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Episode 101: Beyond Zoning with John Zeanah and Andre D. Jones (Incentives Series pt. 4)

Zeanah, "Beyond Zoning: Hidden Code Barriers to Middle-Scale Housing"

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Episode Summary: Your city just legalized “missing middle” housing in its zoning code… now what? With Memphis, Tennessee, as a case study, John Zeanah and Andre D. Jones discuss the hidden non-zoning barriers to developing small apartment buildings — and how to lower them. This is part 4 of our series on misaligned incentives in housing policy.

Key takeaways:

  • “Many communities have made great strides in reforming exclusionary zoning. Single-family-only zones are being opened up to duplexes, triplexes, and other types of housing, from Minneapolis and Portland, Oregon, to recent statewide initiatives in California, Washington, Montana, and Maine. These zoning changes are intended to spur the development of “missing middle” housing, typically defined as small multifamily structures between single-family homes and large apartment buildings. This middle-scale housing can help communities gently increase density, improve affordability, and expand housing choice in walkable neighborhoods.”
  • “However, communities are also finding that simply allowing a fourplex on paper does not guarantee that one will be built. Planners are beginning to realize that even where zoning allows small multifamily housing, other codes often make it infeasible to build. Building construction codes, fire safety mandates, stormwater regulations, and utility standards were written mainly with either single-family homes or much larger buildings in mind, not the middle-scale projects in between. As a result, a triplex, an eight-unit cottage court, or even a 24-unit mid-rise apartment can unintentionally trigger “big building” requirements, which add significant cost or complexity and negate the modest scale advantage of these projects.”
  • “Fortunately, awareness of these hidden barriers is growing. Innovative jurisdictions have begun to adjust building codes and standards to better calibrate requirements for small multifamily buildings. States like Tennessee and North Carolina recently changed laws to ease code hurdles for three- to four-unit structures. City agencies are working with utilities to modify archaic policies – for example, redefining when a building is considered “commercial.” In my own experience, working with the Malone Park Commons project in Memphis, Tennessee, provided me with a case study in overcoming these obstacles, which also prompted local code amendments and even state legislation. By understanding why a fourplex could trigger commercial fire codes or a cottage court could trigger extra utility fees, planners can better advocate for sensible and proportional codes that scale with the size of the development, allowing middle-scale housing a better chance to get built. The following sections explore the most common categories of these barriers beyond zoning, with examples and lessons for reform.”
  • “Malone Park Commons, located in Memphis, Tennessee, is a 35-unit cottage court-style development that has become a proving ground for the kinds of hurdles beyond zoning code that small-scale multifamily housing faces. Designed as a model for missing middle housing in walkable neighborhoods, the project aimed to deliver compact, modestly priced units in an infill context – but found itself repeatedly blocked by legacy building, fire, utility, and tax regulations written for much larger-scale development. The first phase of Malone Park Commons consisted of eleven detached cottages arranged around a shared green space. Later phases introduced two live-work fourplex buildings and four purely residential fourplexes, transitioning seamlessly to conventional detached single-family homes. This demonstrates that it is possible to build “gentle density” with thoughtful urban design. But the path to getting those units approved, permitted, and built exposed a web of regulatory obstacles that ultimately led to state legislation and local code reform.”
  • “Malone Park Commons illustrates just how deep the regulatory barriers to small multifamily development go. Even a well-zoned site with community support and good design can be undone by fire protection rules, utility service classifications, and misaligned building codes. The developers did not just encounter these problems – they documented and explained them, using their experience to build support for reform. For local planners, Malone Park Commons became both a cause and a learning environment, leading to not only real change but also a collaborative partnership between planners and developers to better understand the breadth of code hurdles holding back missing middle housing and what to do about them.”
  • “One of the first barriers a small multifamily project encounters is the building code itself. In most jurisdictions, the moment you propose a building with three or more dwellings under one roof, you leave the realm of the residential code (IRC) and enter the International Building Code (IBC), sometimes called the commercial code. The IBC is a comprehensive code designed for everything from apartments and offices to airports and stadiums.”
  • “Under the IBC, a small multifamily building is typically classified as a Group R-2 occupancy (apartments).5 This classification triggers a host of requirements that do not apply to one- or two-family dwellings under the IRC. For example, the model IBC mandates that R-2 buildings be equipped with automatic sprinkler systems6 and, for buildings above three stories, have two separate exits for occupants placed at a distance from each other, among other provisions.7 By contrast, the IRC treats a duplex almost like a single-family home, with no sprinkler mandate in most states and simpler egress – often just doors and windows for each unit.8 The leap in complexity from duplex to triplex is dramatic.”
  • “Key differences that apply once you cross the threshold between two and three units include:
    • Professional Design Requirements: A small apartment building typically must be designed and stamped by a licensed architect or engineer to meet IBC structural and life-safety standards, as well as state licensure rules that often kick in at a similar threshold. A single-family or duplex can often be built to simpler prescriptive standards without full structural design requirements, including engineered calculations for wind, seismic, and lateral loads … This means higher soft costs for design and higher hard costs for certain structural elements in a small multifamily building that may be the same size as a large single-family home. Jurisdictions should explore allowing small multifamily to use IRC prescriptive structural provisions for elements like wind, snow, and seismic to avoid requiring costly engineering, as long as the building is modest in height and wood-framed.
    • Fire-Rated Separation and Construction Type: The IBC may require higher fire-resistance-rated construction between units, such as one-hour or two-hour fire-rated wall separations and floors, and limits on wood frame construction for multifamily buildings.11 The IRC also requires fire separation (e.g. one-hour separations for duplex common walls), but IBC standards can be more extensive. These assemblies can increase material and labor costs.
    • Height and Area Limits: While small missing middle buildings are naturally limited in size, the IBC places restrictions on maximum building height based on occupancy type, construction type, and sprinkler system present.12 The IRC has height limits too (three stories for a townhouse, for example), but is tailored to house-sized structures.13
    • Energy Code Differences: In some cases, multifamily buildings are subject to commercial energy codes, which can result in different insulation, HVAC, and testing requirements compared to the residential energy code for single-family homes (IECC). This can be another subtle cost increase for the same physical structure.”
  • “In summary, the code divide between IRC and IBC acts as a hard line beyond two units (or one unit if the dwelling is attached). Planners have begun to realize that if we want a house-scale multi-unit building to be built as inexpensively as a large house, we may need to adjust where that line is drawn. In 2021, Memphis and Shelby County, Tennessee, amended their building code to allow up to six-unit buildings to be reviewed under a local amendment to the International Residential Code (IRC), also known as the “Large Home Amendment.” This local change recognized that a six-unit, two-story building can be safely built to a modified residential code, rather than treating it like a large apartment complex. However, the Tennessee State Fire Marshal’s office disagreed. To resolve the dispute, Memphis pursued state legislation on sprinkler reform instead, but kept conversations open with the State Fire Marshal on potential future amendments. Similarly, in 2023, North Carolina passed legislation (HB 488) requiring that triplexes and fourplexes be governed by the residential code, rather than the commercial code. In 2025, the City of Dallas updated their codes to permit up to eight units in the residential code.”
  • “Perhaps the most notorious building code hurdle for small multifamily housing is the automatic sprinkler requirement. Sprinkler systems are effective tools for reducing property loss in the event of a fire. They are also effective systems for life safety, though other, equally effective methods exist. But sprinkler systems also add considerable cost and require ongoing maintenance, as well as sufficient water pressure and infrastructure. Under the IBC, generally applicable to buildings with three or more units, any new R-2 multifamily building must have an automatic fire sprinkler system in accordance with NFPA standards.”
  • “For small projects, sprinklers can be a make-or-break factor. It’s not just the cost of the pipes and sprinkler heads – the need for a water supply line, often a dedicated larger-diameter service, backflow preventer, and possibly a water meter upgrade or pump, can escalate costs. In neighborhoods with low water pressure, a small infill development might even need the city to upgrade the water main or install costly fire pumps or tanks. Sprinkler installation alone can cost tens of thousands of dollars for a fourplex, and a commercial-grade backflow prevention device for the system can cost several thousand more to install on a small building … It should be emphasized here, however, that increasing fire separation does increase construction costs. A builder not only needs to factor in the cost to increase the thickness of separation walls and ceilings but also cost increases for structural reinforcement to support thicker separations.”
  • “Accessibility is another critical factor that often becomes a concern once a building reaches a certain number of units. The Federal Fair Housing Act (FHA) requires that in any new multi-unit residential building with four or more units, a certain baseline of accessible or “adaptable” design features be provided in the units and common areas. This includes features like accessible entrances, wider doors and hallways, reachable light switches, and bathrooms that can be adapted for use by someone in a wheelchair, though not fully outfitted as a “Type A” accessible unit. In a building without an elevator, these requirements apply to all ground-floor units; if there is an elevator, they apply to all units in the building.”
  • “Many of the barriers that prevent small-scale multifamily development under the International Building Code (IBC) also show up in the reuse and conversion of existing buildings, a process which is governed by the International Existing Building Code (IEBC). If jurisdictions only update the IBC, they risk limiting reform to new construction while continuing to burden or even block adaptive reuse projects that could otherwise deliver gentle density through incremental infill.”
  • “Small multifamily buildings in walkable areas can be ideal locations for corner stores, live-work studios, offices, or small-scale service uses – uses that contribute to neighborhood vitality. Yet in many jurisdictions, building and fire codes treat any ground-floor commercial space as a higher-intensity use that triggers commercial-scale upgrades. For example, when Malone Park Commons wanted to lease ground floor space in their live-work buildings to commercial tenants, they learned the code required that they upgrade the sprinkler system from 13R to a full NFPA 13 system. For small buildings, these requirements often make mixed-use development infeasible, especially when the commercial space is no more than 500 to 800 square feet. To enable these neighborhood-serving uses while preserving life safety, jurisdictions can amend their building and fire codes to allow limited Group B (business) occupancies within small multifamily buildings, with conditions that reflect actual risk.”
