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Fact checking occupancy limits

February 13, 2014
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Mary Sanger made the following claim in her KUT op-ed on Tuesday: 

The City of Austin allows up to six unrelated adults to occupy a residential structure in a single-family neighborhood. The national average is 3.5. For Texas cities, the number is under three.

Austin has the highest occupancy level in the state. It also has one of the highest in the country. Not only is Austin an outlier, it is an extreme outlier. Reduced occupancy limits will take away the incentive for investors to destroy existing affordable housing, and it will alleviate many of growing nuisances arising from stealth dorms in existing houses and duplexes.

“Highest occupancy level” is an ambiguous term. Does she mean the highest average occupancy, or the highest occupancy limits?

No matter. She’s wrong in either case.

According to the 2008-2012 ACS, the average household size of Austin’s owner-occupied units is 2.57, and the average household size of its renter-occupied units is 2.25. The respective averages for Texas are 2.92 and 2.61. Austin has lower average occupancy than the state as a whole. As I noted a few years ago, the Austin’s central core mostly lost population between 2000 and 2010, which was largely driven by shrinking household sizes.

Austin’s housing is not overcrowded.

I think Sanger is actually referring to occupancy limits rather than average occupancies, though. In this case, she is wrong because of Houston, San Antonio and Dallas.

First, a bit of background on Texas occupancy limits. The Texas Property Code imposes a maximum occupancy for residential leases of three adults per bedroom. Cities are free to impose their own, more restrictive occupancy limits.

Historically, cities have adopted two kinds of occupancy limits. One is a true maximum occupancy limit. It typically requires a certain amount of floor space per occupant. The goal is to prevent overcrowding for health and safety reasons.

The other kind of occupancy limit is a zoning regulation adopted for the purpose of preserving the “single family character” of neighborhoods or similarly nebulous goals. There are many ways of writing a zoning regulation, but the typical regulatory scheme is to define “family” to mean “people related by blood or marriage or up to X unrelated adults” and then limit the use of dwellings in single-family districts to “families.” Austin’s occupancy ordinance of this type, even though the cityhas gone out of its way to avoid defining “family.”

(The distinction between the two types of limits, incidentally, matters for the Fair Housing Act, and was the subject of a U.S. Supreme Court case in 1995.)

Of the largest four cities, Austin is the only one with a zoning occupancy limit.

Houston does not have a zoning occupancy limit. I confirmed this by asking a Houston code enforcement officer. Houston does have a health and safety maximum, which prohibits “overcrowded” dwellings. “Overcrowded” means:

(1) A dwelling unit or a congregate living facility not containing at least 150 square feet of net floor area for the first resident and at least 100 square feet of additional net floor area for each additional resident; or

(2) A dwelling unit or a congregate living facility of two or more rooms not containing at least 70 square feet of net floor area in each room occupied by one resident for sleeping purposes; or

(3) A dwelling unit or a congregate living facility of two or more rooms not containing at least 50 square feet of net floor area per resident in each room occupied by more than one resident for sleeping purposes[.]

This standard would require, by way of illustration, only 1,150 square feet of net floor area for ten roommates.

San Antonio does not have a zoning occupancy limit. It recently adopted a Property Maintenance Code, which although lacking an explicit health and safety limit on occupancy (other than for efficiency units (3)), does provide, “The number of persons occupying a dwelling unit shall not create conditions that, in the opinion of the code official, endanger the life, health, safety or welfare of the occupants.” See Section 404.5. I spoke to a Code enforcement official who told me that Code Enforcement considers occupancy above two adults per bedroom a code violation.

Dallas has a traditional healthy and safety occupancy limit: each room used for sleeping must have  70 square feet and an additional 50 square feet for each additional occupant. There are also minimum area requirements for the kitchen and common space. But these are not stringent restrictions — they would allow more than a dozen occupants in the large houses Sanger’s complaining about. 

The Dallas zoning code does not appear to have a zoning occupancy limit. I’m hedging a bit, because interpreting another city’s zoning code can be tricky; what the planning director thinks it means matters a lot. But I called Dallas Code Enforcement, asked specifically whether there were occupancy limits in single-family dwellings, and was told no, other than the occupancy limits based on floor area noted above. 

So, if you take the set of “four largest cities,” Austin is an outlier, in that we’re the only one of the four that attempts to regulate occupancy for zoning purposes.

Both El Paso and Fort Worth have a zoning-type occupancy restriction. Fort Worth defines “family” to mean:

Any individual or two or more persons related by blood, adoption or marriage or not more than five unrelated persons living and cooking as a single housekeeping unit or home and expressly excluding lodging, boarding or fraternity houses.

 It defines “dwelling unit” to be:

A building, or any portion thereof, containing a complete set of independent living facilities for occupancy and use by one family, including permanent provisions for living, sleeping, eating, sanitation and cooking within a kitchen for the exclusive use of the occupants whose intent is to habitat the dwelling unit.

A single-family dwelling unit, then, can only have five unrelated occupants per dwelling unit; a unit with more than five unrelated occupants isn’t a “dwelling unit” and therefore not a permitted use.

At least, that’s how I read Fort Worth’s Code.

El Paso’s is similar.

I haven’t fact-checked Sanger’s claim that the national average occupancy limit is 3.5. How you calculate an average occupancy limit when some places don’t have one at all is a mystery to me. I’m skeptical of the average even if you limit it to places that do have occupency limits. Here is a list of occupancy limits in the Pacific Northwest. The average of this particular sample would be higher than 3.5. And note that Austin is in line with Portland (6) and below Seattle (8).

Note & correction: An earlier version of this post incorrectly stated that Houston does not have a health & safety minimum occupancy requirement.

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