ZTA Dossier

This article has been updated to include ACT for Transit among the supporters of ZTA 19-01

Montgomery County Council is scheduled to vote on ZTA 19-01, Accessory Residential Uses – Accessory Apartments today, Tuesday, July 23, 2019.

Regretfully, we could not inform readers of the specific changes and discussions surrounding the ZTA sooner. We hope the following “dossier” is an acceptable summary of the legislation to date. 

This summary will pickup where our previous article on ADUs left off. Readers who are not familiar with ZTA 19-01 are encouraged to first read our initial article.

Commonwealth, March 6, 2019 – County Executive Marc Elrich is wrong to oppose Accessory Dwelling Units

Background

On May 31, 2019, County Executive Marc Elrich sent an email communication to county residents alerting them of ZTA 19-01 ostensibly because “most county residents were unaware of the changes being proposed.” In a memo sent to the County Council on June 17, 2019, the Executive claimed to have received a total of 142 responses, 107 of which indicated opposition to the ZTA. 

Commonwealth planned to release the collection of these alleged communications sent to the County Executive in response to his public message about ADUs. As we describe below in the “Community recommended changes,” the Executive’s office has failed to comply with the Maryland Public Information Act (MPIA) request we submitted 1 month ago. 

While we waited on the Executive’s response, the series of events surrounding ZTA 19-01 included: a disgustingly racist and classist letter written to the Washington Post by a Republican appointed to the County’s charter review commission, which was met with a series of denunciations by Commonwealth, the Sierra Club, and Montgomery County DSA. There was also three Planning, Housing, and Economic Development Committee hearings and two Council meeting on ZTA 19-01 between March and the present. 

Readers – and constituents – deserve to be aware of the latest developments as the legislation goes to a vote. Especially due to the significant levels of misinformation surrounding ZTA 19-01.

What follows is a distillation of the objections and recommendations raised by County Executive Elrich in his June 17, 2019 memo, comments allegedly taken from responses to the Executive’s email (with Commonwealth commentary added in bold and where noted), and changes or amendments proposed by County Councilmembers during the final hearing on ZTA 19-01 at the Council’s July 9, 2019 meeting. 

Finally, we end by listing the organizations and individuals who have publicly opposed or supported ZTA 19-01, and what we learn from the lines drawn during this 7-month debate. 

Community Recommended Changes

We put quotations around “Community” because we don’t actually know the details of who responded to Marc Elrich’s inquiry and the communities they represent. Commonwealth submitted a MPIA request for the letters sent in response to County Executive Marc Elrich’s May 31, 2019 letter. 

Elrich’s office at first did not respond to our submission within the required 10 days, citing employee sickness. The office has also declined to electronically communicate the requested documents, insisting they be viewed in person (a considerable hurdle for any working constituent).

Finally, we have still not received any indication that the alleged 142 responses have been compiled or are ready for public release (or public viewing, as it were) at the time of this writing. 

This is a profoundly disappointing response from a public official who has traditionally been viewed as attuned to the demands of constituents. 

Therefore, the only information into the contents of the letters comes via the Executive office itself. We hope readers understand that, without the original letters, our remarks on each comment may be incomplete or misinterpreted. 

We take this opportunity to call on Marc Elrich to release the responses to the public in a transparent and accessible manner, as required by Maryland law, and as the issue is in the public interest. 

*Constituent remarks are indicated by quotation boxes, Commonwealth’s report or details of the remarks are made in bold underneath*

Detached units should not be allowed in the R-60 and R-90 zones. 

Suggested by Elrich, not accepted by PHED Committee

Loosening parking requirements and deleting distance-separation requirements will exacerbate on-street parking in many of the older neighborhoods; even if residents in ADUs walk or bike to transit, many will likely have cars. There were also concerns about shared driveways and neighborhoods with no driveways. 

ZTA 19-01 as introduced would require 2 on-site parking spaces or a waiver issued by the Hearing Examiner that acknowledges there is adequate on-street parking. 

At the request of the PHED Committee, County Planning staff reviewed car registration data for the County over areas within 1, ¾, and ½ miles of Metrorail or the future Purple Line. Planning staff found no significant differences in car ownership between properties within a mile of transit compared to properties ¾ or ½ mile from transit. 

