Two Family Houses

Testimony to Montgomery County Council on ZTA 12-11
September 11, 2012

Montgomery County urgently needs more two-family houses. This uniquely valuable living arrangement combines the ambiance of the suburb with the affordability and livability of the city. Yet in a county with 180,000 single-family houses, there are only 380 two-family homes in conformance with the zoning code (excepting a tiny area in Long Branch that is zoned for duplexes).

The proposed text amendment takes positive steps toward legalizing new two-family houses. We strongly endorse the elimination of the special exception requirement. But without additional changes conversion to two-family houses will remain a practical impossibility for the great majority of homeowners. The fundamental defects in need of correction are:

Rental units and their occupants are stigmatized as “subordinate” to the homeowner and tenants are treated in an unfair and discriminatory way.
Overly specific and often unreasonable requirements make it impossible or financially infeasible to divide a house into two units, except in special circumstances.
Moderate-income homeowners, who are most in need of added rental income and whose neighborhoods are most in need of revitalization, are excluded from the program by requirements geared to the affluent.
Proposed limits on the number and spacing of two-family houses defeat the purpose of the amendment and are unworkable.
The amendment is poorly drafted and contains inconsistent language.

Our comments are directed primarily to the provisions governing the R-60 and R-90 zones, since nearly all transit-accessible two-family houses will be located in these zones. In particular, we are not commenting on the provisions for detached accessory apartments.

We need more two-family houses

Two-family houses can be an important element in the county's transition from an automobile-dependent upper-income suburb to a more livable transit-oriented urban/suburban community that is economically, culturally, and socially diverse. Two Silver Spring neighborhoods, Woodside and North Woodside, already have more two-family houses than this proposal would allow, and they are successful, vibrant neighborhoods. We should encourage other neighborhoods to emulate the success of Woodside and North Woodside.

Montgomery County is no longer a homogeneous middle-class community. Single-family houses near transit have become more expensive and the middle-class is getting priced out. New rental housing is in the form of high-rises, but families with children often find them unattractive. The two-family house offers a way out of this dilemma. The tenants have access to a yard for their children at an affordable price. Two-family houses are more affordable to buyers too, because the rent helps pay the mortgage.

Legalizing two-family houses will also help revitalize the county's more distressed neighborhoods. Owners now in danger of foreclosure will have a new source of income. Houses will be renovated, people will be put to work, and the neighborhoods themselves will be improved by adding more “eyes on the street.”

In addition, two-family houses can help preserve the character of neighborhoods adjoining the county's downtowns. Some of these areas have rising rates of absentee ownership; others are troubled by an influx of group houses. Present trends point to a future where speculators buy up a large fraction of a neighborhood's homes and seek rezoning. Legalizing two-family houses will block that scenario. Properties in these neighborhoods will be worth more to owner-occupiers than to absentee owners, because residents will be able to rent out a second apartment and non-resident owners will not. These neighborhoods will be able to continue as areas of owner-occupied detached houses.

Unfairness to tenants

The draft amendment treats tenants in accessory apartments as second-class citizens. This is implicit in the very name accessory, which means in zoning that a use is incidental to a primary use, such as a live-in gardener on a large estate. And it is made explicit by the statement that the accessory dwelling unit is subordinate to the principal unit. Obsolete language should be removed by deleting the “subordinate” provision and replacing “accessory” with a neutral term such as “additional” apartment.

Unfortunately, the two-class approach in the draft amendment extends beyond language to matters of substance. The rule that forbids a resident of an accessory apartment to enter the structure through the front door is plainly offensive. The requirement that the second apartment may not have a separate address (and, therefore, its residents must go to the owner to get their mail) is nearly as bad. It is hard to see what purpose these provisions — reminiscent of rules applied to “domestic servants” a century ago — serve other than to stigmatize the tenant. Readers of the ordinance begin to wonder whether residents of accessory apartments will be required to wear a scarlet “AA” on their clothes.

Even when tenants are not stigmatized, their rights and interests are systematically neglected. In numerous situations, the draft text amendment makes them suffer grievous and completely unnecessary harm:

A tenant couple has a second child. When the baby comes home from the hospital, the family must be evicted.
Tenants rent an apartment from an elderly widow or widower. The homeowner has a stroke and goes into assisted living. After 6 months, the tenants must be evicted.
A couple agrees to divorce. The house, which is in the husband's name, will be transferred to the wife. The tenants must be evicted because Maryland law requires 12 months of separation before the divorce can be finalized.
The owner of a two-family house is deported. The spouse and children remain in the house. The tenants must be evicted.
Children who inherit a house after their parents' sudden death need time to decide what to do with the house. The parents' living space is left vacant for a few months. The tenants must be evicted.

Unreasonable restrictions

In a county with about 180,000 one-family houses, only 380 two-family houses have been authorized under the current accessory apartment rules. The ZTA takes an essential step forward by removing the special exception requirement. However, it leaves other restrictions in place, and even adds to them. The result is a rule that will fail utterly to provide the volume of livable, affordable housing the county needs.

