It's time to reconsider oppressive zoning

USA Today (Society for the Advancement of Education), July, 1996 by George W. Liebmann

Individuals should be allowed to use a small part of their dwelling for gainful employment that does not change the character of the surrounding residential area.

MANY PRESSING societal problems, including homelessness, social isolation of the elderly, and inadequate child care can be ascribed to zoning restrictions. Relief of these conditions does not require drastic change. Modification of local ordinances to allow accessory apartments, home occupations, and convenience shops in residential neighborhoods is consistent with the purpose of zoning: protection of residential neighborhoods against traffic, noxious uses, and strangers.

Nearly all American zoning ordinances, based on the Standard Zoning Enabling Act promoted by Secretary Herbert Hoover's Department of Commerce in the late 1920s, authorize "accessory uses" in residential neighborhoods. Those usually include such amenities as porches and garages. However, the courts become more resistant when accessory uses include self-contained rental apartments in single-family houses, garage apartments, or separate houses on single-family lots. The "granny house" or "echo house" (a small backyard cottage) is a familiar European institution, and the two-family home or duplex apartment, the rental from one portion used to pay the mortgage, likewise is familiar abroad. In Germany, people who build two dwelling units--one for the owner's occupancy and one for rental--can deduct against taxes five percent of the cost for eight years and 2.5% thereafter. Finland and Great Britain allow modest amounts of the rent from an accessory apartment to be disregarded for income tax and social security purposes.

There has been enhanced interest in that type of housing in the U.S. in recent years. The American Planning Association has published model ordinances. The District of Columbia and Fairfax County, Va., have been considering ordinances to legalize the creation of apartments in homes. Some form of that type of legislation has been adopted in Hawaii; Montgomery County, Md.; Marin County, Calif.; and various towns in Fairfield County, Conn. It is no accident that the legislation first appeared in jurisdictions notorious for high-cost housing. An estimated 40% of suburbs now allow accessory apartments in some form.

The move toward accessory apartments has been largely spontaneous and has generated little opposition, for it is non-threatening. The ordinances expand, not impair, the rights of property owners. Municipalities tend not to oppose changes that are expected to increase revenue by raising land value assessments. Because the apartments thus created are small and therefore usually inhabited by single persons or the elderly, the impetus to exclude families that will burden municipal services is absent.

The appeal of accessory apartments is enhanced by the opportunity to create an additional housing unit for as little as $16,500. The major impetus for changing the law, though, is the need arising from recent social developments. These include the demand for living units by an increasing number of elderly persons priced out of nursing homes; the rising incidence of divorce and consequent need for women with children for income obtained from renting extra space; the decline in the marriage rate; and, most dramatic, the drop in family size, rendering much older housing needlessly large. The average number of persons per household fell from 3.14 in 1970 to 2.63 in 1990, a decline of more than 15%.

It has been estimated that approximately 3,000,000 accessory apartments already are in use in the U.S., the equivalent of six or seven years' average rental housing production. The annual number of conversions to owner-occupied apartments has been put at 50-65,000 or, since 1980, about half the number of unsubsidized rental units completed each year.

Recent experience with accessory apartments suggests that planners need not plan--they simply have to get out of people's way. Even the most widespread use of accessory apartments (particularly if they are restricted to owner-occupied buildings) is unlikely to give rise to use intensities as high as those for which most large homes were built. Provided the usual restrictions on hazards and four-axle trucks are present, no nuisance will be created in the neighborhood.

The benefits of enhanced use of accessory apartments are manifold:

* Persons of reduced means (the elderly, female heads of broken families) who otherwise would have to sell homes can retain them.

* The elderly may obtain housing in good neighborhoods and frequently can receive services (transportation, home health care) and provide services (child care). Those burdens otherwise might fall on the state.

* A revival of the extended family might be fostered, since most people desire some, but not too much, proximity to their parents. Granny houses or apartments with separate entrances and cooking facilities meet that need. Grandmothers' caring for grandchildren may reduce demands for expensive and publicly supported day care.