MEMORANDUM

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:

• recaps our previous discussions;
• identifies your interim policy direction from last November;
• identifies and evaluates some of the options developed by the consulting team and reviewed by the public at your second community workshop in March; and
• recommends a policy direction for use in your comprehensive plan.

THE DEBATE OVER ACCESSORY APARTMENTS

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:

• Many town residents are hoping that mother-in-law apartments will be more-or-less banned because they've had bad experiences with them in their neighborhood and they want it to stop.
• Many other town residents hope that their apartments will be made legal, if in fact they're not legal now.
• The state government generally opposes more housing units being built on overcrowded barrier islands. The state has the power to reject your comprehensive plan if this is a likely result of your policies.
• The federal government is becoming increasingly vigilant about illegal space being enclosed below the "flood elevation." They generally don't care how many units are in each building, but they care greatly if they're not properly elevated.

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

GOALS AND STRATEGIES ON ACCESSORY APARTMENTS

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.

RESULTS OF DELIBERATIONS FROM LAST FALL

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:

• rezoning of neighborhoods to legalize extra units (including future units);
• amnesty for everything that exists today;
• amnesty for all units that are registered with the town within a fixed period;
• inspections of extra units to determine whether they comply with existing codes (or those in force at the time of construction);
• removal of all units that do not or cannot be made to comply with current codes;
• removal of all units that were built without all proper permits.

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:

• Complaints will continue to be accepted and investigated according to current procedures;
• Complaints that are determined to be without merit shall be dismissed, and complaints that appear to be valid will result in citations according to current procedures; and
• Enforcement action on valid complaints shall not proceed to the Hearing Examiner until at least April 15^th while the Town of Fort Myers Beach considers alternatives to the current regulations on accessory 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:

• Structural and mechanical inspections (at the owners' expense);
• Some form of formal acceptance by the Town (which should avoid repeated code inspections in the future); and
• Public disclosure of the list of accepted units, to ensure proper payment of business taxes on rentals.

(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.

WHAT EXACTLY IS CONSIDERED A "SEPARATE APARTMENT"?

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:

• Be located in a zoning district that allows duplexes (or apartments or condos), or have been legally built before zoning regulations were adopted in 1962 and used continuously since that time; and
• Have been built with a proper building permit; and
• If built after 1984, it must have complied with the rules that limit any new dwelling units to 6 units per acre (either for that lot or for the entire subdivision). Under typical subdivision characteristics at Fort Myers Beach, this means that second units on lots smaller than 60 x 100 lots are not permitted even when the lot has duplex zoning.

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

• If rented for a period of less than 6 months, the owner must collect and pay the 6% sales tax and the 3% tourist tax on all rentals;
• The Property Appraiser may value the property differently, resulting in a different ad-valorem tax bill; and
• Some public service fees are based on the number of dwelling units, such as garbage pickup and utility connection fees.

EVALUATION OF POLICY ALTERNATIVES

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:

• Removing an impediment to allowing post-1984 apartments in areas selected by the Town as appropriate;
• Maintaining the current style of regulations, rather than implementing a totally new approach;
• Allowing some smaller new apartments, which could help provide affordable housing to service workers on the island;
• Allowing somewhat higher densities in accordance with the Core Area Master Plan (e.g., along Crescent Street); and
• Resolving the conflict between current duplex zoning and a comprehensive plan that allows almost no new duplexes (although this conflict could also be resolved by rezoning those neighborhoods to single-family with a notation that existing duplexes remain completely legal).

Some negative effects of this proposal would include:

• Some residents of areas selected for the increase may vehemently object to the allowance of more apartments in their neighborhood.
• No relief would be provided for occasional small apartments in the majority of neighborhoods across the island.
• Some risk would be involved if the state objects to the changes in density levels (especially if corresponding decreases are not made);

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 buildings with illegal apartments would likely be converted to owner-occupancy of one unit, since that would be the only way to allow the second unit to legally produce income. The maintenance of the units and the behavior of tenants can be expected to improve under these conditions.
• Many homes with small apartments would become legal without comprehensive plan changes, rezoning hearings, or enforcement proceedings (although building inspections may be required, and the Town might insist that these units be included in some form of registry to ensure payment of taxes and recording of the document in the public records).
• A clear distinction would be established between true accessory apartments and duplexes. (The conflict between existing duplex zoning and the comprehensive plan would need to be resolved in another manner.)

Some negative effects of this proposal would include:

• Some homes with illegal apartments would now operate openly as seasonal rentals, potentially increasing wintertime congestion.
• This would be a new concept and might be misinterpreted as being more permissive than it really is.

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:

• This approach is easily compatible with the new streamlined graphic codes.
• As with the second approach, many homes with small apartments would become legal without comprehensive plan changes, rezoning hearings, or enforcement proceedings (although building inspections may be required, and the Town might insist that these units be included in some form of registry to ensure payment of taxes and recording of the document in the public records).
• This approach would also provide a maximum size on single-family homes. Although at present there is no problem to be solved at Fort Myers Beach, many coastal communities find that new owners demolish two or more older homes and replace them with one very large new home, sometimes changing the entire character of a neighborhood. This has become an important issue in Naples and Sanibel in recent years.

Some negative effects of this proposal would include:

• This approach resembles your current regulations for hotels and motels, where two or three rooms are allowed in place of each allowable dwelling unit. Although a familiar concept, this might encourage motel-like conditions in existing residential areas.
• Some number of existing rental units would surely be subdivided into smaller units that could generate a larger amount of rent. This is a selling point in many communities where there is a shortage of affordable housing; at Fort Myers Beach, it would result in more congested conditions during the peak season.
• Some older or poorly maintained homes would be demolished and replaced with more flexible buildings to take advantage of renting as two separate apartments. A likely victim of this trend would be the older cottages that provide so much of the community's character.
• An incentive would be provided for pre-1984 stilt homes to have apartments added on the ground level, since the F.A.R. would not be increased. This would be completely legal but contrary to other attempts to limit flood-vulnerable new construction.

RECOMMENDATIONS

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:

• If the apartment was built prior to zoning in 1962 and in continuous use, it is usually "legally non-conforming" under Section 34-3201 of the land development code and can continue in use until taken out of service.
• If the apartment was built between 1962 and 1984, it needs to comply with all today's laws except the Lee Plan density cap of 6 units per acre and the floodplain elevation requirements.
• If the apartment was granted a "special exception" under the terms of Section 34-177 of the land development code, then that approval remains in effect.

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

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.