Tag: Zoning Board of Appeals

Why ADUs need to be allowed across Chicago exhibit #42

Alternative headline: The zoning map and the zoning code work hard to limit new housing and density.

Several times a week I browse the descriptions of recently issued building permits in Chicago to find the “interesting” projects so I can post those on the Chicago Cityscape social media accounts and keep people apprised of neat things happening.

I also track when new ADU permits are issued, because the city does not.

Yesterday a permit with the description of “basement to be converted to an additional legal dwelling unit” was issued in Roscoe Village, so I went to the city’s list of ADU pre-approval applications to determine if the permit was for an ADU or the applicant was taking advantage of the property’s #UnusedZoningCapacity.

It was not an ADU, and since it was zoned RS-3 – which bans multi-unit housing – it was also not the owner taking advantage of #UnusedZoningCapacity.

Two-flats of South Chicago
A row of two-flats in Chicago (the one in the story is not pictured).

What was permitted?

I went to the city’s online zoning map to look for other clues, and I found that the property was involved in two Zoning Board of Appeals actions. This is where the story gets interesting. I will do my best to summary the proceedings but I must disclaim that I am not a lawyer.

The Zoning Board of Appeals is an appointed, quasi-judicial body that has three primary functions:

  1. Grant variations where the zoning code authorizes them to (deviations from the code because of atypical circumstances or circumstances that have been previously deemed to require additional review).
  2. Grant special uses where the zoning code authorizes them to (business types that have been previously deemed to require additional or special review).
  3. Appeal decisions made the Zoning Administrator, the person who works for the City of Chicago in the Chicago Department of Planning & Development (and by extension, the plan review staff).

There is a provision in the Chicago zoning code that says that houses that, upon special request, the Zoning Administrator (ZA) can grant an Administrative Adjustment (AA) to allow an additional dwelling unit at houses that are 50 years old or older (subject to other provisions in 17-13-1003-BB).

The owner – also known as the applicant in this blog post – of the two-flat decided to request this AA. The ZA said that the applicant was not eligible for the AA. “The Appellant [applicant] then attempted to seek a variation before the Zoning Board of Appeals” because the ZBA can “grant a variation for any matter expressly authorized as an administrative adjustment”.

Before an applicant can approach ZBA, though, they must apply for a building permit and receive an official “denial of zoning certification” (more on this at the end). This “denial” means, in the unofficial layperson’s zoning translation dictionary, “the permit reviewers see what you’re trying to do and while it’s not permitted as of right under the circumstances you can take this certificate and apply for relief from the ZBA”.

The ZA, who oversees the permit reviewers’ review of a building permit application’s adherence to zoning standards, “refused to issue” the denial. They did this pursuant to 17-16-0503-A, which says the ZA “may deny or withhold all permits, certificates or other forms of authorization on any land or structure or improvements thereon upon which there is uncorrected violation of a provision of this Zoning Ordinance…” The building had an uncorrected building violation citation from 2007.

The property owner disagreed with the application of that section of the zoning code. They filed an appeal and asked the ZBA to reverse the ZA’s decision to refuse issuing the denial. (In the same filing the applicant also asked the ZBA to legalize the basement garden unit, which they declined to do.

I’m going to skip a bunch of the proceedings, which are in the attached meeting minutes from two meetings, but conclude that the ZBA “finds that the ZBA did err in refusing to issue the Appellant an official denial of zoning certification” and ordered the ZA to issue the denial.

The story ended well

Having won the appeal, the applicant has the official denial of zoning certification and can proceed to file a new case with the ZBA and request a variation asking, again, for them to grant them the administrative adjustment that the ZA had previously said the applicant was not eligible for.

The applicant’s building permit for the additional unit was issued on June 7, 2023. The processing time on the building permit was 961 days, which should represent the date when the applicant first submitted the building permit application with the intention of getting the official denial of zoning certification from the ZA.

The result was that the city lost an additional home in a high-amenity, high-resource neighborhood for three years and a property owner had to pay thousands in legal fees.

Attachments

  • 124-22-A. The appeal of the ZA’s denial to issue the official denial of zoning certification.
  • 12-23-Z. The variation granting the property owner the right to establish an additional dwelling unit in the two-flat.

Allowing cottage courts in Chicago requires changing the zoning code

Cottage courts (or clusters) are a common multi-family design typology in cities outside of Illinois. You’ll find them in California (where they’re more often called bungalow courts) and Tennessee, for example. They are characterized by having multiple detached one or two-story houses on a single and compact development site. The houses commonly face a shared green space and have shared parking behind them.

A primary benefit of cottage courts – and smaller footprint housing, generally – is that it creates more for-sale detached houses (which are in very high demand in Chicago) while sharing land [1]. In other words, cottage courts create more detached houses using less land.

It is not possible to build a cottage court in Chicago because of how the zoning code is written. The purpose of this article is to discuss specific text amendments that would have to be collectively adopted in order to allow this housing type.

screenshot of a page from a guide about Missing Middle housing in Chattanooga, TN. The image has a site plan for a cottage court, an isometric view of the rendered cottage court, a narrative about the sample project, and statistics.
A sample cottage court intended for an audience in Chattanooga, TN, created by the Incremental Development Alliance.

