HomeMy WebLinkAbout02-28-22 Public Comment - K. Thane - UDC Changes for ADUsPage 1
Introduction
Clarion Associates, the consulting firm hired by the City of Bozeman to do the Bozeman Code
Audit, provided a public review draft of its recommendations dated August 2021, which is
subtitled Unified Development Code Affordable Housing Assessment. That document makes
recommendations for changes that could provide the opportunity for the creation of more
affordable housing, and, as a subset of its report, addresses changes specifically targeted at
Accessory Dwelling Units (ADUs). The Draft cites the following objectives from the Bozeman
Community Plan 2020:
a. N-1.4 Promote Development of accessory dwelling units (ADUs). Page 7
b. DCD-1.2 Remove regulatory barriers to infill. Page 8
Additionally, The Draft embraces the idea that , [The City should use] “…a ‘maximum
extent practicable’ standard for development approval.” Page 1
Given the objectives stated above that are found in the current Bozeman Community Plan, and
the recommendation of the City’s consultants, Clarion Associates, I respectfully request that the
City Commission make all changes to the UDC recommended by Clarion, and consider the
additional recommendations detailed below.
Changes targeted at Accessory Dwelling Units
Clarion states, on page 15 of the public review draft of The Bozeman Code Audit, that some of
the changes they are proposing, “… are intended to encourage ‘gentle density’ through the
addition of an accessory dwelling unit, a second attached single-household unit, or well-
designed townhomes.” I support their recommendations but in some cases propose that the
UDC be changed to a greater extent than they are proposing.
1. Lot Size – On page 15 of the draft report, Clarion suggests that, “…changing the current
standards on lot and building size to allow more housing, the UDC could further
promote both capital “A” and small “a” affordable housing by reducing ambiguity and
subjectivity in the standards applied by the City in reviewing applications for housing
development.” Additionally, Clarion recommends allowing an additional dwelling unit in
existing housing without a requirement for additional lot area. The consultants state, on
page 18, “… the UDC would better promote conversions of existing housing to
accommodate an additional unit if it did not require additional lot area for that second
unit.” On page 30, Clarion restates this by recommending, “Removing the requirement
for additional lot area to construct an ADU.” I suggest that the City should do away with
Minimum lot area per dwelling unit requirements (38.320.030.A)
Rationale
Currently lot area minimums per dwelling unit in R-1 to R-4 are set as follows:
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a. Single household dwelling – 4,000 square feet
b. Single Household Dwelling when used for Affordable Housing – 2,700 square
feet
c. Two household dwellings – 2,500 square feet
d. Three or four household dwellings – 3,000 square feet
e. Three or four Household Dwellings when used for Affordable Housing – 2,500
square feet
f. Townhouses and Rowhouses – 3,000 square feet
g. Townhouses and Rowhouses when used for Affordable Housing – 2,500
square feet
It makes no sense to force larger lot sizes on market rate dwellings (which increases
cost) when the code acknowledges that dwelling units can be constructed on smaller
lots – as is allowed when the dwelling unit is built for Affordability. Cost saving
opportunities should not be limited to the provision of Affordable Housing. Smaller
dwellings and smaller lots should be encouraged across the housing continuum.
Another case for consideration is that of lots containing two small single household
dwelling units. The UDC acknowledges that a 600 square foot dwelling unit (an
Accessory Dwelling Unit) is an acceptable size dwelling unit. Yet, the code requires that
if you put two 600 square foot primary dwelling units on a lot, the lot must be 6,000
square feet in size in the case of Market rate units or 5,000 square feet in the case of
Affordable units. This means that 4,800 square feet of the lot must not have dwellings
therefore 80% of the lot goes unutilized. This problem becomes worse as the number of
small dwelling units increases.
Developers, Engineers, Architects, and Designers should be allowed by right to include
small dwelling units on small lots within any subdivision. It will then be incumbent on
those professionals to use their professional expertise to create designs that address the
needs of the occupant, and the constraints of the available lot. This will allow creative
solutions that will provide designs that maximize the use of the land and eliminate
remainder parcels that need a CUP or PUD to be approved. In conjunction with allowing
small lots and small dwelling units by right, City reviewers should stop evaluating lots for
utility access. Doing so would free up reviewer’s time and provide developers with a
quicker turnaround on reviews. Should there be a problem with utility access it should
be up to the developer to deal with the problem - not the City.