A motion by Councilmembers Katz and Albornoz during the July 9, 2019 Council meeting to limit the parking requirements for ADUs within a ½ mile of transit failed. 

County Council also included MARC train stations in the parking exemptions for ADUs. 

There was very little outreach for public input from the communities likely to be most affected – for example, none of the regional service centers were made aware of the proposed changes and most residents still don’t know about them. 

No action necessary, although in passing we will point out there was an open forum held in January and public hearing held in February, as well as multiple open Committee and Council hearings in the months since. 

Instead of taking a measured approach, too many changes are being proposed all at once. Why? There are no regulations to protect against environmental problems associated with increased storm water runoff, loss of trees, green space, and additional impervious surfaces resulting from ground disturbance. 

There currently are provisions in the law contained in the original ADU licensing and construction codes that regulate increased stormwater runoff and impervious surfaces. However, constructing a new detached ADU does not require a sediment control permit, which usually costs $10,000 to the applicant for engineering plans and permit fees. 

High construction costs and high rents won’t address affordable housing needs. An additional concern is that these units can be converted from long-term living units to short-term rentals. 

Montgomery County Code allows either an ADU or a short-term rental on a single property, but not both. It is possible to get a construction permit or well/septic for an ADU approved by DPS, get licensed by DHCA as an ADU for 1 year, and then get a short-term rental license from HHS once the ADU license has expired. Furthermore, the Code requires applicants for short-term rental licenses to certify an ADU is not prohibited by the relevant homeowners association. 

Several comments referred to already overcrowded roads and schools and in general more stress on the county’s inadequate infrastructure, with no fees to offset increased needs. There were some concerns about utilities that would serve an additional detached living unit (i.e. WSSC, gas, electric, and septic systems). 

Montgomery County Planning Staff found that the school yield for a principal dwelling with an ADU was just fractionally less than the school yield of a dwelling without an ADU. Read more here

Residents say that the county cannot enforce existing regulations when complaints are lodged (because the county has no right of inspection after the initial one at licensing, DHCA can’t gain entry unless allowed by the homeowner); there are too few code inspectors; there is no amnesty program to register unlicensed ADUs; the permitting and approval process needs to be improved. 

This is all technically true of the existing laws regarding inspections. Furthermore, in the Council meeting on July 9, 2019 Acting Director of DHCA Timothy Goetzinger confirmed the office is in the process of hiring more code inspectors. 

Executive Elrich’s recommended changes to ZTA 19-01

Montgomery County Executive Marc Elrich listed the following recommendations in his June letter:

Do not allow detached ADUs in the R-60 and R-90 zones [two common smaller-acreage single-family zones in and around the Beltway -CW] except for “Granny Pods” that are temporary in nature (i.e., easily placed and removed) to accommodate aging parents or relatives with disabilities. Whereas larger lots can more easily accommodate larger built units, many of the county’s small-lot zones have limited parking on narrow streets, aging infrastructure, mature trees and landscaping, and proximity to neighbors that can lead to privacy, storrnwater runoff, light, and noise issues from not-so-tiny detached houses in neighbors’ back yards. The small-lot zones already accommodate two-thirds of the county’s registered attached ADUs/RLUs (and most likely unregistered ADUs as well).

Not accepted by PHED Committee.

Allow detached ADUs on any 20,000sf lot in the R-200 zone [larger acre single family zoning lot -CW]. 

Already written into ZTA 19-01 as introduced.

The PHED Committee recommended allowing an ADU up to 32′ long (this was not in the ZTA as introduced). These should not be allowed in the R-60 and R-90 zones. For the larger-lot zones, there should be clarifying language that specifies that a 32′ -long ADU must be a modular unit whose design is compatible with the principal dwelling unit. 

The PHED Committee did not agree to ban 32′ accessory apartments in R-60 and R-90 zones. However, the Council approved an additional setback requirement that would add one foot of setback from the property line for every foot over 24’ that the ADU extends (Planning Committee Chair Casey Anderson described this as “not letting the perfect be the enemy of the good). 

