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Posted on: March 5, 2019

County Proposes Changes to Accessory Apartment Rules

The Montgomery County Council is considering substantial changes to the rules that govern “accessory” apartments (Zoning Text Amendment 19-10) with the goals of increasing affordable housing, providing multi-generational housing, and providing additional income for retirees and young families.  The Town Council discussed and formed a position on the proposed changes at its meeting on February 13.  Councilmember Joel Rubin presented this position to the County Council at its public hearing on February 26.  A link to Joel's testimony is available here.

What is an Accessory Apartment?

It is a separate dwelling unit located on a lot with a single-family house. There are two types: attached and detached. An attached apartment is one that is inside the house. A detached apartment is one that is in an accessory building in a rear yard (e.g., a garage, a “tiny” house, a granny pod).

What are the Current Rules? 

Currently, only attached apartments are allowed in neighborhoods like the Town (zoned R-60). There can be 1 attached apartment on a lot provided the apartment meets certain requirements related to size, age of the house in which it is located, spacing from other apartments, and required off-street parking spaces. The spacing and parking requirements can be waived by the County. A maximum of two adults can live in the apartment (the number of children is regulated by county housing rules). The property owner must live in the house (not the apartment). A property with a licensed accessory apartment cannot get a license for short-term rentals (e.g., AirB&B). Detached apartments are not allowed in the R-60 zone. In the zones where they are allowed, they can only be on lots of 1 acre or more.

Proposed Changes to Accessory Apartment Rules

  1. A detached apartment would be allowed in an accessory building located in the rear yard of a house on a lot of any size. If the detached apartment is in an accessory building built after May 31, 2012, that building must be located at least 12 feet from the rear lot line and set back from the side lot line like the house. If the detached apartment is in an older building, there are no setback requirements.
  2. An attached or detached apartment could be of any size provided its habitable floor area is less than 50% of the total floor area of the house (the current 1,200 square-foot size limit would be removed).
  3. An attached apartment could be constructed in a new house (currently, an attached apartment is allowed only in a house at least 5 years old).
  4. An attached apartment could have an entry door on the front of the house (currently it cannot, unless the door existed before May 20, 2013).
  5. A total of two off-street parking spaces must be provided for the property. This requirement can be waived if a County hearing examiner finds there is adequate on-street parking available. Currently, one off-street parking space must be provided for an apartment in addition to any required for the house.
  6. No spacing requirement for apartments other than a maximum of one per lot (currently, an apartment cannot be within 300 feet of another apartment, on the same side of the street).
  7. The property owner can live in the apartment and rent the main housing unit (currently can only rent the apartment).

Notes

If the proposed changes are adopted:

  • Detached garages in the Town built before May 31, 2012 could be converted to apartments, without regard to setbacks. Older garages often sit on or very close to the side and/or rear property lines.
  • An existing detached rear yard garage built after May 31, 2012 could be used for a detached apartment provided it meets County setback requirements.
  • A new accessory building could be built in a rear yard for a detached apartment (e.g., a tiny house or granny pod). If a new building is constructed for the detached apartment it would have to meet County and Town setback requirements and could occupy no more than 25% of the rear yard.
  • A new house could be constructed as a “duplex”, provided one of the two units is smaller than the other (habitable area is less than 50% of the total area of the house) and the property owner lives in one of the two units. (Technically, such a house would not be a duplex, it would be a house with an attached accessory apartment).

More Information

  • The full text of the proposed changes is available here.
  • County Councilmember Hans Riemer’s summary of the ZTA is available here.

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