HomeMy WebLinkAbout2020-01-21; City Council; ; Overview of SB 330: Housing Crisis Act of 2019 and New Regulations on Accessory Dwelling Units@ ' . .
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Joint Special Meeting of the City Council, Planning Commission, Traffic &
Mobility Commission, Housing Commission & Housing Element Advisory Committee
Staff Report
Meeting Date: January 21, 2020
Mayor and City Council To:
From:
Staff Contact:
Subject:
Scott Chadwick, City Manager
Celia Brewer, City Attorney
760-434-2891
Overview of SB 330: Housing Crisis Act of 2019 and New Regulations on
Accessory Dwelling Units
Recommended Action
Receive a presentation regarding SB330: Housing Crisis Act of 2019 and New Regulations on
Accessory Dwelling Units.
Executive Summary
The City Attorney has worked with The Sohagi Law Group, PLC to prepare the attached memo
regarding SB 330: Housing Crisis Act of 2019 and New Regulations on Accessory Dwelling Units.
Margaret and Tyson Sohagi will be presenting this information to the City Council and
responding to questions.
Fiscal Impact
No funding is being requested at this time.
Environmental Evaluation (CEQA)
Pursuant to Public Resources Code section 21065, this action does not constitute a "project"
within the meaning of CEQA in that it has no potential to cause either a direct physical change
in the environment, or a reasonably foreseeable indirect physical change in the environment,
and therefore does not require environmental review.
Public Notification and Outreach
This item was noticed in accordance with the Ralph M. Brown Act and was available for public
viewing and review at least 72 hours prior to scheduled meeting date.
Exhibits
1. Memo re SB 330: Housing Crisis Act of 2019 and New Regulations on Accessory Dwelling
Units
Jan. 21, 2020 Item #1 Page 1 of 17
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Ill. NEW REGULATIONS ON ACCESSORY DWELLING UNITS ....................................... 13
A. Background on 2019 ADU Legislation ...................................................................... 13
B. General Provisions ................................................................................................... 13
C. Standards ................................................................................................................. 14
D. Mandatory ADU Approval ........................................................................................ 16
Jan. 21, 2020 Item #1 Page 3 of 17
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I. SUMMARY
A. Senate Bill 330
Senate Bill 330 (Skinner) (SB 330), 1 entitled the Housing Crisis Act of 2019 ("Act"),
took effect on January 1, 2020 and adopts new permitting regulations for housing that
limit public agencies' ability to deny housing developments. The Act will sunset
January 1, 2025 unless extended by the Legislature.
The primary purpose of the bill is to expedite construction of new housing. The
Legislature has declared that California needs an estimated 180,000 additional homes
annually to keep up with population growth and that the Governor has called for 3.5
million new homes to be built over the next seven years (500,000 new homes annually).
This substantially exceeds recent housing development in California, which has averaged
less than 80,000 homes annually over the last ten years.2 The consequences of providing
inadequate housing has resulted in a lack of housing to support employment growth,
imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting,
air quality deterioration, and increasing greenhouse gas emissions from longer
commutes to affordable homes far from growing job centers. (Gov. Code,§ 65589.5;
HCD Final Statewide Housing Assessment.) To accomplish the goal of expediting housing
development, SB 330 creates a number of new procedures and legislative limitations on
municipalities.
Where housing is an allowable use, the City is prohibited from enacting a law3
that would have the effect of "imposing a moratorium or similar restriction or limitation
on housing development" except to protect against an imminent threat to the health
and safety of persons in the area.
SB 330 also precludes amending development regulations to a less intensive
residential use in comparison to those in place on January 1, 2018. However, there are
several exceptions to this limitation, including concurrently adopted changes that
ensures there is no net loss in residential capacity.
1 Senate Bill 330 complete text:
https://leginfo.Legislature.ca.gov/faces/billNavClient.xhtml?bill id=201920200SB 330.
2 HCD Final Statewide Housing Assessment 2025: https://www.hcd.ca.gov/policy-
research/plans-reports/docs/SHA Final Combined.pdf.
3 This includes general plan amendments, specific plan amendments, zonmg
amendments, or a subdivision standard or criterion. (Gov. Code,§ 66300(a)(5).)
Jan. 21, 2020 Item #1 Page 4 of 17
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SB 330 also prohibits enactment of a law "establishing or implementing any
provision that: (i) limits the number of land use approvals or permits necessary for the
approval and construction of housing that will be issued or allocated within all or a
portion of the ... city," (ii) "acts as a cap on the number of housing units that can be
approved or constructed either annually or for some other time period," or (iii) limits
the population of the affected city. (Gov. Code,§ 66300(b)(1)(D).)
There are several administrative actions the City will need to take in the short
term to implement SB 330's new provisions. These include (1) preparation of a new
preliminary application process (Section 11.E), (2) an updated development application
process (Section 11.E and 11.F), and (3) historic resource determinations (Section VI.G).