  • “Building and fire codes are closely intertwined and provisions are often duplicated, but it’s worth examining specific fire safety system requirements that often present barriers for small multifamily projects. Beyond the structural elements discussed above, developers of a house-scale apartment building must also navigate fire alarm systems, various types of sprinkler systems, and other code provisions, typically geared toward larger occupancies. These requirements can involve introducing new equipment, requiring technical expertise, ongoing maintenance, and coordination with fire authorities.”
  • “For example, a common requirement for small multifamily is the installation of a manual fire alarm system with pull stations and audible and visual alarms unless each unit has its own exterior exit. Even without that exact trigger, local code officials might require an alarm panel if the building is sprinklered or if they feel it is needed for occupant notification. The cost of installing a commercial fire alarm system – including panel, wiring, detectors, strobes, and professional monitoring setup – can be several thousand dollars, plus monthly monitoring and telecommunications fees. More importantly for small developers, it is an additional contractor or trade (fire alarm specialist) and a coordination task that would not exist in a duplex project. It requires electrical drawings, possibly a separate permit, and annual inspections.”
  • “In practical terms, planners should be aware that a small infill developer may face an unexpected requirement to include a fire alarm system with pull stations, or, conversely, may avoid it if local codes have higher thresholds. Technology is also helping; today’s interconnected smoke detectors, with 10-year batteries or wired connections, can cover an entire small building without a traditional panel, and some jurisdictions accept this as meeting the intent for occupant notification. The goal is to ensure early warning in a fire, without over-specifying an institutional-grade system for a small multifamily building.”
  • “Earlier, we discussed when sprinklers should be required. Where they are, the type of sprinkler system matters a great deal in terms of cost and complexity. National standards offer different sprinkler system designs for different building types:
    • NFPA 13 systems are the most comprehensive and are required in most commercial and multifamily buildings.
    • NFPA 13R systems are a scaled-down version of the standard for residential occupancies up to four stories high, commonly found in apartments and condominiums.
    • NFPA 13D systems are designed for one- and two-family dwellings, as well as single-family townhouses. They are the simplest: designed to protect lives in smaller residential structures.”
  • “For example, consider a fourplex in most contexts: under the model codes’ interpretation, it’s R-2, so it needs a 13R system. The developer would then have to pay the city to install a two-inch sprinkler water line with a backflow preventer, possibly a separate meter for that line, and hire a sprinkler contractor to install a multi-zone system covering all rooms. If allowed to use 13D, the builder might simply upsize the domestic water line slightly and run a combined system (multipurpose piping that feeds sprinklers and fixtures) or a simple loop that covers the few required rooms. No separate fire department connection or direct monitoring is typically required for 13D. In a small building, that could cut the sprinkler system cost by more than half. Some jurisdictions simply exempt small multifamily from sprinklers entirely, but others may find a middle ground of requiring sprinklers but at the 13D level.”
  • “Code officials may initially balk at using a less costly system in smaller buildings, but NFPA research has found sprinkler systems to be very effective in preventing fatalities in residential fires without differentiation by type.26 For instance, NFPA reports demonstrate that the vast majority of fatal fires in residences start in living rooms, bedrooms,or kitchens – areas covered by 13D systems.27 Also, smaller buildings have fewer people and shorter egress travel distances, reducing risk factors.”
  • “Stormwater management is less obvious but can be a significant barrier to developing small-scale multifamily housing, especially in urban infill scenarios. Many stormwater regulations were written with larger subdivisions or commercial projects in mind, and they often impose fixed infrastructure requirements that do not scale down easily. A four-unit infill project might be expected to handle stormwater almost like a 40-unit project would, which can be disproportionately expensive or physically unworkable on a small site.”
  • “A common requirement in local stormwater ordinances is that new development must detain or retain stormwater runoff on-site so that post-development runoff rates do not exceed pre-development rates … Some cities provide thresholds or exemptions for small disturbances – for example, no detention is required if the total new impervious area is under 10,000 square feet or if the site is below a certain size. But not all do, and even if detention is not required, stormwater quality treatment might be (e.g., bioswales or filter structures to treat the first flush of runoff).”
  • “There are strategies to mitigate this barrier – such as fee-in-lieu programs, off-site stormwater management, or shared facilities – that can help. A city might allow a small developer to pay into a fund for regional stormwater solutions instead of building their own pond. Or, if doing multiple cottages on adjacent lots, a shared stormwater facility in the courtyard could serve all units collectively.”
  • “Additionally, stormwater management plans and calculations add a layer of engineering that small developers may not be familiar with. A single-family home builder might not need to hire a civil engineer for a lot, but a six-unit project might require a full drainage plan signed by an engineer, including grading, drain pipes, and connections to city storm sewers. This increases soft and hard costs. In some cases, hooking into an existing storm sewer for discharge may not be readily available, leading to requirements such as digging up the street to install a new inlet or retention system – a cost that could break a project’s budget.”
  • “Even if a small multifamily building clears zoning, building, fire, and stormwater hurdles, it still needs basic utilities, such as water, sewer, gas, and electric. It is here, in the realm of public works and utility providers, that another set of hidden barriers can emerge. Utility policies sometimes classify any building larger than a single-family house as “commercial,” resulting in higher fees and more stringent requirements. The cost of connecting a four-unit building to city utilities can thus be far greater than four times the cost of a single-family hookup – a shock to an infill developer’s pro forma.”
  • “One of the most cited examples of a utility hurdle is the water connection for small multifamily. In many cities, when you build a duplex, you can use either a single residential water meter or two separate residential meters, one for each unit. But if you build a triplex or fourplex, the water utility may require you to treat it as a commercial account. This can mean:
    • Larger meter size: A 1.5-in. or 2-in. meter may be required instead of a ¾-in. residential meter due to perceived (but often not realized) higher demand. A larger meter has a much higher tap fee (sometimes thousands of dollars more) and higher base monthly charges. For instance, a typical ¾-in. water tap fee might be $1,000, while a 2-in. commercial tap could be considerably more, not counting usage charges. In Memphis, for example, system development charges for a 2-in. meter cost the developer $5,000 per building, while in Portland, Oregon, charges exceed $38,000 for a meter of the same size …
    • Separate meters for each unit or a master meter: Some utilities require each dwelling unit to have its own meter (to bill separately), which in a fourplex means four meters. That’s four connection fees and four monthly service charges …
    • Backflow prevention devices: As seen in Memphis, the local utility deemed buildings with more than two units as commercial, requiring a backflow preventer on the water service. Backflow preventers are valves that stop water from flowing backward into the public supply, protecting against contamination.”
  • “Beyond physical hardware, the fees associated with utilities can be high. Many jurisdictions charge system development fees or impact fees per new dwelling unit for water and sewer. A single-family house might pay one fee; a fourplex could pay four times that or more in some models. If these fees are not calibrated for small projects, they can total tens of thousands of dollars, which for four units might be insurmountable.”
  • “Another consideration is electric and gas service. While it is usually simpler, there can be issues if the utility requires space for meters and other equipment. A row of four electrical meters might need an outdoor wall or space that could conflict with the design. Or, if you have a live-work unit, the utility may require separate electrical services for the commercial areas, adding complexity. Generally, these are more minor issues but still require planning. HVAC units also factor in here: more units mean more outdoor AC compressors, which may require additional electrical hookups and physical space.”
  • “Parking requirements themselves are typically part of zoning – cities often require a certain number of spaces per unit (or not, as of late). Many places have reduced or eliminated parking minimums for small infill housing, recognizing the need for flexibility. However, even when fewer spaces are required, the design standards for parking lots and driveways can be problematic on small sites.”
  • “An often overlooked “code” issue – more of a statutory one – is how properties are taxed. In some states, property tax assessment ratios differ between residential and commercial properties. Tennessee is one such state – residential property is assessed at 25% of its appraised value, but commercial property at 40%. Crucially, Tennessee considers any residential building with more than one rental unit as commercial for tax purposes. That means a duplex or fourplex held by a landlord would be taxed at the higher commercial rate, increasing the operating costs. Essentially, a fourplex owner in Memphis could pay 60% higher property taxes than if those same four units were each on separate lots as single-family homes, since four separate houses would each count as residential at 25%. For a small developer trying to offer attainable market-rate rentals, this tax treatment can really pinch finances, forcing higher rents than otherwise needed. In general, this may require state-level advocacy to change definitions or ratios.”
  • “Trash and recycling might seem mundane, but they can create logistical, space, and cost issues. Many cities have thresholds for municipal garbage collection. For instance, the city will only pick up trash from buildings with up to four units, provided they have individual carts. Anything larger must contract a private dumpster service. Some cities cap it at two units, while others cap it at six or even eight. If a small apartment falls outside the cutoff, the owner has to pay a commercial trash hauler on a regular basis. That may not sound huge, but commercial trash service often means needing a dumpster or large bins and paying monthly fees – a different model than just having a couple of rollout carts for each home … From a policy standpoint, ensuring that small infill projects are not forced into expensive commercial trash contracts is part of keeping operating costs down. The Public Works department could decide that anything under eight to ten units can opt into city solid waste service rather than defaulting to a private hauling service.”
  • “Small multifamily buildings permitted as commercial construction rather than residential may encounter a more rigorous permitting process than a single-family home. More code complexity often leads to more review steps and cycles, especially if plan reviewers are not as familiar with small multifamily projects. Consider offering a pre-approval process to allow small developers to have their stock building plans reviewed before they have a property under contract or financing to close, allowing for a streamlined review once the project is ready to be built.”