In conjunction with removing lot size restrictions, Remove Note 3 in 38.360.040, “An
accessory dwelling unit may not be approved on a reduced size lot created to meet
the minimum affordable housing requirements of chapter 38, division 380.”
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In short, I suggest that lot size restrictions be removed completely to allow architects,
designers, and developers to use their expertise in matching lot size to the dwelling unit
to be placed on the parcel. Paralleling the argument found on page 53 of the Draft
supporting adjusting initial submission requirements. “If the applicant chooses this
option, obtains an early-stage approval, and finds it impossible to submit a consistent
follow-on application, the first stage approval may expire, and that step may need to be
repeated. That result, however, would be the result of applicant choice, and not
because the City required more detailed approval than was really required to grant the
first approval.” Likewise, if the developer creates a lot plan that doesn’t work the onus
is on the developer who must then redo his plans.
2. Occupancy limit - Clarion suggests raising the occupancy limit for ADUs from two
persons to four persons (page30). I suggest that the occupancy limit be eliminated
altogether since it is generally hard to enforce and serves no real purpose. Clarion
suggests, on page 30, in conjunction with limiting occupancy, that ,”… keeping the ADU
subordinate to that of the primary unit is very important to allow utilities to be
extended from the primary dwelling unit to any detached ADU without requiring
construction of new utility mains or payment of related fees.” I submit that whether
existing utility connections can be used or new connections need to be constructed is a
component of the design of the ADU and not limited by the number of occupants. If the
ADU is designed for habitation by 6 people, then the designer and builder can size the
utility connections appropriately. If the ADU is designed for 2 or 4 people and the utility
connections do not need to be adjusted then the utility connections can be made
accordingly.
3. Clarion proposes on page 30, “Increasing the permitted size of an ADU to 800 square
feet.” Why limit the size at all? Currently, the UDC allows a second primary dwelling on
an R-1 lot when the size of the lot permits it, without limiting the size of the second
primary dwelling unit. Note that Accessory Structures greater than 600 square feet are
allowed (see 38.360.030.I.4) – they just can’t be dwelling units.
4. Eliminate the following design constraints found in 38.360:
a. 38.360.030.E No accessory building may exceed the footprint of the principal
building unless such accessory building has been otherwise approved per this
chapter.
b. ADU Height limitations 38.360.030.G.1 - Accessory buildings may not exceed
the height of the principal building unless such accessory building has been
otherwise approved per this chapter. Note 38.360.040, “Notwithstanding the
limitations in section 38.360.030.G, a detached ADU may exceed the height of
the principal building but may not exceed 22 feet in height.” Detached accessory
buildings are allowed to be taller than the principal building. At a minimum this
should be the case for detached accessory buildings as well, although the real
solution is to allow accessory buildings to be as tall as the code for principal
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structures allows, without regard to whether the building is principal or
accessory. Currently, a homeowner can build an addition to their primary
dwelling unit that need only conform to height and lot coverage regulations for
the primary dwelling unit.
c. Setback Limitation 38.360.030.G.2 - Eliminate 38.360.030.G.2 which limits the
available floor space in an ADU above a garage. Illustration 38.360.030.G
justifies 38.360.030.G.2 by indicating it prevents direct views from second story
windows into adjacent properties. If this was valid reasoning then the same
limitations would need to be applied to all second stories – not just ADUs above
a garage.
d. Lot area limitation 38.360.030.J - Structures may occupy no more than 40
percent of the area of the lot located to the rear of the principal building. Why?
Under current regulations, this forces setting aside land that would otherwise
be available for the placement of an appropriately sized dwelling unit. Does
this force green space that the City’s current drought considerations are trying
to reduce?
e. Owner Occupancy of one of the units when an ADU is placed in R-S and R-1.
