” … and no zones shall be reclassified without submitting the question to a vote at a general or special election.”  Section 9.02 of the Piedmont City Charter

The City’s refusal to submit new proposed reclassified City zones to a vote by the citizens rests on the meaning of the word “reclassified” in the City Charter.   A newly released undated, unsigned legal opinion relies on a 2017 definition of  “reclassification” inserted in the City Code, but not submitted to the voters as an amendment to the City Charter. 

History shows Piedmont citizens have been urged to vote approval of  “reclassifications” of City zones at general or special elections in recent decades, yet the newly released legal opinion ignores these votes.

The City’s legal conclusions are inconsistent with the City Charter, City practices, and ballot measure history of asking Piedmont voters to approve zoning changes and Conditional Use Permit processes.

(Read the City’s legal opinion here)

City must adopt a substantially-compliant Housing Element in three months.

Piedmont is required under State law to adopt a compliant Housing Element by January 31, 2023, or the City will be subject to severe penalties, including loss of much zoning control the very next day.   I don’t think decision-makers or the community are fully tuned into the gravity of the situation.

The laws are not the same as they were five or six years ago, so this lack of awareness may stem from not having experienced this situation before. However, the world has changed. Given the lack of movement on the Housing Element, we are headed toward a train wreck, and all of the granular discussions and work on the element may be moot if the City does not adopt a substantially-compliant Housing Element in three months.

The State Dept of Housing and Community Development (HCD) just clarified 10 days ago that the 120-day grace period that we as a community have been told the City has applies only to the shortened zoning implementation period (one year vs. three years). Everything else, including the dreaded “builder’s remedy” that was enacted by the State in 2019 under which a City loses zoning control, kicks in the following day. See letter from the State to this effect regarding San Francisco here https://twitter.com/derivativeburke/status/1578070771972247552/photo/1

So, come February 1, 2023, anyone can propose any building of any height anywhere, and as long as there is a modest affordable component, they don’t need to comply with zoning regulations, and the City would have no power to deny it. It doesn’t matter what height or setbacks the proposed development has. Santa Monica has seen 4,000 non-zoning compliant housing units—many of them 10 to 15 stories in the middle of neighborhoods—approved in just the eight months their element has not been in compliance. See https://smdp.com/2022/10/12/new-15-story-project-automatically-approved-due-to-late-housing-element/ There are numerous such examples from Southern California where Housing Element deadlines were a year or two ahead of ours, and undoubtedly we will see the same happen in the Bay Area come early next year.

Even if the City has a certified element say by May of next year, if someone files a development application in April, they would be grandfathered and the City would not be able to deny these projects. They just need to get the application in. These projects are not subject to non-objective design review under State law, so nothing can hold them back.

We are already out of time to have a State-certified Housing Element by January end, given that HCD has 90 days to review a first draft and the City has not turned one in. The City can, however, still adopt a substantially-compliant element by the due date and continue to seek State certification. While ideally the City should have State certification as proof of its compliance, it can still assert substantial compliance with State laws while certification is sought. We can do this soon by using the last Housing Element draft and updating housing sites with the direction the Council provided in early summer, and then sending this for HCD review. If there are changes that result from HCD review, the City would make changes, and re-adopt.

Many community members have disagreements with aspects of the current proposal, as do I (I think densities along Grand can be much higher in five- or six-story buildings and along Highland in say four stories than what staff proposals state, numbers in Moraga Canyon should be lower as that area is not walkable or accessible to services and has steep slopes, and the City should also encourage small-plexes in existing neighborhoods). But the broader interest of the community rests on having a compliant, adopted element in place.

Some have pointed that the City Charter demands a vote on allowing multifamily housing on Public lands. They are right, and anyone with a straight reading of the Charter would come to the same conclusion. But if City rules (whether through charter or a City Council action) run afoul of State laws and the City is not able to fulfill its RHNA obligations and have a Housing Element in place in time, all that is irrelevant. Recent court cases do not favor local opposition to State rules. We are also past the time for a vote, even though technically the Charter demands it, and the City leadership should have been attuned to this much earlier. But now waiting for a vote or inaction otherwise will result in alternatives that are much worse. We are running out of time to stop someone from proposing 15-story buildings along Grand or Highland avenues, or maybe a five story-one next to your house, resulting in totally unplanned, non-cohesive development.

All cities are racing to adopt the Housing Element by the January 31st deadline. Just Google San Francisco or Oakland Housing Element and you will find dozens of articles. This should be the single highest priority in the community right now. We need THIS council to move on this now and for the NEXT Council in January to keep marching with this in the broader community interest, regardless of what happens in the upcoming elections. Not to mention our obligations under State law to meet our share of regional housing need and support housing for a diversity of incomes.

Rajeev Bhatia, Piedmont Resident

Editors’ Note: Opinions expressed are those of the author.

New legal advice upends the rule of law in Piedmont regarding voters’ rights per the Piedmont City Charter and City Ordinances.

