By Jeff Poole
Orange County has amended the county zoning ordinance to loosen the definition of an “accessory apartment” while requiring those apartments meet more stringent setback requirements.
Following a public hearing last Tuesday (with no oral or written comments submitted), the Orange County Board of Supervisors unanimously approved the change it had initiated.
Before changing the zoning language, an “accessory apartment” was a permitted use in the Agricultural (A), Limited Residential (R-1), General Residential (R-2), Planned Residential (R-3), Multifamily Residential (R-4), and Planned Residential Traditional Design (R-5) districts.
The county zoning ordinance defined accessory apartments as “a completely independent, standalone dwelling unit located on the same lot as the single-family dwelling to which it is accessory.”
Within that, it limited the square footage of accessory apartments to 800 square feet (excluding unconditioned basements and other unconditioned, attached exterior spaces) and limited the apartment to less than the gross square footage of the primary dwelling associated with it. Further, it could not contain more than two bedrooms and no lot should contain more than one accessory apartment.
“What this amendment proposes to do is amend the definition of existing term and code for accessory apartments,” Orange County Planning and Development Services Director Josh Gillespie explained. “Accessory apartments in Orange County have three restrictions and this would remove three of the four.”
Under the new language, the board eliminated the requirement that accessory apartments be independent of the primary dwelling, recognizing the prevalence of “in-law suites” or other multi-generational residential arrangements.
Additionally, the new language removed the limit on the square footage of the accessory apartment, as well as the bedroom limit and its size relative to the primary residence.
The proposed new language retained the limit of one accessory apartment per parcel and subjected it to applicable setback requirements if it is detached from the primary dwelling unit.
Under the ordinance change, accessory apartments are subject to a smaller setback requirement than principal structures (and generally 10 feet for the side and rear yards in agricultural, limited residential and general residential zoning).
At a public hearing last month, Orange County Planning Commission members recommended approval.
The public hearing was opened and closed with no speakers or comments.
District 2 Supervisor Jim White expressed concerns that the setback regulations could be interpreted in different ways and could create unintended consequences.
County attorney Tom Lacheney said the more specific interpretation always prevails over the less specific one.
“I just want to point out that it’s potentially a quite restrictive addition,” White said, regarding the setback requirements. “Maybe we need it, maybe it’s necessary.”
District 3 Supervisor Keith Marshall said the larger the accessory structure is, the more necessary the setback is. “If you go up to 800 square feet it’s not so necessary, but if it’s unlimited amount of square feet, I think you should be more restrictive [in the setbacks].”
“I think that’s right,” White agreed, again reiterating his concerns about unintended consequences once the change is put into practice. “It’s just I can envision a couple of properties, let’s say in my district, where there was a desire to put an accessory apartment on there. The place it should go is very close to the property line. I’m not sure you can, because you have wells, septic things that you have to be away from. So I it’s just a concern.”
District 1 Supervisor Mark Johnson agreed, noting, “Every time you adopt a rule, you just set up something for somebody to trip over.
“But one reason we can do this is because there are some other restrictions. You still have to meet setbacks; you still have to have a permit, and so forth,” he said. “It seems to me, if you’re in a situation where you where you can’t meet the setback, you probably shouldn’t be putting another structure there to begin with. This isn’t going to affect stuff that’s already done, directly.”
Ultimately, White said he believed the change was a good one, even if it needed to be revisited.
“At the present time, this seems to be the best, least-restrictive that we can do,” District 4 Supervisor and board chair Jim Crozier said. “There are always unforeseen circumstances that are caused by it and if so, we’ll come back and address them.”
The board voted 5-0 in favor of amending the county zoning text to reflect the changes.