Legality of enforcing Missoula's ADU on-site owner requirement questioned

2013-03-11T06:30:00Z 2013-05-06T23:23:20Z Legality of enforcing Missoula's ADU on-site owner requirement questioned missoulian.com

Can a city official knock on your door and make sure a property owner is living there?

The Missoula City Council continues to discuss ways to allow more backyard cottages and basement apartments in the city. One key feature in the ongoing debate is a requirement that the homeowner live either in the main home or in the second smaller unit – the ADU, or “accessory dwelling unit.”

Opponents say the second units will bring more trash, noise and parking problems to single family neighborhoods – problems some areas already contend with in spades.

Proponents say the extra houses will create more affordable rentals and help seniors stay in their neighborhoods longer. They also argue a requirement that the property owner live on site will mean tenants behave and refrain from throwing loud parties and trashing the area.

But some argue it isn’t clear the city can legally enforce a requirement that a property owner live on site – and if it can, how an enforcement officer would go about it. In a recent email about the draft ordinance to MissoulaGov, Paul Sopko noted an earlier opinion from the city attorney indicates local governments generally don’t have the power to regulate the identity of occupants, although the opinion also cited exceptions.

“These examples point to an area of law that is murky at the least and will probably lead to lengthy court battles if ADUs are allowed with an owner occupancy provision in Missoula,” Sopko wrote on MissoulaGov, Councilman Bob Jaffe’s listserv.

***

The legal opinion Sopko attached is from 2003, and it addresses this issue: “May the city of Missoula pursuant to its zoning power require owner occupancy for residential housing designed for single family purposes?”

In general, the answer was no, according to the conclusion from city attorney Jim Nugent: “Generally zoning restrictions or conditions that limit the use of land based on the identity or status of the owner or occupant of the land generally are held invalid by the courts.”

However, Nugent also noted that courts “may uphold the validity of owner-occupancy restrictions on specially permitted residential uses.” In New York, for instance, a court agreed a single family property could be used for two units and a store with a requirement the owner reside in one of the homes.

In a recent email to the Missoulian about owner occupancy, Nugent said “accessory dwelling units are not intended to be a primary land use in any zoning district.” Rather, they’re a “special privilege,” one granted to property owners who agree to occupy one of the homes.

How enforcement would work is another matter. Typically, people in Missoula cooperate when they learn they’ve inadvertently violated an ordinance, and the mayor prefers to seek “corrective action” first, Nugent said.

If someone presents evidence an owner occupancy rule is being violated, and a Development Services employee agrees, the property owner could – in theory – suffer consequences.

“They could lose their right or privilege to have the second unit,” Nugent said.

He said “the opportunity exists” to take both civil and criminal action. Is it realistic for the city to take such measures?

“That’s up to the elected officials to decide,” Nugent said. “We have no experience with it, (but) we can’t be a stagnant society in this world. People have to have ideas and propose them and see how they work.”

Reach Keila Szpaller at @keilaszpaller, at keila.szpaller@missoulian.com or at (406) 523-5262.

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(18) Comments

  1. 70seebs
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    70seebs - March 12, 2013 12:29 am
    Livestock are not legal in the city limits and I don't argue that they should be. Tell me, what specific neighborhoods are slums, as a result of ADUs, in Missoula - which streets? Missoula looks better now than it ever has.
  2. 70seebs
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    70seebs - March 12, 2013 12:25 am
    What specific neighborhoods have you seen trashed by students, and what do you mean by trashed? I know a couple of rough looking neighborhoods in Missoula, and they don't have ADUs.
  3. freedomortyranny
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    freedomortyranny - March 11, 2013 9:08 pm
    I agree with commrad Mt Mama. We should put her in charge of the Glorious Peoples Housing Authority. Better yet, build the ADUs in a gullag at the far east end of town. Then when we find someone keeping more chickens than the Party allows, we will have a place to send them.
  4. solomom
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    solomom - March 11, 2013 4:48 pm
    Assuming they find out one of the properties isn't owner-occupied how will the owner "lose their right .... to have the second unit" as the city attorney states? Will the City come out and tear down the second unit? How will they enforce it? Will they make the tenants move out and then bulldoze it? Will they fine the owner $100 a day? Will they enforce such a fine? What about all the ADUs that already exist - mostly without any permits? Is it fair to allow some property owners to keep renting their un-permited ADUs and fine another property owner into bankruptcy? Maybe the city should let people get permits for these units and build them as long as they agree to pay a higher property tax rate for 10 or 20 years. Make anyone who wants to build one pay double the tax rate for a set period of time and forget about all the unfair and unenforceable provisions such as making sure the owner lives there. If you don't want to pay a higher tax rate for 10 years then don't build an ADU.


