TO: Local Planning Agency

FROM: Bill Spikowski

DATE: April 1, 1997

SUBJECT: Accessory Apartments


This past October we began to examine the issue of "mother-in-law" apartments at Fort Myers Beach (also known as accessory apartments). This memorandum:



Many communities are tangled in an ongoing debate over how to properly regulate accessory apartments. At Fort Myers Beach these apartments are known somewhat euphemistically as "mother-in-law apartments" despite their common use for out-of-town guests and frequent use as rentals for an additional source of income.

This debate is particularly complex at Fort Myers Beach because of several factors: the attraction of the beaches to out-of-town guests; Lee County's historically lax and loosely enforced codes, and a strong resort economy. Scattered rental apartments in many different kinds of buildings are just one more variation on your already broad variety of housing types, which also include numerous hotels; interval-ownership buildings operated like hotels; and condominium buildings operated like interval-ownership resorts. In your older subdivisions, two- and three-unit buildings had been legal for many years even on fairly small lots. Discussion of mother-in-law apartments at Fort Myers Beach often includes small apartments that cannot be seen from the street; apartments on the ground floor of elevated homes; conventional duplexes; and many other variations.

Accessory apartments cause little concern when they are in commercial zones, and only modest concern when they are a long-established presence in a neighborhood. If they are small enough and not routinely rented out, neighbors may not even be aware of their existence.

In many classic urban areas housing types were widely mixed, rather than the homogeneous single-family neighborhoods that have become dominant in the past several decades. There is a trend today toward reintroducing a wider variety of housing types to accommodate the variety of types and sizes of households in our communities, including elderly people living alone, starter apartments for the young, and small apartments for single working people. Our task here is to differentiate between a "desirable mix of housing types" and "undesirable intrusions into settled neighborhoods," and to avoid further crowding in your already-congested community.

This task will be one of the hardest to face in your new comprehensive plan. The rules on apartments changed drastically with the advent of zoning in 1962, and then again in 1984 when the floodplain regulations and the Lee County Comprehensive Plan both took effect. These various rules have been only loosely enforced, almost always on a complaint-driven basis (which often occurs as retaliation for unrelated neighborhood disputes). The result is the worst of all worlds: complex rules that are unevenly enforced. Many residents hesitate to encourage strict enforcement under these circumstances because it could ultimately affect so many of their neighbors and friends in ways that aren't at all clear.

This task is a political challenge as well as a technical one. Among the competing political interests are:

For its part, the town government will inevitably want its rules obeyed, but it isn't yet clear what those rules should be.



We can summarize our goals in a broad sense by recognizing that, in recent years, some of the rules may have been too strict, but often those same rules have been leniently applied and enforced. What is needed is not just tightening up the rules, or just softening them, but rather clarifying the rules for all future construction in a way that makes sense specifically for FMB. Then the new rules can be enforced evenly.

At the same time, we must also recognize that many older apartments are completely legal and shouldn't be the targets of repeated investigations based on neighbors' complaints.

Another goal, one that cannot always be accomplished, is to try not to reward lawbreakers at the expense of others similarly situated. This would occur, for instance, by legalizing all existing apartments on a block while forbidding all new ones.

At the same time, we must avoid causing new problems while solving old ones. We must not legalize unsafe building techniques that would endanger future unknowing residents. We must not take any actions that would threaten the availability of flood insurance to the entire community. We should try to avoid the inadvertent loss of what adjoining lot owners have reasonably expected to be strictly single-family neighborhoods. We need to avoid overcrowding existing neighborhoods and aggravating the already-excessive evacuation times in our coastal areas.



The LPA has accepted the task of formulating a direction on accessory apartments for consideration by the Town Council. During the initial discussions last fall, a broad outline of regulatory techniques were considered, ranging from very lenient to very strict:

Following these initial discussions, the LPA agreed upon the following preliminary approach:

(1) We will request the following code enforcement actions in response to complaints about illegal apartments:

(2) We will not take any steps to legalize any ground-level apartments that were built after 1984 in violation of Lee County's floodplain regulations, because to do so would endanger flood insurance coverage for other Fort Myers Beach property owners. We will also avoid legalizing any violations of fire or life safety codes that may exist. But for otherwise-acceptable construction that may have been completed without building permits, owners may receive permits to upgrade the construction to comply with these codes.

