may be problematic for neighbors.
What about parking requirements? Right now all ADUs, internal or detached, are required to have one on-site parking space beyond those required for the principal residence, or adequate street parking within a radius of 300’. If the licensing agency, the Department of Housing and Community Affairs, determines that this cannot be met either way, the license for the ADU may be denied. The applicant has the right to apply for a waiver. Similarly, if a license is granted but neighbor(s) believe the on-street parking within that radius is not adequate, the neighbor(s) can appeal and object to the license. In either case, the dispute is heard by a hearing examiner and opinion usually rendered within three weeks. The loser can then pursue this through the courts, although to date there have not been many waiver requests and to my knowledge none moving to the judicial system.
The proposed change would eliminate both the parking and distance requirements in all neighborhoods within 1 mile of metro and purple line stations. That covers all of our neighborhood. There will be an amendment offered to reduce this to 1/2 mile, consistent with other situations involving “transit proximity.”
For most of our streets, the 1-mile walkshed would very likely cause problems. At one point there was consideration of an objective standard for eliminating the parking requirement and waiver process, using 36’ curb to curb as the standard. Most of our streets are 24’ wide or less, with parking on only one side and effectively 1.5 travel lanes. Available parking area is further reduced by driveways, fire hydrants, and intersections, and the mandated distance a vehicle must park from them. The half-mile proposal will reduce this somewhat, but we may still have affected streets.
What environmental issues are involved?
This can get somewhat complicated so I’ll keep it as simple as possible. ADUs will add to impervious surface, loss of tree canopy, and storm water management/sedimentation issues, especially if the changes in precipitation that we’ve experienced recently continue.. Some argue that this is true when additions are placed on existing houses, or when a house is torn down and a new larger house built. This is true, but additions and new houses are subject to more requirements around stormwater/sedimentation than ADUs, in particular detached ADUs, are. An ADU may be only 400 square feet, but a 1200 square foot ADU could easily be a 3-bedroom house. Many people following this believe this aspect needs a lot more attention.
Will ADUs provide affordable housing?
This is an argument often used, and ADUs can do this, but not if this proposal goes through as envisioned. There are no rent controls, no incentives for property owners to offer affordable rents, and no prohibition on converting an ADU after as little as one year to a short-term rental. This last point is important because short-term rentals (like Airbnb) are more lucrative than ADUs and therefore remove potential affordable housing from the market. They also potentially have a different effect on the neighborhood where they’re located, especially if provisions to control the number of ADUs are eliminated - that 300’ distance for parking is also the currently required distance between ADUs.
As I noted above, a 1200 square foot ADU can easily be a 3-bedroom house. ADUs are limited to 2 adults but no limit on children, which means there is the possibility that a significant increase in ADUs could affect school capacity - already an issue at our local elementary school, and a looming issue at BCC. A number of residents who have been involved in zoning and land use policy have proposed that the county adopt a regime similar to Portland, OR, where various required fees for new residences are waived if the ADU owner signs a covenant agreeing to charge affordable rent for 10 years; if the covenant is broken, the owner is liable for 150% of the waived fees. This grew directly from ADU conversions to short-term rentals. Under this proposal new ADUs would be subject to school and transportation impact fees, and possibly others, that could be avoided by agreeing to terms similar to Portland’s.
Why are these changes needed?
Proponents argue the proposal will increase affordable housing, provide housing for relatives/caregivers/disabled individuals, provide income streams for seniors and others who otherwise could not stay in their homes, and allow people who otherwise could not afford to live in a desirable area to do so. However, since 2012 the requirements and processes to build an ADU have been loosened considerably, yet the number of legal accessory units has fallen by half. At the same time county enforcement efforts on both illegal ADUs and illegal short-term rentals have, in many neighborhoods (not ours), been unsatisfactory. The county’s department of health and human services has 200 licensed short-term rentals on its roster; it hired an outside consultant to scrape Airbnb and other listings and found 1600 - that would include 1400 illegal ones.
These is a very simple summary. As you probably can tell, I believe there are some significant problems with this proposal, largely because it is not well thought out or cohesive but also because some aspects are problematic for older neighborhoods (as an aside - there are several municipalities that would be exempt from this, and all housing developments built from about 1980 on are required to have homeowners association, whose covenants may not allow ADUS). If you have an opinion, you might want to share it with the council by writing to
county.council@montgomerycountymd.gov. You need to note that you are writing about ZTA 19-01 and get your email in ASAP. If you are interested, send me your email address and I can provide you with the two letter sent by about 30 active residents from around the county, which have considerably more detail.
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