Title
Ordinance No. 20-38 amending multiple sections of Article 2 (Basic Provisions, Definitions and Land Use Types and Classifications) and Multiple sections of Article 3 (Land Use Zoning Districts) of Chapter 7 (Planning, Development and Building) of the Code of the City of Colorado Springs 2001, as amended, pertaining to Accessory Dwelling Units
(Legislative)
Presenter:
Hannah Van Nimwegen, Senior Planner, Planning and Community Development Department
Peter Wysocki, Director of Planning and Community Development
Body
Summary:
City Planning staff presented the three ordinances to the City Council on June 9, 2020. The motion which approved Ordinance 1.2 revised two sections:
1. Code Section M.1.a.4: “In the A (Agriculture) zone district, the owner shall…”
2. Code Section M.1.b.A.1: “Enforcement of the requirements would create a temporary economic hardship that could be resolvable within two (2) years;…”
Those edits have been made in the attached ordinance. Information presented below is the same as when presented on June 9, 2020.
City Planning staff met with the City Council to discuss accessory family suites, accessory dwelling units, and the accessory dwelling unit overlay on May 22, 2020. At that meeting, City Council expressed a general support for ordinances 1.1 Accessory Family Suites and 1.2 Definitions and Accessory Dwelling Units, but requested modifications to ordinance 1.3 Accessory Dwelling Unit Overlay regarding its applicability to new development and existing neighborhoods.
Following the work session meeting on May 22, 2020, City Planning staff broke the three proposed ordinances into three file numbers so that each could be acted upon independently. Though City Planning staff views the three ordinances as a package, having each ordinance attached to a separate file number would allow for one or two of the proposed ordinances to move forward if there were remaining concerns on a remaining ordinance. This memo is regarding accessory dwelling units and adjustments to definitions.
Enforcement of the owner occupancy requirement, where applicable, was also discussed at the most recent work session meeting. Below is brief description of this process:
1. A complaint received that a property with an ADU is not being occupied by the property owner.
2. The assigned officer researches whether the ADU received the necessary approvals (an ADU would require approval of a conditional use and building permit with recorded affidavits).
3. The officer would follow up with an in-person visit to the site to see if the property owner is present at that time.
4. If so, the officer would request information proving their residency for more than 185-days per year. If the property owner is not present, the code officer may choose to try again at another time, and/or investigate how the property owner may be reached.
5. From there, the officer may mail a letter describing the complaint and request that they contact neighborhood services as soon as possible.
6. If no contact is received, the officer may mail a formal Notice & Order.
7. If contact is established and they fail to comply, then neighborhood serviced could proceed with a civil action or criminal prosecution.
Background:
The proposed draft ordinance for accessory dwelling units and related definitions is attached for consideration, and no modifications to this ordinance were made between City Council Work Session on May 22, 2020 and the June 9, 2020 hearing.
A step beyond accessory family suites are accessory dwelling units. Under the proposed ordinance, accessory dwelling units would allow a second family, as defined in the zoning code, to occupy the property. Depending on the zone district, an ADU may be integrated into the primary home or be detached. City Planning is proposing to allow integrated ADUs in single-family zones through the Conditional Use process with an owner-occupancy requirement. This ordinance also expands the allowance for ADUs in two-family and multi-family zone districts and reduces restrictions in those zones.
Definitions:
Ordinance 1.2 adjusts existing definitions found in Code Sections 7.2.201 and 7.2.302. These definition adjustments help clarify and align with definitions found in the International Residential Code. Notably, staff is proposing to remove the 220-volt, gas, or propane connection delineation for kitchens to close the “loophole” between extra living space and accessory dwelling units. With the addition of accessory family suites, properties would continue to be allowed flexibility for an additional living space and/or kitchen with limitations. The proposed definition of a kitchen comes directly from the IRC:
Kitchen: An area used, or designated to be used, for the preparation of food.
Further, definitions for integrated and detached ADUs are created, and a clarification between a single-family home with an integrated ADU and a two-family structure such as a duplex.
ADUs in Single-Family Zones:
In the R (Estate Residential), R-1 9000 (Single-family Residential), and R-1 6000 (Single-family Residential) zone districts, a homeowner would be required to receive approval of a Conditional Use from the City Planning Commission in order to construct an integrated ADU. In single-family zones, only integrated ADUs would be permitted through the Conditional Use process. However, if a detached ADU is desired, a homeowner could seek approval of a Use Variance, also granted by the City Planning Commission. City Planning staff felt the established Conditional Use application would work for accessory dwelling units in single-family zones, because it allows for public notification and has established review criteria.
The process for a Conditional Use application includes public notice upon submittal of the application, and with the scheduling of the public hearing at City Planning Commission. An aggrieved neighbor would have the ability to contact the staff Planner as well as attend the public hearing and speak to the City Planning Commission. A decision made by the City Planning Commission could be appealed to the City Council for further consideration. Approvals of a Conditional Use apply to a land use on a specific property and can transfer to future property owners upon sale of the property. As stated in Code Section 7.5.708, “A conditional use is not affected by changes in tenancy, ownership, or management of the property. The approved conditional use shall be attached to, and run with the land for which it is granted, unless otherwise conditioned.” Approvals may also be conditioned if appropriate for the request, and those conditions could include time limits and periodic reviews of the Conditional Use. In order to be granted a Conditional Use, an applicant will need to justify the request against the following review criteria found in Code Section 7.5.704:
A. Surrounding Neighborhood: That the value and qualities of the neighborhood surrounding the conditional use are not substantially injured.