(3) Apartments built before 1984 will be eligible for more lenient treatment because they pre-dated both the floodplain regulations and the density restrictions of the 1984 Lee Plan. These older apartments will not receive any kind of blanket amnesty, for a variety of reasons including multiple apartments on a single-family lot, or being built too near property lines, or with too much lot coverage. But apartments meeting reasonable standards (to be established) may become eligible for a voluntary registration process that may include:

(4) Certain subdivisions, particularly older ones that already have a variety of housing types, will be considered for a new form of regulations that would be based on "compatible building types" rather than the standard single-use zoning districts (typically restricted to conventional single-family homes only). These regulations would include simple design standards to ensure against structures that are incompatible with the neighborhood character. But they might allow accessory apartments, limited types of "home occupations," or other uses on a more lenient basis than allowed by the current zoning. Such proposals would be developed in cooperation with existing residents and property owners beginning in January of 1997.

(5) By April 15, 1997, the LPA would recommend to the Town Council whether pending code enforcement cases should proceed to the Hearing Examiner or be further delayed while these proposals are being implemented.

The subject of accessory apartments was then discussed in general terms at your first community workshop, and specific suggestions were solicited at the second workshop. With our April 15 deadline approaching, it is time to prepare final recommendations to the Town Council. The next section of this memorandum looks at the question of "just makes an apartment out of a suite of rooms," followed by the identification of several potential policy alternatives and their likely impacts if applied at Fort Myers Beach.



Under the current rules (inherited from Lee County), it is the presence of a kitchen that determines whether one or more rooms are considered to be a separate apartment. This is a very standard distinction in most communities (although not the only one allowed). If a kitchen is included, each separate apartment is considered to be a full dwelling unit, equal in intensity to a free-standing house or fully equipped condominium. If a kitchen is not included, a suite of rooms including a bedroom and private bathroom can be provided for non-paying guests in any private home.

For a second apartment in a building to be legal today, it must meet the following criteria:

In addition, a second apartment may be subject to additional taxation or fees, such as:



Several alternatives have been evaluated to implement items (3) and (4) from the LPA's initial policy direction (see above). Each is discussed separately below.

1. Make minor adjustments to comprehensive plan densities and zoning standards to lessen the restrictions on accessory apartments.

This approach would retain the current regulatory framework but make certain adjustments to the details of those regulations. The current two-level approach with a separate Future Land Use Map and official zoning map would remain, and a kitchen would remain as the indicator of a second apartment. (This approach would be most useful for adjusting the rules for apartments built after 1984 and into the future, and would have little or no effect on older apartments.)

Certain parts of the Town would have their density levels raised slightly from the current island-wide cap of 6 dwelling units per acre. This change would be made at the neighborhood level, not individually for selected lots. It could identify areas as small as individual subdivisions but preferably would group similar subdivisions (such as older subdivisions, or subdivisions near the more commercial areas). The purpose of this change would be to allow second apartments to be legalized (or built) where they are currently forbidden because of the density cap. The neighborhoods included would likely be those with long-standing duplex zoning; those where duplexes are the dominant housing type today; and some older neighborhoods where duplexes or accessory apartments are fairly common. The result would be to legalize existing duplexes that violate the post-1984 density standards (provided they meet other requirements), and allow other lot owners in these neighborhoods the same privilege.

In order for this change to be accepted by the state, it may be necessary to lower density levels in other locations in the Town, for instance in some of the newer subdivisions where lots are larger and only single-family dwellings have been permitted. If the increases and decreases balance, then state objection would be less likely.

In order for this change to be acceptable to the community, several safeguards might be necessary. For instance, the zoning map could be used to maintain the single-family only characteristics of neighborhoods so zoned, with only duplex-zoned subdivisions being allowed a second apartment. Or maximum building sizes could be imposed to avoid large additions being added to small homes that would change the scale of the neighborhood. Or a maximum number of second apartments could be specified per block, or per subdivision. Or a maximum size could be placed on new apartments. Also, design guidelines could be imposed on all second apartments to maintain neighborhood character.

Perhaps the most important safeguard would be to allow this increased density level to only apply to existing lots (perhaps those up to about acre). Larger lots, or any remaining unplatted tracts, would still be limited to 6 units per acre to avoid creating an unanticipated boom in larger or taller buildings.

