August 7, 2019

What happens to existing single-family homes in a new transition area?

Article Updated 9/19/19

As regulations change over time, it’s common for existing uses to not fully comply with all of the rules that new development would have to meet. So what happens to existing single family homes when development rules change?

Many older homes in Austin, for example, exceed the limits placed on the size and scale of single-family houses allowed under by the 2006 “McMansion” ordinance or are located closer to the street than what is permitted under current setback requirements. These deviations, commonly called “nonconformity” or “noncompliance,” don’t impact the rights of homeowners to maintain their existing homes. They do, however, limit the potential for expanding or altering the structure.

During the “CodeNEXT” process, many Austin homeowners raised concerns that the new regulations would make existing single-family homes “non-conforming.” These concerns included not only potential limitations on expansions or alterations, but also impacts that the label “nonconforming” may have on individual properties. For some homeowners, the new policy direction approved by Council heightened these concerns by directing that, within the transition areas, the new code should require “properties zoned for multi-family develop with multi-family and not single-family structures (page 7; 1, h, iii)." This would mean that, rather than simply not complying with a size or setback restriction, use of the property for a single-family home could become non-conforming.
In recognition of these concerns, Council’s policy direction requires that the new code “make allowances for existing single-family structures that become non-conforming to be maintained, remodeled, and potentially expanded, so long as they are not demolished or substantially rebuilt (page 7; 1, h, iii)." To implement this directive, staff plans to recommend two key provisions in the “Land Development Code Revision” planned for release in October.

The first provision would allow existing single-family homes in transition areas to be expanded and modified to the full extent allowed under the regulations that apply to areas zoned for single-family uses. The right to continue using the property as a single-family home would not be affected unless the existing structure was intentionally demolished or converted to another use.

Second, rather than using the term “non-conforming,” existing single-family homes in transition areas would be classified as a new category of compliant residential use. We believe this approach addresses concerns raised by homeowners regarding the impact of applying the “nonconforming” designation to existing single-family homes.

Additionally, by creating a new category of compliant residential uses, the nonconforming designation can be reserved for existing uses that are incompatible with new zones and are meant to be phased out.  (An example would be industrial uses in residential areas.) Single-family homes and multi-unit residential development can be compatible with one another, as demonstrated by older Austin neighborhoods where duplexes, triplexes, smaller apartments, and similar housing choices exist close to single-family homes.

In sum, these proposed changes aim to balance the goal of increasing housing capacity in transition areas with the needs of existing single-family homeowners. By changing the designation of existing homes from “nonconforming” to “compliant,” and relaxing the limits on improvements to the structure, the proposed changes would preserve existing entitlements.

*Update 9/19/19
A few weeks ago, staff announced a proposal for implementing Council’s direction to encourage house-scale multi-unit residential development in transition areas along the Transit Priority Network and Imagine Austin corridors and within activity centers. House-scale multi-unit residential might look like a duplex, triplex, cottage court or a single-family home with garage apartment. That proposal, discussed in the above blog post, had three primary elements:

• Allow existing single-family structures to be maintained in perpetuity and even expanded to the limits of what would be allowed in zones where new single-family uses are allowed.
• Allow single-family homes to be rebuilt where a home is destroyed or damaged involuntarily by fire or other disaster.
• If a single-family home is intentionally demolished, limit rebuilds to house-scale multi-unit structures (i.e., two or more units) that conform with the purpose of the transition area zones.

In response to community concerns, staff re-evaluated the original proposal. The new proposal is to allow complete rebuilds of existing single-family homes within transition areas regardless of whether the original structure was intentionally demolished. Only if a single-family use is expanded to include two or more housing units, consistent with the requirements of transition area zoning, would future single-family use of the property be prohibited.
This proposal relies on increased housing unit capacity and market conditions to incrementally further Council’s goal of encouraging more “missing middle” housing options along transit corridors. It goes further than staff’s original proposal in protecting the rights of existing single-family homeowners, while also planning for the future.