B. Accessory Dwelling Units
The Legislature also passed new laws governing accessory dwelling units (ADUs)
that restrict a city's ability to regulate these units. Effective January 1, 2020, all ADU
approvals, including what are called Junior ADUs are ministerial in nature and are not
subject to public hearing. The City must allow ADUs in single family and multiple family
zones subject to limited exceptions. The City can impose certain standards on the ADUs
including parking, height, setback, landscape, architectural review, maximum size of
units, lot coverage requirements and the like. However, there are categories of ADUs
proposed in residential and mixed use zones that the City must approve including 1) one
ADU or Junior ADU on a single family lot with an existing or proposed single family
residence, subject to certain conditions, 2) one detached, newly constructed ADU that
does not exceed 4-foot side and rear yard setbacks and 16 feet in height, 3) multiple
AD Us no larger than 800 sq. ft. within areas of existing multiple dwelling structures such
as garages and attics, and 4) up to two ADUs detached from an existing multiple family
dwelling structure with a 16-foot height limit and 4-foot side and rear yard setbacks. The
City may not require correction of nonconforming zoning conditions as a condition for
these mandatory ADU approvals. In all cases, the City may require compliance with
applicable Building Code requirements.
II. SB 330 REQUIREMENTS
A. Background of SB 330
SB 330 amends the State Housing Accountability Act (Gov. Code,§ 65589.5) and
adopts new Government Code sections to create new permitting regulations for housing
that limit public agencies' ability to deny housing developments. SB 330 was approved
by the Governor on October 9, 2019 and took effect on January 1, 2020, with most of
the bill set to expire on January 1, 2025, unless extended by the Legislature.
Jan. 21, 2020 Item #1 Page 5 of 17
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In enacting SB 330, the Legislature formally declared there is a statewide housing
emergency. The Legislature further declared that in light of the severe shortage of
housing at all income levels in the state, providing adequate housing is a matter of
statewide concern such that SB 330 applies to all cities, including charter cities such as
the City of Carlsbad. SB 330 is intended to be broadly construed to maximize the
production of housing with exceptions limiting housing construed narrowly. (Gov. Code,
§ 66300(f)(2).)4
SB 330's requirements generally apply to "housing development projects," which
include residential projects, mixed use projects where at least two thirds of the square
footage is designated for residential use, and transitional housing5 and supportive
housing.6 (Gov. Code,§ 65589.S(h)(2).) Many of the new substantive limits also apply to
voter sponsored initiatives. (Gov. Code,§ 66300(a)(3).) The following sections
summarize the key components of SB 330.
B. Moratorium Limits
SB 330 creates new procedures that are applicable to a "moratorium or similar
restriction or limitation on housing development, including mixed-use development ... "
(Gov. Code,§ 66300(b)(l)(B)(i).) Moratoria generally refers to a temporary ban on types
of development or land uses. Specifically, where housing is an allowable use, the City is
4 In addition, none of the provisions in Government Code § 66300 are to be construed to
limit or prohibit a development policy that allows greater density, facilitates housing
development, reduces housing costs or imposes/implements mitigation measures pursuant to
CEQA. (Gov. Code, § 66300 (f)(3).)
5 "Transitional housing" means buildings configured as rental housing developments, but
operated under program requirements that require the termination of assistance and recirculating
of the assisted unit to another eligible program recipient at a predetermined future point in time
that shall be no less than six months from the beginning of the assistance. (Gov. Code, §§
65582G), 62253; Health & Saf. Code,§§ 50675.2(h), 5080l(i).)
6 "Supportive housing" means housing with no limit on length of stay, that is occupied by
the target population, and that is linked to onsite or offsite services that assist the supportive
housing resident in retaining the housing, improving his or her health status, and maximizing his
or her ability to live and, when possible, work in the community. (Gov. Code, § 65650; Health &
Saf. Code,§ 50675.14(b)(2).)
Jan. 21, 2020 Item #1 Page 6 of 17
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prohibited from enacting a "development policy, standard or condition'17 that would
h9ve the effect of "imposing a moratorium or similar restriction or limitation on housing
development ... other than to specifically protect against an imminent threat to the
health and safety of persons residing in, or within the immediate vicinity of, the area
subject to the moratorium ... " (Id.) While "imminent threat" is not defined in SB 330,
imminent is generally defined as "likely to occur at any moment, impending," "ready to
take place: happening soon; menacingly near," or "threatening to occur immediately;
dangerously impending."8 This provision is more stringent than the existing moratorium
provision under Government Code§ 65858(c),9 which requires a finding that "there is a
current and immediate threat to the public health, safety or welfare .... "
Such a moratorium or similar restriction on housing development is not
enforceable until it has first been submitted and approved by the California Department
of Housing and Community Development (HCD). If HCD does not approve the
moratorium, the moratorium is deemed void. (Gov. Code,§ 66300(b)(1)(B)(ii).)
