to: Roger L. Stancil, Town Manager
from: J. B. Culpepper, Planning Director
Gene Poveromo, Development Manager
Ralph D. Karpinos, Town Attorney
subject: Response to Petition Regarding Accessory Apartments
date: December 8, 2008
The purpose of this memorandum is to respond to a petition from a citizen regarding owner-occupancy and accessory apartments. We recommend that the Council take no action at this time.
On October 15, 2008, the Council received a petition (attached). The petition requested that the Town consider revising the Land Use Management Ordinance to require property owners to reside in the primary dwelling unit if an accessory apartment, associated with the primary residence, is rented.
Currently the Land Use Management Ordinance allows an accessory apartment within all residential zoning districts as long as the lot meets a minimum land area requirement. Also an accessory apartment is allowed as part of a single-family dwelling unit as long as the floor area of the accessory apartment does not exceed fifty (50) percent of the floor area of the main dwelling unit, nor is greater than 750 square feet. The regulations also require the dwelling’s exterior design and entry locations give the dwelling the appearance of a single-family dwelling. There is no requirement for the property owner to reside on-site. The Land Use Management Ordinance allows up to 4 unrelated individuals to reside in each dwelling unit.
Requiring a property owner to reside in a dwelling unit if an accessory apartment is rented is not within the current legal authority of local zoning regulations in North Carolina, in the opinion of the Town Attorney. See Graham Court Associates v. Town Council of Town of Chapel Hill, 53 N.C. App. 543, 551: “ If a use is permitted . . . it is beyond the power of the municipality to regulate the manner of ownership of the legal estate.” See also County and Municipal Government in North Carolina, (U.N.C. School of Government, 2007), Chapter 25, page 12: “(Z)oning distinctions based on whether property is owner-or renter-occupied are unenforceable.”
We recommend that the Council take no action at this time. If the Council wishes to pursue enacting such a regulation, we recommend that the Council consider asking the General Assembly for enabling legislation to do so.