  5. GnarwhalExtract
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    GnarwhalExtract - March 11, 2013 3:37 pm
    It would be wonderful if ADUs were only occupied by lovely old people who are good neighbors. The reason everyone is concerned is that the chances of that seem very unlikely. We have seen the neighborhoods overtaken and trashed by UM students and their landlords. How can we trust anyone at this point when no effort has been made to up-keep rental homes and maintain neighborhood integrity?

  6. Buzz Feedback
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    Buzz Feedback - March 11, 2013 1:36 pm
    I have some swamp land for sale. Call me.
  7. Janice
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    Janice - March 11, 2013 12:13 pm
    One month of assisted living is anywhere between $5k and $7k depending on the facility you want dear old mom and dad to be comfortable in.

    Without the ability to do this, what do you propose we do with our "old people"? In the next decade or two, boomers will become more and more reliant on their children to help care for them. The answer is NOT to stick them all in a nursing or assisted living facility.

    Everyone is "assuming" the worst, that these ADU's will be used for student rentals by people who don't care about the neighborhood. Fact is, no one knows what percentage of which would be used by whom.

    Again, I ask you. What do you plan to do with dear old mom and dad when they need to be taken care of? What do you do when you have children still at home, and you find yourself as the sandwich generation? Do any of you nay-sayers really have any idea what this nation is staring down the barrell at with our boomers?
  8. MT_Mama
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    MT_Mama - March 11, 2013 12:10 pm
    So zoning means nothing to you? The whiny argument of "it's my property; I should be able to do whatever I want" is the reason we have zoning laws. While you're at it, why don't you put in a pig sty to raise some animals and make money? How about a few cattle? I know, build and park a drive-through coffee joint in your backyard. Bet that would earn you a few dollars.

    People bought homes in single-family neighborhoods for a reason. If they wanted to live in a rental slum, they would have. I'm getting disgusted with the slumification of Missoula. Anything for a buck, although the city doesn't seem interested in enforcing the laws it has now and collecting fines.
  9. Carol
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    Carol - March 11, 2013 10:51 am
    "ADUs are a clear sign that the REALTORS are desperate."

    FIFY
  10. 70seebs
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    70seebs - March 11, 2013 10:22 am
    ADUs show outsiders that we are smart entrepreneurs who know how to capitalize on an opportunity. Since when is making money on an investment a sign of desperation? As long as the ADUs are built safely and to code, and within zoning laws, they will look great and provide a necessary resource that will help this town's economy. It's my property, stop telling me what I can do with it.
  11. 70seebs
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    70seebs - March 11, 2013 10:18 am
    I agree with that. I should be able to build a safe, comfortable apartment to rent above my garage because it is on my property, and I have an opportunity to earn on my investment. My father in law bought a home in the U district in the early 90's...for 120,000. They put 60,000 into it and sold it in 2006 for 500,000. Good job. If I were the purchaser, I would have to be able to sell the home for 1,390,000 in 2016 to make the same margin or for 720,000 to make the same gross dollars. Neither is remotely possible for that home. So have fun, those of you who purchased and profited off the boom that will never happen again. Have fun trying to make sure that none of the rest of us have the ability to make money off our investment like you did. We'll just move out and rent the whole house out. How's that sound?
  12. BobbyLee
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    BobbyLee - March 11, 2013 8:29 am
    In the upcoming lawsuit, the parasites Taft, Jaffe, Marler, Wiener, O'Heron and Engen need to be held personally accountable for wasting everybody's time and the city's tax dollars, once again. Before then, however, Engen needs to answer questions at tonights council meeting about why he thought it acceptable to collude with city engineers to alter city documents a day prior to losing the Wohl court case. Then the Missoulian needs to be held to account for not reporting on any of this and proving itself nothing more a tool for City propaganda. What a petty, corrupt city this is.