As the City embarks on implementing SB 330, one question that arises is the
relationship between SB 330 and the City's Growth Management Plan (Proposition E,
the Growth Management Program and implementing regulations, collectively "GMP":
https://carlsbadca.gov/news/growth/default.asp.) The GMP states that the City shall
not approve a general plan amendment, zone change, tentative subdivision map or
other discretionary approvals for a development that could result in development above
the dwelling unit limit in any quadrant. Another provision of the GMP provides that if
the performance standards established by a local facilities management plan are not
met, then no development permits or building permits shall be issued within that zone
until the performance standard is met or arrangements satisfactory to the city council
guaranteeing the facilities and improvements have been made. (CMC §§ 21.90.045(2),
21.90.080, see also exceptions:§ 21.90.030.)
These provisions essentially call for a moratorium to be enacted under certain
circumstances. Whether a moratorium under the GMP meets the new criteria for
moratoria under SB 330, namely an "imminent threat to the health and safety of persons
residing in, or within the immediate vicinity of, the area subject to the moratorium," is
7 "Development policy, standard or condition" includes general plan amendments,
specific plan amendments, zoning amendments, or a subdivision standard or criterion. (Gov.
Code, § 66300(a)(5).)
8https://www.dictionary.com/browse/imminent?s=t.
9 See also Government Code,§§ 36934, 36937.
Jan. 21, 2020 Item #1 Page 7 of 17
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an open question. The answer may depend upon the specific factual situation, including
the performance standard at issue, whether there are impending development
applications, and whether there any specific imminent threats to public health and
safety as a result of exceedances of the GMP performance standards.
C. Limitations on Regulations for Housing Permits
SB 330 prohibits enactment of "a development policy, standard or
condition ... establishing or implementing any provision that: (i) limits the number of land
use approvals or permits necessary for the approval and construction of housing that
will be issued or allocated within all or a portion of the ... city," (ii) "acts as a cap on the
number"of housing units that can be approved or constructed either annually or for
some other time period," or (iii) limits the population of the affected city. (Gov. Code, §
66300(b)(l)(D).) While there are certain exceptions to this new prohibition, none apply
to the City of Carlsbad.10
These housing cap limitations raise questions regarding the ability of the City to
enforce (1) its residential "quadrant limits" contained in the GMP, (2) its Growth
Management Control Points, and (3) its popuiation density standards.
D. Legislative Limits on Reducing Residential Density Below that Allowed on
January 1, 2018
Where housing is an allowable use, SB 330 generally precludes the City from
amending its general plan/specific plan land use designations or zoning to a less
intensive use in comparison to those in place on January 1, 2018. "[L]ess intensive use"
includes, but is not limited to, reductions to height, density, or floor area ratio, new or
increased open space or lot size requirements, or new or increased setback
requirements, minimum frontage requirements, or maximum lot coverage limitations,
or anything that would lessen the intensity of housing." (Gov. Code, § 66300(b)(l)(A).)
10 Government Code § 66300(b)(l)(E) provides the explicit exceptions to these
provisions; however, these exceptions are inapplicable to the City of Carlsbad. This subsection
exempts regulations adopted before 2005 where the City is located . in a "predominantly
agricultural county." The exceptions listed under Government Code § 66300(g} are likely also
inapplicable. More specifically, this subsection states that § 66300 "shall not be construed to
void a height limit, urban growth boundary, or urban limit established by the electorate, provided
[the regulations are not less intense than the development limits in place on January 1, 2018]."
Jan. 21, 2020 Item #1 Page 8 of 17
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There are exceptions to this limitation, including (1) concurrently adopted
changes in other development standards, ensuring no net loss in residential capacity,
and (2) amendments to mobilehome park standards. (See Gov. Code,§ 66300(i).)
E. New Preliminary Application Process and Prohibition on Applying New Fees and
Exactions after Submittal
The City is required to create a preliminary application checklist or to utilize a
standardized checklist prepared by HCD. (Gov. Code,§ 65941.1(b)(2).) HCD has not yet
prepared the standardized checklist and indicated that this checklist will not be available
until the end of the first quarter of 2020. The checklist can only include the information
provided in Government Code§ 65941.l(a) (1)-:-(17). The City may not require any
additional information in the preliminary application. (Gov. Code,§ 65941.1(b)(3).)
This preliminary application is a new first step in the planning process, to be
followed by the development application process already required under Government
Code§§ 65940, 65941, and 65941.5; CMC § 21.42.050 [Use Permit Applications]. (Gov.
Code,§ 65941.l(d)(l).) The City is not required to provide an affirmative determination
regarding completeness of a preliminary application. (Gov. Code,§ 65941.1(d)(3).)
SB 330 precludes the City from applying any new 11ordinances, policies or
standards" adopted after submittal of the preliminary application for a housing
development project. (Gov. Code,§ 65589.5(0)(1).)11 11[0]rdinances, policies, and
standards" includes general plan, community plan, specific plan, zoning, design review
standards and criteria, subdivision standards and criteria, and any other rules,
regulations, requirements, and policies of a local agency, as defined in Government
Code§ 66000, including those relating to development impact fees, capacity or
connection fees or charges, permit or processing fees, and other exactions. (Gov. Code,
§ 65589.5(o)(2)(E)(4).)
