ZMod and ADUs: A solution in search of a problem
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| A backyard cottage in Portland, Ore. (Image by linamenard licensed under Creative Commons) |
By Craig J. Blakeley
Usually a change in a law is proposed in order to address some new issue or problem that was not envisioned when the law was first adopted. But that is not the case with respect to the new approach to “accessory dwelling units” (ADUs) that is being proposed by Fairfax County staff as part of the Zoning Modification (ZMod) project.
In this instance, the “need” for the proposed change arises from the county’s inability – or unwillingness – to enforce the existing legal requirements, rather than from the need to address any particular housing problem.
At the May 7 meeting of the Planning Commission’s Land Use Process Review Committee, Zoning Administrator Leslie Johnson took note of previous remarks by Board of Supervisors Chair Jeff McKay to the effect that many existing ADUs (which are permitted only on the property of single-family detached homes) have not been authorized by the county and, thus, are illegal.
As she stated, the proposed changes in the ADU requirements will “legalize a lot of otherwise illegal conversions of basements for a separate dwelling unit,” which, presumably is the intention behind the proposed changes.
But in proposing to legalize what is now illegal, county staff have failed to take into account the potential adverse impact of their proposal on established neighborhoods.
ADUs, sometimes referred to as “mother-in-law” suites, were intended to provide owners of single-family detached homes with a way to provide separate living quarters for aging parents or disabled individuals. For that reason, under the existing ordinance, at least one person in either the principal residence or the ADU is required to be over 55 years old or disabled.
Moreover, at least in part to allow neighbors to provide input on the potential impact on their property and on the neighborhood, the ADU must by authorized by a special permit issued by the Board of Zoning Appeals after a public hearing.
Related story: Concerns raised about dropping public hearing requirement for accessory dwelling units
The proposed change, if adopted, would remove the age and disability requirement. In addition, by removing the special permit requirement – and the need for the associated public hearing – for in-home ADUs, it would convert them to a “by right” use, subject only to the issuance of an administrative permit.
By virtue of these changes, in-house ADUs would become general-use apartments, which could be rented out to anyone, without reference to age or disability. However, ADUs in a separate structure (so-called standalone ADUs) would continue to require a special permit and, as at the present time, could be built only on lots of at least two acres in size. But the age and disability requirements also would be removed for standalone ADUs.
Statements by county staff at the Land Use Process Review Committee make clear that the staff has failed to consider the potential adverse impact of the ADU proposal upon existing neighborhoods.
Indeed, based on their response to a question from Planning Commissioner Phillip Niedzielski-Eichner (Providence), it appeared that they were oblivious to the possibility that there was even a remote possibility of such an impact.
In response to a question from him about the potential impact upon the community, the staff answered with respect to the possible impact upon them – in terms of an increase in applications for ADUs. Thus, they stated that there had been an increase of approximately 20 ADU applications in Arlington County as a result of a change in the ADU requirements. They did not, however, seem to recognize the possible impact on neighborhoods.
At the committee meeting, several commissioners expressed concerns that the proposed liberalization of the existing ADU requirements would deprive neighbors of the opportunity to provide input and could well result in a proliferation of in-home ADUs in neighborhoods of single-family detached homes, thus adversely affecting the character of those neighborhoods.
These concerns could be compounded by in-fill developers, who may well start building homes that include ADUs as a way of attracting buyers, by offering homes with a built-in revenue stream (by virtue of the rental of the ADUs) to help offset mortgage costs.
Moreover, although the staff proposes to retain the present two-person limit for ADUs, there is no reason to expect that this limit will be observed, particularly in view of the county’s failure to enforce the existing ADU requirements. And, for the same reasons, staff assurances that ADUs cannot be used for short-term rentals, such as Airbnb, also ring hollow.
The ADU proposal thus offers the very real possibility of being a “catalyst for further degradation of neighborhoods” (in the words of Niedzielski-Eichner). For this reason, it should be rejected by the Planning Commission and the Board of Supervisors.
Craig J. Blakeley is an attorney with the Alliance Law Group LLC.
10 responses to “ZMod and ADUs: A solution in search of a problem”
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Thank you for your reasoned analysis of this proposal. Legalizing zoning violations that the Fairfax County government has so poorly enforced is clearly not the answer. Also, Fairfax County officials seem to live in some ivory tower which precludes them from anticipating or clearly seeing the potential abuses of this change. For some reason, Fairfax County officials want to make our county a hodgepodge of buildings so that more and more people can live here. Create high rises if you want more places for people to live. Leave our "single family" neighborhoods alone.