There are no owner occupancy requirements for any of the other zones. When
a second primary dwelling unit is placed on an R-S or R-1 lot there are no
owner occupancy requirements. The same should apply to an ADU in R-S or R-
1.
f. 38.360.040 Remove the restriction that disallows deviations for ADUs. If all the
changes requested in this document were enacted, perhaps deviations would
not be necessary, but to assume the code is “perfect” at this point thereby
removing the need for deviations puts at risk good designs that are minimally
outside the code.
g. Remove the statement in Table 38.360.040, “The review authority must
consider placement and size of windows, decks, balconies, fencing, landscape
screening, and height and massing of the structure to minimize impacts to
adjacent properties.” This language is arbitrary and arguable, and it is
recommended by Clarion Associates (page 30, “Eliminating discretionary review
for compatibility and consistency and instead applying objective standards
relating to shadowing, privacy, and other impacts.”) that such language be
removed. If a new primary dwelling or a second primary dwelling is placed on
the lot neither should be subject to these considerations by the review
authority.
h. Remove 38.360.040 Note 4b – “The ADU does not exceed one-third of the total
area of the principal structure.” This could prohibit having an ADU in
conjunction with a small principal dwelling.
Incentives / changes that the City could provide to encourage construction of ADUs
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1. Reduce or eliminate building review and inspection fees for ADUs.
2. Reduce or eliminate Impact Fees on ADUs
a. Possible Methodology Options
i. Currently the City charges a reduced Impact Fee for ADUs. The City
has the authority to reduce those fees even further since Montana
Law in MCA 7-6-1603.6.a states, regarding Impact fees, “This part
does not prevent a governmental entity from granting refunds or
credits that it considers appropriate and that are consistent with the
provisions of 7-6-1602 and this chapter”
ii. Simply set the Impact Fee for an ADU at a minimal amount.
iii. Charge an ADU impact fee that is equal to the additional amount of
impact fee a Multi-Household dwelling would add. For example, a
1400 square foot Multi-Household dwelling would have an impact fee
of $8,585.80. A 2,000 square foot Multi-Household dwelling would
pay an impact fee of $7,704.21, so the impact fee for the a 600
square foot ADU would be $881.59 (8,585.80 less $7,704.21).
iv. Reduce ADU impact fees to a flat $200.00 amount. Impact fees can’t
be directly tied to square footage of the dwelling unit since there is
not a way to know for sure how many occupants will be in the unit
regardless of its size. Therefore, saying that a reduced impact fee for
ADUs is based on limited square footage or 2 person occupancy
doesn’t hold up.
3. Provide a City tax rebate when an ADU is rented affordably.
4. Add a provision that no setback shall be required for an existing garage that is
converted to an accessory dwelling unit, and a setback of no more than five feet
from the side and rear lot lines shall be required for an accessory dwelling unit that
is constructed above a garage.
5. Allow the Community Development Department to administratively approve an
application for a building permit to create within a single-family residential lot one
accessory dwelling unit if the unit is contained within the existing space of a single-
family residence or accessory structure and the side and rear setbacks are sufficient
for fire safety.
6. Include in code that accessory dwelling units shall not be considered new residential
uses for the purposes of calculating connection fees or capacity charges for utilities,
including water and sewer service. The City shall not require the applicant to install a
new or separate utility connection directly between the accessory dwelling unit and
the utility or impose a related connection fee or capacity charge.
Indirect benefits of increasing the supply of ADUs.
Climate Change
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1. According to the EPA in 2019 29% of greenhouse gasses can be attributed to
transportation. Doing infill with ADUs should cut the amount of driving miles thereby
reducing greenhouse gas emissions – One of the City’s goals.
Inadvertent Costs from current ADU Regulations
1. Builders attribute a disproportionate amount of the construction costs of a dwelling to
the kitchen and bathroom. Arbitrarily limiting the size of an ADU to 600 sq feet
increases the cost per square foot of the ADU.
Ideas to consider for incenting the construction of ADUs
1. Use the Community Housing Fund to reimburse 50% of impact fees for ADUs rented at
market rates and 100% for ADUs rented at affordable rates.
2. Waive design review fees for housing units that will be affordable in perpetuity.
3. When a dwelling unit is rented at an affordable rate for 9 or more months in a calendar
year the owner will qualify for a 10% rebate on the city taxes attributable to that unit.