These limitations under Government Code§ 65589.5(0)(1) overlap iii part with
the new limitations under Government Code§ 66300(b)(l)(A). As discussed in
Subsection 11.D, supra, the City may not implement regulations with less intense uses
than those in place on January 1, 2018, including reductions to height, density, or floor
area ratio, new or increased open space or lot size requirements, or new or increased
setback requirements, minimum frontage requirements, or maximum lot coverage
11 If the applicant revises the project's residential density or square footage by 20% or
more, the project will not have the benefits of the previously submitted preliminary application,
and will have the resubmit to reflect the revisions. (Gov. Code,§ 65941.l(c).)
Jan. 21, 2020 Item #1 Page 9 of 17
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limitations ... " The primary distinction being that Government Code§ 65589.5(0)(1) also
applies to fees and charges including "development impact fees, capacity or connection
fees or charges, permit or processing fees, and other exactions," which are not
addressed by the January 1, 2018 development regulation freeze under§
66300(b)(l)(A).
This project-specific freeze under Government Code§ 65589.5(0)(1) is not
applicable (1) to automatic annual adjustments in existing fees which are "based on an
independently published cost index" (Gov. Code,§ 65589.5(o)(2)(A)), (2) to measures
which mitigate or avoid a specific, adverse impact upon the public health or safety (Gov.
Code,§ 65589.5(o)(2)(B)), (3) to measures to mitigate an impact under CEQA (Gov.
Code,§ 65589.5(o)(2)(C)), or (4) if more than two and a half years have passed since the
final approval of the project (Gov. Code,§ 65589.5(0)(2)(0)).
F. New Development Application Requirements
In addition to the creation of the preliminary application process discussed in the
Subsection 11.E, supra, the City is required to update its development application
contents to include the information necessary to determine compliance with
Government Code§ 66300(d). (Gov. Code,§ 65940(a)(2).)
This primarily affects projects involving the demolition or removal of existing
housing, including, but not limited to, information on the number of dwelling units
being' removed, whether any dwelling units meet the definition of a "protected unit"
(Gov. Code,§ 66300(d)(2)(E)(ii)), whether any dwelling units were subject to rent or
price control, and whether any dwelling units are for rent. SB 330 does not provide an
explicit checklist; consequently, the City may wish to request information as follows:
Any information necessary to determine compliance with Government Code §
663D0(d), including, but not limited to, information on the number dwelling units
being removed if any, whether any dwelling units meet the definition of a
"protected unit" (Gov. Code,§ 66300(d}(2}(E)(ii}}, whether any dwelling units
were subject to rent or price control, and whether any dwelling units are for rent.
The primary purpose of this question is to assess applicability of relocation benefits and
right of first refusal outlined below in Subsection 11.K of this memorandum.
Additionally, applicants are required to submit this development application
within 180 calendar days from submittal of the preliminary application. (Gov. Code,§
65941.l(d)(l).)
Jan. 21, 2020 Item #1 Page 10 of 17
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G. SB 330 Requires the City to Provide a List of Missing Information for All
Development Applications Deemed Incomplete
SB 330 requires public agencies to determine the completeness of a development
application within 30 days based upon the specific contents of the application, rather
than information deemed relevant by the individual planner. (Gov. Code,§ 65943(b).) If
the City does not make this determination within 30 days, the application is
automatically deemed complete.
If a project application submitted pursuant to Government Code§ 65940 is
determined to be incomplete, the City is required to provide the applicant with a list of
items that were not complete. (Gov. Code,§ 65943.)
The list must be limited to those items actually required on the lead agency's
submittal requirement checklist. (Gov. Code,§ 65943(a) and (b).) Subsequent review of
materials submitted by an applicant in response to an incomplete determination must
be made within 30 days of submittal, or the application is deemed complete.
Furthermore, the local agency shall not request that the applicant provide any new
information that was not stated in the initial list of items that were listed as incomplete.
SB 330 now also requires the City to make applications for housing developments
available on its website. (Gov. Code,§ 65943(f).) Given that the City already maintains
such a website, 12 it will simply need to update these applications.
H. Prohibition on New Subjective Design Standards for Housing Development
Projects
The 2018 State Housing Accountability Act previously limited the ability of public
agencies to deny housing projects based upon subjective standards if the public agency
had not yet met its regional housing needs allocation (RHNA). (Gov. Code,§
65589.5(d)(2).)13
12 https://www.carlsbadca.gov/services/depts/planning/applications.asp.
13 Existing State Housing Accountability Act finding requirement: A local agency shall
not disapprove a housing development project ... unless it makes findings as to one of the
following ... (1) the jurisdiction has met or exceed its regional housing need allocation, or
(2) ... the housing development project...would have "specific, adverse impact" which "means a
significant, quantifiable, direct, and unavoidable impact, based on objective, identified written
public health or safety standards, policies, or conditions as they existed on the date the
application was deemed complete." (Gov. Code,§ 65589.5(d)(2).)
