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.”