    In an opinion piece this weekend the propaganda continued - a Missoulian editorial:

    - "That’s why news organizations such as the Missoulian must push, every day, for the public’s right to know...

    - "This constant fight for freedom of information is such an integral part of good journalism..."

    The Missoulian wouldn't know 'journalism' if it came and bit it on the *ss. Which is probably why the article stated " organizations 'such as' the Missoulian" - but 'not actually' the Missoulian. It's a simple 'he said, they say, newspaper, with the city always given the last word and no rebuttal ever allowed by the victimized citizen - of which there are clearly many. There is more journalism in the Opinion sections of this newspaper than in its entire News sheet. Pitiful. Especially when the only balance for good government in this town 'is' the newspaper! Making the Missoulian complicit in the unbridled corruption that we see every single week - if you've got your eyes open - and pay for every single day with one of the highest median tax rates in the entire country! With most of that money being syphoned off to cronies who run ball parks, non-profits (except for the $100,000/annum profits of directors!), contractors, and friendly out of state consultants who just might help your political future somewhere down the road.

    And now we're supposed to just hand over our single-family neighborhoods, that we all bought into, because a few corrupt councillors and a collection of agreeable, suck-up parasites and namby-pamby entitled students say so! This is all about a few selfish, ignorant people wanting something for nothing, being fooled into thinking they can actually have something for nothing by corrupt councillors, and then all the associated fees, permits and extra taxes being syphoned off, once again, to fund private agendas. What'll it be like to live in the most heavily taxed place in the country - when compared to stagnant wages caused by, still, an ongoing policy of limited growth? Well, you'll soon find out. And you'll find out all the quicker once the ADUs start going up. Thought housing would be cheaper did you? You're a d*mn fool if you bought into that one - look at the taxes already in place in those areas, and then decide how cheap housing is going to be in order look after poor old 'grandma' or for your students' rental.

    Bring on the lawsuits.

    And we wonder why those who work for the City don't want to live inside of the city. They see first-hand the corruption, and want nothing to do with it, nor have their property rights removed and see their neighborhood turn into a slum. Who can blame them?
  13. accobra
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    accobra - March 11, 2013 8:02 am
    The city of Missoula is trying to get into other peoples business because they aren't making any money on the accessory units. And their buddies at Lambrose are not getting the renters they want for all the new OVER PRICED rentals properties that they are building. Really who has upwards of $4000 to just be able to move in??? I think the city needs to stay out of other peoples business, we need to survive and if that means renting out rooms to make our mortgage, so be it!
  14. MiddleFinger
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    MiddleFinger - March 11, 2013 7:34 am
    ADUs are the first step onwards slumming.

    ADUs are the start of shantytowns.

    ADUs are a clear sign that the citizens are desperate.

    ADUs show outsiders that we like money more than we like our city.

    NO to ADUs!
  15. sma
    Report Abuse
    sma - March 11, 2013 7:20 am
    So if a landowner is granted a certain right - the use of an extra unit - and the city takes it away again, claiming "misuse" of that right, is the city in for more "takings" lawsuits?
  16. 70seebs
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    70seebs - March 11, 2013 12:26 am
    Who cares. It is private property and those who worked hard enough to own it should be able to rent a portion of it as they please. Or, owners could just hope that the real estate market helps them make money on the property. How did that work out over the last few years? Real estate just isn't cheap in Missoula, and owners need every to take advantage of any way they can to make money on the investment. I would rather collect rent than hope I could make money on the sale of the home. If you don't want any renters nearby, make enough money to move to some gated community.

    It's just like all these signs up in my neighborhood. "Save hang gliding." Hang gliding? Nobody in these homes has hang glided before. You think we can grow the economy of this town on a tiny golf course? Both issues, the fight against ADUs and against University expansion have NIMBY written all over them. Don't listen to the NIMBYs. Let's keep the economy of this town moving forward.
  17. The_Boneshackler
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    The_Boneshackler - March 10, 2013 11:40 pm
    It sounds like the City is going to be on the losing end of a lawsuit. Again.
  18. Buzz Feedback
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    Buzz Feedback - March 10, 2013 9:42 pm
    The City can't even enforce the leash law. You think they're really going to be able to enforce this?
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