Thursday, March 13, 2014

Accessory Apartments: Toward a More Productive Conversation about Revisions to the Zoning Regulations

To me, one of the most troublesome aspects of the ZRR process has been that proposed new code is being sold not on its merits but on the basis of a few specific changes -- which clearly don't require 980 pages of new text to implement. Ironically, the result of this approach has been to deflect attention not only from the text of the code but also from the substantive analysis of those particular issues. To show you what I mean, I've taken one of the most publicized reforms -- accessory apartments -- and laid out the kind of discussion that I think we should be having.  

Abstractly, what we've got here is a series of policy proposals that should be analyzed as such -- i.e. as means to ends or as solutions to problems. We need to push OP to move beyond analysis that lives at the level of "all the cool kids are doing it" or "growth is inevitable" or "more choice."  OP needs to do actual planning and to justify their recommendations based on factual and location-specific analyses.  In other words, for each major change, OP needs to communicate (a) here's the problem we're addressing, (b) here's why we chose this approach, (c) here are the pro’s and con's of the policy we’re recommending and (d) here's what we're doing to maximize the pro's and to minimize or mitigate the con's.  (Both a and d should be neighborhood-, area-, or zone-specific in some cases.)  Once the proposal has been articulated in those terms, OP needs to treat citizens as partners and as sources of local knowledge – asking such questions as "what problems do you envision?” and "what solutions (or safeguards or alternatives) would you suggest?" Outreach should involve OP learning from citizens – not just trying to educate them.

Take accessory apartments, for example. Here's the policy proposal: let's encourage the production of accessory dwelling units by allowing the creation of external rental units in single-family neighborhoods and by eliminating the requirement that internal units obtain BZA approval. Henceforth, BZA approval would be required only in cases where the accessory building is newly-constructed (or where an existing accessory building is enlarged); simple conversions of outbuildings to residential use, as well as all internal accessory units, would become matter of right.

An intelligent and well-crafted accessory apartment policy would be based on answers to a series of questions like these, none of which OP seems to have asked.


o   Is there any reason to assume that homeowners, motivated by the desire for income generation, would rent these units at below-market rates?

o   Wouldn't adding accessory apartments  to single-family homes actually increase the price (and appraisal/property taxes/insurance premiums) of single-family homes? Presumably, the new dwelling adds value to the home (and more value than a non-income-generating addition would).  Will people who don't want to be landlords risk being priced out of the single-family housing market in some areas?

o   If the affordability of external accessory apartments is primarily a function of their small size (450-900 SF), wouldn’t it make more sense to offer some kind of homesteading or sweat equity option with free land offered in exchange for building a small residence that will be owner-occupied?  Could a pilot project be done on public land? 

 Enforcement Issues: Tax and Safety

o   How will DC government insure that homeowners who create matter-of-right units (a) go through the required safety inspections and obtain a certificate of occupancy for the accessory apartment and (b) get business licenses and report rental income?

o   Does DCRA have a plan for bringing accessory apartments (current and future) into compliance?  If BZA hearings will no longer be required in most cases, what mechanism will DCRA and OTR have for identifying which properties have accessory apartments? Will DCRA be given additional resources to devote to ensuring that accessory apartments comply with tax and safety laws?

o   How will we ensure that external accessory apartments are sited in ways that provide quick and effective access to firefighters?  Presumably, that could be a criterion for BZA approval of special exception requests (though it doesn’t appear to be one included in the proposed regs), but what about conversions of existing outbuildings to apartments, most of which would, presumably, be matter-of-right?

Managing Growth

o   Where do we want people seeking housing of 900 SF or less to locate? 

o   Where will accessory apartments put population?  Where are building lots, housing stock, income levels conducive to the development of such units?  How does the answer differ depending on whether we’re talking about internal or external accessory apartments?

o   Do we risk diverting population that, in the absence of more accessory apartments, would move to the multifamily housing we're trying to build elsewhere in the city? Or that might buy and renovate small houses in areas that need investment if converted garages weren't available as a rental option?

o   If our goal is to restore lost population, should accessory apartments be a targeted intervention in areas that have actually lost population?


o   Are there areas where infrastructure --e.g. schools, sewers, power grid – would be further stressed by the development of accessory apartments?  Bloomingdale, for example, has had flooding issues with basement units.
o   How do we envision water/power/sewer hook-ups working for external accessory apartments and are those regs ready for rollout simultaneously with the ZRR?

o   Are we willing to allow accessory apartments that are "off the grid"? 

o   Are there any advantages to accessory apartment in outbuildings that cannot be achieved simply by allowing internal accessory apartments?   Certainly the creation of affordable housing and opportunities to age-in-place could be achieved with a policy that limited such apartments to internal units.

Experience Elsewhere

o   What kinds of regulatory structures have other jurisdictions put in place? What works? What doesn't?

o   When zoning restrictions have been removed in other areas, how many accessory apartments have been built? Where/by whom? What kinds of units were built (e.g. internal vs. external, size)?

o   How costly has construction of external accessory apartments been? How are they financed? Do we risk (or how do we prevent) another kind of foreclosure crisis if elderly people in gentrifying neighborhoods are induced to add such apartments in an attempt to hang on to their homes as property taxes rise, yet end up unable to pay off the additional debt incurred in building these units?

Thinking Ahead

o   What will we do if a new owner chooses not to use an ADU as a source of income-generation? Should the tax assessment on the property be lowered?

o   What happens if the renters of an external apartment want to own it (but can't afford the primary house) and the seller has a buyer for the primary house who doesn't want to be a landlord? Will we allow lot divisions?

o   Will temporary ADUs be allowed (e.g. the modular medicalized granny flats currently being marketed)? How/will their value be reflected in tax assessments?

o   Is the 6 person total limit per lot really enforceable or sensible?  Other local jurisdictions typically just restrict the number of residents in the accessory apartment to 2 or 3.  This seems like a less problematic approach since it means that changes in the landlord’s family (elderly parents move in, twins are born) don’t create a situation where the choice is between evicting tenants or violating the law.

I'm not inherently for or against accessory apartments.  (In fact, I’ve actually lived in both kinds -- an English basement on Capitol Hill and a cottage in the backyard of a home in Princeton.)  But I think that the ZRR provisions on accessory apartments are poorly-conceived and that the most likely outcomes are a few real nuisances, an occasional tragedy, lots of tax evasion, and no real increase in the production of affordable housing (as well as a likely decrease in the affordability of already expensive houses).  

And, at the level of process, I think that the approach being taken is very destructive of community.  At the same moment we’re being urged to live closer to each other, OP is moving away from the one mechanism (BZA review) that gives homeowners who want to be landlords a powerful incentive to listen to and to address the concerns of their neighbors. Instead of “work together to find a mutually agreeable outcome before you ask us to let you do this” the new message is “just maximize your profit and let the chips fall where they may.”  Which gets even nastier if we’ve got a situation in which the only way to insure compliance with tax and safety regs is to have neighbors turn in neighbors to the authorities

We deserve (and we need to demand) better planning than we’ve seen on this issue – and on others in the proposed new zoning code.  It is up to the Zoning Commission to exercise quality control and to vet OP's recommendations before adopting them.  The format that the Commission used in the first rounds of its public hearings on the draft code didn't provide the focus (or elicit the substance) necessary to do that job well.  My take is that if the ZC's next step was a decision to proceed as they did with the Green Area Ratio -- i.e. by considering specific text amendments to the existing code, one topic at a time -- it would give them the opportunity to make better decisions on this and other issues raised over the course of the zoning regulations review.