Jan. 21, 2020 Item #1 Page 11 of 17
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However, SB 330 amends the Government Code to state that a "city shall not
enact a development policy, standard, or condition that would have any of the following
effects.:.imposing or enforcing design standards established on or after January 1, 2020,
that are not objective design standards," regardless of whether the City has met its
RHNA. (Gov. Code,§ 66300(b)(l)(C}.) Objective design standards are defined as
"involving no personal or subjective judgment by a public official and being uniformly
verifiable by reference to an external and uniform benchmark or criterion available and
knowable by both the development applicant or proponent and the public official."
(Gov. Code,§§ 66300(a)(7), 65589.S(h)(8).)
I. Historic Resource Determination
The new provisions under Government Code§ 65913.l0(a) require public
agencies to "determine whether the site of a proposed housing development project is
a historic site ... at the time the application.,.is deemed complete." This is not referring to
the date of the "preliminary application," rather, this is referring to the traditional pre-
existing development application process contemplated under Government Code§
65940. (Gov. Code,§ 65913.l0(b)(l).) This determination shall remain valid throughout
the entitlement process unless new resources are encountered during grading, site
disturbance, or building alteration activities. (Gov. Code,§ 65913.l0(a).)
To help expedite this determination, the City will receive some historic
information early on in the process through the preliminary application materials, which
are required to provide information on "Any historic or cultural resources known to
exist on the property." (Gov. Code, § 65941.l(a)(9).)
Other subsections of SB 330 state that "nothing in this section supersedes, limits,
or otherwise modifies the requirements of ... [CEQA]." (Gov. Code,§ 65913.l0(c)(l).) It is
unclear whether the historic resource finding under Government Code§ 65913.l0(a) is
intended to preempt the historic resource findings under CEQA. This issue was also
raised as a point of concern by numerous non-profit organizations.14
14 https://laconservancy. tumblr.corn/post/187 53 863 8850/action-alert-senate-bill-3 30-
threatens-historic ["With streamlining as its intent, SB 330 makes assumptions and imposes
limitations that will put historic resources at risk. Because most historic resources are not
formally designated · or landmarked, potential resources could be missed or omitted during the
accelerated approval process. Without a safeguard in place, historic places would be in jeopardy.
[1] SB 330 should clarify that streamlining the process does not eliminate the obligation of a
local government to assess impacts on historic resources under their own ordinances or the
California Environmental Quality Act (CEQA), even when a resource is not identified until later.
Jan. 21, 2020 Item #1 Page 12 of 17
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J. No More than Five (5) Hearings on a Housing Development Project
Government Code§ 65905.S(a) limits the City from conducting "more than five
hearings" on a housing development project that complies with applicable objective
standards after an application has been deemed complete under Government Code§
65940. The City is required to make a decision approving or disapproving a project by
the end of the fifth hearing. (Id.)
"Hearing" includes any public hearing, workshop, or similar meeting, held by the
City Council, Planning Commission, or other departments. (Gov. Code,§ 65905.S(b)(2).)
If the City continues a hearing, the continued hearing counts as one of the five hearings.
(Gov. Code,§ 65905.S(a).) It is unclear whether an appeal hearing would be counted as
a hearing under this new provision. Consequently, the City may want to ensure that any
approvals from non-elected bodies, such as Planning Commission are approved by the
fourth hearing.
This five-hearing limit is not applicable to projects that are requesting legislative
approvals, such as general plan, specific plan or zoning amendments, or appeals of such
amendments. (Gov. Code,§ 65905.S(a) and (b)(2).)
K. Relocation Benefits and Right of F~rst Refusal for "Protected Unit" Occupants
As discussed above in Subsection 11.F, development applications must now
include information on whether existing development includes protected units.
Any project that includes the removal or demolition of a "protected unit" (Gov.
Code,§ 66300(d)(2)(E)(ii)) is required to provide the occupants with (1) relocation
benefits (Gov. Code, § 7260 et seq.), and (2) right of first refusal for a comparable unit
available in the new housing development. (Gov. Code,§ 66300 (d)(2)(D).) "Protected
units" are generally defined by Government Code§ 66300(d)(2)(E)(ii) as including
residential units subject to affordability restrictions, price controls, or occupied by low
income households. Consequently, any projects meeting these requirements should be
conditioned upon compliance with these provisions.
L. Changes to Permit Streamlining Act Deadlines
SB 330 reduces the time period in which a city is required to approve or
disapprove a development project that is subject to the Permit Streamlining Act from
120 days to 90 days from certification of an Environmental Impact Report (Gov. Code,§
Thank you and please do not support SB 330 unless there are adequate safeguards for
California's historic resources."]
Jan. 21, 2020 Item #1 Page 13 of 17
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659S0(a)(2)) and from 90 days to 60 days, for a development project that is at least 49%
affordable units (Gov. Code,§ 659S0(a)(3)(A)). These provisions of SB 330 do not
preclude a project applicant and the City from mutually agreeing in writing to an
extension of these time limits. (Gov. Code,§ 659S0(b).)