Shane Phillips 0:05
Hello, this is the UCLA Housing Voice Podcast, and I'm your host, Shane Phillips. This is the fourth episode in our ongoing incentive series, supported by UCLA's Center for Incentive Design. Throughout this series, we'll be exploring the misalignment between what we say we want our policies and processes to achieve, the behaviors and outcomes they actually incentivize, and potential solutions. We're continuing the building codes and standards section of the series with two guests, John Zeanah and Andre Jones. John is chief planner for the city of Memphis, and Andre is a home builder in the city. And this conversation is about how they work together, along with a lot of other folks, to make it easier to build middle-scale housing in Memphis. We're specifically talking about housing with three or more units that's subject to the commercial building code rather than the residential code. We've talked about stairs and elevators already in earlier episodes, and in this one, we introduce a whole bunch of other issues for planners and advocates to keep an eye on, from sprinklers and fire alarms to utility infrastructure and stormwater retention. Given that this episode was about planners and builders working together to make it easier and less expensive to build this missing middle housing, I thought it was important to have both parties represented here on the podcast. A few things really stuck out to me from this conversation. One is John's comments about the importance of building codes and standards being proportional to project scale. In most respects, a three or fourplex has a lot more in common with a detached single-family house than a six-story, 100-unit apartment building. Yet that three or fourplex is regulated much more similarly to the 100-unit project. That clearly isn't appropriate. But it's also probably inappropriate to say that small multi-family buildings should be regulated exactly like one- and two-unit buildings. So the challenge is finding the right balance between the strict provisions of the commercial code and the much laxer regulations in the residential code. And that balance will look different for a single-story, three-unit building than a three- or four-story, 10-unit building. The second thing I want to highlight is Andre's comment about prioritizing passive methods of fire protection over more active ones. This might look like mandating walls with higher fire ratings to slow the spread of fire rather than requiring sprinklers that, aside from being more expensive in most cases, can also malfunction and turn on when you don't want them to or fail to turn on when you do. The last thing I want to highlight is how a lot of these regulatory barriers accumulated out of sight, hidden by zoning rules that prohibited the construction of missing-middle housing typologies. It's easy to stick fourplexes with excessive and costly mandates when no one's allowed to build them anyway. In that environment, there's nobody to push back and ask whether these rules really make sense. But as cities and states unravel restrictive zoning policies one by one, these other regulatory barriers are beginning to reveal themselves. Most of the barriers we covered in this conversation are just about universal, in U.S. jurisdictions at least, but I think the higher level takeaway from this case study is that every city needs to investigate for itself what its biggest obstacles are and how they can be resolved. And the best way to identify those barriers is through the collaboration of local planners, building and fire officials, and home builders. That's a lesson that can easily travel beyond our national borders. The Housing Voice Podcast is a production of the UCLA Lewis Center for Regional Policy Studies with production support from Claudia Bustamante, Brett Berndt, and Tiffany Lieu. Send your questions and feedback to shanephilipsatucla.edu. And just a reminder that we are kicking off our book club in the new year with Yoni Appelbaum's 2025 book, Stuck. Yoni himself will be our guest for the final episode of the four-part series where we go through his book, but we welcome listeners' suggestions on who we should bring on to chat with us for the first three episodes. With that, let's get to our conversation with John Zeanah and Andre Jones.

Shane Phillips 4:27
John Zeanah is the chief of development and infrastructure for the City of Memphis, Tennessee and principal and owner of Interval LLC, a planning and policy advisory firm. Andre D. Jones is a small-scale developer, general contractor, and urbanist and co-owner of Jones Urban Development based in Memphis. John and Andre, thanks for joining us and welcome to the Housing Voice Podcast. Thank you, Shane. Thank you, Shane. If you guys aren't familiar with our show's format, we always start off by asking our guests for a tour of a city or town or just a neighborhood that they know well and want to share with our audience. I think we're just going to go to Andre to set us up for the question that's coming. Tell us a little bit about a specific neighborhood you want to talk about in Memphis, Andre.

Andre Jones 5:11
Sure, Shane. Thanks for having me on. So I would like to tell you about a neighborhood called the Greenlaw Addition. So back in the 1850s, the northern boundary of Memphis proper was the Gayosaw Bayou, which was an open creek in the 1850s. And so just north of that creek, there was a group of developers, Greenlaw, Safranz, Looney, and Keele, that decided to develop what's considered to be the first suburb of Memphis called the Greenlaw Addition. And the streets, Greenlaw, Safranz, Keele, Looney are named after the developers. And it was a fabulous place to live out here back during those days. When you talk about urbanism and walkability with tree-lined streets, granite curbs, all those beautiful necessities that we are trying to add back to urbanism these days. But during the 60s, it started to fall on hard times. And around the year 2000, there was a group that decided they wanted to revitalize the area. They rebranded it Uptown, created a tax increment financing district to help fund some of the infrastructure. So from that point forward, we've been working here along with others to help revitalize the community. Greenlaw is just north of St. Jude Children's Research Hospital, and it is just east of Harbor Town, which is a new urbanist community that was developed by Henry Turley Company back in the 1980s. So it is in a great location, and we're excited that we've been able to work in this community.

Shane Phillips 6:47
Could you give the four names of those developers one more time?

Andre Jones 6:52
Greenlaw, Keele, Looney, and Safranz.

Shane Phillips 6:56
Got it. And this makes me think of the four names on the Marauder's Map in Harry Potter, if you're familiar. Okay, so anyway, that's neither here nor there. This is episode four of our incentive series. And much like with our Pathways Home series on homelessness, we keep on finding new and unexpected angles. And this time, it's on the topic of building codes and standards. So far, we've covered single-stair reform and elevator standards, and our last episode was about the organization responsible for developing our model building codes, the International Code Council, hashtag not actually international. But these codes do a lot more than decide how we move from one building floor to another. And our guests are here to talk about some of the other codes and standards that don't get nearly as much attention, but that in aggregate are at least as important as elevators and stairs, particularly for smaller multifamily projects and missing middle housing. The focus of this conversation will be a recent publication from Stephen Smith's Center for Building in North America, authored by John here and titled Beyond Zoning, Hidden Code Barriers to Middle Scale Housing. Many of the lessons from this report come from a project called Malone Park Commons, and Andre is joining this conversation as the developer for that project and someone who's taken lessons from his own experience to reshape policy in Memphis and the state of Tennessee. I think the case study of Malone Park and really this whole report shows us what's to be gained when practitioners like Andre are willing to put in the extra effort to educate planners and policymakers, and when planners and policymakers like John are willing to listen to those concerns and take them seriously. So I thought it would be great to bring both parties to the table for this conversation. So Andre, let's start with Malone Park Commons. Tell us about the project and how you came to end up collaborating with John and others at the City of Memphis. I feel like the relationship between planners and developers is often more adversarial than it seemed to be here, and when developers bring problems to local officials, it might be assumed that they're just acting selfishly or trying to get out of some obligation, possibly at the expense of the city or future residents of these homes. That's clearly not what happened here, though. So tell us the story of Malone Park Commons. And John, feel free to chime in as we go.

