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Proposed Restricted Occupancy Overlay

Contact Information

Jade BroadnaxP.O. Box 9960 College Station, TX 77842 979.764.3570

PROPOSED RESTRICTED OCCUPANCY OVERLAY (ROO)

Through discussions during the public input phase of the Restricted Occupancy Overlay (ROO) ordinance development, also known as "no more than two unrelated ordinance," city staff learned that there are substantial concerns regarding the city’s current definition of “related” and how it affects the determination of a “family.” 

We are pausing the development of the proposed ROO to allow staff and the Council an opportunity to consider alternative definitions of “related” and “family.”  Once the city has new definitions in place, we will continue the development of the ROO. 

Stay updated by subscribing for the Restricted Occupancy Overlay email list. Be sure to add jbroadnax@cstx.gov to the safe senders list.

BACKGROUND

The College Station City Council asked staff to draft an ordinance and application handbook that would allow neighborhoods the option to restrict occupancy to no more than two unrelated persons. They requested a draft ordinance with a process that mirrored the Neighborhood Conservation Overlay (NCO), and used the City of Bryan’s R-NC district as a base. The Restricted Occupancy Overlay (ROO) ordinance and rezoning application handbook were drafted and presented for feedback to Council in June. The purpose of the June meeting was to receive direction on whether or not to proceed with further research and potential adoption of an ordinance at a later date. At the June meeting, City Council decided they decided they are in favor of continuing to pursue research on the ROO, but wanted substantial public input before making any further decisions.

>> June 18 Planning & Zoning Commission Meeting (ROO discussion starts at 0:05:52)
>> June 25 City Council Meeting (ROO discussion starts at 02:40)
>> Aug. 3 Neighborhood Seminar Supper


