2nd Dwelling Unit five-year waiting period

[Kari Cohen]

Hi there,

My wife and I live in a RF-1 zoned rowhouse. We have a detached garage on top of which we're considering building a studio space--a bathroom, office, room for our parents to visit. We have no plans to rent the space.

It looks to me like we can build such a structure but the one thing I don't get is the five-year waiting period that is discussed in this article. 

It's unclear to me what the five-year waiting period refers to--does that just mean we can build the studio space and use it ourselves but not get a certificate of occupancy and rent it for five years after construction? Or does it mean something else?

Thanks!

Kari

[Ileana Schinder]

Hi Kari,

How are you? I remember the article that Cheryl wrote for GGWash so I looked into my files. In this link you will see the Office of Planning approval recommendation for Use Permission Subtitle U 301.1(e)* for a project in a RF1 zone. The BZA case 20516 complete files can be found in the BZA website 

• *"an accessory building constructed as a matter-of-right after January 1, 2013, and that is located within a required setback shall not be used as, or converted to, a dwelling unit for a period of five (5) years after the approval of the building permit for the accessory building, unless approved as a special exception"

Sometime between the approval of the original zoning regulation and today, the 5-year waiting period was removed (I can't find the specific date when that change happened). So, even if you have to request an exception for other portions of your project, Office of Planning approves the 5-year waiting period with -almost- no questions. So i am pretty sure you'll be able to occupy yourselves or rent it with no problems.

I hope this helps,

ile

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[Cheryl Cort]

I think most cases for RF zones will require a special exception to get out of the 5 year waiting period. But I believe the special exception is very doable. 

Subtitle U-301.1(e) refers to a "required setback" - I believe this is the "required rear yard" which is measured from the rear of the main building towards the rear property line.

[NOTE: of course I could be wrong because they are not the same terms. I believe that the only setback from the rear property line for a structure is the setback from the 7.5 alley centerline, if there's no alley, I dont think there's a zoning setback, but there's one for building code related to fire safety of buildings along a shared boundary]

We hope we can get the ZC to eliminate this waiting period, but they are delayed in taking up revisions to accessory building/ADU rules. 

Ileana - the case you cite didnt require relief for the required rear yard b/c I think it was an exceptionally long rear yard. 

Here's the citation: Subtitle U-301.1(e):

Here's a table I compiled of common RF rules for building an accessory building.

As for the use -- not rented -- I dont think that matters to Dept of Buildings, if it has a kitchen (stove/sink). I think they want to see it built to the standard of an independent dwelling. This could include sprinklers.

But I'm not a zoning or building codes expert. It's all so arcane!

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[Ileana Schinder]

Hi Cheryl, Kari...

Thanks for your follow up. As usual, the devil is in the details when it comes to building/zoning requirements and setbacks. Each project has its own potential exceptions. The project I cite DID NOT comply by right with the rear setback (long story) but the neighboring conditions of the adjacent properties were not negatively affected by our project breaking the rules. Thus BZA approved it.

EVERY project you face have the potential to break and bend some rules... don't worry about them. Unless your particular case will ruin someone's property value, it's pretty likely that BZA will approve it. If you have particular questions about how to strategize your project rule-breaking :) do reach out to this group (there's a few zoning lawyers and architects) that will direct you how to do it effectively.

(like the 5-year delay, it's so silly it just paperwork approval).

I hope this helps!

ile