Zoning Practice — July 2012

Ask the Author

Here are reader questions answered by Tom Daniels author of the July 2012 Zoning Practice article "Zoning for Accessory Housing.

Question from Kirk Westphal, Ann Arbor, Michigan:

My city (Ann Arbor, Michigan) discussed accessory dwelling units several years ago, but the conversation stopped amid concerns that it would lead to further student "sprawl" away from campus, resulting in eventual displacement of single-family neighborhoods and a transition toward income property neighborhoods. As I understand it, there were provisions requiring that every accessory unit had to be within the main building, and the property owner had to be living there as well. The enforceability of the "homeowner on premises" was questioned. Do you have any experience with successful ADUs in these circumstances?

Answer from author Tom Daniels:

I grew up in a college town (Burlington, Vermont) which is similar to Ann Arbor in that there are lots of students living off campus, and there is still a real downtown.

I think you hit the key provision in ADUs, namely, that the owner of the principal dwelling must still live in the dwelling. There would be an enforceability issue, but I would think that a cross check of the owner's legal residence on the driver's license would suffice.

Some communities have even imposed an age restriction for the occupants of an ADU, (e.g. must be 60 or older). This is usually meant to emphasize the "granny flat" purpose of the ADU.

The Supreme Court case of Belle Terre v. Boraas upheld a local zoning ordinance that said no more than two unrelated people per dwelling unit. So, if Ann Arbor were to adopt this standard, in the case of an ADU rented to students, there would be no more than two students (assuming that the students didn't have brothers or sisters move in with them).

This standard of no more than two unrelated people per dwelling unit is found in your fellow Big Ten cities of Columbus, Ohio; Madison, Wisconsin; and East Lansing, Michigan. For more details about campus communities, see www.ocssral.colostate.edu/towngown/ul_files/Occupancy.pdf.

[Ed.: While courts have generally upheld the legality of restrictive definitions of the term family, these restrictions can have unintended consequences. See the February 2007 edition of Zoning Practice for a discussion of restrictive family definitions.]