ROO FAQ's

    Where did the ROO proposal originate from?
    Although previous Councils have requested City staff research the viability of a “two unrelated” ordinance in the past, the Restricted Occupancy Overlay originated from the Neighborhood Conservation Overlay (NCO) public outreach phase in late 2019. The NCO allows for various physical characteristics to be conserved in single family zoned subdivisions. Contrary to requests made during NCO ordinance development, staff advised against including an occupancy restriction in the NCO in an effort to keep physical and non-physical restrictions separate. Council later requested a separate, “two unrelated” ordinance and application handbook be drafted and presented in 2020 that mirrors the NCO process and uses the City of Bryan’s R-NC district as a base for the ordinance.
    Where does the ROO apply?
    The ROO, if adopted, allows single-family neighborhoods the option to petition to request occupancy restrictions in their original subdivision. It does not create an occupancy restriction city wide, nor does it create an occupancy restriction in all single-family zoning districts.
    What are the current issues that ROO is attempting to solve?
    The discussions that took place during the June 18th Planning and Zoning Commission and June 25th City Council meetings highlight the concerns of the community. Residents have expressed concerns to various city departments, and the concerns with “over-occupancy” have resulted in complaints about trash, noise, parking, street congestion, and affordability. The concerns are concentrated in established single family neighborhoods that have experienced an increase in the development of single family homes that are marketed toward student renters.
    What is the public input process?
    We are pausing the development of the proposed ROO to allow staff and the Council an opportunity to consider alternative definitions of “related” and “family.” Once the city has new definitions in place, we will continue the development of the ROO with outreach specifically promoted among neighborhoods, the real estate and development community, and students. We plan to host meetings and conduct polls to gather feedback from each of these respective groups.
    Has the City Attorney's Office reviewed this draft ordinance?
    The City Attorney's Office has conducted reviews of the calculation of unrelated relationships along with a Fair Housing Act review, and has found that an ordinance that seeks to restrict occupancy based on unrelated occupancy is upheld by the United States Supreme Court case Village of Belle Terre v Boraas. Additionally, The City’s legal team has found that some ordinances which seek to restrict occupancy based on family relationship have been invalidated, and we are looking closely at redefining “related” and “family” to ensure any potential restricted occupancy ordinance does not violate local or state laws by unlawfully limiting degrees of consanguinity or affinity.
    What is the definition of “family”?
    Per Unified Development Ordinance (UDO) section 11.2, a family is one (1) or more persons occupying a single dwelling unit, provided that unless all members are related by (1) blood, (2) adoption, (3) guardianship, (4) marriage, or (5) are part of a group home for disabled persons, no such family shall contain more than four (4) persons.
    What is the definition of “related”?
    Per Unified Development Ordinance (UDO) section 11.2, persons are related when they are within the first or second degree of consanguinity or affinity. Persons are not related by affinity unless lawfully married, and any asserted common law marriage must be subject to an affidavit of record under the family code, or a judicial determination.
    When was the current “no more than four unrelated” restriction passed?
    The City has limited the number of unrelated that are permitted to reside as a single-housekeeping unit in a residential district to a maximum of four since the adoption of its first zoning ordinance in 1940. Since then, the definition has evolved over time to clarify relationships, but a “family” has consistently been limited to no more than four unrelated persons.
    How is the existing “no more than four unrelated” enforced?
    The “no more than four unrelated” ordinance is enforced through the Code Enforcement division of the Community Services department. Violations may be submitted by calling 979-764-6363, emailing codeenforcement@cstx.gov or submitting images through SeeClickFix. Code enforcement officers must observe the license plates of alleged occupants for 10 days to establish presumed evidence of over-occupancy, and report it to municipal court. If observation leads to substantial findings, the Code enforcement officer may present findings to the City prosecutor. The prosecutor would need substantial evidence in order to pursue conviction in municipal court. Essentially, the prosecutor needs to prove over-occupancy by unrelated individuals beyond a reasonable doubt in order to convict. Since fiscal year 2017, there have been 202 complaints of occupancy violations. There have been 61 reported complaints, 27 cases and investigations, and 2 cases that have gone to municipal court with property owners paying fines ranging from $122-$335. The majority of violations are resolved due to admittance of guilt by tenants, and investigations require large amounts of staff time and have yielded nominal results due to the inability to prove relation.
    What current ordinances are in place to address noise, trash, parking, etc.?
    The College Station solid waste and collection ordinance states that “all owners or occupants shall maintain the real property owned or occupied by them in a clean and litter-free condition.”

    Parking for residential areas is permitted in driveways and on streets that allow on street parking. The City designates certain areas to be controlled by "No Parking Here to Corner" or "No Parking Anytime" locations. The list can be found in ordinance section 38-1014.

    The College Station noise ordinance states that “it shall be unlawful for any person to willfully make, cause or allow continued any "loud noise" that because of its volume level, duration or character annoys, disturbs, injures or endangers the comfort, health, peace or safety of reasonable persons of ordinary sensibilities within the limits of the City. Quieter standards shall prevail during the night-time hours of 10 p.m. to 6 a.m.”