Andre Jones 9:22
Yeah. So Malone Park Commons is 35 units of missing middle building types, and I'd like to expand upon that simply because not only does this particular block contain Malone Park Commons, but it also contains single-family housing with accessory dwelling units. So I'd like to say that it's the most diverse block of housing built since World War II. Nobody's disputed that yet, so I'll just keep going with it.

Shane Phillips 9:48
And your project is not just a 35-unit apartment building, right? It's many buildings all put together.

Andre Jones 9:55
Yes, yes. It's a mix of, you know, our first phase was a cottage court. We have 11 cottages around the common courtyard. We have live-work buildings that are basically micro-mixed use. We have four plexes. And so it's obviously that mix of building types that's been basically outlawed or too complex or too costly to build since World War II. We also on this block have home ownership, and we have homes with accessory dwelling units as well. So back in 2018, well, back before that, around 2014, the Incremental Development Alliance, which is a nonprofit that talks about incremental development and missing middle housing, had their first boot camp in Duncanville, Texas. And so I attended that, and then they came back here in 2018 as the guest of Tommy Paccello, who was at the time the leader of the Memphis Medical District Collaborative. And so we had this particular plot of land that is six single-family lots, and, you know, we were having this conversation about what could go there. And it was like, well, why don't you take a look at what you can do? And so I knew we didn't want to do six single-family homes. It seemed like a waste of an opportunity. I knew I wanted to build a cottage court. And so that was the first thing we worked on. And then we tried to figure out, well, what else should we do? So we walked around the neighborhood and noticed that, you know, there are corner commercial buildings. Fortunately, for Greenlaw, we still have a lot of historic housing stock, which is wonderful. So we said, you know, we'll just take these corners and put live-work buildings on them. And then the fourplexes were sort of the last element to come together.

Shane Phillips 11:43
So you felt like, you know, just building six single-family homes was just not a good use of this land and decided to do something different, do something more diverse, more different kinds of options, including some, you know, live-work or potentially commercial space. When did you start running into problems?

Andre Jones 12:04
Yeah. So the very first issue we ran into, our cottage court was phase one of Malone Park Commons. And we built 11 cottages on two single-family lots. So originally there were supposed to be just two single-family homes there. So we were almost finished with all 11 cottages and we're getting our plumbing final inspection. And the plumbing inspector comes up and says, hey, you need a backflow preventer. We and the plumber that was there was like shocked, what do we need that for? So apparently our utility and the state had adopted a cross-connect program in 2017, a few years earlier that apparently no one really knew about and we were first. Any construction where more than two units were sharing a meter had to have a backflow prevention device. So our plumber went and dug underground, put a backflow preventer in ground. Another plumbing inspector came out and said, oh, that has to be above ground.

Shane Phillips 13:08
And just to be clear, a backflow preventer is, I mean, the name is somewhat self-explanatory, but it's preventing water from flowing from the house system back into the utility system.

Andre Jones 13:21
Back into the potable domestic water. And so it was total shock that we put it underground. Then he said, no, this has to be above ground. Different inspector, like, okay, we put it above ground. But mind you, this was happening right before people were scheduled to move in. So just total shock to us and thousands of dollars in a last minute expense.

Shane Phillips 13:44
And you probably could not get a certificate to occupy it until this was all completed.

Andre Jones 13:49
Yeah, no, we couldn't get a certificate of occupants until this was completed. So that was our first foray into unidentified missing middle housing regulations that can really be complex and costly.

Shane Phillips 14:01
Yeah. And I think it says something that this regulation was enacted a few years earlier, and yet so little middle scale housing is built that you were maybe the first one to run into it. So that was the first big issue that you ran into, and it was on the first phase of the project. And did these problems just keep cropping up? Once you had established this relationship, we'll get into a summary of all the kinds of issues, but tell us a little bit more about how you guys came to collaborate.

Andre Jones 14:33
Well, so John helped us with that first issue. And then as we move forward with completing the construction of the cottage court, John reached out and said, hey, would you like to be a part of the building code advisory board here for Memphis and Shelby County? Because John, thankfully, is on the progressive side of moving towards creating more general density here in Memphis. He can talk more about the Memphis 3.0 build up, not out plan, but that was his vision to move Memphis toward more diverse housing types. And so once he invited me to join the Memphis Shelby County Building Advisory Board, then we were able to work more together on these particular items that we kept running into when we started working on the live-work buildings, the fourplexes. Obviously there was a lot to do with fire sprinklers, fire alarms, utility connections, all these things that just kept popping up that we just weren't familiar with. Our background was single-family residential. And so once you get into doing more than two units, the whole world just seems to go crazy like they don't understand what's happening. And I say that because once you get past that second unit and you're not at like 40 units, then people really just didn't know what to do with us at the time.

Shane Phillips 16:01
Let me bring you in, John, here. And I guess just to observe first that it sounds like you were already thinking about these issues even before Andre and his team started on this with the local plans and this grow-up-not-out effort and the advisory board, all these things. Can you tell us a little bit about where you stood and where the city of Memphis stood when this was all kicking off?

John Zeanah 16:25
Yeah. Thank you, Shane. So one of the things I think is important for your audience to know about the structure of the planning department here in Memphis, we're a little bit unique, at least for a large city, that we have our planning department, zoning department, and building code and inspections all together in one unit. That's a little unique. Most larger cities don't have, particularly building codes and inspections associated with their planning department. And more importantly, the director of planning typically isn't overseeing the building official and the building codes and inspections department. So I think that was an advantage that we had. Andre talked about a lot of the ideas for ultimately where we landed in helping to not only support his project but projects like it. Coming from our comprehensive plan, which Memphis 3.0 was our city's first comprehensive plan in nearly 40 years, a lot of the way that Memphis grew, particularly in the 1900s, was to push further and further out to particularly the eastern and southern fringes of the city. The physical size of our city grew to around 340 square miles, which for a city that has roughly 625,000 to 650,000 people, that's a huge footprint. I mean, we're about six or seven times the size of Boston or DC in terms of land area.

Shane Phillips 18:02
Right. And about the same population.

John Zeanah 18:04
And about the same population. Right. Yeah.

Shane Phillips 18:05
Los Angeles is four million people, but it's 470 square miles, so only, you know, a third larger or so.

John Zeanah 18:12
Yeah, right.

Shane Phillips 18:13
That's a very spread out city.

John Zeanah 18:15
Well, and so when we were putting together the comprehensive plan, we knew we were going to have to change that trajectory and focus building up our city. Memphis is a slow to no growth city. You know, we don't have the advantages of, let's say, our neighbor in Nashville, that we don't have the growth pressures that they do, the population boom that they do. So as we approached what reinvesting, rebuilding our city looked like, we knew that it was going to have to require a mix of public and private levers, but in very concentrated places. And so the strategy of our comprehensive plan is to build around key nodes, we call them anchors in the plan, downtown, of course, being one of those where we wanted to try to concentrate walkable density to build up those nodes kind of one area at a time. And a big part of that was incorporating the missing middle, especially in the residential areas, you know, just on the periphery of mixed use or commercial focus centers or anchors. As we started going through, you know, a lot of the policies of how we deliver the missing middle, zoning obviously came up pretty quickly as being an issue. That was a topic that was being discussed already across the country as something that had to happen in order to really start moving forward missing middle, making missing middle allowed through zoning was necessary. But you know, getting to know Andre, understanding what he was going through in his own project, it dawned on us pretty quickly that we can't just stop at zoning, because there are a lot of code hurdles that obviously can be just as, you know, spell just as much of disaster for missing middle projects than not having the zoning in place.

Shane Phillips 20:10
Yeah, in some ways, it seems like it can be a worse problem because you get the false sense of security with the zoning that I can build this missing middle housing density, and then you get into the actual process of planning out the building, designing things, or even worse, getting to the point where you're under construction and realizing, oh, there's all these other problems or rules in the way that make this, you know, technically legal form infeasible or just impossible.

John Zeanah 20:38
Yeah.

Shane Phillips 20:39
Well, and I appreciate that you brought up growth pressure and Memphis's different positioning than a place like Nashville or Los Angeles for that matter. It's something I often bring up a point I always make to the cities that are struggling with growth pressure is that compared to the alternative, it's a pretty good problem to have. A lot of places that are not growing and you know, are really struggling with that would happily deal with the challenges that come with trying to accommodate a growing population rather than deal with the challenges of a shrinking or stagnating population. And you know, I think the Memphis case really also illustrates it's an environment where middle housing, this lower density, everything from townhomes up to maybe a six or eight unit apartment or condo building is even more important because you don't necessarily have the market, the incomes, the rents, and sale prices to support higher density projects that just cost more per square foot. So you really have to, if you're going to add housing, it has to be in that lower density range where you're on the one hand kind of sharing land costs and infrastructure costs. And the other hand, you're not getting into building with lots of concrete or steel or just complex systems and structured parking and all that.

John Zeanah 21:56
That's absolutely right. You know, but at the same time, as Andre alluded to, you know, when you're working within not just the building code, but a lot of these other additional regulations that the report talks about, you know, once you cross that line from two units to three units, the whole world changes, I think is what Andre said. And that really is true. And so you've probably covered this already with your series that you have the artificial divide between the international residential code at two units and then three units regulated out of the international building code, but a lot of other standards follow that same divide. So when you start to look at local standards related to stormwater regulations or utility regulations, many of those local laws or standards just follow that same divide. And often, you know, the thing that I always try to emphasize is there's nothing wrong with having elevated standards with more occupancy. The problem comes in when you don't think about it in a proportional way. So if you've got codes and standards that are written the way that we do in much of America where, you know, you have that artificial divide between two and three units, what you end up with is this significant jump in cost to deliver a project that is three units and even, you know, up to 20, 40 units because those same buildings are often having to follow the standards that were written for 200 unit buildings or greater. But in reality, they're much closer to one and two unit buildings.

Shane Phillips 23:42
Yeah. Well, let's get into some of these specific issues that come up in the report and you have different categories of them. I first want to just share some numbers from a Turner Center report from last year where David Garcia and Metcalf estimate that, and this is just in California, but I think is probably roughly true elsewhere. Construction costs are about 10% higher per square foot for fourplexes compared to duplexes. And the cost per square foot for a 10plex is about 16, 17% higher than a duplex. These are very rough terms, but I think, you know, close enough to be illustrative at least. So what are the main things in the codes that are driving those costs differences? For now, I think we can just consider this an overview and help us understand why a building with eight or 10 units might cost more per square foot than one with four units, even though they're both subject to the commercial code. So, you know, not only do we have this divide between two to three and above, but then it seems like even within this kind of middle range from three to 10, there's some variation to despite being on the same code. So what's going on there and what are the major drivers here?

Andre Jones 24:56
Well, sure. I don't mind jumping in on the three and fours. So the major issue is, you know, fire sprinkler requirements. And then we have potential fire alarms. We have the backflow prevention that's required for the state cross-connect program that is governed by our local utility. We have the potential structural engineering required for not only the building itself, but then we have engineering requirements for plumbing, electrical, mechanical. You know, when you're doing single-family residential, you don't have to have engineered plans for those. It's a design build. You know, you start construction, and then the plumber or the mechanical contractor comes in and says, hey, I'll run this pipe here or I'll put this duct here. So in many cases, there are no plans for that. And so if you have to pay to have engineered plans laid out even for electrical before you start, you know, that's pretty complex and costly. To go along with that, if you are building mid-block, you know, one of the requirements is if you have a fire sprinkler, you have to have a fire hydrant within 100 feet. If you don't have a fire hydrant within 100 feet of your building, then you have to have a new fire hydrant installed. I have no idea how much one of those costs, and I don't want to know. But you know, one of the fourplexes we built here was 110 feet from a fire hydrant, and the sprinkler contractor had to request an exception for that, and he said he barely got it. So just imagine building a fourplex mid-block needing the fire sprinklers, fire alarm, separate fire protection connection from your utility, potentially two backflow preventers, one for the domestic water, one for the fire protection connection, you know, and then having MEP, mechanical electrical plumbing, engineered plans, structural, seismic, all those things just for three units before you can even come out of the ground is just, you know, it's pretty complex and costly to have to deal with that. Yeah, absolutely. I can quickly add to that, you know, if you have a building that's like a fourplex, you have to have it designed where you can have a riser closet for the sprinklers, for the sprinkler riser, which is also a design consideration. So there are other design considerations as well.

Shane Phillips 27:25
All right, so I think we've summarized some of these different categories of code barriers, and I want to get into each one or as many of them as we can and hear about what's going on. We'll start with automatic sprinklers. In our previous episode, Jesse Zwick quoted Stephen Smith as saying, I think only somewhat jokingly quote, the IRC is for homes for Americans to live in, the IBC is for sprinkler contractors to make their money, unquote. Whether or not you agree with that statement,

John Zeanah 27:51
I agree.

Shane Phillips 27:52
Oh, well, there you go. Well, so accepting that as fact, sprinklers are definitely a big cost, and it's not just about the sprinkler equipment itself I learned from this report, but also the indirect cost of infrastructure upgrades that a project may need for sprinklers to actually work as intended. But let's just start here to kind of set a baseline. What are NFPA standards and the requirements associated with NFPA 13, 13R, and 13D? And then which kinds of projects are subject to each standard? We don't have to get into super detail on here, but just kind of distinguishing these different standards and the types of projects that they apply to.

John Zeanah 28:38
Yeah, so just to give a high level overview, as you said, there's three different standards published by the National Fire Protection Association, NFPA, on sprinkler systems. So the NFPA 13 is the most comprehensive, and that's required in most of, since we're talking about housing, most multifamily buildings, large multifamily buildings will require the NFPA 13, but these are also required in most commercial buildings too. The other thing too is, like I said, they're the most comprehensive system, so they're covering essentially all areas of the building. Not only rooms, but also attics, closets, small spaces. And so the idea is that they are designed to control a fully developed fire. There's direct connection that is required to a water supply. There is a fire department connection that's required. We'll get into alarms in a little bit, but central station alarms are typically required. The infrastructure is often black steel pipe that's running between sprinkler heads. So these are very robust systems. So the next level down is your NFPA 13R, and these are scaled down for residential occupancies up to four stories. So you will find these also in multifamily and condominiums. They don't cover certain concealed spaces. I mentioned attics earlier as an example. They don't have the type of water demand of the comprehensive 13 system. There is a requirement for fire department connection. There is a requirement for separate water connection. They do trigger these additional requirements like Andre talked about of the backflow preventer, alarm and monitoring. So 13R can still be fairly expensive systems. And then finally 13D, which is the least expensive, least comprehensive system are designed for one and two family dwellings as well as single family townhouses. Now of course, most States in the United States have exempted one and two family dwellings from sprinklers. So you don't see a lot of 13D systems out in the wild, but it is a standard that is published by NFPA and they're designed to protect lives within, you know, again, smaller residential buildings. So features of those that are a little bit different is instead of having a separate water connection, they can run off the domestic water line. They have a lower sort of water supply requirement as a result of that. They also cover fewer areas and typically areas of the home where fires are more likely to start. So the kitchen, the bedrooms, that sort of thing. NFPA 13D systems also allow for PVC, PEX pipe to run between sprinkler heads. So the materials are not as expensive as well. You don't have to have backup power. You don't have to have required alarm. You don't have to have fire department hookup for 13D systems. So they're all in all a much less expensive system, but still provide a value in terms of life safety from the perspective of fire protection.

Shane Phillips 32:06
Yeah. And roughly speaking, how much do these different standards add to the cost of a unit? It might be helpful first just to talk about the direct costs, the things that any project would have to provide under these different standards and then some of the indirect costs that you might end up with, depending on your circumstances, maybe, you know, the kinds of things like having to install a new fire hydrant, for example.