111. NEW REGULATIONS ON ACCESSORY DWELLING UNITS
A. Background on 2019 ADU Legislation
Six separate bills addressing Accessory Dwelling Units (ADUs) and Junior ADUs
were passed in 2019 and are effective as of January 1, 2020.15 An ADU is an attached or
detached residential dwelling unit that provides complete independent living facilities
for one or more persons and is located on a lot with a proposed or existing primary
residence. It must include provisions for living, sleeping, eating, cooking and sanitation
on the same parcel as the single or multiple family dwelling. Manufactured homes and
efficiency units are also ADUs.16
A Junior ADU is a unit that is no more than 500 sq. ft in size and is contained
entirely within an existing single-family structure. A Junior ADU may include separate
sanitation facilities or may share sanitation facilities with the existing structure.17
B. General Provisions
The legislation substantially changes the existing law on ADUs and Junior ADUs.
Any conflicting local provisions are considered null and void and the new statewide
legislation applies. Local ordinances adopted pursuant to the new legislation must be
sent to HCD within 60 days after adoption for its review. Any such update is exempt
from CEQA review.
Permits for ADUs and Junior ADUs must be reviewed ministerially and no public
hearings are permitted. The City has 60 days to act on an application from the time an
application is complete if there is an existing dwelling unit on the lot. If not acted upon
15 See SB 13 (Wieckowsi: Section 3). AB 68 (Ting: Section 2). AB 881 (Bloom -Section
.Ll}, AB 670 (Friedman). AB 587 (Friedman). and AB 671 (Friedman). Note that Section 1.5 of
AB 881 sunsets January 1, 2025 and is replaced by Section 2.5 of AB 881.
16 An Efficiency Unit is a unit occupied by no more than two persons, has a minimum
floor area of 150 square feet, and may also have a partial kitchen or bathroom facilities. (See
Health & Saf. Code,§ 17958.1.)
17 Government Code§ 65852.22.
Jan. 21, 2020 Item #1 Page 14 of 17
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within 60 days, the application shall be "deemed approved," if and only if the City has
not enacted a compliant ADU ordinance. ADUs and Junior ADUs built concurrently with
a new single-family dwelling may be reviewed concurrently with the new dwelling
though it is still considered a ministerial review.
There is some uncertainty regarding how the new legislation will be implemented
within the coastal zone. On December 3, 2019 Coastal Commission staff indicated that
they will be preparing guidance on implementation of these new ADU laws in the
coastal zone in 2020.18 The legislation explicitly provides that it does not supersede the
California Coastal Act, except that no public hearings are required for coastal
development permits.
C. Standards
Collectively, the legislation limits the City's ability to regulate ADUs and Junior
ADUs. Key provisions include the following:
1. Permitted ADUs: The City must allow ADUs in areas zoned for single family and
multiple family residential uses. In designating these areas, the City may take into
account the adequacy of water and sewer services, and the impact of ADUs on
traffic flow and public safety.
2. General Standards: The City can impose certain standards on the ADUs including
parking, height, setback, landscape, architectural review, maximum size of units,
lot coverage requirements and standards that prevent impacts on historic
resources, subject to the following restrictions and mandatory approvals per
Subsection D below. Building Code requirements apply.
3. Lot Size: The City cannot require a minimum lot size for ADUs.
4. Setbacks: No setback standards are allowed for conversions of existing
structures. For all other ADUs (new or expansions), setbacks of no more than 4
feet side and rear-yard shall be required.
5. Size Requirements:
a. If there is an existing primary dwelling, the total floor area of an attached ADU
shall not exceed 50% of the existing dwelling.
b. The total floor area for a detached ADU shall not exceed 1200 sq. ft.
18 Coastal Commission December 3, 2019 Packet:
https://docurnents.coastal.ca.gov/reports/2019/12/W 6f/W6f-12-2019-report.pdf
Jan. 21, 2020 Item #1 Page 15 of 17
Page 15
c. Minimum unit size must allow efficiency units of 150 sq. ft.
d. Maximum unit size is at least 850 sq. feet and 1,000 sq. ft for ADUs with 2+
bedrooms.
e. Caveat: Size requirements must be waived to permit at least 800 sq. ft, 16
feet in height with 4-foot side and rear yard setbacks.
6. Parking:
a. Parking requirements for accessory dwelling units shall not exceed one
parking space per unit or per bedroom, whichever is less, and parking
standards can be reduced or eliminated.
b. Tandem parking and parking in setbacks must be allowed unless specific
conditions make it infeasible.
c. Caveat: No parking may be required for ADUs that are:
i. Within½ mile walking distance of public transit,
ii. Within an architecturally and historically significant district,
iii. That are part of the proposed or existing primary residence or
converted accessory structure,
iv. In areas where on-street parking permits are required but not offered
to ADU occupants, or
v. Withiri one block of car share vehicles.
