Category: Laws

The sizable impact of requiring Chicago homeowners to get special use approval to build an ADU

July 20, 2024 / / 0 Comments

Show your support for a version of the proposed ordinance that enables equal access to ADUs in all residential zoning districts and does not have the carve out explained below by emailing your alderperson and asking that they support ADU expansion into every residential zoning district without special use approval.

It’s possible that the Chicago City Council votes to approve an ADU expansion ordinance that would require about 38 percent of small-scale residential property owners, specifically in RS-1 and RS-2 zoning districts, to obtain a special use from the Zoning Board of Appeals to build an ADU. Special use approval is intended for limited and certain businesses and building types that can have an adverse impact and may require mitigations that are reviewed and approved by the ZBA.

ADUs have not been demonstrated to have adverse impacts and this potential future requirement would impose burdens on a scale above and beyond anything else the Chicago zoning code imposes. A special use is described in the city’s code as having “widely varying land use and operational characteristics [and] require case-by-case review in order to determine whether they will be compatible with surrounding uses and development patterns. Case-by-case review is intended to ensure consideration of the special use’s anticipated land use, site design and operational impacts.”

Yet an ADU is a residential use; its operational characteristics could not be incompatible with other residential uses. This requirement would be extremely unusual and especially burdensome. There is only one other special use approval that a residential property owner would have to seek, which is to allow housing on the ground floor in B1, B3, C1, and C2 zoning districts.

Applying for a special use for a small home presents a major obligation to the property owner, and requires them to perform the following:

  • Submitting a full building permit application with plans and obtaining a “certificate of zoning denial” before being able to start this process.
  • Paying a $1,000 application fee to the City of Chicago.
  • Hiring an expert witness to write a report and provide testimony at the ZBA hearing.
  • Preparing the finding of fact, a report which (a) describes how the ADU complies with all applicable standards of the Chicago Zoning Ordinance, (b) says that the ADU is in the interest of the public convenience and will not have a significant adverse impact on the general welfare of the neighborhood, (c) explains that the ADU is compatible with the character of the surrounding area in terms of site planning and building scale and project design, (d) states that the ADU is compatible with the character of the surrounding area in terms of operating characteristics, such as hours of operation, outdoor lighting, noise and traffic generation, and (e) outlines that the ADU is designed to promote pedestrian safety and comfort.
  • Preparing the application (which is extensive).
  • Complying with onerous legal notification requirements including determining property owners of record within 250 feet of the subject property, paying for and posting public notice signs and ensuring they remain posted until the public hearing, and mailing notice letters to surrounding property owners within the 250 feet notice radius.
  • Presenting the project to the Zoning Board of Appeals at an undeterminable time during an 8-12 hour meeting in the middle of a Friday, possibly facing one’s neighbors who are present objecting to the project.

Not to mention, this will gum up staff time and expertise.

Scale of impact

I analyzed the number of small-scale residential-only properties in Chicago that would and would not be subject to the special use approval requirement in RS-1 and RS-2 zoning districts if that version were to pass.

The map below shows where the proposed ADU expansion would set a different standard for homeowners in RS-1 and RS-2 zoning districts than for homeowners in all other zoning districts. It covers large parts of 40 percent of the city’s 77 community areas (read more about my thoughts on this in my letter to the Chicago Sun-Times editor).

The table below shows the results of my analysis: the owners of nearly 171,000 small-scale residential properties in RS-1/2 zoning districts would be required to undergo a costly and difficult process that would likely result in burdens so great that very few families would actually be able to take advantage of having an ADU.

About the analysis

“Small-scale residential” comprises Cook County property classifications that represent detached houses, townhouses and townhouses, two-to-six flats, courtyard buildings, and small multifamily buildings, up to 99,999 s.f. with or without commercial space up to 35 percent of the rentable square feet.

The full list of property classifications:

  • 2-02
  • 2-03
  • 2-04
  • 2-05
  • 2-06
  • 2-07
  • 2-08
  • 2-09
  • 2-10
  • 2-11
  • 2-12
  • 2-13
  • 2-25
  • 2-34
  • 2-78
  • 2-95
  • 3-13
  • 3-14
  • 3-15
  • 3-18
  • 3-91

Chicago’s zoning code doesn’t allow five (or more) roommates

June 4, 2024 / / 0 Comments

Can you guess how many people the Chicago zoning code allows living together in a typical apartment or house when all of them are unrelated to each other?

  • 2
  • 4
  • 3
  • 5
  • 6
  • 7 or more

The answer is in the following paragraph.

A four-bedroom co-living apartment
Living room at a four-bedroom co-living apartment

The Chicago zoning code allows an unlimited number of related people to live together along with three unrelated people. If you’ve got roommates and none of you are related, the zoning code says that there can be only four of you in a dwelling unit. (There are alternatives to this scenario which are not part of the discussion, comprising shelters and congregate housing and group living, which are separately defined and exclusive of a typical “roommate” scenario.)