Andre Jones 32:31
Yeah. So I can speak to what it would take to install sprinklers in a four-unit 13R, and then we can probably extrapolate, you know, if we're going up to eight or whatever the number of units. But, you know, it's roughly $14,000 for a $13 sprinkler system. You add fire alarm, you add the backflow preventer, it's probably around $4,000, $5,000. You have the separate fire protection connection, which our utility charges around $2,500 for. And so you end up getting into some real numbers when you're talking about just that particular component. And so if you're only, if you only have three units or four units, that's not a lot of units to spread those costs around. You know, it's much easier if you have 40 units to spread that cost. And then from an operating expense perspective, you probably have $300 a year in inspections for the backflow preventer. You have the monitoring and inspections for the sprinkler system, which is probably around $1,400 a year, depending on how, you know, what components you use, the potential for freezing.

Shane Phillips 33:50
I mean, just pulling out that $1,400 per year number for one thing, that sounds to me like that's probably close to, maybe a little lower than, but close to one month of rent for one of these three or four units in these buildings.

Andre Jones 34:06
Oh yeah, that's spot on. Absolutely correct.

Shane Phillips 34:09
So just this one thing that I've already forgotten what it was that costs that much money, you know, one in a long list is already taking up, if you've got three units, that's 1 36th of your revenue in a year.

Andre Jones 34:24
Absolutely correct.

Shane Phillips 34:25
Well, yeah, this is, there's a lot going on here. And as you talked about, Jon, right now, 13R is the standard for smaller multifamily up to four stories. And you recommend only requiring 13D. Tell us why. I mean, obviously the cost savings, but give us a little explanation for that. And also maybe a bit of what we know about the relative safety of 13R versus 13D to the extent this has been studied.

John Zeanah 34:58
Well, I want to make sure that I say the audience for my report was really directed to planners interested in getting involved with helping make changes to building code and other regulatory standards in order to support more construction of middle-scale housing in their communities. And, you know, ultimately what I am encouraging planners to do is, is to use this report as a way to get, you know, educated a bit on some of these issues in order to sit down and have a thoughtful conversation with their building officials and their fire officials on these different alternatives. So, you know, really the recommendation is, as you're thinking through what requirements you might want to put on the table for consideration with your building and fire code officials, think about what can be treated as more proportional standards for smaller multifamily. And so the recommendation of using 13D for structures with more than two units is a good example of something that we started with here in Memphis. So when Andre and I started working together, it was really about smaller multifamily. We were focused more on three to six units. Andre's doing a lot more around three to four units. And one of the first things that we attempted to do was to get three to six unit buildings into the residential code. That met with some opposition actually from the state fire marshal, which led to some legislation that maybe we'll get a chance to talk about in a moment. But since that legislation and, you know, since we've had to kind of backtrack and reset our standards, you know, based on what was able to get through the General Assembly, we've sat down in front of the state fire marshal again to talk about a lot of what we would have gained by moving small multifamily into the residential code. And using 13D was one of those things. The thought there is, and ultimately, you know, these are discussions that we had, again, not only with our code officials, but also with the state fire marshal and with our local fire official, is the 13D system is designed to be effective, preventing fatalities or injuries when there are residential fires, particularly in areas of the home where the vast majority of fires begin. So like I said before, bedrooms, kitchens, living rooms, those are all covered by 13D. You know, smaller buildings also have fewer occupants. There are also fewer, or excuse me, shorter travel distances to exits.

Shane Phillips 37:59
Yeah, they might have their own private entry and exit versus a larger building where you might have a shared entry.

John Zeanah 38:06
Right. So those are other factors, but also other standards that can be considered as you're thinking about how to strike a balance by moving off of 13R into 13D for smaller multifamily. So there are a lot of life safety features that are still included with 13D, but then there also are a lot of additional costs. And like I said, the 13R system is meant for multifamily up to four stories. But in a building that's three units, four units, six units, eight units even, those are usually going to be two-story buildings, relatively small, a lot of times, you know, under 10,000 square feet and could work under 13D as sort of a proportional approach to thinking about how those standards might be applied differently.

Shane Phillips 38:59
Yeah, yeah. And Andre, I see you wrote a note here on wanting to comment on something in my notes document. I had taken note of something. I actually learned about this report through Eric Kronberg, I apologize that I did not look up how to pronounce your name. But he's a listener, a designer architect in Atlanta, I think somewhere in Georgia anyway, who's always sharing things about our podcast, we really appreciate you listening. And the work you've done to spread the word, Eric, but he had a post about the changes made in Memphis and how, in some ways, shifting to the international residential code, it was, you know, presumably in dialogue with these code officials or fire officials. In order to use the international residential code for a three or four or six story or six unit building, you have to add some extra fire safety measures in other ways. And he was commenting on how what you have to do to comply with that might actually be as expensive or complicated as just building to the commercial code in the first place or offsetting a lot of the benefit. And so, you know, I wonder, Andre, if that's kind of what you were interested in talking about, that's something I'm very interested in, is how you strike that balance.

Andre Jones 40:16
Yeah, so fortunately, you know, I've met Eric and we've had quite a few conversations I even visited with him in Atlanta for a bit. And so I think we have two different scenarios here. So I am very fortunate to have John Zeanah here, someone who is interested in making positive change toward, you know, allowing missing middle housing to be less costly and less complex to build. And so our, you know, my goal here is to, along with John, to help try to actually change the codes to make this possible. Now I know that there are other jurisdictions that may not, you know, have a John there who is willing to actually take a look and listen to what the challenges are around missing middle housing. And so that's where I think Eric's work is so fantastic because Eric is providing options for those who don't have the benefit of having a leader like John who is willing to, you know, go forth and partner with you to make change. So we need to have those options that Eric is discussing and sharing for those who don't have the benefit of being able to foster immediate change. Now the trade-offs, you know, John will talk about this in more detail a bit later. But yes, if we don't use sprinklers, we have to increase our fire separation. But I would say to that, there are some, you know, ancillary benefits. I personally believe that there are, you know, having more passive methods in the construction industry are beneficial.

Shane Phillips 41:59
Passive as in walls that stand up to fire, you know, it takes at least two hours to burn through rather than active is like we're going to throw water on it via sprinkler.

Andre Jones 42:08
We're going to throw water on it because you do have those instances where the sprinklers could fail or the pipes could freeze during the winter or then you have all these other potential issues that you have to deal with when you have active...

Shane Phillips 42:23
Or the sprinklers go off when there's not a fire or not a serious fire and you just cause a lot of damage.

Andre Jones 42:28
Yeah, absolutely. And so, you know, I think our push towards trying to build these missing middle building types without the need for these active systems is a plus. But I think attacking it from both ways is surely the best scenario.

Shane Phillips 42:45
Yeah. Yeah. I think there's a principle where you want to reduce costs without sacrificing safety. I think that's sort of the ideal, but maybe even if you're not reducing costs that much, but you're able to shift from active to passive without sacrificing safety, that's maybe on its own worth pursuing if that's all you can achieve. I want to make sure we continue on here and sticking with fire safety for a minute, John, you had a line in the report that I think is worth talking about. Referring to the difference in fire alarm and detection requirements between the commercial and residential codes, the IBC and the IRC, you say, quote, more importantly for small developers, it is an additional contractor or trade and a coordination task that would not exist in a duplex project. It requires electrical drawings, possibly a separate permit and annual inspections. I feel like this is something we tend to overlook when we focus solely on the direct costs of these requirements. It is definitely not something I really thought about before reading this report. Things like delays caused by coordination problems and ongoing service or inspection requirements do impose real costs, but they might not always show up in a pro forma. So can you talk about that and maybe the broader challenge that this alarm requirement is just one example of, and again, Andre, feel free to jump in here too.

John Zeanah 44:10
Yeah, I think this goes back well to Andre's point about how passive systems can work much better or be much more effective than active systems. They may be just as effective in terms of safety, but they're not all of these additional requirements that get tacked on when you have a lot of these additional costs and delays that are associated with active systems. So just with the sprinkler system, for example, we've already talked about the additional requirements for the fire department connection, for the separate connection to water, the backflow preventer that's required on a sprinkler system, for the alarm, the additional requirements for the alarm itself, for the electrical, for the testing, for the ongoing monitoring costs. And then there's just additional things that start to stack up. And when the alternative is another layer of rock, it starts to look a little strange by comparison that, again, once you go from two units to three units, we've got this whole different world of requirements that we're subjecting our small and really mid-size multifamily to. A lot of what I've learned about this topic that went into this report, I learned working with Andre because of his firsthand experience and not just firsthand experience with we're trying to get through the building code together and understand what are the requirements of the code, but a lot of surprises that folks like Andre get along the way as they're trying to get a project done. Those surprises, not only they add to the direct costs of components and designs required and permits required and inspections, but also the indirect carrying costs of having to take a longer period of time to get a project done just to add another one or two units to our project. I think one of the lessons for me in all of this and that I tried to convey through the report is there's an entire web of regulations that bind housing once you get up to three units that are much more difficult for the small multifamily to get through not just the direct regulations and the steps of working through those regulations, but the amount of time that it takes for a project that is only adding, like I said, one or two units more than a duplex, for example. And so I think when we think about what's holding back missing middle in a lot of cities throughout the country, it's not just that our zoning codes don't allow them. It's that all of these other regulations really disincentivize taking that step from two units to maybe three, four, or even more, because the benefit to the builder, the developer just doesn't show up in the pro forma because of all of these additional costs, but also steps that are involved.