B. Intent Of Zoning Code: That the conditional use is consistent with the intent and purpose of this Zoning Code to promote public health, safety and general welfare.
C. Comprehensive Plan: That the conditional use is consistent with the Comprehensive Plan of the City.
In addition to the requirement to receive approval of a Conditional Use Permit, properties in single-family zones are required to be owner occupied. This would be regulated through a notarized and recorded covenant assuring the property owner’s awareness of the restriction and responsibility to comply. This restrictive covenant would transfer from one property owner to the next. The recorded covenant would be a required document to be submitted with a building permit. The Development Review Enterprise (DRE) of the City Planning Department would review building permits for these unit types. A definition for owner occupancy was established with the latest short-term rental ordinance (Ord. 19-101), and the same definition would apply here:
OWNER OCCUPIED: the property is actually occupied by the owner for not less than one hundred and eighty-five (185) days each year.
However, understanding that life happens, the ordinance does allow for waivers to the owner occupancy requirement for the following qualifying situations:
1. The property is listed and actively marketed for sale;
2. Temporary relocation by the owner for employment (including temporary relocation for active duty military service members) or medical treatment, death of the owner, divorce or legal separation of the owner and a non-owner spouse or similar circumstances; or
3. Other circumstance that creates an unreasonable economic hardship.
Similar to accessory family suites, integrated ADUs would also be prohibited from subdivision and/or prohibited from being sold separately from the primary dwelling unit. The same restrictive covenant would be required to be notarized and recorded against the deed of the property and would transfer from one property owner to the next.
If a property owner were to violate any of the requirements (owner occupancy, a condition of approval, subdivision, etc.), they would be liable for potential code enforcement actions as outlined in Code Sections 7.5.1001 through 7.5.1012. Code Section 7.5.707 states, “If a conditional use is not in compliance with the terms of the approval, the conditional use shall be subject to enforcement pursuant to part 10 of this article.” As written in the ordinance, enforcement actions could not be brought against a tenant for the property owner’s failure to occupy one of the two dwelling units.
ADUs in Two-Family, Multi-family, and Commercial Zones:
Currently, detached ADUs are allowed in the A (Agriculture), R-2 (Two-family Residential), R-4 (Multi-family Residential), R-5 (Multi-family Residential), SU (Special Use), TND (Traditional Neighborhood Design), and C-5 (General Business) zone districts. This ordinance continues to allow detached ADUs in these districts, but also expands them into the OR (Office-Residential) and OC (Office Complex) zone districts because they currently allow single-family detached and two-family land uses by right. Detached and integrated ADUs are proposed to be conditionally permitted (require approval of a Conditional Use) in the PBC (Planned Business Center), C-6 (General Business), and M-1 (Light Industrial) zone district, because single-family detached and two-family residential land uses also require approval of a Conditional Use. The minimum lot size was reduced to be equivalent to the minimum size for a single-family home for each respective zone district.
Integrated ADUs were not expanded into the R-2, R-4, R-5, SU, TND, and C-5 zone districts because of their existing allowance for a two-family structure such as a duplex. Because ADUs or two-family structures are already allowed in these zone districts, staff has not placed owner occupancy requirements, limitations to one family on the property (though, no more than two), or restrictions on subdivision.
Accessory Dwelling Unit Development Standards:
Code Section 7.3.105.M will continue to stipulate required off-street parking minimums, one accessory dwelling unit per lot, and that mobile homes and travel trailers (RV) cannot be used as accessory dwellings. In addition, specific size, height and setback requirements for each type are outlined within this same section.
A detached ADU would be permitted to be a size not to exceed 50% of the floor area of the principal structure up to a maximum of 1,250 square feet. This ratio to determine size with a cap will help preserve scale of the structures on the property. When the principal structure is 1,500 square feet or smaller, the detached ADU will retain a right to build up to 750 square feet in size. The floor area of a detached ADU, which may be located above a detached garage, may exceed the footprint of the principal structure but may not exceed the gross floor area of the principal structure.
The maximum detached ADU height is dependent on the roof pitch of the structure. If the detached structure has a roof pitch of 6:12 or steeper, the maximum height will be increased to 28 feet. If the roof pitch is shallower than 6:12 including flat roofs, the maximum height will be maintained at 25 feet. A detached ADU will need to meet the same setbacks established for accessory structures. Meaning, an ADU must be at least five feet (5’) from the side or rear property line, unless it is part of a detached garage in which case the structure would need to be setback ten feet (10’) from the rear property line if the garage doors face an alley. City Planning staff decided to strike the requirement to have a twenty foot (20’) separation between a detached ADU and the primary structure as well as the requirement for a detached ADU to be located “behind the rear corners” of the primary unit.