4. When an ADU is constructed at the same time as the primary dwelling unit, impact fees
for the property will be charged at the multi-household residential rate.
5. Create a City tax break for those who rent an ADU at an affordable rate by freezing the
City Property taxes on the property while it is being affordably rented (sort of like a mini
TIF District).
6. If all units on a property with an ADU are rented affordably then there does not need to
be owner occupancy of any of the units.
Other Clarion Recommendations for Affordable Housing
1. Manufactured Homes – Page 54 - Simplify the Review of Manufactured Homes on
Individual Lots. At a more specific level, the City should consider eliminating the current
requirements for photographs and special approvals for manufactured homes to be
located on individual residential lots. If the unit meets HUD code, is placed on a
foundation as required, meets setbacks, and meets objective design regulations, the
unit should be reviewed and processed in the same way as any other single-household
dwelling. Clarion states on Page 57 - The reality of the current housing challenge is that
Bozeman needs to look beyond single-household residential home construction and
encourage the development of more two-household, three-household, four-household,
and multi-household projects.
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Other UDC Changes for Consideration
1. Delete the Cottage Housing Subdivisions 38.360.120 and insert a section for the
creation of dependent lots.
Rationale - The intent of this section is to simplify the creation of
dependent lots within a single primary lot. The ordinance, however, went
on to regulate cottage housing to such an extent that the creation of
“Cottage Housing” is all but impossible to do. The ordinance should be
devoted solely to the mechanism of creating dependent lots within a
primary lot. All aspects of the design within the cottage subdivision should
be controlled by the regulations called out in the UDC for all dwelling units.
2. Inclusionary Zoning - Since Bozeman’s Affordable Housing Ordinance (38.380)
(Inclusionary Zoning) was struck down by the State Legislature this Ordinance
should be struck form Bozeman’s Municipal Code in its entirety and replaced with
code that requires small dwellings on small lots but provides the opportunity for
larger lots and dwelling units if affordable housing is enhanced by the larger lots
and dwelling units.
3. Eliminate the 20 foot minimum setback for a garage facing a street 38.320.030.1.
This will allow greater flexibility in design and make better use of lot square footage.
4. Eliminate the 38.350.070.C.2 which requires garages facing the street to be four feet
behind the front façade of the structure.
5. Eliminate the length and width requirement for garage stalls 38.540.010.A.4. Many
compact cars do not need the 20’ x 9’ currently specified and a smaller garage stall
could result in a cost savings.
6. Allow block lengths up to 800 feet by right without an intersecting street or
pedestrian path 38.410.040.
a. Allowing longer block lengths without interruption increases density and
decreases infrastructure costs.
7. Reduce the requirement that Parkland, excluding linear trail corridors, must have
frontage along 100 percent of its perimeter on public or private streets or roads,
and allow, by right, that Parkland shall have between 50% to 100% of its perimeter
on public or private streets. 38.420.060
a. Reducing the requirement that Parkland have 100 percent of its perimeter
on public or private streets can reduce infrastructure costs and allows
greater design flexibility which can reduce development costs. Allowing
this by right reduces development review time thereby freeing up City staff
time and reducing costs for the developer.
8. Disallow the dedication of Parkland less than 1 acre in size.
a. Currently, small disjointed parcels of land, commonly referred to as “Latte
Parks”, are counted as dedicated Parkland. Most times, these parcels result
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in a small weed patch that must be maintained by HOAs with resulting costs,
or are neglected.
9. Review all grassy swales intended to act as a detention pond for stormwater to
ensure that storm water will actually reach the swale. Current code requires
stormwater retention but doesn’t require review of topography to ensure that the
swales are placed such that they provide the benefit for which they are intended.
Sometimes small orphan areas are allowed for this purpose when the only purpose
they serve is to allow the developer to reach the capacity required for stormwater
retention.
10. Allow rowhouses and attached condos and townhomes to be served by one
connection to City water and one connection to City sewer with the service to the
attached units distributed on the property and separately metered.
11. Delete the Cottage Housing Ordinance and allow the benefits of cottage housing to
be available for all development – not just affordable housing development.
12. By right, allow builders / homeowners to connect ADU water and sewer service to
the primary dwelling services without a sewer line camera inspection.
