Occupancy Limits

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Just for the sake of further reading on the issue to others interested in these debates, I’ve linked here to the preliminary report provided to the City by Civic Analytics, which takes a first look at affordability effects of occupancy limits specifically in Austin.

It only surmises that increasing rents and a larger proportion of high-occupancy SF properties are correlated, but draws no specific conclusions on causes. I believe the results of a further study should have already or will be soon given to Council for consideration of this new extension vote.

I’m having trouble finding the actual documentation on it, but I believe the recommendation to Council from Staff this time is that the limit be raised to 5 unrelated people, somehow not including du&/or tri-plexes, and also not to include ADU occupants in that count, but still having a maximum of some sort. Someone please correct me if you find the details before I do.

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Just want to echo what @rcauvin said: nothing that people write on this forum is an official position of FAN. Anybody has the ability to write to the forum and the whole purpose of it is to allow our members as well as others to weigh in on the issues. That’s exactly what’s happening here with this back and forth, and I’m very happy to see this lively discussion taking place.

@swren, thanks for weighing in on the issue and giving us your perspective. You make some very good points about how this is not a very smart thing to do politically, and I also agree that the better option would be to work towards allowing more multi-family and other missing middle options within our neighborhoods. Also, have to say I was extremely impressed the two times I’ve been to a Northfield NA meeting. The unanimous vote in support of the new Home Slice was awesome to see, especially since a few blocks south in Hyde Park we would’ve seen the exact opposite (maybe y’all can annex North Hyde Park?). I also know that Northfield has been hit the hardest by stealth dorms and I totally can understand not wanting to live next to them.

The way I see things is that the construction of stealth dorms and the fact they are profitable for developers is due to the fact that we have a housing shortage in Central Austin caused by our overly restrictive zoning code. With the occupancy limit coming back in front of council, I think it’s important that we take a stance on this issue. We don’t need to advocate for raising the occupancy limit back to 6 people, but we could say something about how the whole stealth dorm problem came about because of our lack of housing and that we need to provide additional housing within our central neighborhoods in the form of duplexes, triplexes, quadplexes, row houses, courtyard apartments and so on…

I’d love for FAN to put out a resolution advocating for more missing middle housing and multifam in our neighborhoods and I think with the occupancy limit issue coming in front of council a few months, now is a good time to do so. Thoughts?

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Personally, I am in favor of allowing the occupancy limits to lapse. I don’t necessarily have an issue with homes designed to house unrelated adults. It allows us to increase housing supply without changing zoning. Ideally, allowing “missing middle” housing in neighborhoods would be a great way to reduce the need for “stealth dorms,” but I do not see that happening anytime soon (I have a feeling CodeNEXT will not achieve this). I also do not see how these structures are somehow “unsafe” or “substandard.” They adhere to all building codes for a dwelling, so I’m not sure how the fact that multiple adults are living in them somehow makes them unsafe. As for the “party barn” aspect, I think we need to focus on the issue at hand. There are plenty of young adults who live together peacefully, just as there are plenty of young adults who live under the occupancy limit who are noisy. Taking away a housing option for young adults struggling to pay the rent is not the best way to address rowdy behavior.

However, I do understand the political realities surrounding this issue. Perhaps it would be better just to push for more housing options within neighborhoods (reducing minimum lot sizes, triplexes, fourplexes) and point out that this would reduce the need for stealth dorms. We may be overstating the political importance of this issue though. This is a politically fraught issue in a few Central Austin neighborhoods. Folks in Hyde Park might have a tendency to over-estimate how much the rest of the city cares about occupancy limits.

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One thing that I’ve been curious about is that if student status is a legally protected status in the city of Austin when it comes to housing under Austin’s Fair Housing laws, is it legal for the city of Austin to specifically target students through lower occupancy limits? It seems like these occupancy limits might not even be legal if they were challenged. Many of the city of Austin documents of this issue (http://ancweb.org/wp-content/uploads/2014/03/Report-on-Occupancy-Final-070131.pdf) specifically say these lower occupancy limits are targeting students and students are the ones that typically live in housing where there’s 4 or 6 unrelated people.

City of Austin Housing Discrimination Code

§ 5-1-1 DECLARATION OF POLICY.

(A) It is the policy of the City to bring about through fair, orderly and lawful procedures, the opportunity of each person to obtain housing without regard to race, color, creed, religion, sex, national origin, disability, student status, marital status, familial status, sexual orientation, gender identity, or age.

(B) This policy is established upon a recognition of the inalienable rights of each individual to obtain housing without regard to race, color, creed, religion, sex, national origin, disability, student status, marital status, familial status, sexual orientation, gender identity, or age; and further that the denial of such rights through considerations based on race, color, creed, religion, sex, national origin, disability, student status, marital status, familial status, sexual orientation, gender identity, or age, is detrimental to the health, safety and welfare of the inhabitants of the City and constitutes an unjust denial or deprivation of such inalienable rights which is within the power and the proper responsibility of the government to prevent.