The proposed requirement of a 300-foot spacing between two-family houses is clearly more restrictive than current practice. Of the 380 existing legal two-family houses, fully 26% are within 300 feet of another two-family house. The map on page 28 of the Planning Board staff report indicates that this rule will make it impossible to have any new two-family houses in most of Takoma Park, Woodside, and North Woodside. These are walkable, successful neighborhoods close to Metro — and they have certainly suffered no ill effects from their two-family houses.

The minimum size rule and the rule requiring the smaller of the two units to have a separate entrance on the back or side render many houses impossible to divide up at any reasonable cost. For example:

If a two-story house has 850 square feet on each floor, it cannot be divided into a unit on each floor.
In two-story houses, the stairs normally lead up from the front door. If the top floor is smaller than the first floor (or the first floor apartment would include a basement), it is impractical to make it a separate unit even if the upper floor is less than 800 square feet. The owner would have to rip out the stairs and build an entirely new staircase in a different part of the house. If the stairs were not relocated, the entrance to the smaller of the two units would be in the front of the house.

Furthermore, the restrictions ignore the economic realities of owning a two-family house. Once a house is divided into two units, it is not usable by a single family without expensive alterations. And if it is not rebuilt, even the “principal” dwelling unit becomes hard to rent. The ordinance allows it to be rented, but few people want to live in a permanently half-vacant house.

Thus homeowners who are thinking about dividing their houses need assurance that a future buyer will be able to continue renting out the second apartment. A bank needs the same assurance before it writes a mortgage on the house, and it also needs assurance that it will be able to rent out both units if it temporarily owns the property after a foreclosure. The current draft makes both owners and tenants suffer, when situations such as these arise:

A homeowner dies. The children who grew up in the house now live out of town. They inherit the house and want to keep it so they can move back when they retire. The smaller apartment cannot be rented. The heirs are forced to sell the house.
A bank forecloses on a house. The tenants must be evicted.
An owner of a two-family house is a professor granted sabbatical, or takes a job with the State Department. It is forbidden to rent both units out during the owner's absence, so the owners are forced to sell the house.

Failure to accomodate moderate-income homeowners and tenants

The drafters of the rule seem to have in mind a wealthy homeowner in a large house on a large lot. They do not adequately address the needs of moderate income homeowners and moderate-to-low income tenants. These are the people most in need of help from this text amendment — owners of small houses who are having trouble paying the mortgage, and renters unable to find affordable housing.

The requirement for a new off-street parking space forces low-income tenants who don't own a car to pay for a parking space they don't need. Many houses with small front yards will find it impossible to comply with — it requires paving at least 160 additional square feet of front yard, and the zoning code has a rule that forbids paving over more than half of a front yard. This rule should not apply near Metrorail and light rail stations or along major bus corridors.

Two other rules limit the size of apartments to 800 square feet and limit occupancy to three people. Studies of the county's housing needs have shown that the greatest shortfall in affordable housing is in housing for large families. Yet these rules would prevent the creation of dwelling units for such families.

Recommended changes

(1) What the draft ZTA calls “attached accessory apartments” should instead be called “additional apartments.” For clarity, we also suggest renaming “detached accessory apartments” as “detached accessory dwelling units,” because a detached unit is not an apartment in the ordinary meaning of the word.

(2) The sentence “An attached accessory apartment has a separate entrance and is subordinate to the principal dwelling” should be deleted.

(3) The two dwelling units should be required to have separate entrances either from a vestibule or from the exterior. No more than one exterior entrance should be allowed on the front of the house. Requirements that the additional apartment must have a separate exterior entrance, that it must be entered from the side or back of the house, and that it may not have its own street address should be deleted.

(4) The requirement that the owner of the house must reside in one of the two units for at least six months per year should be applied at the time the additional apartment is first occupied. Subsequently, it should continue to apply except in the following situations (a) if the owner is a human being and does not occupy the unit due to illness, separation or divorce, temporary work assignment, or other involuntary cause; (b) if the owner acquired the house by inheritance; or (c) if the owner is a financial institution that acquired the house by foreclosure.

(5) The words “or any other rental residential use” should be deleted from §A-6.19(a)(3). This provision nullifies §(a)(2)(a), which allows the homeowner to reside in either the larger or the smaller apartment, by making it illegal to add a second unit if the larger unit is rented out.

(6) The maximum size rule should be deleted.

(7) The restrictions on proximity to other units should be deleted and there should be no cap on the number of units permitted.

(8) The three-person occupancy maximum should be deleted.

(9) No additional off-street parking should be required for two-family houses within one mile of an operating Metrorail or light rail station or within a half-mile of a WMATA bus priority corridor or an operating BRT corridor. The text should also be clarified by stating explicitly that the baseline for additional parking is the house's existing off-street parking if the house currently has fewer off-street spaces than the two required for new houses.