TO: Local Planning Agency
FROM: Bill Spikowski
DATE: October 14, 1996
SUBJECT: Multiple dwellings in neighborhoods now zoned single-family
One of the critical land-use issues that we have agreed to address is the proliferation of multiple dwellings in neighborhoods that are now zoned exclusively for single-family dwellings. These extra units are sometimes called accessory apartments or "mother-in-law" apartments, although at Fort Myers Beach they are most commonly built as rental units for the tourist trade. Physically they include apartments on the ground floor of elevated homes; conventional duplexes; small apartments that cannot be seen from the street; and many other variations.
Accessory apartments are not an inherently undesirable form of housing. In fact, varied housing types within neighborhoods are a hallmark of successful traditional towns. Also, a variety of housing types are beneficial given the variety of types and sizes of families that make up our community. However, under some conditions they can exhibit many negative side effects:
Illegal accessory apartments are probably more of an issue at Fort Myers Beach than anywhere else in Lee County. The rental market has been able to absorb many unconventional apartments, making them an economically attractive proposition as well as a convenience for relatives and guests. Also, Lee County's code enforcement has historically been lax (and never occurs on weekends when many of these units are constructed). Code enforcement has been mainly complaint-driven; and with the large number of code violations that are obvious from even a casual drive through Fort Myers Beach, many people hesitate to encourage strict enforcement because it could ultimately affect so many of their neighbors and friends as well.
In large part, this problem is a local land-use and zoning issue that is now the responsibility of the new town government. The town needs to establish clear policy on whether new accessory apartments are to be encouraged, discouraged, or banned, and address the equally difficult question of how to respond to those apartments that are already in place that do not meet current zoning and/or building codes. There are a wide variety of potential responses to the existing units, ranging from very lenient to very strict:
Adding to the difficulty, there are other levels of government that have considerable control over the outcome, as described in the following sections.
FEDERAL FLOOD REGULATIONS
The federal government's policies will affect some of your decisions on accessory apartments because of its National Flood Insurance Program (NFIP). This program is one of several federal mitigation programs, and is often referred to as the FEMA program because it is administered by the Federal Emergency Management Agency.
The NFIP was begun in 1968 as a nationwide system of flood insurance for designated flood-prone areas (where there is a 1% chance of serious flooding each year). Each area is studied to produce a map that indicates how high flood waters might rise, which is known as the "base flood elevation." Local governments must adopt regulations to reduce the impacts of future flooding. For present purposes, the most important regulation is that the lowest floor level of new dwellings must be elevated above the base flood elevation.
Since the 1970s, flood-prone communities have been required to adopt these regulations in order for their residents to qualify for federal flood insurance. Federally insured lenders cannot provide mortgages in these communities on property that does not have flood insurance. As a result, almost no flood-prone community can exist without participating in the NFIP, since few private companies offer comparable flood insurance.
Lee County began participating in the NFIP in 1984 immediately after all of its coastal areas were mapped. Fort Myers Beach is covered under the county's program until the end of 1996, at which time it must join the program by adopting similar regulations that are acceptable to FEMA. (These regulations are now being prepared by the town.)
Homes built in Lee County before 1984 were not required to be elevated above the base flood elevation. Since that time, this regulation has been strictly enforced for new homes (and for "substantial improvements" that cost more than 50% of an existing home's market value) through the building permit process. The federal government visits county offices every year to assess its enforcement of these codes during the building permit process. Any variances to these codes are strictly scrutinized to determine it they might jeopardize the county's continued participation in the NFIP. However, inspectors do not randomly visit coastal areas to assess the level of unpermitted construction. The effect of this system is that property owners learn not to even ask for variances to the flood regulations; but some are not so restrained about making unpermitted improvements below the base flood elevation.
For instance, owners of houses that are elevated on stilts or pilings often wish to use the space below for more than parking. The space below may legally be enclosed and used for storage, but may not be partitioned or finished into separate rooms such as spare bedrooms or other living quarters, if the house was built after 1984. This is true regardless of whether the lot is zoned for single or multiple family uses.
An exception is that a pre-1984 house, even if elevated on stilts, may add living quarters below the base flood elevation as long as the construction cost remains below 50% of the market value of the house. Such living quarters may even constitute a complete apartment (with kitchen) if it stays below the 50% cost cap and if the lot is properly zoned for the second unit. Therefore it cannot be assumed that an apartment below a stilt house is illegal without knowing when the original house was permitted and how the lot is zoned.
Illegal apartments below elevated homes are not uncommon in other valuable coastal areas; Monroe County is now being inundated by specific complaints of thousands of illegal apartments alleged to have been built after it joined the NFIP. Fortunately the situation at Fort Myers Beach is not that extreme, although some violations clearly exist.
STATE GROWTH-MANAGEMENT POLICIES
The state of Florida may also play a strong role in influencing the outcome of the town's decision on accessory apartments because of its statutory role in approving your new comprehensive plan. However, since your plan is primarily "prospective" rather than retrospective, the state will be focusing its examination on your policies for future land use -- for instance, is the town allowing any increases in density or intensity on a barrier island? If so, such proposals will receive strict scrutiny for impacts on evacuation routes and potential for damage from hurricanes.