Non-Code Regulation Changes
1. Regulations require that if an ADU is going to be connected to the sewer of the primary
dwelling unit a scope of the sewer line must be done. This should be up to the
homeowner and their designer or engineer since the sewer line from the City’s main to
the house is the responsibility of the homeowner. The homeowner could be made
aware that this should be considered but it shouldn’t be required.
Changes providing better long term affordability
Engineering Changes
1. Change regulations (or standard practices) so that more than one water meter can be
placed in a dwelling unit. This would allow separate water and sewer billing for the
primary dwelling unit and the ADU which would result in less overhead for the
homeowner, a more accurate split of the utilities used by each unit, and would allow the
renter of the ADU to establish a payment history that would be of value when applying
for a loan ads they move up the housing continuum.
2. The city should, upon request, provide separate water meters for multiple dwelling units
that are served from one connection to the city water lines. In the case of an ADU or
similar situation where a water meter measures all water that passes through a
connection before a secondary water meter measures the water used by a subsequent
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dwelling unit then the city will subtract water used by the second unit before billing the
first unit.
3. Rather than having the City require a certain sized water line based upon a fixture count
or some other method, leave the sizing of the water line up to the architect, builder, or
homeowner. This will free up staff time and potentially save money for the builder or
homeowner.
Options for replacement of the Inclusionary Zoning Ordinance
1. Restrict subdivision lot sizes to a maximum of 6,000 square feet.
a. Provide a lot size increase bonus for each buildable lot in the subdivision that is
deed restricted to be perpetually affordable. The lot size bonus will be 1,000
square feet or the number of square feet in the lot that is made perpetually
affordable, whichever is greater. The bonus square footage earned can be used
on any single lot or split among multiple lots to increase the lot size above 6,000
square feet.
b. If small buildable and affordable lots are sold to a land trust that ensures
perpetual affordability then the developer is granted a lot size bonus equal to
the size of the lot placed into the land trust that can be used to provide lots
larger than the 6,000 square feet maximum lot size.
2. Prohibit homes larger than 2,500 square feet unless an ADU is included (either internal
or external to the primary dwelling unit). If a rough-in for a future ADU is provided
(such that for example when a family size shrinks the ADU can be completed) then the
dwelling unit is allowed to be 2,800 square feet in size.
a. Provide a square foot dwelling unit size bonus that allows homes over 2,500
square feet to be constructed when a perpetually affordable dwelling unit is
provided. The size bonus will be equal to the square footage of the perpetually
affordable unit(s) provided and can be applied to a single unit or split across
multiple units.
3. Allow lot size bonuses and square footage bonuses to be sold or traded.
4. Allow up to 50% of the lot to be covered when the dwelling unit is sold at an affordable
price and up to 60% of the lot to be covered when perpetual affordability is ensured for
the unit.
5. Require 25% of lots in a new subdivision to be less than 2,700 square feet in size or 25%
of dwelling units constructed to be less than 1,200 square feet in size.
6. Include affordable housing requirements in Zoning designations. For example require
that when building in an R-5 Zone, 20% of the units constructed must be affordable.
General
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1. Developer Risk – Trusting the lot configuration, unit design, and marketability of units
proposed by developers parallels the argument made on page 53 of the Draft relating to
adjusting initial submission requirements.
Page 53 – “Second, this change sometimes brings concern that the applicant will not, in
fact, be able to submit a later stage application that is consistent with the first approval due
to unforeseen engineering, soil, unmarked infrastructure, or other constraints. The
response is to clarify in the UDC that the risk of unknown site conditions is borne by the
applicant, who can perform additional site or engineering analysis at their own expense in
order to minimize this risk, or simply take the risk. Most newer development codes allow
the applicant to make this decision in order to reduce the up-front costs of preparing earlier
application documents. If the applicant chooses this option, obtains an early-stage approval,
and finds it impossible to submit a consistent follow-on application, the first stage approval
may expire, and that step may need to be repeated. That result, however, would be the
result of applicant choice, and not because the City required more detailed approval than
was really required to grant the first approval.
Respectfully Submitted
Kevin Thane
3432 S 29th Ave Bozeman, MT 59718
(406)587-7534 kpthane@gmail.com