Shane Phillips 47:31
Yeah. And I suspect there's a feedback cycle going here too, where the fact that in many places, most places, this scale of development has been effectively illegal almost everywhere, that as the codes have been revised and updated over time, the fact that building a three or four unit or 10 unit building just got more and more complex and the requirements were out of scale or proportion to the danger or risk or anything like that, it just wasn't on anyone's mind because, well, I can't legally build those kinds of projects anyway, so it doesn't really matter. And now as we're actually making these things legal again, bit by bit, it's raising its head as a real issue and we're recognizing what we've done over the past few decades.

John Zeanah 48:22
I think that's a big part of it. Another part of it too, quickly, is just a lot of the standards that we have, particularly for single family, have been created as exceptions to what the more universal standard is. So the IRC, for example, is created as an exception for single family to the building code. I just don't know that these exceptions have been thought through in terms of, if we were to create exceptions for three family, four family, up to eight or 10, what would those look like in proportion? I just don't think that work has been done.

Shane Phillips 49:01
Andre, you had something to add?

Andre Jones 49:03
Sure. I'd like to expound on what John was saying. So I think just the confusion around the multiple building codes and how some potentially conflict with each other, folks may not actually be knowledgeable of the different codes. We've had even the trades. I called the fire department about thinking it was our first sprinkler plan review and the first question they asked was, well, who was your fire designer? And I'm like, what is that? And then the sprinkler contractors may not necessarily be knowledgeable about whether you can mix these different sprinkler types. We've had one that said, no, you can't. We had one that said, yes, you can, and actually performed a conversion for us. So there's just a lot of confusion out there about the different codes and the way they're interpreted.

Shane Phillips 49:57
Yeah.

Andre Jones 49:58
We had a bunch of surprises before. I didn't mention a couple that I probably should later on I may address quickly, but yeah.

Shane Phillips 50:06
Sure. Sure. Well, I am still an amateur. I'm early in my journey as a building code sicko. And so your mention of the international existing building code was my first time even hearing of it. It wasn't the focus of your report by any means, and we don't really have time to get into any detail with it. Could you just quickly summarize what kinds of buildings this applies to and why you think planners and policymakers should pay attention to it?

John Zeanah 50:35
Yeah. So to quickly summarize, it applies to existing buildings. A lot of what we've talked about is under the international building code, the international residential code, really the subject of focus is when we're building new, what standards of those projects subjected to. But there are a lot of instances in cities like Memphis where you have builders that are taking an existing building and maybe it's been vacant for some time, maybe that there's a plan for a change of use. And so if someone's trying to build, let's say, let's stick with three and four family, they're going to be looking at what standards are required to convert that existing building. And so the international existing building code is going to come into play there. Why should anybody care about that? So if you, for example, if you're listening to this, you're a planner in a city like Memphis that's been largely developed, you have a lot of existing building stock. It's not economical to just simply tear down buildings and start all over. If you're in a city that is trying to create some gentle density by allowing in your zoning code, for example, that single family houses of a certain size can convert by right in your zoning code to a triplex or a quadplex, chances are the folks who are doing those projects are going to find their way into the existing building code. And so, Shane, you called yourself an amateur on this, and again, this is a big reason why I wanted to do this report is I think planners are mostly all amateurs when it comes to the building code. It's not in our typical domain, but more and more planners are starting to understand the value of working in the building code in order to advance goals of enabling missing middle housing in their communities. And so I included it in the existing building code in the report just to make sure that as planners and local officials are trying to think through this in their own communities, they remember it's not as simple. It's not like just updating zoning. You have to think about not only the building code, but how the building code connects to all of these other related codes, like the existing building code, like the fire code. So, you know, it's not enough to make a tweak to the sprinkler standards, for example, in the building code and then not turn around and do something in the fire code. So anyway, so that's kind of what the existing building code is and why it's important for local officials to keep it in mind as a regulatory barrier to some of the goals that communities have now related to missing middle.

Shane Phillips 53:38
So we're running out of time and I want to make sure we reserve most of the rest for talking about more of the actual process of getting these changes done and, you know, revising codes, working with your local planners and your local developers and others. So I just want to, I'll quickly summarize and say stormwater detention and retention is a big issue in the report. You have a lot to say about it. I think the same logic applies here, just that the standards that might make sense for a sprawl subdivision with a hundred units just do not work for a 5,000 or 10,000 square foot parcel or even a parcel of a few acres potentially. And so, you know, one of the recommendations you have is to use in lieu fees as an alternative. I think that's a very effective solution for this problem in particular, in part, because you can actually take that in lieu fee money and invest it in bigger projects that get you much more stormwater detention or retention for every dollar spent. So I just want to put that on the table and direct people to read that if they want to learn more. It is important. You also talk about utility infrastructure. We've touched on that a little bit. I think the biggest one definitely is water in its various forms. And some of this is related to sprinklers, but some is not. You have more in here, you have stuff on parking standards, not just minimums, but actually the design of parking and driveways and so forth. You talk about property taxes and how in many places, commercial properties, which might include a three unit or more apartment building, could be considered a commercial property and taxed at a higher rate, and that's going to discourage it. So there's lots of things in here that I hope people take a look at this report and don't just rely on this conversation. But as I said, I want to get into how you did these things, how you made Malone Park Commons possible and building off of that success and not just leaving it at that and kind of forgetting the lessons from that experience. So let's start here. From what I understand, Memphis was one of the first cities in the US to raise the dwelling unit threshold for using the residential code rather than the commercial code. I don't know. Maybe it was the first. You can tell me if you have a sense for that. Where did that idea come from? And for these various issues that we've been talking about today, were there other cities or even countries that you look to for inspiration or for lessons about what to do or what not to do?

John Zeanah 56:10
So I don't know if we were the first. When we started working on this, I was not able to find any peers, I'll put it that way. So yeah, we didn't really have a lot to go off of in terms of inspiration or lessons from other communities. Where it came from, honestly, was, again, going back to the comprehensive plan and having a goal of wanting to support more middle-scale housing, particularly in areas where we needed to redevelop with walkable transit-oriented density around those anchor communities. Knowing that we needed to do more than just change the zoning in order to get that type of construction enabled in our community. One of the things that we looked to was a building type classification that was actually in our zoning code that we called the multi-family large home that was up to six units. That's the reason why we landed on six was it was called out as a specific type of, you know, small plex home that was subject to different zoning restrictions than, say, apartments. And so it was already within our zoning regime, some baked in advantages for up to six units within one structure. I went to the building official at the time and said, I would like to look at what a standard could look like in the building code that treats these multi-family large homes, you know, single structures with up to six units, treats those multi-family large homes more like a single family home. I want you to think about what an exception would be that you would approve every time that exception were presented to you as the building official. And if you were willing to approve it every time, let's write those standards, those exceptions, just into the code. So that's how we came up ultimately with the idea of the standards and the IRC give us a lot to go off of because they are more prescriptive standards that are meant for smaller residential structures. We landed on 5,000 square feet as the maximum size of the building that we would consider as a part of raising that dwelling unit threshold under the residential code. A lot of the logic there was that, you know, we had plenty of places, particularly in the far flung suburbs of our county where 5,000 square foot single family homes were being built that had, you know, eight, 10 bedrooms, not too different from a four unit building that had eight bedrooms and were also under 5,000 square feet.

Shane Phillips 59:04
Yeah. Just some more kitchens basically.

John Zeanah 59:07
Yeah, exactly. That's, that's really it. It's a difference in kitchens. So that's where it came from that Andre mentioned at the beginning of the show about his involvement with the Building Code Advisory Board. We have a local group of builders, architects, structural engineers, mechanical engineers, fire protection engineers who all participate on that board and help our building department come up with sensible alternatives to local amendments to the international code. And so it was vetted through that group and Andre was on the board when that amendment went through. And honestly, it probably generated the most robust discussion of any amendment that I can remember that's gone through that board. But there was a really good, I think, logical back and forth between, you know, some of our, particularly our engineers and our builders about, you know, what's really taking place in what's different about a large single family home and maybe a quadplex. And having Andre's voice, someone who's done it, was really instrumental in that. One of the recommendations that I have in the report for planners is to bring together a similar group like our Building Code Advisory Board that represents different disciplines because chances are structural engineers, architects in your community, they haven't thought about how these standards scale to small multifamily either. And so having those diverse perspectives on a local group that includes engineers, architects, builders, fire officials, building code officials, and planners, I think really helps to better understand what these projects actually are and how they get built.