If you want to have four roommates you may need a five-bedroom house, which you could easily find in Chicago and go ahead and rent, you’ll be fine. The city will not enforce the zoning code in this situation.

The city’s planning and buildings departments will, however, enforce the zoning code at the time of a Planned Development or building permit application if the proposal is for an apartment building (likely marketed as a co-living situation) with five-bedrooms apartments. I’m aware of two such proposals happening in Chicago; one of the proposed projects is under construction but was modified prior to approval to have only four-bedroom apartments.

How the zoning code regulates occupancy limits in housing

The Chicago zoning code has two definitions (or “defined terms”) that have to be read together to understand how the limitation works.

17-17-0248 Dwelling Unit. One or more rooms arranged, designed or used as independent living quarters for a single household [a defined term, see below]. Buildings with more than one kitchen or more than one set of cooking facilities are deemed to contain multiple dwelling units unless the additional cooking facilities are clearly accessory and not intended to serve additional households.

17-17-0270 Household. One or more persons related by blood, marriage, legal adoption or guardianship, plus not more than 3 additional persons, all of whom live together as a single housekeeping unit; or one or more handicapped persons, as defined in the Fair Housing Amendments Act of 1988, plus not more than 3 additional persons, all of whom live together as a single housekeeping unit.

None of the terms in the household term are themselves defined terms in the zoning code, so a “single housekeeping unit” would take the definition from the “latest edition of Merriam Webster’s Collegiate Dictionary”, or as interpreted by the zoning administrator.

Most apartments, and especially apartments marketed and used as “co-living” are considered dwelling units. Thus, each apartment can comprise one household and one household can comprise a single housekeeping unit and a single housekeeping unit can comprise an unlimited number of related people and up to three unrelated people.

However, there is an exception that an unlimited number of unrelated “handicapped persons” can live with up to three unrelated people.

Why occupancy limits don’t belong in zoning codes

Occupancy limits based on family relationship and familial status arose when parts of cities were becoming overcrowded during an era of industrialization and moving to cities (urbanization). I’m not going to elucidate this point but direct readers to the history described in “Full house: occupancy standards, normative zoning, and the responses of US cities to changing households” by Amarillys Rodriguez.

Putting occupancy limits in zoning codes instills moral values that are outdated, maintain segregation, and fail to respond to changing norms, family development patterns (think “chosen family” households), and having the choice to decide who one wants to live with. In fact, it may be “virtually impossible to satisfactorily define family, or develop an alternative to the term, in a manner that satisfies the competing
goals of maintaining privacy, allowing freedom of association, and protecting
community ‘character’ (itself a loaded term)” (Sara Bronin, “Zoning by a Thousand Cuts”)

In Nolan Gray’s terms, zoning standards like this are based on “elite norms and heuristics”. (A heuristic is a problem-solving technique used when devising an optimal solution or assessment is impractical.)

Occupancy limits, if there are any, should be based on demonstrated facts that show benefits or pitfalls of numerically limiting who and how many people can live together. A building code that’s based on ensuring occupants’ safety is likely where that can be achieved and regulated; I’ll discuss what the Chicago Building Code has to say about occupancy limits in the next section.

Colorado Governor Polis recently signed a law that strips municipalities of the power to set occupancy limits that aren’t based on reliable information about the safety of the number of people in an apartment.

An excerpt from Colorado House Bill 24-1007; it reads, “(3) a local government shall not limit the number of people who may live together in a single dwelling based on familial relationship. Local governments retain the authority to implement residential occupancy limits based only on: (a) demonstrated health and safety standards, such as international building code standards, fire code regulations, or Colorado department of public health and environment wastewater and water quality standards;”

Chicago building code sets a kind of occupancy limit

If Chicago – or Illinois – were to adopt a law similar to Colorado’s the existing Chicago Building Code would regulate the design of an apartment. It does not set a maximum, though.

Jamin Nollsch, a senior architect at UrbanWorks who analyzed the code on my behalf, said “For the purposes of discussion, the Chicago Building Code says that at least eight people could occupy a 1,000 sf apartment. The code commentary makes it clear that the 125 s.f. per occupant load factor for apartments is a design mechanism for the egress system, and not an absolute maximum.

“There are many code sections that set limits on the occupant load of an apartment, whether it is the 7 s.f. per occupant limit, or 10 occupants for spaces with 1 exit, or the width of the egress doors. The occupant load factor, however, is intended to be a design factor and not a maximum. With approval from the building official, the maximum number of occupants can be as high as the egress design allows.”

