Zoning Issues Re: Converting Duplex to Triplex

[Tim Loughrist]

I own a duplex that has a crumbling foundation. In an ideal world, I'd replace the foundation and, in the process, make it possible to put a third unit in the basement. However, it is only zoned for single family or duplex.

Obviously the details depend on my local municipal code (Lincoln, NE), but has anyone had any success in getting a special use permit or appeal passed in a situation like this?

[William Hochstedler]

@Tim Loughrist

Did you get this figured out?

A city's zoning is determined by extensive work by the administrative staff, is open to public comment, and ratified by a city council.  In other words, zoning comes from the determination of various experts on how best to guide future development in the city and is accepted by the voting public.  They don't always get it right or correctly anticipate external influences on a given neighborhood, but there is typically a lot of psychological investment in zoning.  

To change this would be saying to staff and the public (through city council) that they are wrong about what the city needs going forward.

Variances typically occur when there is a problematic property in the current zone--usually when the building's original purpose or lot configuration is also non-conforming.  A variance is typically issued when it would be onerous for the property owner to conform to the zoning and the situation is permanent (odd shaped lots).

Some municipalities use variances to accommodate a problematic property.  Spot zoning is another method.  This usually occurs when a political argument can be made that a given solution will enhance the neighborhood but doesn't comply with the zone.  For example, an old mill converted to multi-family in a low density zone, or a coffee shop in a century old fire house. 

Also, contrary to what has been suggested here, just because a building matches the density of a current zone does not necessarily make it conforming.  A 50 year old duplex may not have enough parking or a large enough lot, for example, to conform to the current requirements for that density in a given zone.  So I recommend multifamily owners verify with the city that their older buildings are completely conforming with current zoning and get non-conforming use certificates recorded.  It's much easier now than if the zone gets downgraded to single family.

So the chances that the city will acknowledge this as a triplex are about zero.

That being said, find out how the city determines and enforces density.  Our municipality says that it is configuration, but the only thing in the code is occupancy (one family or three unrelated people per unit).  If your configuration is such that you have 2 couples and a single occupant in your converted triplex, you may be conforming to a duplex use.

Another thing to explore is an accessory unit.  I have never done this in a multi, but certain cities allow for an accessory dwelling with restrictions (owner occupant, tenants must be relatives, etc).  Can the basement unit be an accessory unit to the main unit?

Finally, in a conversion, the entire building will have to be brought up to code.  This is almost always a financial deal killer even when zoning allows it.  The big ones are fire breaks between the units, egresses, and stairs.

Without a legal conversion and subsequently the city's blessing, you will not benefit from the third unit on resale (as any alternative approach will still be reflected as a duplex only).  It will be appraised as such.

Hope that helps.