Shane Phillips 1:00:51
And this is really a follow up to that question, but just kind of building on what you just said, John. I'm obviously a big fan of how you two and this broader community have worked together to solve some of these codes and standards problems without sacrificing safety or quality. And I guess I want to go back really quickly and just note that the IRC up to six units requirement is not just saying we're moving that threshold and all the standards that apply to one and two unit buildings now apply up to six. Now you have really something that's sort of in between, right? Like there's some additional requirements where you are trying to achieve that balance. You know, there are differences between a three or four or six unit building than a one or two unit, but they're not as great as the differences between a one or two unit building and a 20 or 100 unit building. And so the codes should better reflect that. So just want to underline that point. But on process on how other places do this, I'm curious to hear more about what you learned from the experience and what you would recommend to others hoping to mimic the success. So I hear you on bringing these different parties together. You know, I think a point I want to make here is just that it's important to recognize this is a two way street and maybe more than a two way street because we're just talking about planners and developers, but these building officials, code officials, fire officials also are going to play a big role. Just speaking for yourselves, maybe we can have each of you share some advice for the people on each side of the table. So Andre, that'd mean advice for the folks in the development community like you, but also what it's important for planners and elected officials to bring to the table so you can work together productively. And then John, the same question for you, but flipped around.

Andre Jones 1:02:42
Yeah. So I would say from a development and builder perspective, just don't take what trades or code enforcement officials tell you at face value. I, for one, we mainly built single family homes and when we got into missing middle, it was like, you know, trades and code officials would tell you, this is what you have to do. And for me, it just wasn't logical, it didn't make sense for certain requirements. And so I started actually reading the building codes. You get pretty complacent when you're just dealing with single family, but when it starts to get more complex, you know, we really haven't delved into the codes like we should. So reading the international residential code, the international building code, international fire code, joining the international code council and the national fire protection association and actually requesting interpretations, I had to do all of that to kind of get through what I call this work to learn versus work to earn project, which was my long bar commons. And then on the other side of it, just for the plan reviewers, inspectors, code officials to be willing to actually listen and think about what the builder developer is presenting to you. Don't just say, this is what the code says, because sometimes that's not what the code says. That's your interpretation based on just, this is just what you've been doing for a long time. And so just being thoughtful enough to listen, I would also recommend that plan reviewers, inspectors, code officials, inspectors will do it, but most of the time plan reviewers or people in code enforcement don't actually come and do site visits. So if you're looking at a 2D plan, if a builder is saying that, you know, we really shouldn't need NFPA 13 R sprinklers here because this is so many square feet, is this use? You know, if you're just looking at a sketch or a plan, that may not make sense to you, but if you actually go on site and see it physically, then that might change your mind. So more site visits, I think as well, I think that is probably where I would start from a recommendation perspective.

Shane Phillips 1:04:52
John, how about you?

John Zeanah 1:04:54
Yeah. So just kind of flipping it to, you know, the perspective of planners, local officials. The first recommendation that I had in the report is for planners, local officials to address middle-scale housing barriers in your comprehensive plans. A lot of what we've talked about today, many of the sort of technical regulatory challenges that a builder or developer will face when they're doing small multi-family, you know, three units and up, and certainly having a technical analysis of all of those barriers, working with an interdepartmental, interdisciplinary task force, thinking about what, how those regulations create sort of real-life hurdles to get projects done, that's incredibly important. But there are also a lot of, I'll use the word hidden again, there are a lot of hidden challenges that come up at the project by project level that even go beyond, you know, what is written in the pure text of the code. We didn't get a chance to talk about this example, but a lot of times when you've got a builder who's trying to do a middle-scale housing project on a block that might have been traditionally single-family, and there's a need to upgrade, let's say the water infrastructure for the whole street, that builder might end up getting handed the bill for upgrading water infrastructure that is affecting multiple parcels, not just theirs.

Shane Phillips 1:06:26
Right. And it might be a 80-year-old pipe that had to be replaced in 20 years anyway, but now they're stuck with the whole bill.

John Zeanah 1:06:32
That's absolutely right. Now they're stuck with the whole bill. And, you know, honestly, when that happens, a lot of those projects don't move forward, you know, because that is an additional cost that simply can't be carried on that pro forma. So if you're going through the process and identifying that missing middle housing is something that you want to see more of in your community as a result of a comprehensive plan, getting into these barriers and what it means for not only regulations, but also infrastructure is incredibly important for cities to be able to plan for how they achieve the goals of enabling missing middle. It's not, you know, going through all of these regulations is important. It's more important to think about this on the front end in your comprehensive plan, to understand everything that goes into being able to enable these building types that, you know, as Andre said, many of our communities haven't seen much of since World War II. So from our experience, you know, having taken it from that perspective and understanding why this was so important to us as a result of what we were trying to achieve in our comprehensive plan has really allowed us to be a lot more creative and a lot more exhaustive in our work and trying to do more for building missing middle housing in our community.

Shane Phillips 1:07:53
And just closing this out, what is it you feel like you need to see or want to see from people in the development community when they're running into these challenges? What is helpful?

John Zeanah 1:08:04
It is always helpful for me to understand what these challenges are when folks are running into them in the development community. You know, I'll say I think a lot of times developers feel like they don't need to, they don't want to bother officials like myself in many cases with some of these challenges that might seem minor by comparison. But for a lot of these challenges that builders and developers are running into that are hidden challenges or challenges that haven't been unearthed because there's just simply not as much building at this scale that's happening in your community, you know, many of these challenges just go unnoticed by local officials. And so as builders and developers find those, my advice is bring them to the attention of your local officials, even if it's something as small as, you know, the cost of sewer development charges and what that does to the pro forma of a four family project. Having that information for a local official, particularly a planner who, like I said, their typical domain is zoning, but they obviously have a goal of enabling missing middle. Having that information about all of these challenges is really useful to understanding how comprehensively communities can begin to address greater construction of missing middle and housing generally.

Shane Phillips 1:09:37
All right. We will close it out there. John Zeanah and Andre Jones, thank you very much for joining us on the Housing Voice Podcast.

John Zeanah 1:09:44
Thank you, Shane.

Andre Jones 1:09:45
Thank you, Shane.

Shane Phillips 1:09:52
You can find a link to John and Andre's work on our website, lewis.ucla.edu. Show notes and a transcript of the interview are there too. The UCLA Lewis Center is on the socials and I'm on Blue Sky @ShaneDPhillips. Thanks for listening. We'll see you next time.

About the Guest Speaker(s)

Andre D. Jones

Andre D. Jones is a small-scale developer, general contractor, and urbanist focused on creating walkable, human-scaled neighborhoods. As co-owner of Jones Urban Development, he brings 27 years of construction experience and a commitment to equitable development and generational wealth building in areas that have experienced decline. Before launching the firm with his brother Curtis, Andre worked in corporate IT and briefly as a securities broker. He holds an A.A.S. in Computer Science from State Technical Institute at Memphis and a B.S. in Business Administration/IT Management from Christian Brothers University. Andre is deeply involved in civic leadership. He serves on the boards of United Housing Inc., the Memphis/Shelby County Building Code Advisory Board, the West TN Home Builders Association, and Crosstown High School. He chairs ULI’s Real Estate Diversity Initiative Steering Committee and serves on the Unified Development Code Steering Committee. He has also served on the Board of Adjustment and the Downtown Memphis Commission.
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John Zeanah

John Zeanah, AICP is the Chief of Development and Infrastructure for the City of Memphis, Tennessee. In this role, he leads a cross-functional team of agencies responsible for planning, housing, transportation, public works, and community and economic development. Prior to this role, John served as the Director of the Memphis and Shelby County Division of Planning and Development for over seven years. Among his accomplishments, John led the development and adoption of the Memphis 3.0 Comprehensive Plan, the City’s first comprehensive plan in 40 years and winner of the American Planning Association’s Daniel Burnham Award of Excellence for a Comprehensive Plan in 2020 and a Charter Award from the Congress for the New Urbanism in 2021. John is also Principal and Owner of Interval, LLC, a planning and policy advisory firm that specializes in helping public sector clients better understand, implement, and improve their plans, policies, codes, regulations, and processes.
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