Who May Turn Garages Into Apartments?

A pending city zoning rewrite hinges partly on a question — whether all landlords, or just owner-occupants, should be allowed to add an extra apartment to their properties.

It sparked debate at the City Plan Commission’s first two public hearings on a new proposed zoning update designed to make it easier to build accessory dwelling units (ADUs) across New Haven.

The Elicker administration is proposing as part of that update/rewrite that the city give preferential treatment to owner-occupants to create new attic, basement, and garage apartments on their properties in RM‑1 Low-Middle Density, RM‑2 High-Middle Density, RS‑1 Special Single-Family, and RS‑2 General Single-Family zoning districts.

Critics of that idea argued that such a change could spur legal challenges from absentee landlords — without having much of an impact in promoting high-quality, affordable housing for city renters most in need.

The City Plan Commission held a special, three-and-a-half-hour online public hearing on the two-pronged proposed land-use changes on June 9. It then picked up the matter for further discussion Wednesday night during a four-hour, regular monthly online meeting.

For the second time in a week, the local land-use commissioners decided not to vote on the zoning updates Wednesday — and instead pushed their deliberations out to another special meeting, to be held on July 7.

That’s when commissioners intend to vote on the proposed ADU and minimum-lot-size zoning changes before sending them along to the Board of Alders Legislation Committee for another public hearing and further debate.

The same proposed zoning update would also reduce minimum lot sizes to 4,000 square feet in residential districts citywide.

Across the two City Plan Commission meetings, commissioners, city staff, and more than a dozen members of the public debated a handful of provisions in the ADU zoning reform.

Those included…

• the update’s lack of minimum parking requirements for new ADUs.
• how the law change might contribute to overcrowding in already-dense parts of the city like the Hill.
• and how the local reform runs in parallel to a new state law that permits ADUs as-of-right in most towns and cities across Connecticut.

One of the most hotly contested parts of the proposed local zoning change was its limiting of as-of-right ADUs to owner-occupants only.

That is, according to the new proposed city law as drafted, property owners would be allowed to create a new attic, basement or garage apartment without seeking any special zoning relief from the city — but only if they or one of their relatives live on-site at the property in question.

“We’ve kept an owner-occupancy requirement” in this first phase of promoting ADUs, City Plan Director Aïcha Woods explained at the June 9 meeting, because ​“we’re starting out kind of slow and gentle on this.”

“It’s a rather conservative approach,” she continued.

This first phase would allow ADUs as of right only within the ​“existing envelope of a primary structure” or within the existing dimensions of an accessory structure, like a garage or carriage house. ​“There wouldn’t be new building footprint anywhere” — that is, no expansions to the physical size of existing buildings.

Also, she said, per the terms of this first-phase update, only owner-occupants would be able to make these types of ADU conversions without seeking special zoning relief.

“Accessory dwelling units shall only be permitted when the property owner or a member of his/her extended family lives on the property, within either the principal dwelling or accessory dwelling unit,” Section G of the proposed zoning text update reads. ​“Before issuance of a (insert name of approval permit or certificate of occupancy), the owner shall submit a notarized letter stating that he/she or a member of his/her extended family will occupy one of the dwelling units on the premises as a primary residence” except if that property owner can has a ​“bona fide, temporary absence” from the property for no more than three years, or if they have been admitted to a hospital, nursing home, or assisted living facility.

Subsequent phases would remove the owner-occupancy limit, Woods said, thereby allowing all property owners to add new attic, basement and garage apartments as of right.

“This won’t solve any affordable housing problem overnight,” Woods said on Wednesday. ​“But it may create additional affordable units in neighborhoods that don’t have any affordable units right now, and provide more options for homeowners. That may be a measure of success.”

Owner-Occupancy Limits Are Illegal, Exclusive

Anika Singh Lemar (pictured), a Yale Law School professor and open-housing advocate, led the charge in opposition to the owner-occupancy limitation in written public testimony she submitted to the commission for its June 9 meeting.

She argued that owner-occupancy requirements ​“violate the federal and state Fair Housing Acts. As a result of centuries of racism and segregation, there is a massive racial wealth gap as well as a homeownership gap in this country. Any policy that favors homeowners at the expense of renters imposes a disparate impact on people of color and other protected classes, the members of which are less likely to be homeowners.”

Local land-use attorney Ben Trachten (pictured) also took aim at the proposed ADU ordinance as a whole, including its owner-occupancy limits.

“I’m deeply opposed to the ADU modifications that are before you. We already have a mechanism to handle ADUs” that works perfectly well for applicants going before the city Board of Zoning Appeals (BZA), he said. This new proposal could have ​“all sorts of unintended consequences.”