Some positive effects of this proposal would include:

Some negative effects of this proposal would include:


2. Redefine accessory apartments in owner-occupied homes.

There is a quite different approach that could be used in addition to the first alternative (or in place of it). A new definition would be created to define a limited-size accessory apartment that might be permitted in all zones if the owner lives on the premises. Much of the resistance to accessory apartments comes from peoples' bad experiences with duplexes that are rented out by absentee landowners, without the kind of close oversight that occurs with on-site management by an owner.

This type of apartment would be strictly limited in size, perhaps to 400 or 500 square feet, and possibly to a maximum percentage of the building's size (such as 30%). This would allow a sizable bedroom plus bathroom and kitchen, but would not accommodate larger apartments with separate living rooms. These small apartments in owner-occupied buildings would be declared as strictly "accessory" to the main unit, and could be defined as not being a separate dwelling unit, avoiding the need for any changes to the density levels in the comprehensive plan.

These units could be kept available for family or friends, but there would be no prohibition on renting them. If they were rented, payment of the sales and tourist taxes would be required. It is not clear whether garbage collection fees or utility fees would apply in the same manner as for a duplex.

One potential problem with this arrangement would be if unsuspecting purchasers of a home believed they could rent both units, and then made a purchase and financing decision on that basis. To avoid this problem, a requirement could be added for a document to be recorded in the public records acknowledging the status of the second apartment. This document would turn up in every title search, warning prospective purchasers if they haven't been otherwise advised of the owner-occupancy rule.

A somewhat similar arrangement has been tried in many communities, though often with specific restrictions on who may occupy the second unit (e.g., elderly people; family members only; low- and moderate-income families only; etc.). Each restriction involves the government in an ongoing monitoring of the personal status of its residents, something to be avoided wherever possible. Another approach which had been discussed by the LPA had been allowing rentals of such units only during the winter season. However, an equal argument could be made that this is the most congested period, exactly when not to encourage a larger population. In either case, monitoring the ongoing use of a property is more intrusive than monitoring the form of the building itself.

Some positive effects of this proposal would include:

Some negative effects of this proposal would include:


3. Adopt a new measure of intensity, "building bulk" rather than density by number of kitchens.

Another approach that is used in some areas is to simply stop measuring residential density or intensity by the number of kitchens. In its place is a system that might be called "zoning by bulk," where the total floor area of a building is capped. Owners might provide two small apartments or one large one, at their sole discretion. This type of regulation is often used in the new graphic codes because it greatly simplifies the regulatory process.

This approach usually uses a standard zoning techniques know as F.A.R. (floor area ratio). The entire square footage of floor space (including upper levels as well as ground floor space) is divided by the square footage of the lot. This ratio cannot exceed a fixed figure, for instance 0.50, set for each zoning district. Setbacks and height caps can still be applied as under your existing zoning regulations. F.A.R. has some resemblance to your current lot coverage maximums, which are often set at 40%. But the lot coverage percentages only apply to the ground floor, not upper stories, and often counts paved surfaces as well as enclosed living area.

Some positive effects of this proposal would include:

Some negative effects of this proposal would include:



The third approach listed above, although initially promising, has enough flaws that it should probably be eliminated from our further consideration. The first and second approaches could be used together as the basis for the Town's new position on accessory apartments. Each would provide a new path to a legal apartment, in addition to a little-known current rule that can allow one extra apartment by special exception. (This special exception rule is not limited to owner-occupancy, but can only be used where a lot is large enough to meet the 6-unit-per-acre density cap.) The use of the first approach could also resolve the related conflict between current duplex zoning and the restrictive density cap. This combined approach is consistent with the LPA's preliminary approach from last November.

In summary, for a second apartment to be legal, it would have to meet at least one of several sets of rules. Three have been discussed previously and apply today:

Two new paths to a legal accessory apartment would be created under this recommendation, illustrated as follows:

For a second apartment in a building to be legal under the proposed changes, it can comply with either of these requirements:

The building is on a lot that is zoned for two dwelling units, and the two units comply with any revised density caps in the Town's comprehensive planThe building's owner lives on the premises, and the second apartment is smaller than "x" square feet


The LPA will take up all of these issues on April 8th at noon at Town Hall. If a consensus emerges, it will be written up and forwarded to the Town Council for their consideration.