Zoning Issues Re: Converting Duplex to Triplex
Investor · Lincoln, NE · Member since 2016 · 24 posts · 7 votes
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?
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.
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?
In addition to your local zoning ordinances much will depend on how much time or expenses you want to put forth towards getting that extra unit (or more).
If a rezone is required the documentation, time, reporting, etc will probably prove to be to extensive to add but one unit. And this leads me to this... That's why you see so many 'unpermitted' 3rd, 4th & 5th units in properties. I'm not suggesting that's the way you should go rather just expressing my observation of what others have done to available space.
I would call and discuss this first with the building department. Tell them you are kicking around the idea and want a code variance. They will give you the steps you need to take. This will simplify their review and you chasing your tail. If its already permitted as a duplex it may be an easier sell to turn it into triplex.
If a rezone is required the documentation, time, reporting, etc will probably prove to be to extensive to add but one unit. And this leads me to this...
I agree that a rezone would, indeed, be too much work for a single unit. However, I was hoping for a variance or some other half-measure.
I would call and discuss this first with the building department. Tell them you are kicking around the idea and want a code variance. They will give you the steps you need to take. This will simplify their review and you chasing your tail. If its already permitted as a duplex it may be an easier sell to turn it into triplex.
It is already permitted as a duplex, but because it is in an R2, that is only permitted because it had two units in '79 when the area was rezoned to R2. The zoning ordinance pretty clearly forbids adding units in such a situation barring special exceptions. I had hoped that there might be a way to argue for such an exception. I've been in talks with the building department; they'll get back to me next week. I just wanted to cover all my bases in case anyone has a suggestion that will put me in a better position in those discussions.
You cannot be granted a use variance, you would need to rezone to a district that allows more than two units per lot. Are there any properties in the immediate area that have more than three units per lot or something similar?
Are there any properties in the immediate area that have more than three units per lot or something similar?
Only one within a few blocks, and that was grandfathered in (just like my duplex).
You cannot be granted a use variance, you would need to rezone to a district that allows more than two units per lot.
Also, just to better understand this sort of thing, why is it that a variance does not apply in a case like this?
Well your duplex doesn't sound like it is grandfathered in if the zoning allows for duplex. At the end of the day, you're going to be asking for more density on the lot. Sounds like it is uncommon to have more than a duplex in that area. I don't think your chances will be good, if I'm being honest. Could you divide the basement among the two units and lease more square footage for higher rents?
Well your duplex doesn't sound like it is grandfathered in if the zoning allows for duplex. At the end of the day, you're going to be asking for more density on the lot. Sounds like it is uncommon to have more than a duplex in that area. I don't think your chances will be good, if I'm being honest. Could you divide the basement among the two units and lease more square footage for higher rents?
Ah, you're right. Duplexes are permitted. If it had three units in 1979, then it would have been grandfathered. There are plenty of 3+ unit properties around (if not in my immediate vicinity), but they were there before the area was re-zoned.
I could easily make storage rooms in the basement for the tenants, but I can't see any easy way to make additional living space for them. I'll give it some thought. Thanks for the help.
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.
That is very helpful. Thanks! I'll look into those points.
I've heard property owners talk so casually about adding a second or third unit; it led me to think it there wouldn't be a significant issue beyond the cost of the addition.
Between meeting with a planner at the county building, reading the municipal code, and learning from people on the forum, this has been a valuable learning experience both in the particulars of adding a unit and generally in doing my homework.
So, I'll take the disappointment of not being able to add a third unit in exchange for an education.
Did you get this figured out?
I now have a definitive answer: I cannot put a third unit in that building without a zoning change. On the positive side, it looks like I might not need to replace the foundation after all; it may be reparable.
Thanks for the update. Too many Ops forget to let us know the result.
Good news on the foundation.
Just wanted to say thank you, your continues to be helpful. For context, it's helping me open a (good) can of worms with my realtor in search of my first multifamily.