Furthermore, ​“I don’t believe that the current proposal will create any additional affordable uses … The types of units that are going to be created are luxury units in single-family homes then rented at premium rents.”

This will will essentially allow ​“a free apartment for people who already own decent-size housing” as opposed to opening up more affordable options citywide.

City Plan Commission Vice-Chair Ed Mattison expressed skepticism that the owner-occupancy limit would be wise to include in this proposed zoning update.

“There is little doubt that the Yale people as well as landlord groups are going to litigate this tirelessly up to the U.S. Supreme Court,” he said. ​“Why in the world would the City of New Haven want to be in the middle of that?”

He said that promoting ADUs and making more housing available to people with limited incomes ​“is a wonderful idea.” But why hinder that plan by a provision that might open the city up to legal action?

“It just feels like a fool’s errand. … My first sense is that we’re talking about something that is a lot of social engineering of the type that makes people mad. And you try to avoid that as much as you can.”

Promoting Healthy Neighborhoods

City Deputy Corporation Counsel Michael Pinto (pictured) took the lead in defending the inclusion of the owner-occupancy requirement in both City Plan Commission meetings.

In response to Lemar’s letter, Pinto said that preferential legal treatment for homeowners is perfectly legal. Just look at the mortgage interest deduction include in the Internal Revenue Act.

That ​“provides a major benefit to homeowners that occupy their primary residences,” he said, and is not available to renters or to non-owner-occupant investors.

“It is a clear redistribution of wealth to homeowners under the Internal Revenue Act, and it’s perfectly legal.”

“Having the owner-occupancy requirement allows the city to incrementally make determinations as to how the program is going,” Pinto continued, ​“how the ADU process is being implemented, and to evaluate it on an incremental basis.”

The towns of Branford and Woodbridge include similar owner-occupancy limits on ADUs, he said. So there is precedent for such requirements.

Pinto argued that making it easier to build ADUs helps rather than hurts disproportionately low-income populations by, simply enough, adding more units to the market. ​“ADUs are designed to add rental housing to the City of New Haven. The amendment would permit additional rental units in zones where they’re not currently permitted, thus permitting new additional housing options across the city.”

In addition to the relatively narrow legal argument put forward by Pinto, several commissioners and members of the public also weighed in to support the owner-occupancy requirement. They argued that makes good public policy because landlords who live onsite tend to take better care of their properties.

“For some individuals, owner-occupancy means something in terms of neighborhoods,” Commission Chair Leslie Radlcliffe said on June 9. ​“The way that our neighborhoods tend to look has a lot to do with whether or not the properties are actually occupied by owner-residents.”

Radcliffe took umbrage with the relatively broad definition of ​“owner-occupant” in the draft proposal. If a relative of the property owner counts as a ​“owner-occupant,” that still would allow absentee landlords to take advantage of the perks of the new law while living elsewhere.

She said a house across the street from where she lives is occupied by the cousin of the owner, ​“and the house is not taken care of because the property owner doesn’t live there. … You can almost tell the houses where owners live, and the house next door, you know the owner does not live there.”

East Rock resident and developer John McFadyen threw his support behind the ADU proposal, including the owner-occupancy provision, during Wednesday night’s meeting.

“New Haven has been talking about affordable housing for way too long,” he said. ​“This is something that will allow for homeowners to add density to their neighborhoods, will provide affordable housing, and will increase the tax rolls. I think this is common-sense zoning.”

Fellow East Rock resident Kevin McCarthy also supported the proposal during the June 9 meeting.

“There are many homeowners in town who are house-rich but cash-poor,” he said. ​“One quarter of the owner-occupied units in New Haven have one occupant, often on a fixed income. The opportunity of creating a ADU may be a way of letting them keep their homes affordable for themselves” to remain in.

Neighborhood Housing Services Director James Paley, meanwhile, submitted written testimony on June 9 indicating his ambivalence about the owner-occupancy requirement.

“My fear is that ADUs will be abused by certain irresponsible investor-owners who are becoming increasingly prevalent in New Haven,” he said in support of including such a limit. However, he said, nonprofits organizations that own housing should not be barred from taking advantage of such ADU development perks.

And Hill resident Latesha Poindexter warned that not including an owner-occupancy requirement might exacerbate an issue she sees everyday in her neighborhood, where ​“lots of properties are being purchased by Mandy [Management], and the rents are not affordable. If you open it up” to non-owner-occupants, ​“I just wonder what that can of worms would look like.”