The Piedmont City Charter and City Ordinances require the City Council to propose the Housing Element, and Piedmont voters to approve the zoning changes –  sizes, use, and classifications.

According to Piedmont City Attorney within the proposed Housing Element, all Piedmont single-family zoning can be changed to high density multi-family zoning without Piedmont voter approval.  This current legal advice desecrates the rule of law in Piedmont regarding voters’ rights per the Piedmont City Charter and City Ordinances. Copied below.

Piedmont’s City Charter has protected Piedmont for nearly a century against intrusive commercialism, factories, high density housing, etc. by focusing on single-family residential zoning.  The Charter is clear. Placing multi-family dwellings/high density housing into single-family zoning, which is all of Piedmont, without voter approval is against Piedmont’s laws.

The single-family zoning classification in Piedmont is separate and distinct from Piedmont’s multi-family zoning classification. Classification determines the use and density allowed within a zone.  Multi-family classification is for multi-family use.  Single-family classification is for single-family use.  Commingling Piedmont multi-family classification zones and single-family classification breaches the City Charter and Piedmont Ordinances. 

Without voter approval, the Housing Element proposes the multi-family zone density will be increased to high density multi-family development and changing the single-family use classification as found in all zones to be changed to multi-family use. 

Piedmont zones are classified as: commercial, public, multi-family, and single-family.   All zones are specified as permitting single-family dwellings.  Unrecognized, Single-family classifications/use found in each zone cannot be interchangeable or described as proposed as multi-family zoning. 

The Housing Element proposes to allow high density multi-family classification to replace Single-family classification in zones used for commercial and public zones based on the false premise that single-family zoning allows higher density multi-family use without voter approval.  

Currently in Piedmont, all properties are zoned and classified for single-family dwellings. The State of California legislated a transformation of the Single-family classification to allow three (3) dwelling units:  a primary residence, an Accessory Dwelling Unit (ADU), and a Junior ADU built within the confines of the primary residence.  Essentially, the State outlawed the single family housing unit per parcel limitation.  Consequentially, the high density multi-family dwelling units proposed for Piedmont’s Housing Element will need the approval of voters to change the classification of single-family residential to multi-family residential.  The proposal jumps the number from 3 dwelling units to a proposed 40-100 units per parcel without voter approval, ignoring Piedmont laws. 

The City Council will need to propose a Housing Element that will gain approval of Piedmont voters or be faced with revisions to gain Piedmont voter approval.  

Piedmont’s City Attorney Michelle Kenyon has advised and stated that single-family zoning classification allows multi-family zoning including high density multi-family development by ignoring the City Charter language. Further Kenyon stated that voters do not control density in Piedmont. This advice destroys voter rights and rule of law making the Piedmont proposed Housing Element counter to the City Charter.

The intent and language of the City Charter describes single-family zoning and classification as “the only use on such property shall be a single-family dwelling. ”  The new legal advice provided to the City Council fails to recognize voter requirements compliant with the Charter. 

Voter approval for zoning changes have been placed on a ballot many times in Piedmont per the City Charter .

At the August 1, 2022, City Council meeting City attorney Kenyon asked Planning Director Kevin Jackson about how the city had implemented the City Charter in regard to voters’ rights.  Jackson provided two examples, which excluded voters, both of which were based on Kenyon’s or her law firms prior advice allowing multi-family residential use to supplant single-family use without voter approval.  

The Council was not informed by Kenyon or the Planning Director regarding a plethora of prior documented legal advice requiring compliance with the City Charter and for ballot measures to be put before Piedmont voters regarding zoning changes.  Significant prior legal advice can be found in the City’s archives countering City Attorney Kenyon’s advice, and requiring Piedmont voters right to control and approve zoning per the City Charter.

According to the Charter and City ordinances, the City Council is to propose plans for development of Piedmont, however these plans must comply with voter approval per the Piedmont City Charter regarding changes, such as as going from single-family use to high density multi-family use.

The state has anticipated zoning changes to accommodate Housing Element zoning changes to add the large increases in housing, for Piedmont it is 587 housing units, a 15% housing increase.  The state provides a specific amount of time 1-3 years to implement zoning changes outlined in an approved Housing Element.  To date, the state has not eliminated city Charters’ voter approval of zoning changes.

See Piedmont’s zoning map be clicking below:

  https://cdn5-hosted.civiclive.com/UserFiles/Servers/Server_13659739/File/Government/Departments/Planning%20Division/Zoning/Zoning%20Map%20-%202021-12-01.pdf?v=9uGc6RDmS

Piedmont City Charter ARTICLE IX. General Provision

SECTION 9.02 ZONING SYSTEM The City of Piedmont is primarily a residential city, and the City Council shall have power to establish a zoning system within the City as may in its judgement be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property which is zoned for uses other than or in addition to a single-family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above.

City of Piedmont Ordinance :

Sections: 17.02.010

Title; City Charter 17.02.010 Title; Intent; City Charter.

A. Title. This chapter 17, Planning and Land Use, is also known as the zoning ordinance.

B. