HB2789 Accessory Dwelling Unit Bill Amended

The amended version of HB 2789 is linked here. Of the 54 pages of testimony were submitted, only 4 supported the bill, with the other 187 opposed.

For those just joining us, HB2789, authored by the House District longtime establishment 4-term incumbent, would allow homeowners to build Accessory Dwelling Units ("ADUs") in any Texas residential neighborhood, with no way for a city or county to stop it. (Although, for now, an HOA could stop it. But other states with ADU laws have taken away that right, so can Texas be far off?)

A summary of the changes is below - and instead of "political subdivision" I am going to use "city/county" instead to make it more understandable.

So what's changed?

Sales and leasing:

In the amended version cities/counties cannot stop the "sale or residential lease" of an ADU (but that term is not defined - isn't any lease of a residential property, a residential lease?)

The amended version also adds that a city/county CAN apply their regulations on short-term rentals to an ADU. This is great news for all those concerned about living next door to a perpetual party house.

The amended version prevents the sale of an ADU separate from the primary home. So no subdividing lots.

Minimum lot size:

In both versions, cities/counties cannot require a minimum lot size for an ADU any larger than the primary home or duplex (depending on how the lot is zoned), but the amended version adds they cannot require a lot size any larger than required for an ADU on 9/1/23 (the effective date of this bill) IF the city or county's only requirement to build an ADU is prior notification to the city/county. I am a bit unsure what this adds to the equation, unless it gives cities/counties the heads-up to have ADU requirements in place BEFORE this bill becomes effective this fall (if it passes).

Square Footage Limitation

The original version prevented the ADU from being larger than the primary home. The amended version states cities/counties can not limit the square footage of an ADU as long as it is less than 50% of the square footage of the main house, OR under 800 square feet. So now the ADU cannot be bigger than the main house - and as long as the proposed ADU is less than half the size of the main house, OR if it is less than 800 sf, a city/county cannot regulate the size.

(On a side note, Texas homebuilding giant D.R. Horton recently bought a stake in a pre-fab ADU company called Blockabl, whose smallest ADU product just so happens to be 800 sf. Coincidence? Especially given that the “magic number” that kept appearing in the original bill was 750 sf – which might have left poor Blockabl out of the Texas ADU business. Just an observation.)

Ceiling Height Limitation

An odd addition was preventing cities/counties from requiring a height of more than 14' floor to ceiling for an ADU. And the point of that is...?

Impact Fee Restriction changes

The original version of the bill prevents a city/county from collecting an impact fee (for impact to the community on infrastructure like sewer, water, fire protection, police, or other services a city might provide) if the ADU was less than 750 sf.

In the amended version - that number jumps to 800 sf (again coincidental with the size of some pre-fab ADUs that are currently available in the market). Not sure how an amendment that RAISES the size of the ADU will quiet any critics within our city/county elected officials?

That's it for Revisions. So where does that leave us?

Even with these revisions, opponents (like me) will argue that this bill remains a heavy-handed, “one size fits all” approach which completely negates the abilities of local cities (and their citizens) to determine the zoning that best fits their communities. They should be the ones to know whether their local water, sewer, roads, or other infrastructure would even be able to keep pace with an influx of ADUs.

Remember, within 60 days after submittal, an ADU permit is deemed approved, even if it is incomplete, or the city/county has not had a chance to review it yet. So if this bill passes, and 500 residents decide to drop in an ADU in an area without sufficient water, roads, sewers, etc. to handle the additional density, there would be NOTHING residents could do to stop it.

A recap of what HB2789 says including amendments

While laying out the bill for the Committee, its author promised that political subdivisions will still get to keep their setbacks and zoning requirements.

What he did NOT mention was that was only true if those requirements did NOT conflict with the bill restrictions. Those restrictions are:

Cities/counties cannot prevent a residential landowner from building an ADU before, during, or after building their primary home
Cities/counties cannot prevent the owner from selling or entering into a “residential lease” (whatever that means) of the ADU
Cities/counties cannot require owner occupancy of the PRIMARY residence (?!?)
Cities/counties cannot require PARKING for an ADU (unless the ADU has displaced the parking for the primary home – and still cannot ask for MORE parking for the ADU)
Cities/counties cannot require a minimum lot size for the ADU larger than that required for the primary home/duplex or larger than an ADU lot size specified by a city/county prior to 9/1/23 IF that city/county requires notification as the only permission needed to build (?!?)
Cities/counties cannot require side OR rear building, waterway, plane, or other setbacks larger than FIVE FEET for an ADU (so an ADU can be 5’ from a side or rear property line)
Cities/counties cannot apply their local growth, density, or bulk limitations to an ADU
Cities/counties cannot limit the square footage of an ADU if it is less than 50% of the sf of the main house or less than 800 sf.
Cities/counties cannot regulate the SIZE, SHAPE, MASSING, or distribution of square footage between floors of an ADU
Cities/counties cannot require a room height of more than 14’ for an ADU (?!)
Cities/counties cannot charge an IMPACT FEE if the ADU is less than 800 sf
Cities/counties cannot charge an additional fee or any exaction, including a parkland or right-of-way dedication, specific to ADUs (so presumably fees and exactions applicable to primary homes would still apply?)
Cities/counties cannot impose an occupancy restriction based on age or employment relationship with the primary house owner (so moving in grandma, the newly-married kids, or maybe a nanny, is not required – which would technically still be single-family occupancy. No, instead, ANYONE can live there - turning single-family into MULTI-family).
Cities/counties cannot keep someone with a lot of more than 10,000 sf (that’s 0.22 acre) from building TWO of these units!

And now, the list of what Cities/Counties CAN do (a much shorter list)

If the ADU took out the main parking - they can require it to be replaced (but still cannot require ADDITIONAL parking for the ADU!)
They MAY publish ADU plans, codes, design standards - AS LONG AS THEY DO NOT CONFLICT WITH THE ABOVE LIST
They MAY allow ADUs on a lot subject to historic preservation, or under a standard of the Texas Water Development Board
They MAY apply their short-term rental regulations to ADUs
They MAY prevent the sale of the ADU separate from the primary house (no subdivision)

Last but not least - in the permit review process:

Cities/counties still only have 60 days from the day they get the application (does not specify it has to be COMPLETE) until they must make a decision to approve or deny the permit. And if they don't get it done by then, the permit is AUTOMATICALLY approved.
Cities/counties MAY NOT hold a public hearing or do a discretionary review - they can only do a 'ministerial review' (or, does this application check all the boxes?)
Cities/counties may only review for satisfaction of building and fire codes and design standards (again, to the extent they do not conflict with the list above).

Now what happens?

After the testimony, the bill was “left pending” by the Committee. The Chair of the Committee will now speak to others on the committee and if he thinks it has the votes for further debate and passage out of the committee, they can take up “pending business” at any future meeting without public notice. So we won’t know in advance when/if this bill gets heard again by the Committee.

To be alerted if this bill makes it out of Committee and to the House Floor for a vote, you can set up an alert using the My TLO website at www.capitol.texas.gov. Set up an alert for SB 1412 too, which is the companion Senate Bill. And you can email its author, Senator Bryan Hughes, your thoughts on the amendments. You won’t be able to submit comments on the Senate Bill online, you have to go to Austin to do that in person on the Senate side.

OR - stay tuned to www.londonfortexas.org/news because you know I will be tracking this issue!

Thanks for reading, and God Bless Texas.