§ 5-1-2 SCOPE.

(B) Even though federal law protects individuals against discrimination in housing based on race, color, sex, religion, disability, familial status or national origin, it is the policy of the City that no person should be denied the opportunity to obtain housing on the basis of creed, student status, marital status, sexual orientation, gender identity, or age.

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I like where you’re head is at, Pete, but the burden of proof would be on the challenger to show that the occupancy limit statute is clearly arbitrary and unreasonable / bears no substantial relation to public health, safety, or the general welfare. That’s a very high bar to overcome and 99.9% of the time, courts give cities the benefit of the doubt.

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Here’s Chris Riley’s response to a question about occupancy limits from the Northfield NA:

NNA: The city council lowered occupancy limits in an attempt to reduce the proliferation of so-called Stealth Dorms, but this reduction in occupancy limits will only be in place for 2 years. What would be your commitment to following through on that initiative to ensure the preservation of single-family homes into the future?

Riley: I helped lead the lowering of occupancy limits to stem the demolition of single-family homes in Northfield and other neighborhoods in the area. At all times, I have emphasized the need to keep working to address the underlying problem: the lack of housing options for students and others seeking to live affordably near the UT campus. If we’re not able to fully address that problem by the time two years have passed, I expect we’ll need to extend the occupancy limits. I’m fully committed to ensuring that Northfield retains its stock of single-family homes into the future.

Now that the two years is about to end I think it’s time the city council address the underlying issue: the lack of housing options for students and others seeking to live near Central Austin.

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In new-construction multi-family dwellings, building codes call for health and safety features such as fire extinguishers, sprinkler systems, safe escape routes (including fire escapes), etc. In an apartment complex in Austin, those safety features must be inspected regularly to ensure that the landlord is properly maintaining them.

When I managed apartments, I had a very good relationship with our safety inspector, and was always very glad for his visits. His visits were a good excuse to enter the apartments and look for problems, and in 8 years, we found problems that I am glad we were able to address such as:

Fire-escape / balcony railing rusted
Fire extinguisher malfunctioning
Safety exits blocked by tenants
Mold under sink
Keyless deadbolt not working

We do not want slums. We do not want to force people to choose between their safety and affordability. If we are encouraging developers to build de-facto apartments without also expecting high standards of health and safety for the tenants, then something is wrong.

And why would a developer build a proper Multi-Family development when it is easier and more profitable to build a cluster of stealth dorms? By promoting stealth dorms, I would argue that you are discouraging high-quality multi-family housing development.

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Mike is referring to the current VMU development at the corner of Koenig and Avenue F. Let me set some facts straight. The North Loop Planning Team supported VMU designation for most large plots of land in the neighborhood, especially those on major arterial roads. As soon as VMU was an option, we voted to up-zone all of these properties. Looking at our FLUM will confirm this. That property was zoned VMU years before the developer ever considered buying the property.

A few years ago, a developer approached the neighborhood asking for our support with a compatibility variance request. They wanted to make the entire structure 4 stories tall, but compatibility restrictions with near-by houses prevented them from doing so. After a few public meetings, the neighborhood voted to support the developer’s request for a compatibility variance.

We went to the BOA with the developer and waited all night to lend our support, but it didn’t matter – The BOA said they did not see a hardship, and saw no reason to grant a variance. Commissioner King was especially emphatic that the neighborhood does not have the authority to over-ride compatibility regulations and doesn’t really have a role to play in the process.

The developer went ahead and built their apartment complex, and soon there will be around 350 new neighbors living in our neighborhood.

So to summarize – North Loop Planning Team designated that land as VMU years ago, and the Northfield Neighborhood Association voted to support the developer’s request for a compatibility variance. And I know my neighbors – they’re going to reach out and welcome those new neighbors to the 'hood because my neighbors are remarkably kind and friendly people.

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@swren You’re just making me sad that I didn’t buy a house in North Loop. I’ll know better next time! =)

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Thanks for the discussion. I have to say they’re convincing. Having these on the books might help on another front. Getting more family sized housing. Currently anything family sized gets dogged as a stealth dorm. If we could cut off that argument it could be a game changer for our schools. If CodeNEXT works out for us we need to make sure it’s not all 1500 square foot one bed/one bath town homes.

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I was tempted to just let this drop, but the feeling I get from the last few posts after Sebastian’s is that people were believing his emotional summary and that my reputation for integrity may be at stake.

The following paragraphs are excerpted from an email on the “NNADL” listserv from November 2015, and serve to dispel both claims from Sebastian (1. that there was never a vote against the development by what I obviously referred to as ‘the neighborhood’, and 2. that there is no opposition now).