Integrated ADUs will be permitted at a maximum size of 50% of the floor area of the principal structure. There is no maximum size cap proposed for integrated ADUs, as scale of separate structures is not an issue with the integrated unit. The height and setbacks for the integrated unit are determined by the zone district and the existing structure. An integrated ADU may have an exterior access point, but that access point must be located to the side or rear of the primary residence with a 36-inch wide clear access path from the front property line.
In the R, R-1 6000, and R-1 9000 zone districts, integrated accessory dwelling units shall not involve design modifications to the exterior of the principal structure that indicates their presence from the front of the principal structure. Building additions shall be architecturally compatible with the primary dwelling unit, and external stairs are not allowed to provide access to a second-story accessory dwelling unit unless it is from a second-story deck. In zone districts where detached ADUs or two-family structures are already permitted, there are not any architectural design standards.
Language is incorporated to stress the fact that the provisions proposed do not supersede private covenants and that it is the obligation of the property owner to comply with private covenants. Covenant compliance is the obligation of the property owner. Likewise, enforcement of private covenants is the responsibility of formal/informal organizations (such as HOAs) or property owners if there is organized association.
Previous Council Action:
Staff briefed the City Council on the proposed ADU ordinance at a work session on June 10, 2019. The discussion revolved around accessory dwelling units in single-family zone districts and the several scenarios in which an ADU could be permitted on a property. From that meeting, City Planning staff took away the request to break down the potential options, scenarios, and routes to allowing accessory dwelling units in single-family zone districts. At the September 9, 2019 meeting, Council requested two town hall meetings to discuss ADUs directly with the public. Those two meeting have been held (November 19 and December 4, 2019). Mostly recently, City Planning staff met with the City Council to discuss ADUs at the January 27, 2020 meeting where staff received direction to produce the draft ordinances attached. Most recently, City Planning staff met with the City Council on May 22, 2020 to discuss the revised ordinances. On June 9, 2020, Ordinance 1.2 was approved by the City Council with two minor edits which have been made.
Financial Implications:
N/A
City Council Appointed Board/Commission/Committee Recommendation:
The City Planning Commission considered the proposed draft ordinances at its April 30, 2020 special hearing. The City Planning Commission voted unanimously to recommend approval of all three proposed ordinances (Ordinance 1.1, 1.2, and 1.3) without changes (8-0-1 Raughton absent).
There was dialog regarding the review authority of Accessory Dwelling Units in single-family zones, and whether there was a preference for the authority to lay with staff to administratively make decisions on such units. As discussed in this memo, Accessory Dwelling Units in single-family zones would require approval of a Conditional Use from the City Planning Commission. Staff explained that an administrative process was explored, however, creating that new process to review, publicly notice, and decide upon got convoluted. In order to streamline and still meet the requests made by City Council (requiring public notice), staff decided that utilizing a process which already exists within the Zoning Code was the best option.
Stakeholder Process:
A significant stakeholder process was undertaken prior to bringing the first ordinance version to the City Planning Commission for consideration, which included social media outreach; interviews with local radio and TV stations; attending various homeowner association and neighborhood organization meetings; and presenting to other boards and commissions including the Historic Preservation Board and the Commission on Aging. Additionally, an ADU steering committee was formed and included Councilmember Gaebler, Planning Commissioner Graham, CONO (Council of Neighbors and Organizations), and ONEN (Organization of North End Neighbors), in addition to a few skilled tradespeople and property owners who recently constructed accessory dwelling units. Many of the recommendations made by this committee have been carried forward to the ordinance under consideration currently.
Three public open houses were held: February 20, 2019 at Deerfield Hills Community Center (southeast), February 25, 2019 at Prairie Hills Elementary School (north), and February 26, 2019 at the City Auditorium (central). Approximately 120 - 140 citizens participated in the public open houses. Comment cards were passed out at each meeting and attendees were encouraged to write any questions, concerns, or thoughts about the proposal and for Staff’s attention. Then, two town hall meetings were held on November 19, 2019 and December 4, 2019 where members of the City Council heard from Colorado Springs residents directly.
Alternatives:
1. Approve the ordinance as presented;
2. Modify the ordinance;
3. Deny the ordinance; or
4. Refer the ordinance back to the City Planning Commission for further consideration
Recommended Action
Proposed Motion:
Adopt an ordinance amending multiple sections of Article 2 (Basic Provisions, Definitions and Land Use Types and Classifications) and Multiple sections of Article 3 (Land Use Zoning Districts) of Chapter 7 (Planning, Development and Building) of the Code of the City of Colorado Springs 2001, as amended, pertaining to Accessory Dwelling Units.
Summary of Ordinance Language
An ordinance amending multiple sections of Article 2 (Basic Provisions, Definitions and Land Use Types and Classifications) and Multiple sections of Article 3 (Land Use Zoning Districts) of Chapter 7 (Planning, Development and Building) of the Code of the City of Colorado Springs 2001, as amended, pertaining to Accessory Dwelling Units