It should be noted that the 32’ long ADU addition was proposed by Councilmember Riemer after learning of Executive Elrich’s plan to convert shipping containers into homes. Converted shipping containers, therefore, would be included as a permitted ADU if they can meet setback requirements. 

Add language stating that a detached ADU is a long-term housing option and may not be converted to a short-term rental. The current zoning code defines residential zones as designated areas of the county for residential use at specific densities (June 18th packet, page 12, emphasis added). The packet also states that “the intent of ZTA 19-01 is to more permissively allow detached and attached ADUs” and “the goal is to allow intensification of housing in single-unit zones.” fit is the Council’s intent to allow greater densities in single-family zones in order to provide for more – and more affordable – housing, conversion of detached units to AirB&Bs would undermine that intent by catering to guests, not residents seeking longer-term housing. Conversion of attached ADUs should require de-registration of the ADU and re-registration as a short-term rental unit to make sure that all county regulations are met.

Already written into the ZTA 19-01 as introduced. However, over the course of discussion, Council staffers requested the ZTA not address matters of owner occupancy. Owner occupancy requirements are the realm of the County’s legal, not zoning, code. As such, Council staff requested a complimentary omnibus bill to update and correct formalities in the County’s legal and zoning code. The companion omnibus bill is Bill 22-19, Accessory Dwelling Units – Licensing – Requirements – Amendments

Require an inspection every three years and an annual report on the number of registered ADUs, rents charged, and number of bedrooms (wouldn’t it be great to have data on the ADUs we have in the county?). 

Not accepted by the PHED Committee. Omnibus Bill 22-19 will require ADUs to be included in quarterly “quality of life” reports submitted by the Executive office to the County Council.

To address the county’s need for affordable housing, the ZTA should include provisions to incentivize affordable rents for those in the 60%-100% AMI range, particularly in detached ADUs. This would be in keeping with remarks from supporters of the ZTA that affordable housing is an important goal and a reason for introducing greater density into established single-family neighborhoods. 

It’s unclear whether Executive Elrich has any actionable plan in mind with this proposal. Accordingly, the PHED Committee did not include incentives for ADUs in the 60%-100% AMI range.

To offset the additional infrastructure costs, require a detached ADU with more than one bedroom to pay the same impact fees that would be paid by anyone building a new house on a lot. 

Not accepted by the PHED Committee.

Retain the rule that an ADU must be in an already existing structure – currently the code requires that the structure must be five years old, but this time period could be reduced. Retaining the provision will help to encourage stability in single-family neighborhoods and discourage speculative “flipping” of properties. 

The provision was retained.

*Edit*

Hans Riemer has kindly informed us the Council did not retain the requirement that an ADU must be in an existing structure. The permitting of new units will be complicated, according to Riemer, but the payoff is potential new ADU housing in existing structures.

Because I [County Executive Elrich] anticipate ADU-related ground disturbance activities in established neighborhoods, I have directed county departments to review county regulations on stormwater runoff, tree preservation, and impervious surfaces so that we can proactively take steps to lessen the impact of new construction on adjacent properties. This review is long overdue and will be addressed in a forthcoming bill. 

(No action required)

Commonwealth notes the County Executive vocally opposed ZTA 19-01 on the basis that accessory units may not be an option for low-income residents. 

However, only one of the Executive’s recommended changes pertains to affordability, and even offers no actionable policy suggestions besides, “provisions to incentivize affordable rents.” Furthermore, a majority of the Executive’s written recommendations in his June letter pertain to space and neighborhood character, not affordability. 

Council’s recommended changes

As noted above, Councilmembers Friedson and Albornoz requested that the current code provision requiring increased setbacks for accessory structures greater than 24 feet in length apply to detached ADUs. This was accepted by the Council.

Councilmembers Riemer, Friedson, and Jawando made a motion to change the phrase “50% of gross floor area” to “50% of the footprint”. This has to do with the 3-part size test of an ADU summarized below. This was accepted

Councilmember Albornoz made a motion to limit the maximum size of a detached ADU to 800 square feet. This failed. 

Councilmember Albornoz made a motion to require a minimum 6-foot high fence for any newly-constructed detached ADU in the R-90 and R-60 zones. This idea was rejected by the rest of the Council.