Craig, Thank you for this article. The unawareness of the county staff is unbelievable. Apparently they were told to get the ADU zoning ordinance done and don't worry about what the results might be. I don't understand why this county is continuously trying to undermine single-family housing neighborhoods. These are the backbones of the county. Thank heavens the Planning Commissioners were on the ball and could understand how this would be detrimental to neighborhoods. However, I believe the county supervisors are in the pocket of developers and will do anything to streamline the process of development. The BoS refuses to listen to residents and their concerns. I would love for somebody to prove me wrong!! Carol
Thank you Mr. Blakeley for helping to get the word out on the ADU proposal. I'm concerned the BoS will find a way to approve the draft regulation over Planning Commission and resident concerns. Nevertheless, residents should take the ADU and home-based business surveys on the County's zMOD website. The survey closes on 31 May. Now is the time to offer constructive feedback and critique.
Related, do not overlook the potential effect of the home-based business (HBB) regulation on SFH and townhouse neighborhoods. This proposal is as consequential, if not more so, than the ADU re-write. Among other changes from the current framework, the revisions (i) eliminate the non-exhaustive list of permissible HBBs, (ii) extend hours a nonresident employee may work on the premises (7 am – 6 pm), (iii) allow customers for all permissible HBBs, (iv) introduce hours of operation for customers to visit the HBB (8 am – 9 pm!), and (v) allow goods not produced on the premises to be sold on the premises (a huge shift; think a reseller of goods).
Non-HOA communities are especially vulnerable since they lack a legal mechanism for restricting ADUs and/or HBBs.
Hopefully these proposals will not pass. Zoning does not enforce the laws that are currently in effect. Houses with illegal kitchens in basements that catch fire, multiple families in one single family home, temples in neighborhoods that were "purchased to be single family homes then converted to religious temples, the list goes on and on to degrade the current single family homes in FFX county. Mason District is falling apart due to the lack of zoning enforcement. The house on Summit is a clear example of a house that was designed to have the ADU built in, then it was changed after the fact to add the kitchen. Why do neighbors have to file complaints to clean up their neighborhoods? Zoning should be enforcing the current laws, not changing to make the illegal zoning problems legal.
I would like to think that your objections might sway the BoS; however, if you read the way the questions were worded in both surveys, it's not a matter of whether or not the ordinances are going to be changed, it's a matter of how. It's clear given the types of questions being asked that the BoS have already made up their minds. Also, given the arrogance of the BoS, especially Penny Gross, the surveys are little more than a charade and a mere formality. It's clear the BoS has little in the way of consideration or regard for what single family homeowners in non-HOA communities think or want. And, while they think they're doing this in the name of affordable housing, they don't see the result is the exactly opposite, especially in terms of quality of life across the board. And, in typical Gross fashion, she will pit neighbor against neighbor and leave it to the citizens rather then the county to enforce the ridiculous codes the BoS have implemented.
Once again, the county gets what it votes for. An arrogant, simple, and single-minded approach.
This may be true at the end of the day, but all the more important that residents take the survey. Go on the record, even if anonymously, to highlight the flawed assumptions and other issues associated with the proposed regulations. It's much easier to write off 10 or 20 critical survey responses as fringe than a 100+ rationale critiques. The BoS is an elected body after all, and perhaps ignoring community input will have consequences in the next local election cycle. In addition, residents should consider emailing their Planning Commissioner (it appears several PCs share resident concerns) and/or Supervisor.
This county was never designed to be solving problems of urban communities even though they are promoting urbanization everywhere. The county government structure was designed for a rural setting. There are NO city services and they have no interest in developing those. So parking and all of the items mentioned above will continue to thrive since this county feels anyone should be allowed to do whatever they want on their own property. The problem is with urbanization, we all share the consequences of that. Until there is a true enforcement component we will all suffer under this "urbanization" doctrine that has been embraced by our elected officials. The hell with the taxpayer, let's bring in new taxpayers so we can tax our way to larger budgets.
Anonymous 3:15 wrote: "The hell with the taxpayer, let's bring in new taxpayers so we can tax our way to larger budgets.' Oh, if that were the only motivation. They will also get more votes, and perpetuate their time in office. The people that will most embrace the new rules are not developers who do pay high fees to the county, they are people living in group homes. My own street of 3 bedroom ramblers has several examples with up to 14 cars parked on and about the property. How do, let's just say 10 adult people live in a 3 bedroom house? These rules won't change the way Annandale is trending towards overcrowded houses on every street, its simply going to make it legal.
I agree with you. Code Enforcement is a complete joke in this county, not enough inspectors and if no one complains they do nothing, if someone complains they do nothing.
I support the proposed changes as a way to provide more affordable housing in the county. Prices are high and smaller homes can be hard to find, especially for young adults, downsizing empty-nesters, singles, and older adults living alone. Because of their small size, ADUs are often less expensive than renting or buying a single-family home and provide additional housing options in neighborhoods that might otherwise be too expensive.
In response to several comments here, I would suggest that the lack of affordable housing in Fairfax County is why we see overcrowding in some homes and illegal conversions that are not up to building codes. People will do what they need to take care of their families and provide shelter. The proposed changes would help bring those illegal apartments up to code and make them safer for residents, and hopefully help add more decent housing options for people.