Community Input Decreased and Bureaucratic Power Increased by State Code
Changes impact Second Units that are now called Accessory Dwelling Units (ADUs).
Governor Jerry Brown signed into law changes to Government Code Section 65852.2 (see below) in September 2016 materially limiting parking requirements for the development of Second Units and further enhancing ministerial approval of building permits, bypassing the community and its elected representatives. Piedmont’s ADU code has grown awkwardly with additions in 2003 and 2016 piled on top of the 1983 original language, resulting in numerous contradictions and conflicts.
When Piedmont’s Chapter 17 was recently (March 2017) approved by the City Council and Planning Commission, there was no indication in the volume of documents informing either the Council or Commission that the action they were taking would be impacted by the already in effect (January 2017) State law Government Code Section 65852.2.
The new staff proposal is to revise the revised April 2017 Chapter 17 zoning laws which relaxed building requirements such as setbacks, lot size, parking requirements facilitating additional housing within existing houses and structures.
Residents vary in their opinions regarding housing expansion in Piedmont through Accessory Dwelling Units (ADUs)/ Second Units. Many like the changes as a way to stay in their homes as they age or add income through rentals plus allowing Piedmont to meet regional housing needs. Others question the unassessed and unevaluated impact on public services, neighborhood quality, density, parking needs, community support, and traffic impacts.
65852.2 includes permission for cities:
… a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant or that the property be used for rentals of terms longer than 30 days.
Piedmont’s proposed code states:
Parking. When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit, any required replacement parking spaces may be located in any configuration on the lot. (Gov’t. Code §65852.2 (a)(1)(D)(xi).)
[No setback is required for an existing garage.]
b. Setbacks. No setback is required for an existing garage that is converted to an accessory dwelling unit. If an accessory dwelling unit is constructed above an existing garage, the minimum setback is five feet from the side and rear lot line. (Gov’t. Code §65852.2 (a)(1)(D)
(7).)3. Owner occupancy. Except for an exempt accessory dwelling unit, the owner of an accessory dwelling unit must occupy either the primary unit or the accessory dwelling unit, if both units are used for habitation. The owner must record with the County Recorder a declaration of restrictions, in a form provided by the city.
Staff is given authority by state law to make decisions on projects without public input or notification.
QUESTIONS:
- Will the City have to add more staffing to oversee affordable unit compliance?
- Some City’s require affordable units to remain affordable for 20 years rather than Piedmont’s term of 10 years. Why did Piedmont pick a 10 year term for affordability?.
- Once a unit no longer falls into the affordable category will the forgiven parking requirement continue to be forgiven or will existing units have to return for a new permit level?
- Does the City have adequate public services for increased demands – street widths, parking needs, public safety, and city staffing?
- Will Piedmont taxpayers be required to pay more for the increase in public services or will the new units be taxed to cover expenses?
- How many ADU units are projected in Piedmont?
- How will the units be taxed ?
- Why wasn’t the Council and public informed of the upcoming changes based on State Law 65852.2 before approval of the redoing of Chapter 17 by the Council and Planning Commission that lessened parking requirements for existing properties, such as parking sizes, covered parking requirements, allowing tandem parking, etc.. ?
- If a garage is removed, must the existing house meet their parking requirements?
- Can an accessory structure be built on the property line and then converted to an ADU?
- What measures will the City use to identify traffic or safety when applications are presented?
- If there is no notice procedure, how is a neighbor to know if an application has been filed or how to appeal a decision?
- How will the City know when a neighborhood is overly impacted with additional traffic issues from ADUs?
- What will the application and permit fees be for an ADU?
- What has happened to Piedmont’s covered parking requirements?
- Will ADUs be reappraised for County property tax purposes?
- Since the School District only taxes parcels, does this mean ADUs will not be taxed for School Bond measures and voter approved extra property taxes?
- Did the City Council take a position on State Law 65852.2 when it was being considered by the legislators and governor?
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City Planning Department announcement:
Planning Commission to Discuss Accessory Dwelling Units (ADUs)
CONSIDERATION OF AN ORDINANCE REVISING THE REGULATIONS FORACCESSORY DWELLING UNITS IN CITY CODE CHAPTER 17
The Commission will hold a hearing to consider an ordinance to revise City Code Chapter 17 regarding the regulations for Accessory Dwelling Units (ADUs). The proposed revisions are in response to the changes to Government Code Section 65852.2 resulting from the enactment of Assembly Bill 2299 and Senate Bill 1069. These changes limit a local jurisdiction’s ability to regulate Accessory Dwelling Units (ADUs), also known as Second Units. The provisions affected by the changes to State law include, but are not limited to, off-street parking requirements, unit size limitations, and application approval timelines. The State laws permit cities to adopt ADU ordinances as long as the ordinance is consistent with the State laws and imposes certain local standards. The Commission may take action to make a recommendation of adoption to the City Council. The proposed amendments do not constitute a “project” within the meaning of CEQA, and therefore are exempt from CEQA, pursuant to Public Resources Code section 21065 and CEQA Guidelines, 14 Cal. Code of Regulations section 15378.