Councilmember Albornoz made a motion to limit the parking exemption to properties within ½ mile of a transit station. This was rejected in favor of the PHED Committee’s existing recommendation for parking exemptions within 1 mile of transit. In addition, a suggestion was made to consider adding the MARC Rail stations to the parking exemption. This motion was accepted.

The 3-part ADU Size Test

This is such a novel way to go about solving the issue of how large a newly constructed detached accessory apartment could be that it deserves individual attention.

As introduced, the ZTA would allow limit accessory structures in R-200, R-90, and R-60 zones to 50% of the footprint of the principle dwelling or 600 square feet, whichever is greater.

The PHED Committee recognized that the lack of ADU size limitations could lead to less affordable ADUs and increased compatibility issues with neighboring property.  Therefore, a 3-part test was proposed by the Committee, and accepted by the Council on July 9, 2019, that would limit the size of a new detached ADU would take the lesser of 50% of the footprint of the principal dwelling, 10% of the lot size, or 1,200 square feet.

In practice, this would mean on lots that are 6,000 square feet in size, 10% of the site would limit the maximum footprint size to 600 square feet for a detached ADU. Using 10% of the lot area as a limit would allow a 1,200 square foot footprint on any lot that is at least 12,000 square feet.

Who supports? Who opposes?

It’s impossible to delineate every single aspect of the arguments for and against ADUs. Instead, below are distillations of the views put forward by the most prominent advocates and opponents. 

Supporters

On the basis that ADUs offer an environmentally sustainable option for cheaper housing, with no costs to the County, the Maryland Sierra Club, the Coalition for Smarter Growth, Habitat for Humanity Metro Maryland, the Housing Initiative Partnership, and the Affordable Housing Conference support ZTA 19-01

The League of Women Voters supports  ZTA 19-01, believing homeowners will benefit through extra income and, maybe, if both parties desire, assistance with chores and companionship.

The Maryland Building Industry Association believes that ZTA 19-01 will enhance residents’ and homeowners’ to age in place, and encourage housing variety. Note that, yes, the MBIA is often what people are referring to when they mention “Developers” who conspire to over-develop the County at a profit. 

The Commission on Aging supports the spirit of ZT A 19-01 without taking a position on all of the technical changes. 

The Town of Brookeville, an incorporated town in northern Montgomery County that legalized all forms of accessory units many years ago and now has 31 ADUs, thought that the County would benefit from the approval of ZTA 19-01. Brookeville Planning Commission testified: “Speaking from our 20 years’ experience, the Town has not experienced negative impacts from ADUs – such as parking shortages, vandalism, lowered property values or degradation to the historic village atmosphere.” 

Action Committee for Transit supports ZTA 19-01 and has supported reforms to Montgomery County’s zoning codes since at least 2012. Read their detailed position statement on their website.

Commonwealth supports ZTA 19-01 specifically because it opens the conversation of ending single-family zoning to the County’s benefit. In fact, during PHED committee hearings, revisiting single-family zoning was explicitly brought up. This is a fight that will come to Montgomery County sooner than most expect, just as it came to Oregon, Seattle, Minneapolis, and California. A more dense, environmentally sustainable, and transit-accessible future for cities and the suburbs is necessary in light of climate change and growing populations. ZTA 19-01 is a meager step towards addressing these concerns.

Opposed

The Village of Chevy Chase Section 3 finds ZTA 19-01 to be a stealth means of ending single-unit zoning to the County’s detriment. As already described above, the ZTA itself doesn’t aim for this, but single-family zoning is on the minds of councilmembers. 

The Cherrywood Homeowners Association recommended rejecting the ZTA. North White Oak Civic Association opposed the approval of ZTA 19-01 until an effective inspection and enforcement regime is instituted. Kensington Heights Civic Association, in the spirit of proceeding cautiously, does not recommend proceeding with ZTA 19-01 at this point. 

Some of the opposition testimony believed that the removal of the minimum distance between ADUs, the elimination of a minimum lot size, and an allowance for detached units in small lot zones will lead to so many units that the character of the neighborhood will be changed. 

In the opinion of some of the residents who testified, the removal of both the restriction on new front entrances and the allowance for new construction of the principal unit and the ADU will lead to too many front doors (duplexes) in what was a single-unit zone. As described above, the removal of front entrance restrictions was not included in the final bill.