Zoning code barriers

  1. The Chicago zoning code allows only one principal building per lot. A detached house constitutes a principal building and only one of them is allowed. The code would have to be changed to allow more than one principal buildings per lot. If the city council wants to limit this allowance to cottage courts then other code would have to be modified to define a cottage court (similarly to how it has a definition of a townhouse). (Section 17-1-1300 – this anti-housing provision is in the first chapter of the Chicago zoning code!)
  2. Cottage courts should be fee simple [2], to make them easier to mortgage and sell, which means subdividing a lot into one lot per house. The Chicago zoning code does not allow subdividing a lot below the minimum lot area for the particular zoning district governing a lot. For example, currently in RS-3, if more than one principal building per lot was allowed, each cottage court house would have to occupy 2,500 s.f., which is an untenable size for cottage court development.
  3. Minimum lot area per unit standards also severely restrict development of cottage courts. To build four houses in an RS-3 zoning district one would need a 10,000 s.f. lot!
  4. Rear setbacks would need to be reducible, preferably without the need for a variation from the Zoning Board of Appeals. Because the houses are oriented to face a common green space at the interior of the lot (not at the front or rear of the lot), the rear of the house may be close to the side property line, violating the rear setback standard of ~30 feet.
  5. Side setbacks would need to be combinable or eliminated as a requirement for cottage court development, so that the houses could be closer together or the designer could have more flexibility in their orientation.
  6. Parking requirements would need to be more flexible, both in quantity and in design. Parking is currently allowed only in the rear setback, but these houses may not have a rear setback because of their inward orientation. To maximize shared green space parking requirements should be reducible for this housing type. The Chicago TOD ordinance may be relevant here, as it now applies in RM-5, and higher, residential zoning districts, but the cottage court needs to be allowable in the RS-3 and RT-4 zoning districts (as these are for more common).

Attorneys, designers, and developers: Are there any other Chicago zoning code standards missing?

Examples of cottage courts

I know of two cottage court examples in Chicago (thanks, Matt and Matt):

  • 7436 S Phillips Ave (et. al.). These were built prior to 1952, according to historic aerial images, and are individually parceled (see barrier #2 above).
  • 7433 S Euclid Pkwy (et. al.). The houses were built between 1938 and 1952, according to historic aerial images, and are individually parceled. Two of the parcels are vacant.
  • 1802 S Kildare Ave (et. al.). The houses were built after 1950.

All of the images below are from the Missing Middle Housing website, created by Opticos Design, an architecture firm that has popularized the term “missing middle”.

Notes

A tiny house village may also be considered a cottage court. The influential architecture firm, Landon Bone Baker, once designed a proposed tiny house village (knowing full well it was not legal) for Thresholds and Easter Seals in Chicago.

[1] It’s also assumed that sharing land means sharing land costs, and land costs are a significant part of purchasing a house. In the areas where demand for detached houses is the highest, land costs are also the highest. Cottage courts create more detached houses with less land.

[2] fee simple has a legal meaning, but here I mean “the house owner also owns the land beneath the house”, and the pair are collateral for the lender that, on paper, looks like any other detached house the lender has mortgaged.

No more drive throughs, please

People drive their cars in and out of the parking lot for Micro Center, Joann Fabrics, and other stores in this strip mall on Elston Avenue. This design is almost inherently unfriendly to bicycle and walking transportation. But it doesn’t have to be. 

One reason that makes dense, urban areas pleasant and pleasurable is their walkability, variations in land uses, and architectural designs. When you walk down Belmont Street at Sheffield and encounter a new business or restaurant every 25 feet, you’re interested. Interested and curious in what others are doing, what new food you can eat, or what you will experience.

Photo of Belmont Street shopping and graffiti by Oscar Arriola. 

The opposite of this is Elston Avenue, between Ashland and Western Avenues. This stretch is marked by curb cuts, driveways, and seas of parking. Add in the lack of a bus route or nearby ‘L’ station, and you’ve got an environment that’s downright hostile to users of sustainable transportation modes.

I am still doing research for my article on the “pedestrian street” designation. In my research, I’ve learned a lot about the Zoning Board of Appeals, Special Use Permits, and drive throughs. I still haven’t been able to locate studies or reports about the effects drive throughs have on traffic or neighborhoods.

Just in the past 5 days, I’ve found out about the following news:

  1. The McDonald’s at Western Avenue and Milwaukee Avenue (1951 N Western Avenue) is seeking a special use permit. For what, I don’t know. It could just be a rumor. This is the same McDonald’s whose drive through someone so desperately needed to access and almost hit me with their SUV (see image below).
  2. Nodarse Family, LLC, is seeking a special use permit at 1646-1663 N Western Avenue for “the establishment of a one-lane drive-thru facility to serve a proposed 1-story restaurant”.

When I look at Street View for the 1646-1663 N Western location I see several homes and an empty lot with a car parked in it. The address seems to be a mistake, as 1663 is across the street. And even though this is a residential area, it’s zoned B3-2*.

In Mayor Emanuel’s “interest” (more like a selective, here not there, interest) for transparency, I’d like to see information that’s easier to find and process. For news from Zoning Board of Appeals, a blog-like website that lists all permits being considered and permits recently issued would be very helpful. I could subscribe via RSS and get notified of special use applications.

What’s a special use permit?

A special use permit is needed when the developer doesn’t have the right to build something that requires a special use permit. Like establishments for day laborers. Or drive throughs. Or businesses that sell liquor. Or a pawn shop. Speaking of pawn shops, Nodarse Family, LLC, owns the property 2826 N Milwaukee, for which the owner is seeking a special use permit to open one. This is in the 35th Ward, the same ward whose Alderman seems to have it out to build as much parking as can be built. You can see these applications on the ZBA’s agendas.

I’m not a fan of drive throughs.

B3-2: “Community shopping – destination oriented, no limit on size of commercial establishment. Allows dwelling units above ground floor.”