Mon., Apr. 10th – 5:00PM
[ADU’s will be considered at the beginning of the meeting] held in the
City Council Chambers – City HallThe meeting will be broadcast on Cable Channel 27 and from the City website under videos.
In September 2016, Governor Jerry Brown signed into law changes to Government Code Section 65852.2 resulting from the enactment of Assembly Bill 2299 and Senate Bill 1069. These changes limit a local jurisdiction’s ability to regulate Accessory Dwelling Units (ADUs), also known as Second Units. The provisions affected by the changes to state law include, but are not limited to, off-street parking requirements, unit size limitations, and application approval timelines. The State laws permit cities to adopt ADU ordinances as long as the ordinance is consistent with the State laws and imposes certain local standards. Click to Government Code Section 65852.2.
City staff has prepared draft proposed revisions to the regulations in the City Code related to Accessory Dwelling Units. The revisions are included and outlined in a report to the Planning Commission that the Commission will consider during their regular meeting on April 10, 2017. The Planning Commission’s responsibility is to make a recommendation that will be considered by the City Council, which is the decision-making body. As required by the City Code, public notification will be provided for all Planning Commission and City Council meetings during which the code revisions are to be considered. Click to read the staff report on this topic.
Residents are invited to engage in this process. Interested members of the public are encouraged to read the staff report and attend the Planning Commission’s meeting scheduled for 5 p.m. on April 10, 2017 in City Hall, 120 Vista Avenue. Written comments and requests to receive email notification of activities related to revisions of City Code provisions related to Accessory Dwelling Units should be sent to Planning Director Kevin Jackson at kjackson@ci.piedmont.ca.us. Comments on paper can also be submitted by hand or by mail to the Piedmont Planning Commission,120 Vista Avenue,Piedmont,CA 94611.
Interested individuals may also send comments to > editors@piedmontcivic.org allowing others to read comments on this site also see comment section below. The comments sent to PCA are not forwarded to the City for consideration.
Read the full staff report, which includes the proposed ordinance at the end. Click > here.
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The January 2017 State law controlling second units/ ADUs is below:
65852.2. (a) (1) A local agency may, by ordinance, provide for the creation of accessory dwelling units in single-family and multifamily residential zones. The ordinance shall do all of the following:
(A) Designate areas within the jurisdiction of the local agency where accessory dwelling units may be permitted. The designation of areas may be based on criteria, that may include, but are not limited to, the adequacy of water and sewer services and the impact of accessory dwelling units on traffic flow and public safety.
(B) (i) Impose standards on accessory dwelling units that include, but are not limited to, parking, height, setback, lot coverage, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Places.
(ii) Notwithstanding clause (i), a local agency may reduce or eliminate parking requirements for any accessory dwelling unit located within its jurisdiction.
(C) Provide that accessory dwelling units do not exceed the allowable density for the lot upon which the accessory dwelling unit is located, and that accessory dwelling units are a residential use that is consistent with the existing general plan and zoning designation for the lot.
(D) Require the accessory dwelling units to comply with all of the following:
(i) The unit is not intended for sale separate from the primary residence and may be rented.
(ii) The lot is zoned for single-family or multifamily use and contains an existing, single-family dwelling.
(iii) The accessory dwelling unit is either attached to the existing dwelling or located within the living area of the existing dwelling or detached from the existing dwelling and located on the same lot as the existing dwelling.
(iv) The increased floor area of an attached accessory dwelling unit shall not exceed 50 percent of the existing living area, with a maximum increase in floor area of 1,200 square feet.
(v) The total area of floorspace for a detached accessory dwelling unit shall not exceed 1,200 square feet.
(vi) No passageway shall be required in conjunction with the construction of an accessory dwelling unit.
(vii) No setback shall be required for an existing garage that is converted to a accessory dwelling unit, and a setback of no more than five feet from the side and rear lot lines shall be required for an accessory dwelling unit that is constructed above a garage.
(viii) Local building code requirements that apply to detached dwellings, as appropriate.
(ix) Approval by the local health officer where a private sewage disposal system is being used, if required.
(x) (I) Parking requirements for accessory dwelling units shall not exceed one parking space per unit or per bedroom. These spaces may be provided as tandem parking on an existing driveway.
(II) Offstreet parking shall be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made that parking in setback areas or tandem parking is not feasible based upon specific site or regional topographical or fire and life safety conditions, or that it is not permitted anywhere else in the jurisdiction.
(III) This clause shall not apply to a unit that is described in subdivision (d).