This email did not come from me (I did not post in that thread). It is a response to a series of complaints about how the project is now impacting neighbors. If this is not compelling enough to prove either point (I believe it should be), I will dig up more emails from further back as necessary.

The reason they put the parking garage on the neighborhood side is that
this let them get around the compatibility requirements that would have
kicked in if they had put housing next to 56th street. Every developer
who has approached that project sought such a waiver and met with
tremendous opposition from the neighborhood.

The development of this parcel has a long history in the neighborhood.
The people who opposed any and all development proposals (you know who
you are) were repeatedly warned that by not working with the developer,
we were risking a worst case scenario complying with the existing land
use code.

For example: Opposition to the Endeavor proposal was based on the number
of units and egress onto Link. However, the developer was planning to
wrap all the parking and offered the neighborhood money for traffic
calming as well as other amenities.

Final outcome: more units, egress onto Link, exposed parking, and no
money for the neighborhood. Call it a win and go home?

The one thing I’ve learned from this is that underground parking is no
panacea; that vent fan is extraordinarily loud when it’s running. I’m
wondering why they can’t just run it all the time but at much lower RPMs?

I believe Sebastian and others are entitled to opinions that stealth dorms [sic] may be bad for their neighborhood. I do not believe they are entitled to dishonest and disingenuous tactics which put the entire mission of FAN at risk. I think being honest and open and transparent even when disagreeing is the most important distinction this group can make compared to its counterparts. I hope you all agree.

(For those who need more: here are the minutes from the neigborhood meeting where the vote happened: http://www.northfieldna.org/minutes/2007-Oct-10.html - the vote was 79-78 against the VMU project. The eventual result was a standard MF project that complies with city code with no compatibility variances required, as mentioned in the email above; with which neighbors are not happy today. This is the only major development battle I can remember in Northfield in the time since).

Regards,
MD

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Yes, Mike, there were some people who opposed supporting the request for a compatibility variance – it was a spirited debate. But the neighborhood voted, and the majority voted to support the request. However, the vote didn’t matter when we went to the Board of Adjustment – they said they didn’t see a hardship, and denied the request.

Mike is probably thinking of a different proposal back in 2007 right at the start of the real-estate crisis that would have been a much larger development. The vote on that one was very close – literally one vote separated the “yeas” from the “nays.” Most of the people who voted against it were just wanting the developer to make some concessions and negotiate more, but the developer decided not to pursue the project any further. The numbers didn’t really work, and the economy was crashing, so they just backed out.

The next proposal that came along after the economy recovered was supported by the neighborhood, but opposed by the Board of Adjustment.

The only reason any of this is at all relevant is it is evidence that our neighborhood does embrace and support reasonable development and density. For years, Mike has screamed in public forums that we’re all a bunch of NIMBY “landed gentry” who say “no” to everything. That’s absolutely not true.

We do see ways to create more infill in Austin’s urban core without making a mockery of building codes and without creating an angry backlash from people who are increasingly worried about their quality of life.

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As I said, Northfield is better than many. But it is not honest to state that we should back your position that stealth dorms [sic] should be stopped in favor of “true multifamily” when in effect Northfield has opposed multifamily anywhere near single-family for years now. That’s the fundamental principle at stake here - you can’t claim the high ground with “do Y instead of X” if there’s no evidence you are willing to actually do Y.

And VMU on the main corridors doesn’t count (although opposition to it does suggest strongly that interior MF would be even more strongly opposed), as it was part of the quid-pro-quo for the McMansion ordinance.

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What about single family homes that are rented out even with just 4 residents, or to a 2 person + kids family?

I guess I don’t see why a 6 unrelated adult unit should trigger those requirements that you talk about, but not a 4 unrelated adult unit.

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We have a zoning system that has separate building requirements for different purposes and uses. It certainly isn’t a perfect system, but in general, the idea is that if a building is constructed with the intent to provide housing for tenants, then some regulations should be put in place to protect the tenants from neglectful land-lords.

If the property is constructed with the intent to have owner-occupancy, the building codes can be a little more relaxed. The thinking is that land-lords are more likely to maintain their own homes than they are other people’s.

The argument I’ve been making about stealth dorms is that they are a cynical end-run around this zoning system. Many of these properties (about 60 of them in my neighborhood alone) are clearly not designed for owner-occupancy. They are designed from the ground up as rental properties – designed for unrelated adults that want their own private “apartment” in the house. Private bathrooms in each room. Some of them have laundry facilities in every room. Walking around inside the property reminds you more of a frat-house than a family-oriented home.

These aren’t old houses that a bunch of people happen to be renting. Stealth Dorms are clearly designed and built as multi-family rental properties, and they will never be homes for families.