The president of the Fallsreach Homeowners Association wanted any change to ADU provisions to recognize HOA covenants. A majority of HOAs do not permit accessory units. The County does not enforce the private contracts that underlie HOA agreements. The ADU permitting process requires public posting of intentions to construct an ADU with allowances for objections from surrounding residents, including HOAs. 

The Greater Olney Civic Association (GOCA), which represents over 30 HOAs in north Montgomery County, opposes the amendment.  GOCA president Matt Quinn provided the Washington Post with the organization’s reasoning: “We’re paying our taxes, we’re keeping our yards clean, our children are going to school…Why is it that we need to change here?”

(Readers, make a mental note of the Greater Olney Civic Association and their conservative and exclusionary impulses; Commonwealth is preparing an explosive report that involves GOCA but pertains to a separate subject to be released soon.)

As the record of testimony suggests, homeowners associations in affluent areas came out in full force against the ZTA.

MoCo’s Minuscule Republican Minority Gets Outsized Media Attention for their Opposition

Every apparatchik of the dwindling Republican Party in Montgomery County appears to oppose the ZTA. They are also the most inclined to openly state racist sentiments that underlie the opposition arguments coming from HOAs.

Commonwealth has previously highlighted Kathryn Gugulis’s racist letter to the editor from June published in the Washington Post. We have also talked about the conspiratorial accusations of local food-blogger Robert Dyer, who posted an update Monday about how the proposed ADU legislation was the “Council’s Maoist-inspired strategy is to bring down successful neighborhoods and school clusters via allowing multifamily development in every neighborhood countywide, and through forced busing of children.” Holy Racist Dog-Whistle Batman!

The Washington Post published comments from opponents of ZTA 19-01 who identified themselves as Republicans living in Montgomery County. An excerpt of their reporting:

Standing outside the council building on July 9, Gail Weiss, 58, vehemently disagreed. “They’re blowing up single-family home zoning,” she said. “And for what?” The longtime Bethesda resident sees the zoning proposal as part of the all-Democratic council’s “leftist political agenda.” Residents who cannot afford to live in the county, she said, should move.

Dan McHugh, a 37-year-old Republican political consultant from Rockville, said his opposition stems from what he sees as the changing demographics of Montgomery, which became a majority-minority jurisdiction in 2010.

McHugh said the county, where he grew up, is “going in a direction where it could end up like Prince George’s,” a neighboring county that is one of the wealthiest majority-African American suburbs in the nation. When pressed on what he meant, McHugh said: “Our taxes are up, our crime is up, and our schools are turning into a complete joke! How is any of that good?” 

Emphasis is added by Commonwealth to indicate dog-whistles and other racist and classist rhetoric.

Notably, Dan McHugh was revealed by Bethesda Beat in 2016 to be a Trump supporter whose political affinity (ie: neo-Nazism) was causing problems in his love life. Specifically, he was unable to find a girlfriend. He was the head of the Montgomery County Young Republicans at the time (at the youthful age of 34). McHugh is connected with the organization “Help Save Maryland,” a far-right anti-immigrant group identified by the Souther Poverty Law Center as a hate group.

Where was the left?

While the right is using the ADU legislation as an opportunity to vocally express racist, classist, and exclusionary views, the left has largely let the issue pass by the wayside. Our Revolution in Montgomery County and Progressive Montgomery (if the organization still exists) have both been quite on the issue. Montgomery County DSA poked its head up to denounce Katherine Gugulis, but has emphatically taken no side on the debate. 

We close this dossier with one exhortation to the left in Montgomery County. Not taking a firm stand on this issue, which accumulated a massive amount of public focus in the seven months since it has been introduced, effectively ceded all grounds for the discussion of the ZTA to the right-wing and conservative homeowners associations. 

When the local left doesn’t voice an opinion, positive or negative, out of fear of alienating membership (rather than fostering a dialogue) or alienating an endorsed politician (rather than pressuring them to do better for the community) we lose to the reactionary right.

Land-use is a controversial area for leftists. But retreating from the oncoming wave of discussions around spatial equity and justice will only further obscure the grand intentions of the left. 

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