A Built-In Solution to America's Housing Shortage
Easing restrictions on accessory apartments will allow us to maximize the housing stock we already have.
Thirty-three years ago, I published an article urging states and localities to relax zoning restrictions on accessory apartments and home occupations. After being rejected by the principal student-edited law reviews, which favor articles by legal academics and political celebrities, I succeeded in publishing the article in the Real Property, Probate and Trust Law Journal, edited by and for legal practitioners.
There was a brief flare-up of interest in accessory apartments in the 1980s. The definitive book on the subject, Accessory Apartments in Single Family Housing by Martin Gellen of Berkeley was published in 1985. A Department of Housing and Urban Development official, Patrick H. Hare wrote several monographs on the subject for HUD. Two states, California (the Mello Act) and Hawaii, had enacted ineffective legislation requiring local governments to reconsider, but not to reform, their restrictive zoning policies.
The promoters of accessory housing pointed out that since the first single-family zoning ordinances were enacted in 1916, there had been drastic demographic changes in the United States. Between 1960 and 1980, one- and two-member households increased by 140 percent, while new construction of efficiency and one-bedroom housing units increased by only 54 percent. The percentage of women over 65 living with families of kin fell from 58 percent in 1952 to 18 percent in 1982. By 1985, 25 percent of men and 18 percent of women had never married, and the average number of children in each family had drastically fallen. Today, nearly 63 percent of young American men are single, and marriage rates are plummeting.
These changes underscore the need for more accessory and duplex apartments. Objections to allowing those developments in single-family neighborhoods are frivolous. In the era of large families, population density in single-family neighborhoods was much greater than it would now be if accessory apartments were allowed in those neighborhoods. Today, new families will add relatively few burdens on open space and public utilities.
The more serious and politically salient objection to these developments is the fear that they will change the character of neighborhoods. This fear is aggravated by the new liberal panacea for the nation’s housing programs: local laws prohibiting landlords from discriminating against recipients of federal housing vouchers. Some fear that allowing such developments will bring an influx of crime to the suburbs. This is not a frivolous fear; in the early 1980s, I successfully represented objectors to a multi-family housing project, almost all of whom were black. They had worked and saved to move to the suburbs and did not welcome the arrival of persons who had done neither.
As Patrick Hare and others have suggested, this fear can be obviated by restricting dwelling permits for accessory apartments to houses in which the principal apartment is owner-occupied. Each new arrival in the neighborhood will thus be vouched for by a continuing resident. Upstanding teachers and policemen, whatever their race, will become tenants; criminals, or those associated with them, will not. Accessory-apartment landlords and their neighbors will also be insulated from the “friendly” attention of the federal civil rights agencies by the so-called “Mrs. Murphy’s Boardinghouse Exemption” to the Fair Housing Act.
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Governor Kathy Hochul of New York recently proposed legislation liberalizing the construction of accessory apartments and duplexes in residential neighborhoods. It has been ritualistically opposed by many New York Republicans. Those Republicans will be hard-put to explain why home-owners cannot install second kitchens in their own properties to accommodate parents and in-laws, who usually want both propinquity and privacy, and who are presently zoned into the next county.
Why should the rights of property-owners continue to be perversely impaired? Why should extended families be discouraged? Why should voluntary association be prohibited? Why should the deserving but less affluent be relegated to slums or tent cities on the one hand, or to new subsidized housing units constructed at a cost of hundreds of thousands of dollars on the other? The existing housing stock is the sleeping giant of housing policy, as was recognized by scholar Bernard Siegan in his study of zoning in Houston half a century ago. Accessory housing reform is now being discussed in virtually every major metropolitan area. Even the Atlantic recently featured an article entitled “The Housing Revolution is Coming.”
There are reasonable approaches to accessory housing. Republicans and conservatives should embrace them as long-overdue reforms enlarging property and family rights.