What we are asking for is a clearer separation between single-family development (new construction only) and multi-family development. Multi-family development should be abundant, and it should be integrated appropriately into established neighborhoods.

Maybe we need a new class of zoning – something between full MF and SF. But under our current system it is simply offensive to build a multi-family development while cynically claiming it is a single-family home.

The current occupancy limits (which only apply to new-construction) should stay in place at least until Code NEXT establishes a new zoning system for our city. Hopefully Code NEXT will bring some building regulations that make it easier to build affordable, multi-family development of all scales in appropriate places in our neighborhoods.

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I would also oppose the proposed resolution. The occupancy limit of 4 unrelated adults was put in place to stop demolitions that were destroying both neighborhoods and existing affordable housing. The occupancy limit applies only to new construction. It is not intended to exclude renters, new comers, young people, or anyone else from neighborhoods. The purpose of the occupancy limit on new construction was to eliminate the incentive for developers to replace existing housing stock with purpose built houses intended only for high occupancy rentals. The new 6 bedroom houses that were build in my neighborhood (before the occupancy limit went into effect) were always more expensive to rent (per bedroom) than the houses that were demolished. Since it passed, the demolitions stopped. The occupancy reduction is working and should be made permanent.

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Tearing down old homes is an inevitable outcome in a growing city, and yes, a new home is always going to be more expensive than an older home; however, trying to prevent the construction of new homes is not a long term solution to affordability. It’s important to remember that at one point in time, every home was new. So if we want to ensure that there’s an adequate supply of housing for the future, we need to allow developers to build it now.

Sebastian has convinced me that the large, six bedroom homes that were built to satisfy the demand for housing in Central Austin are not a good way to increase density. That being said, I’d like FAN to vote on a resolution advocating for additional multi family and missing middle housing within our central neighborhoods (not just on the peripheral corridors). When I have some more time, I’ll put together a resolution for everybody to look over. In the mean time, feel free to make any suggestions.

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My opinion is the occupancy limits are an excuse of aspiring upper middle class residents to limit what perceived kind of residents can live in their neighborhood. With the housing crisis as it is, Austin is losing in traditional diversity: seniors, middle class, working class, & people of color.

Maintaining an arbitrary occupancy limit will just assure Austin stays the worst offender of economic segreation in the nation. The Northfield “stealth dorm” map created by the NA during the original ordinance hysteria is what moved me to activism as I actually checked many homes on the list who were 1 to 3 persons and had no idea their were on a NA website wearing a virtual Scarlet Letter. Very classist, not to mention disrespectful.

Seems like the same old song of some people wanting (just) people like themselves in the neighborhood. Austinites struggling to stay in the city are going to fight continuing this travesty every step of the way.

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In theory, I do tend to agree with Sebastian in favoring occupancy limits if we can get additional desperately needed housing options. That framework holds up very well and could be workable politically. Surely there are housing options that residents and developers alike would gravitate toward in place of high occupancy rental houses.

I do worry about the restrictions first in return for additional housing options later approach. For example, Sebastian has spoken positively about small lot amnesty when used in concert with occupancy limits to avoid future stealth dorms, but I believe the Northfield NA could ultimately support restricting small lot amnesty as currently proposed by staff. Occupancy limits and no alternatives like SLA is a breeding ground for strictly big low occupancy expensive houses, or whatever the next bad idea may be from the development or property investor community in desperation to reduce the cost of housing they can offer. All the while a whole generation is losing out on any chance at central housing. The dream that the GI’s and their young families enjoyed in buying the post-war bungalows near the city center, is completely absent today.

We need to be getting housing relief in exchange for any restrictions and consider those restrictions nothing more than tools in managing demand toward a more positive result. Restrictions with no positive goal or housing relief tied to them are detrimental in our current environment.

Small lot amnesty and the occupancy limit expiration are coming along at exactly the same time. Small Lot Amnesty is totally in line with the “smaller-lot single-family houses” called for in Imagine Austin LUT A2 p 228, and the proposed restrictive change to SLA receives a negative affordability impact statement from city staff. The idea of restrictions in return for housing options will be interesting to track as these two issues unfold together at the same time.

I think the resolution might mention a specific housing option (like one that can go straight up the flag pole alongside any occupancy decision), and might reference Chris Riley’s candidate questionnaire tying continued occupancy limits to answering for the lack of housing options.

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Any area that wants lower occupancy limits for SF should be forced to demonstrate a quid pro quo by allowing the “true multifamily” some claim to want, FIRST. That’s how you solve this. People who are seriously in favor of just “better multifamily” will get what they want. People who are disingenuously using it as an excuse for occupancy limit reduction won’t. And both of those outcomes are good for affordability.

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