A copy of my letter to the editor, as published in the Chicago Sun-Times. I had originally submitted this as an op-ed that was twice the length but I reduced it to 375 words at their behest.
Ald. Marty Quinn cited a fire in an illegal attic apartment. A safety benefit of legalizing ADUs citywide is making it easier for homeowners to legalize and renovate parts of a house that were built without a building permit.
Photo of the print version of the letter, by J.A.
When City Hall discovers an unpermitted dwelling — say, after a fire — the homeowner must spend money to remove parts that make it a home (usually the kitchen) because location-specific zoning rules prohibit it from remaining in place. What if the homeowner could spend that money making the attic or basement apartment code-compliant and continue providing a home? Allowing ADUs citywide increases safety citywide.
Another ADU benefit is that homeowners can generate income to help pay their mortgage or to facilitate multi-generational households. Council members should consider how best to implement citywide ADUs so that those benefits accrue to homeowners equitably. A debate exists over whether to allow ADUs in all residential zoning districts “by right” or to require homeowners in the city’s RS-1 and RS-2 zoning districts to get “special use” approval from the Zoning Board of Appeals.
Getting that approval to build an ADU will create a barrier so high that many homeowners will be unable to adapt their property to fit their family’s needs. Special use applications require a $1,000 application fee, plus fees charged by attorneys and consultants (which, while not required, are essential to ensure a successful outcome).
Divergent modes of allowing ADUs — one for families in RS-1 and RS-2, and another for all other zoning districts — extend the right to the majority of property owners but not in one-fifth of the city’s land area. This could perpetuate unsafe homes and cause inequitable disparities in financial opportunities and impositions on homeowners to gain approvals that could be borne more easily by homeowners in Mount Greenwood (median income: $106,538; 83% of the population is white) than in Washington Heights (median income: $55,428; 96% of the population is Black). City Council should choose to level the playing field and allow all homeowners to benefit from the ADU expansion.
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 apartmentLiving 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.
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?
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).
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!
Hello members of the Chicago city council committee on zoning, landmarks, and building standards. My name is Steven Vance. I am a resident of the city of Chicago and an urban planner. I regularly consult on projects that require zoning approvals from this committee, as well as the Zoning Board of Appeals, and the Zoning Administrator. I am here to urge the City Council to amend the zoning ordinance to ensure that the Zoning Board of Appeals can function when there are not enough board members.
The City’s Municipal Code requires that the ZBA has five members and two alternates. Alternates fill in for members when they are unable to attend meetings, due to illness or personal matters. Currently, however, the Zoning Board of Appeals has only three members. This status puts the timely approval of dozens of applications for special use, variation, or other forms of relief at risk.
This shortfall at the ZBA materially jeopardizes new development, especially matters involving new housing. At the ZBA meeting in February a proposal for shelter housing in Uptown failed to receive three votes required to be approved. The project received two affirmative and two negative votes. The project could have passed if the board had all five members.
The ZBA’s current state is bound to affect more projects. At least two other shelter housing applications that have support from the Chicago Department of Housing are intending to be heard this year at ZBA. However, these proposals may be forced to wait until the ZBA has a full membership or else suffer the same fate as the shelter that failed at the ZBA in February. This could push back construction and operations of the shelter, and further exacerbate the housing and homelessness crisis in Chicago.
The Mayor and City Council should take meaningful steps to address housing and homelessness in the City. Rather than wait for the mayor to appoint additional members to the ZBA, the City Council should amend the code to allow alternates to sit in when there are fewer than five regular appointed ZBA members. The current code only allows alternates to sit in for regular members who are missing that day.
I urge the committee to consider an amendment to the Code to allow ZBA to operate during a time like this when the board has too few members. Additionally, the mayor’s Cut The Tape initiative includes strategies to change zoning codes to ensure shelters are allowed to be built in more places and circumstances. I would urge the committee to support adopting the ordinance needed to effect that strategy.
The progression of development and housing for vulnerable Chicagoans depends on your actions.
This doesn’t fully match with what I spoke at the Chicago City Council committee on zoning, landmarks, and building standards on April 16, 2024 (meeting agenda), because it was written for about two and a half minutes but due to the high number of public commenters Vice Chair Lawson (44th Ward) reduced everyone’s maximum speaking time from 3 minutes to 2 minutes so I made some on-the-fly cuts. Ordinance O2023-2075.
My name is Steven Vance. I am a Chicago resident and a land use consultant. In two weeks the city will reach the three-year anniversary of when Chicagoans could start applying for building permits to build accessory dwelling units, otherwise known as ADUs. Locally we call them garden apartments and coach houses.
In that time, the city has permitted approximately 237 projects comprising 275 new ADU homes. 75% of these are or will be in basements, and a little less than 20% are or will be in backyard or “coach” houses.
11% of these homes are required to be rented at affordable rates set by the Department of Housing each year.
That’s 271 new homes that are or will be providing housing for family members, providing new income for property owners, and picking away at the city’s housing shortage of 120,000 homes. But the opportunity is not available to everyone, and the number of ADU permits issued each quarter has been declining since December 2022.
The number of ADU permits has been declining. I include the graph here to illustrate my point but I did not present the graph during my comment.
City Council adopted five pilot areas, a limitation that doesn’t need to stick around. Hundreds of currently interested property owners are prohibited from building an ADU. Their current alternative is to undertake a costly zoning change process to gain the privilege of building one or two more units on their properties. (However, shoutout to the few alderpersons who facilitate this process on behalf of their constituents.)
I operate Chicago Cityscape, a real estate information website that also has advice on building ADUs and a tool to look up if a property is in an ADU pilot area.
As of last week, people have looked up 815 addresses in 48 wards…but…70% of those addresses were not in a pilot area and those people will not be able to build an ADU at this time.
I believe those permitting and address lookup statistics show that ADUs, while representing less than 3% of new construction homes, are popular. They allow for Chicagoans to modify their properties to age in place, fund renovations and property taxes, or move a family member to be closer. Now is the time to expand this benefit to all of Chicago and I urge the City Council to drop the geographic ban as soon as possible.
Finally, Mayor Johnson’s Cut The Tape initiative includes citywide ADUs as a phase 2 strategy, so ADUs are something City Council should support. [This part was added last second.]
