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  Promised MR Density Limits are Unenforceable

  Jul 19, 2022

  Hayden is currently considering rezoning several hundred Residential Multi-family (R-MF) parcels to Mixed Residential (MR).  We have alrady discussed some of the difficulties in comparing densities between these two zone types.   Here we intend to discuss the enforceability of Hayden's own, officially stated limitations on residential density and potential loopholes in existing zoning laws. 

  Some of the residential densities set forth in city documents describing new zoning options are not objectionable as design goals, but if these limits are not backed up by specific, enforceable ordinances, or zoning codes are contradictory or ambiguous, then assurances regarding density limits are meaningless. 

  For this reason, we see numerous problems with Hayden's proposed move to elminate R-MF zoning, and believe that the best way forward for Hayden is gradual evolution, not sudden, controversial, and irreversible change.    Restoring R-MF zoning regulations to the Title 11 Code does not prevent the future adoption of some higher density zoning codes, it just slows down the process and makes it more comprehensible.  

  To be clear, we have two specific problems with official claims of residential densities, based on the actual code text of Hayden's current Zoning regulations.  The first is the claim that A) MR is limited to 8 dwelling Units per acre and this limit is enforceable.  The second is the claim that B) R-MF allows for up to 12 units per acre, and that this is a higher effective density than MR.    We will treat these claims separately.

  Problems with Claims that MR is limited to 8 dwellings per acre

  1)     Limit of 8 Dwellings per Acre in MR is not Enforceable:  The only place in the current Title 11 Regulations that there is a reference to a limit of 8 dwelling units per acre for MR is as a “general note” to 11-2-3: SITE AREA AND BUILDING SETBACK REQUIREMENTS - TABLE:  the exact text is as follows:

  "b) During the planning process of the updates to the Comprehensive Plan, Sewer Master Plan, Transportation Master Plan, and Park Master Plan maximum residential density was assumed as follows: 1. Mixed Residential may not be greater than eight dwelling units per acre. 2. Mixed Use and Central Business District may not be greater than . . . 12-15 dwelling units per acre . . ."

  First of all, as a “general note”, the restriction appears to be a design goal rather than an enforceable, statutory limitation.   And in fact, it would seem to be impossible to enforce,  especially among owners of sub-acre parcels.   While Mixed Use parcels have a single owner and design standards that match the 12-15 density limitation, Mixed Residential parcels have many owners, and the design standards do not match the stated 8 dwellings per acre maximum. 

  2)      ADUs are permitted on every SF lot, regardless of lot size:   According to the actual Zoning regulations, up to 7 Single Family units per acre could be developed in MR zones, each with its own ADU, for an effective 14 dwellings per acre.   Planners have said that the maximum allowed density of Mixed-residential parcels includes ADUs, but there is no way to limit such “per acre” density maximums on sub-acre parcels based on regulations in the current code.   General assurances that density will be limited, without an enforceable restriction in the code are meaningless.   To uphold a credible 8 dwelling maximum density, a coherent explanation of how such limits would be enforced by statute would be necessary, or ADUs would have to be prohibited in MR zones altogether.

  3)      Every SF home in MR zones is a potential Duplex:  Even if ADUs were entirely disallowed, the problem of densification of existing parcels would remain, since the MR zoning regulations allow any Single Family parcel with R-MF minimums and sufficient street frontage to be converted a duplex.  This is because the minimum lot size for MR duplexes is 7000 which is smaller than the R-MF minimum SF lot size.   This is significant because the vast majority of SF homes in R-MF zones are platted on 8000+ sq ft parcels.  So considering only the problem of Duplex conversions, existing neighborhood densities of 5 per acre, could be converted to 10 dwellings per acre, and nothing in the MR zoning regulations would prevent this.

  4)      Condominiums density vs. Individually Platted triplexes cannot be compared.  It is impossible to make a meaningful comparison between the density of the “Townhome” structures defined in MR, and the density of traditional triplexes, but it is telling that no minimum lot size is specified.  This is because MR townhomes are intended to be developed as part of a condominium association, with shared common areas.   The reason this distorts density calculations, is that in a condominium association all private roads and parking areas can be counted as part of the “common area” where as with individually platted homes, any private roads built to access individual parcels are not counted as part of the residential parcels.   Anywhere from about 15 to 25% of developable acreage needs to be reserved for public access so the realistic density limit on a single acre where a developer needed to build private roads could be about 20% less than for a condominium.   This may have the effect of motivating builders to construct condominium communities instead of individually platted parcels.   

  Problems with claims that R-MF is higher density than MR

  We have heard on numerous occasions that R-MF allows for up to 12 dwellings per acre or more, while MR is limited to 8, but the statutory limits on dwelling densities say otherwise.

  Density Comparison, based on actual zoning regulations:

  For the purpose of this discussion we are ignoring the very thorny problems associated with how ADUs impact density and will focus only on the actual lot size limits described in SITE AREA TABLE, 11-3-2 of Hayden's Title 11 Zoning Regulations.  As described above, Full utilization of every acre is not a realistic assumption for individually platted parcels since some land must be set aside for road access.   In our calculations for R-MF we have budgeted 15% for road access and assumed 43,560 sq ft per acre.    

  What this chart makes clear is that the claim of 8 units per acre for MR rests entirely on the “general note” associated with of 11-2-3 and is not supported by lot size minimums.  This is important because independent owners of smaller parcels are clearly allowed to build to maximum densities.  It also shows that for both Single Family and Duplexes, which constitute the vast majority of existing parcels, R-MF Densities are significantly lower than MR.  

  What is most interesting however, is that the chart clearly shows that the only basis on which anyone can claim that R-MF zoning allows for greater densities than MR, or densities is in the case of four-plexes, and city planners know that there are only a few four-plexes in all of Hayden.   So four-plexes, (whose actual densities are at most 10 dwellings per acre)  are used as a bugaboo to make the claim that R-MF is more dense than MR,  even though they could easily be omited from future development.   Structures of greater than 4 units in R-MF zones have already been omitted from the zoning regulations by doing away with Special Use Permits.

  R-MF could be restored permanently to the Title 11 Zoning Regulations simply by making the following change to the existing code 11-2-8-4, part E. and rezoning fewer than a dozen parcels. 

  "The minimum lot size for a three family residential dwelling unit or more is 15,000 sq. ft. and each lot requires a minimum 30 ft. frontage on a public or private street .. . "

  In the future, one could discuss the possibility of reducing the minimum lot sizes in the R-MF zone without ill effects, although any such change should follow a clear exposition of what exact limits, if any, should be put on ADUs in single family zones.

  Conclusion:

  The problems with going forward with MR are more serious than any associated with staying with R-MF.   Problems with the MR rezone are 1) Unenforceability of 8 Dwelling Unit maximum density guidelines.  2) Density limits exceeded by allowing ADUs on 5500K lots, 3) Duplex lot size minimums that are smaller than existing Single Family lot size minimums. 4) Coercive zone changes forced on an uninformed population, 5) Anticipated problems with Condominium communities promoted by MR zoning which have not even been discussed, and are in contradiction to other parts of the zoning regulations.

  Even developers who favor condominium style projects would not be harmed because existing PUD regulations provide for such developments.   And best of all, future changes to the R-MF code, including reducing the statutory minimum lot sizes, or allowing for condominiums communities and MH parks, could still be made gradually over time, after careful consideration.  

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  (Note: This article is a revised version of a letter sent to the Hayden City Council in July 2020)

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