In other words, if an apartment can be designed with a sufficient number or size or type of exiting paths, there is not really a limit to the number of people who the building code indicates could safely occupy the apartment.

Do you think the Chicago zoning ordinance should be amended to defer to the building code in setting occupancy limits?

What the proposed MMA Act is offering land use policy

April 30, 2024 / / 0 Comments

State legislators introduced HB5823, or the Metropolitan Mobility Authority Act, to consolidate the Regional Transportation Authority and the three “service boards” it oversees (CTA, Metra, and Pace).

Read more about the proposed legislation on WTTW (in which I make an appearance to describe that benefits may take years to materialized, but that I think the juice is going to be worth the squeeze).

I’ve summarized the five sections of the proposed act that could change land use policies in Chicagoland.

Section 4.01. Powers

Of the 12 powers granted to the MMA, number 11 states that the authority “may…develop or participate in residential and commercial development on and in the vicinity of public transportation stations and routes to facilitate transit-supportive land uses, increase public transportation ridership, generate revenue, and improve access to jobs and other opportunities in the metropolitan region by public transportation”.

This will be important as the other sections described below are dependent on the authority having that power.

Section 4.27. Transit-Supportive Development Incentive Program

The goal here would be to promote and fund mixed-use development that increases transit ridership. An account would be created into which the state could deposit funds as appropriated. The MMA could:

  • invest in “transit-supportive development” – residential and commercial as defined in 4.27(1) – on transit agency property, or in the vicinity of transit agency property
  • “providing resources for increased public transportation service in and around transit-supportive residential and commercial developments, especially newly created transit-supportive developments” – this would be a new feature and could mitigate concerns that the transit service levels around a proposed TSD aren’t sufficient to make the development material “transit-supportive” (example below).
  • “grants to local governments to help cover the cost of drafting and implementing land use, parking, and other laws that are intended to encourage and will reasonably have the effect of allowing or supporting transit-supportive residential and commercial development;” – this is something that the current Regional Transportation Authority (RTA) and Chicago Metropolitan Agency for Planning (CMAP) already do.

Example of providing resources for increased transit around TSDs

Say that you’re a developer proposing a multi-family apartment building next to the Lemont, Illinois, Metra station. Part of the proposal is provide transit passes in lieu of any car parking (because of the massive cost associated with building parking according to Lemont’s mandates), and because Lemont’s walkable downtown offers most services for people, especially those commuting to Chicago or might have groceries delivered.

Part of downtown Lemont, Illinois

The village board is weary, though, and says that there’s not enough transit service for them to support your proposal (this is a real thing that city council members and even zoning review staff in Chicago say). They could be right; there is no Metra service on weekends and the only Pace bus route is 755, to downtown Chicago. This could limit tenants’ ability to travel to reach services and friends in other towns.

The MMA staff, however, recognize the transit-generating aspects of this proposed development and proffer funds from the TSD account to add Metra weekend service and a bus route over the Illinois and Michigan Canal to the big shopping centers in Bolingbrook.

Section 5.07. Strategic Plan

The MMA Act stipulates that the authority has to create and update a strategic plan every five years. The current RTA already does this, but the Chicago Transit Authority does not and is not required to; the RTA’s strategic plan does not direct CTA’s actions.

In this future strategic plan, the MMA must consider land use policies, specifically:

land use policies, practices, and incentives that will make more effective use of public transportation services and facilities as community assets and encourage the siting of businesses, homes, and public facilities near public transportation services and facilities to provide convenient and affordable travel for residents, customers, and employees in the metropolitan region;

Section 7.03. Establishment of the Office of Transit-Oriented Development and Transit-Supportive Development Fund

The MMA Act would create an Office of Transit-Oriented Development within the Metropolitan Mobility Authority to administer the TSD Fund, including issuing loans in support of transit-supportive developments and offering technical assistance.

Section 7.04. Transit support overlay districts

This section says that CMAP, the “metropolitan planning organization” for Northeastern Illinois, “shall develop standards for a transit support overlay district for that urban area, which may include, but are not limited to, transit-supportive allowable uses and densities, restriction of auto-oriented uses, removal of parking requirements, site planning standards that support walkability, sidewalk network connectivity and local funding commitments for sidewalks in compliance with the requirements of the Americans with Disabilities Act of 1990, as amended, and streetscape features that encourage transit use.”

The purpose of this section is to direct Transit Supportive Development funding is going only to developments within an adopted local “transit support overlay district”.

Such a district also gives a municipality standing to request an increase in the transit service standards delivered in their area; see section 5.11(f). (The authority would study the request and if the municipality or other source can provide funding then the service would have to be provided.)

It appears that the goal with this is to ensure that CMAP, the region’s state and federally-designated office to develop a regional plan, is assisting the MMA, different departments of transportation, the Illinois Tollway, and municipalities in the execution of the regional plan’s strategies (currently called “ON TO 2050”).