If your plan allows no density increases whatever, for instance by banning all new accessory apartments, the state may view any lenient policies on existing accessory apartments as a minor matter. In summary, the state will primarily be considered about any proposal that could allow more dwelling units.
CONCEPTUAL POLICY APPROACHES FOR FORT MYERS BEACH
Despite the significant state and federal roles described above, local governments still are assigned the duty of selecting the land-use policies they wish to pursue. This section describes four general approaches that Fort Myers Beach could take in response to the existence of illegal accessory apartments.
1. The legalistic approach.
An obvious approach concerning accessory apartments is to decide that what is most important is whether the apartments were built in accordance with a valid building permit. If so, the apartment is legal regardless of any errors in the process of issuing the building permit (such as inconsistent zoning, or construction below the base flood elevation). If not, then the apartment is illegal because of the permit violation and must be removed.
A variation on this approach would be to allow the correction of a permit violation by authorizing "after-the-fact" building permits. Typically there would be some penalty involved, and the building department would have the authority to inspect the building for structural violations even if that means an owner might have to remove wall surfaces to reveal the underlying construction. Under this approach, the critical issues are whether a building permit could have been granted, and did construction meet the codes even if a building permit was not obtained. This variation might also allow a period to request a zoning change or variance to correct a zoning violation.
2. The new era approach.
When formulating new policy, local governments often choose to legalize or "grandfather" existing examples of the conditions they are trying to eliminate, regardless of their legality. This response attempts to avoid imposing difficult burdens on individual landowners who have acted based on past policies (or acted on their perception of lax code enforcement). This is often seen as a politically easy decision, but it can end up by rewarding landowners who have acted illegally, sometimes at the expense of their more law-abiding neighbors.
Under the "new era" approach, the Town would declare that past violations were largely the fault of the previous regime, but might simultaneously announce a new policy of strictness for the future. Past violations could be treated as follows:
3. The district approach.
Another approach that could be followed would be to divide Fort Myers Beach into one or more districts and decide to selectively legalize accessory apartments in certain districts. For instance, legalization might be approved in those areas where mixed housing types are fairly common at present. Other areas would be treated using either of the earlier two approaches.
At Fort Myers Beach, the older subdivisions would probably be identified for legalization because they were created prior to zoning and often have many legal apartments and duplexes, making any illegal units less obtrusive. New subdivisions would probably be treated more strictly since they typically have more homogeneous housing types. Presumably residents in the various neighborhoods will have chosen their homes based on their preference for variety vs. uniformity, and will be amenable to differing regulations. Other factors to consider in identifying the zones would be the percentage of dwelling units other than standard single-family homes; typical lot sizes; and community sentiment within each neighborhood.
This approach could be implemented through designations in the comprehensive plan, or could be fleshed out through a special study after the plan is adopted. Almost certainly some neighborhoods would require a complete rezoning, or the zoning district regulations would need to be changed in some manner.
4. The new urbanism approach.
This approach would focus more on the desired physical form for various neighborhoods and less on the nature of existing code violations.
Homogeneity of housing types within each neighborhood has become the dominant theme of post-war American housing. But a basic tenet of the "new urbanist" or neo-traditional schools of thought is that this trend has gone too far, resulting in many neighborhoods of almost identical single-family houses and little else. For conventional families that can afford spacious homes, the newer single-family neighborhoods work fairly well and are highly prized by many. But for single people, or for older (or younger) people who cannot or do not wish to drive everywhere, the older neighborhoods function better with their variety of housing types and some commercial uses within walking distance.
This approach would not require the town to choose between either neighborhood paradigm. Since zoning was instituted in Lee County in 1962, the newer type of standards have been applied to nearly all neighborhoods (a notable exception being the "neighborhood conservation" zoning districts that have been used at some locations in the county).
The new urbanism approach is similar to the district approach (#3 above), except that it wouldn't be limited to a remedial effort to legalize past violations. Instead, in the selected portions of the island, the existing zoning regulations would be completely revamped. The new regulations would focus on the physical form of residences, rather than on the type of housing unit(s). For instance, "build-to" lines would be established in place of setbacks, but some other matters addressed by the current codes would be deregulated.
This approach would be somewhat more complex to prepare and explain to the community, but should be easier to administer as it could use the regulatory approach suggested by Victor Dover this past summer. Assuming these new regulations were properly prepared, overcrowding would still be regulated, and large and otherwise out-of-scale homes would be precluded. However, it should be pointed out that state regulators can be expected to be leery if any additional living units would be permitted.
This approach would work best in the older neighborhoods, not only because of the current mix of housing types there but also because their more "traditional" feel, with smaller lots and closer connection to the resort and commercial segments of the island.
These four approaches are not mutually exclusive; the town may ultimately choose to combine favorable characteristics of several. Our task at this point is to discuss all of these (and any other potential approaches), and select a direction to pursue for inclusion in the preliminary draft of your comprehensive plan.