7. Occupancy: Owner-occupancy requirements are not permitted. The ADU may be
rented separately from the primary residence but may not be sold or conveyed
separately from the primary residence. The City may prohibit rentals of less than
30 days in all ADUs and must prohibit rentals for the ADUs discussed in
Subsection D below (Mandatory ADU approvals).
8. Sale or Conveyance: The City may allow the separate sale or conveyance of an
ADU from a primary residence if it was constructed by a qualified nonprofit
organization.
9. Fees: Impacts fees may not be charged on ADUs less than 750 sq. ft. For ADUs
greater than 750 sq. ft, fees must be charged proportionally to the square
footage of the primary dwelling unit. Connection fees and capacity charges may
be charged for ADUs that are not subject to mandatory approval discussed
below.
Jan. 21, 2020 Item #1 Page 16 of 17
Page 16
D. Mandatory ADU Approval
1. The legislation provides that regardless of all other provisions, the City must
approve building permits in any residential or mixed-use zones for the following
categories:
a. Single Family Lots: One ADU or Junior ADU per lot with a proposed or existing
single-family dwelling, subject to certain requirements.
b. Single Family Lots: One detached, newly construction ADU that does not
exceed four-foot side and rear yard setback. This ADU may be combined with
a Junior ADU per a. above.
c. Multifamily Lots: The City must also approve multiple ADUs of no more than
800 sq. ft. and 16 feet in height, located within existing multifamily dwelling
structures. Spaces to be converted include areas not used as living space such
as storage rooms, attics, garages and the like. The City must allow at a
minimum one ADU or 25% of the existing number of dwelling units,
whichever is greater.
d. Mulitfamily Lots: The City must approve no more than two ADUs detached
from the existing multifamily building, with a 16-foot height limit and 4-foot
side and rear yard setbacks.
2. The City shall require rental occupancy of the ADU to be greater than 30 days.
3. The City may not require correction of nonconforming zoning conditions as a
condition of above for the above mandatory ADU approvals.
Jan. 21, 2020 Item #1 Page 17 of 17
Overview of SB 330: Housing Crisis Act of 2019& New Regulations on Accessory Dwelling UnitsJanuary 21, 2020
Overview of SB 330•Designed to expedite construction of housing•California has a 180,000 unit housing demand•Fewer than 80,000 units constructed annually•Seeks 500,000 new homes annually
Overview of SB 330•Creates new housing entitlement regulations•Applies to “housing development projects”−Projects with only residential units−Mixed use projects with 2/3rdsq. ft. residential−Transitional and supportive housing
Moratorium Limits•Moratoria or similar restrictions must be approved by HCD•Finding of imminent threat to health and safety‐More stringent than existing provisions
Moratorium Limits (Cont.)•SB 330 does not define “imminent threat”•General Definitions: ‐“Likely to occur at any moment”‐“Ready to take place: happening soon; menacingly near”‐“Threatening to occur immediately”
Moratorium Limits (Cont.)•City’s Growth Management Plan (GMP) Moratoria Provision?–Test: Is there an imminent threat to the health and safety of persons residing within the immediate vicinity of the area subject to the moratorium?–May depend specific factual situation or the performance standard at issue
Limits to Housing Permit Regulations•SB 330 imposes housing cap limitations•May limit City’s ability to enforce: −Residential “quadrant limits” in GMP−Growth Management Control Points−Population density standards
Limits on Reducing Residential Density•Precludes legislative amendments to less intensive use compared to regulations in place on 1/1/2018•Exceptions: −Concurrently adopted changes in other development standards –no net loss in residential capacity −Mobile home park standards
New Housing Projects: No Net Loss •New Housing Projects:−If residential units are demolished, must ensure no net loss in residential units
New Preliminary Application Process•Requires City to: ‐Create a new first step: preliminary application checklist‐Utilize standardized checklist by HCD ‐No additional information can be required
Prohibition on New Fees and Exactions•Regulation freeze after preliminary application submitted‐Overlaps with Gov. Code, § 66300(b)(1)(a)‐Extends to fees and charges•Regulation freeze not applicable (1) to certain automatic fee adjustments, (2) to health, safety, and CEQA mitigation, or (3) after 2.5 years
New Development Application Requirements•City is required to: −Update development application contents to identify existing Protected Units, which relates to new tenant right provisions•Applicant must submit development applications−Within 180 days of preliminary application submittal
Development Applications•City required to determine completeness of application within 30 days, or application deemed complete‐Based on required content of application
Development Applications (Cont.)•If application is deemed incomplete, City must:−Provide list of incomplete items and indicate the manner for finalizing the application•List is limited to items identified in the application•Likely applies to all “development projects”
Development Applications (Cont.)•Applicant to provide additional information within 90 days–Otherwise, preliminary application expires
“Protected Unit” Occupants•Projects for removal/ demolition of units must:−Provide occupants with relocation benefits−Right of first refusal for comparable unit•“Protected Units” include:−Affordability restrictions, price control, low income
Prohibition on Subjective Design Standards•Prohibits enactment of new subjective design standards established on or after January 1, 2020−Regardless of whether the City met RHNA•Existing Law generally limits application of existing subjective design standards.