    The trash and parking ordinances are monitored and processed by the Code Enforcement division of the Community Services department, and violations may be submitted by calling 979-764-6363, emailing codeenforcement@cstx.gov or submitting images through SeeClickFix. A violation of the noise ordinance is monitored and enforced by the Police Department. You may reach them by calling the non-emergency line at 979-764-3600.
    What living arrangements that would be allowed under ROO?
    Under the current definition of “related” only a spouse, parent/child, brother/sister, grandparent, grandchild, parent in-law or daughter/son-in law would be considered related to you. City staff is working to change the definition of “related” due to substantial concerns regarding this definition that limit related persons to the first or second degree of consanguinity (blood) or affinity (marriage.)
    Are foster children or exchange students considered related under ROO?
    It was previously stated during the August 3 Seminar Supper that foster children and exchange students are not considered related to their foster or host parents, however, both of these relationships would be considered “guardians,” which is included in the definition of family. It is likely that these temporary relationships would be considered a parent/child relationship, and would be considered “related.” City staff is working to clarify the definition of “related” to include these types of atypical relationships.
    How would ROO be enforced?
    The draft ordinance presented on the June 18th Planning and Zoning Commission and June 25th City Council meetings included enforcement language that establishes any manner can be used to presume evidence of occupancy of a dwelling unit by more than two unrelated persons. It specifically lists three main ways this can be achieved. 1) If the same three or more vehicles were parked overnight for a majority of nights in any 10 day business day investigation period 2) a lease provides more than two tenants, or 3) more than two persons provide the location as the place where his or her mail is received. If substantial evidence is found, it may be presented to the City prosecutor, but is not guaranteed to result in conviction in municipal court.
    How is ROO different than restricting occupancy through deed restrictions?
    Property owners are required to enforce deed restrictions through private litigation because the laws were established by the Homeowners, not the City. If a ROO is established, Code Enforcement will enforce the ordinance and the burden of proof is the responsibility of the City’s Code Enforcement and municipal court, just as the current, “no more than four” ordinance.
    What is the difference between a subdivision and neighborhood?
    A subdivision is the division of land into a lot, tract or parcel for the purpose of development. An original subdivision is also known as a legally recorded subdivision plat. A plat is a map of a subdivision that is legally recorded in Brazos County, shows the location and boundaries of individual parcels of land subdivided into lots with streets, alleys, easements, etc., and is drawn to scale to meet the requirements of the UDO.

    A neighborhood is a subarea of the City that shares a common identity. A neighborhood often includes multiple subdivisions.
    How would a neighborhood pursue a ROO?
    If a neighborhood wishes to pursue a ROO, they should be prepared to establish a committee to manage the application process. The Neighborhood Conservation Overlay (NCO) handbook provides a guide for required and recommended materials during the NCO process. The ROO handbook has been drafted with nearly identical content, and will be available after public input is finalized.
    What is the approval process for a ROO?
    While certain details of the ROO process are still being determined, any prospective ROO will follow the rezoning procedure. A rezoning requires certain documents to be submitted to Planning and Development Services staff for an application to be considered complete. After the application is complete, staff reviews the application and prepares it for the public hearing process. We research the rezoning request in accordance with the rezoning criteria found in Unified Development Ordinance (UDO) section 3.3 and present a recommendation of approval or denial to the Planning and Zoning Commission. Following staff presentation, the Commission votes to recommend action to the City Council. The same information is presented to the City Council and they may decide whether to approve, deny, or approve the request with conditions.
    How are votes counted on the ROO petition?
    A majority of property owners in an original subdivision are required to sign the petition stating their support of the requested overlay. The percentage requirement has not been defined yet.
    How many votes are allowed per property owner for the ROO?
    One vote is allocated per property. If one individual owns multiple properties in an original subdivision, they are allowed one vote for each property they own.
    Do I need to live locally to sign the petition?
    As a property owner, you do not have to live locally in order to sign the petition, however, all signatures must be original.
    How does staff determine yes, no, or no response votes on the petition?
    Once the petition is submitted to Planning and Development Services for review, City staff will identify all properties included in the original subdivision plat and review the petition signatures in accordance with the legal description and property ownership information. Only signatures included on the petition at the time of submittal are counted as “yes” votes. Those who contact staff directly stating their opposition to the overlay will be counted as “no” votes, and those who provide no other contact will be considered “no response”. Staff will present the number and type of responses to the Planning and Zoning Commission and City Council during the staff presentation.
    How will I be notified that my neighborhood is pursuing a ROO?
    The draft ROO ordinance requires the neighborhood to send adequate mailed notice to all property owners in the original subdivision stating that a meeting will be held to discuss the ROO. This certificate of mailing is required with the subdivision’s application. Staff will review the certificate of mailing to ensure notice was sent within adequate advance in order for neighbors to plan to attend the neighborhood meeting. Once the project has been reviewed by PDS staff, it is scheduled for public hearings before the Planning and Zoning Commission and City Council. The City will send certified mail notifying all property owners of the public hearing dates. Notice is not required to be sent by the neighborhood or the City to tenants or renters.
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