Not present: preemption authority

To jumpstart a housing construction agenda, the Illinois General Assembly could give the Metropolitan Mobility Authority its own municipal power to allow it to develop multifamily housing and other transit-supportive development without being subject to local zoning limitations.

Combined with such land use authority the MMA – through a modified version of this bill – could also be funded in part by having it collect property tax revenue through “value capture”, where the MMA receives the property tax increment between pre-development and post-development property values.

If you’re familiar with the MTR in Hong Kong or Japanese railway companies, train transit in those two countries is funded by the mixed-use developments (or leases) that occurs on land around or above the stations that are owned by those companies.

Ald. Lawson re-introduces ordinance to jumpstart sagging ADU program

April 22, 2024 / / 0 Comments

A subject matter hearing will be on June 11, 2024, at 10 AM (meeting details).

I wrote this summary of the ADU changes this proposed ordinance (SO2024-0008918, formerly O2023-2075) would implement (with my commentary in parentheses).

Before you read on, though, please sign the Urban Environmentalists Illinois petition to show your support for allowing ADUs citywide.

Interior of a coach house in Lakeview built in 2023.
  • It allows ADUs citywide (this is the most important change to speed up adoption)
  • Expands to B and C1, C2 zoning districts (this is important because there are thousands of residential-only properties that are incorrectly zoned in B and C districts which don’t allow ADUs)
  • It also allows ground floor commercial conversions but only if 40% of more of the property length is commercial space.
  • It allows a property owner to have both an interior ADU and a backyard house ADU (currently you can have one or more interior ADUs or a backyard house)
  • It removes the hard 700 s.f. cap on floor area in backyard houses. (Currently coach house sizes are limited to the lesser of 60% of the rear setback or 700 .s.f)
  • It allows property owners who want to build a coach house to ask the zoning administrator to waive parking requirements for the principal building. This would allow a property owner to reduce the number of existing parking spaces, allowing a coach house to be built as an accessible unit on the ground level. Ground-level coach houses will also be cheaper to construct!
  • It would require a special use from the ZBA to establish an ADU in RS-1 and RS-2 zoning districts. These are much less common than the other R zoning districts and 0 ADUs have been permitted in those districts since May 1, 2021. 
  • It allows the property owner OR the city to notify the alder of a proposed ADU permit application. 
  • It eliminates the need for the property owner to notify their two adjacent neighbors. 
  • It doesn’t change the affordability requirements when proposing to build 2 or more interior ADUs. 
  • It eliminates the restrictions in the 3 southern limit areas that limited the number of ADU permits per block per year (this restriction ended up having no effect due to little demand in those areas). 
  • It eliminates the requirement that to build a coach house at a 1-3 unit house it had to be owner occupied (only in the 3 southern pilot areas, again this restriction ended up having no effect due to little demand in those areas). 

The changes would take effect 120 days after passage. It’s no guarantee that all of these will remain in the final version!

The ADU program in Chicago needs this. As I pointed out in my comment to the Chicago City Council Committee on Zoning, Landmarks, and Building Standards, the number of ADU permits has been declining since December 2022.

Illinois updates its affordable housing enforcement statute to take effect in 2026

December 15, 2023 / / 0 Comments

Illinois has a statute that requires every covered municipality to have an affordable housing stock of 10 percent relative to its total housing stock. The Affordable Housing Planning and Appeal Act exempts only municipalities with population of under 1,000, and those “in which at least 10% of its total year-round housing units are affordable, as determined by the Illinois Housing Development Authority”.

IHDA updates a list of non-exempt municipalities – those not achieving the 10 percent standard – every five years, which it last did in December 2023 (the list).

List of 44 non-exempt municipalities ordered by lowest percentage of housing stock which is affordable.

Glenview is one of the non-exempt municipalities and this year has “had trouble” approving new housing. Although neither proposed development included affordable housing, to my knowledge, the developer of one proposal said that the project rents would be less than the median; my guess is that most rentals in Glenview are not other apartments but whole houses.

I’ve been keeping a list, on Twitter, of other municipalities that have “had trouble” approving new housing.

One of the updates in the AHPAA adopted in 2023 is that the definition of who can appeal a municipality’s rejection of a proposed affordable housing development has been expanded to, basically, include someone who could have lived in the development if it was built.

The revised definition for appellants also includes housing advocacy organizations that have an overlapping geographic focus. This new appellant definition takes effect on January 1, 2026.

IHDA’s FAQ answer to who is an appellant and can appeal a rejected affordable housing development proposal.

If you know of an Illinois municipality that has voted to reject an affordable housing development, or has through some kind of delay or inaction effectively rejected an affordable housing development, please let me know!