Prohibition on Subjective Design Standards•Objective design standards are defined as “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.”
Historic Resource Determination•City must determine if project is a historic site −Determined when development application is “complete”•Unclear if this determination is applicable to the CEQA process
Hearings for Projects•City is limited to no more than five hearings•Five hearing limits applies to housing development projects, which comply with applicable standards, after an application is deemed complete
Hearings for Projects (Cont.)•This five‐hearing limits does not apply to: −General plan−Specific plan−Zoning amendments or appeals−Projects requesting legislative approval
Hearings for Projects (Cont.)•City is required to: −Approve/ disapprove project by 5thhearing−A continued hearing is an additional hearing•Projects for approval by non‐elected body:−Consider action by 4thhearing
Changes to Deadlines•Reduces time period for decision on a project −Applies to Permit Streamlining Act•Certification of EIR−Reduced from 120 days to 90 days−90 days to 60 days for 49% affordable unit projects
Accessory Dwelling Units“ADUs”New Legislation, effective 1/1/2020
Overview •Legislation substantially changes existing law•Applies to ADUs & Junior ADUs (JADU)–ADU: attached/detached independent living–JADU:•500 sq. ft. maximum•Within existing single‐family residence
Overview (Cont.)•Existing ADU ordinances –Conflicting sections are null & void–Revised & submitted to HCD for review•Revised ordinance exempt from CEQA
Overview (Cont.)•Major components of ADU legislation–What City can/cannot regulate–Mandatory ADU approvals
Overview (Cont.)•ADU permits reviewed ministerially:–No public hearing•Review timeframes:–Existing residence: 60 days to act on completed ADU application–Proposed residence: review ADU concurrently
Key Provisions•Location: Where zoned for residential uses•May only restrict location* based on:–Adequacy of water & sewer–Traffic flow & public safety•* N/A to “mandatory” ADUs
Standards•City can impose certain ADU standards:–I.e., parking, height, setback, landscape, lot coverage, maximum unit size–Historic resources, architectural review•BUT several exceptions
Standards (Cont.)•Exceptions:–Cannot require minimum lot size–Setbacks:•None required when converting existing structure•No greater than 4‐foot rear and side setback required
•Min./Max. Size Requirements –Minimum size must allow Efficiency Units –Maximum size must be at least 850 sq. ft.•At least 1,000 sq. ft. for 2+ bedroom ADU•Applies to both attached & detached ADUsStandards (Cont.)
Standards (Cont.)•Min./Max. Size Requirements (Cont.)–Detached ADU: Total floor area = 1200 max.–Attached ADU: Total floor area </= 50%•Waive standards to permit 800 sq. ft. ADU •16‐foot height and 4‐foot rear and side yard setbacks
•Parking–One space/bedroom or ADU, whichever is less–No parking for ADUs:•½ mile walking to transit•Part of proposed/existing residence or converted accessory building Standards (Cont.)
Standards (Cont.)•No parking for ADUs: (Cont.)–Within architecturally/historic district–Within one block of car share vehicles–No on‐street parking permits for ADU•No replacement parking if parking=>ADU
Mandatory ADU Approval•Must approve in Residential/Mixed Use Zones:–One ADU/JADU within existing or proposed SFR•Expansion up to 150 sq. ft. of existing space•Exterior access•Setbacks sufficient for fire & safety
Mandatory ADU Approval (Cont.)•One detached, new ADU with existing/proposed SFR with 4‐foot rear and side setback–May require no more than 800 sq. ft.–May limit height to 16 feet–May be combined with a JADU
Mandatory ADU Approval (Cont.)•Existing Multifamily Buildings ‐Must Allow:–Conversion of non‐livable space•I.e., garages, storage rooms, attics•# ADUs: > between 25% of existing units or one unit •No more than two detached units‐16‐foot height; 4‐foot rear and side setback
Mandatory ADU Approval (Cont.)•May not require correction of nonconforming zoning as a condition of approval
Other Key Provisions•No owner‐occupancy requirements allowed•City mayprohibit all ADU rentals less than 30 days–But “mandatory” ADUs:•Mustprohibit short‐term rentals
ADU Fees•Impact fees–< 750 sq. ft.: none–750 sq. ft.+: proportional to residence sq. ft.
ADU Fees•Connection fees–Mandatory ADUs: •No connection fee/capacity charges –Unless in connection w/new SFR–All other ADUS:•Proportionate to burden
Additional ADU Legislation•CC&Rs that prohibit/restrict ADUs are void•Next Housing Element:–Plan to promote affordable ADUs–HCD to provide guidelines–ADUs count toward total RHNA
Enforcement•ADUs built before 1/1/2020:–Notice of Violation–Owner may request 5 year delay•No delay if health & safety violation•No delays after 1/1/2030