(xi) When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit, and the local agency requires that those offstreet parking spaces be replaced, the replacement spaces may be located in any configuration on the same lot as the accessory dwelling unit, including, but not limited to, as covered spaces, uncovered spaces, or tandem spaces, or by the use of mechanical automobile parking lifts. This clause shall not apply to a unit that is described in subdivision (d).
(2) The ordinance shall not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(3) When a local agency receives its first application on or after July 1, 2003, for a permit pursuant to this subdivision, the application shall be considered ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits, within 120 days after receiving the application. A local agency may charge a fee to reimburse it for costs that it incurs as a result of amendments to this paragraph enacted during the 2001–02 Regular Session of the Legislature, including the costs of adopting or amending any ordinance that provides for the creation of an accessory dwelling unit.
(4) An existing ordinance governing the creation of an accessory dwelling unit by a local agency or an accessory dwelling ordinance adopted by a local agency subsequent to the effective date of the act adding this paragraph shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes, provisions, or requirements for those units, except as otherwise provided in this subdivision. In the event that a local agency has an existing accessory dwelling unit ordinance that fails to meet the requirements of this subdivision, that ordinance shall be null and void upon the effective date of the act adding this paragraph and that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section.
(5) No other local ordinance, policy, or regulation shall be the basis for the denial of a building permit or a use permit under this subdivision.
(6) This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot zoned for residential use that contains an existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be utilized or imposed, except that a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant or that the property be used for rentals of terms longer than 30 days.
(7) A local agency may amend its zoning ordinance or general plan to incorporate the policies, procedures, or other provisions applicable to the creation of an accessory dwelling unit if these provisions are consistent with the limitations of this subdivision.
(8) An accessory dwelling unit that conforms to this subdivision shall be deemed to be an accessory use or an accessory building and shall not be considered to exceed the allowable density for the lot upon which it is located, and shall be deemed to be a residential use that is consistent with the existing general plan and zoning designations for the lot. The accessory dwelling unit shall not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(b) When a local agency that has not adopted an ordinance governing accessory dwelling units in accordance with subdivision (a) receives its first application on or after July 1, 1983, for a permit to create an accessory dwelling unit pursuant to this subdivision, the local agency shall accept the application and approve or disapprove the application ministerially without discretionary review pursuant to subdivision (a) within 120 days after receiving the application.
(c) A local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units. No minimum or maximum size for an accessory dwelling unit, or size based upon a percentage of the existing dwelling, shall be established by ordinance for either attached or detached dwellings that does not permit at least an efficiency unit to be constructed in compliance with local development standards. Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence.
(d) Notwithstanding any other law, a local agency, whether or not it has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), shall not impose parking standards for an accessory dwelling unit in any of the following instances:
(1) The accessory dwelling unit is located within one-half mile of public transit.
(2) The accessory dwelling unit is located within an architecturally and historically significant historic district.
(3) The accessory dwelling unit is part of the existing primary residence or an existing accessory structure.
(4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
(5) When there is a car share vehicle located within one block of the accessory dwelling unit.
(e) Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit to create within a single-family residential zone one accessory dwelling unit per single-family lot if the unit is contained within the existing space of a single-family residence or accessory structure, has independent exterior access from the existing residence, and the side and rear setbacks are sufficient for fire safety. Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence.
(f) (1) Fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012).
(2) Accessory dwelling units shall not be considered new residential uses for the purposes of calculating local agency connection fees or capacity charges for utilities, including water and sewer service.
(A) For an accessory dwelling unit described in subdivision (e), a local agency shall not require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge.
(B) For an accessory dwelling unit that is not described in subdivision (e), a local agency may require a new or separate utility connection directly between the accessory dwelling unit and the utility. Consistent with Section 66013, the connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its size or the number of its plumbing fixtures, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.
(g) This section does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an accessory dwelling unit.
(h) Local agencies shall submit a copy of the ordinance adopted pursuant to subdivision (a) to the Department of Housing and Community Development within 60 days after adoption.
(i) As used in this section, the following terms mean:
(1) “Living area” means the interior habitable area of a dwelling unit including basements and attics but does not include a garage or any accessory structure.
(2) “Local agency” means a city, county, or city and county, whether general law or chartered.
(3) For purposes of this section, “neighborhood” has the same meaning as set forth in Section 65589.5.
(4) “Accessory dwelling unit” means an attached or a detached residential dwelling unit which provides complete independent living facilities for one or more persons. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family dwelling is situated. An accessory dwelling unit also includes the following:
(A) An efficiency unit, as defined in Section 17958.1 of Health and Safety Code.
(B) A manufactured home, as defined in Section 18007 of the Health and Safety Code.
(5) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit.
(j) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local government shall not be required to hold public hearings for coastal development permit applications for accessory dwelling units.
(Amended by Stats. 2016, Ch. 735, Sec. 1.5. Effective January 1, 2017.)
I’ve a question – does the new state law say anything about affordability requirements? Or is that something that comes from regional planning?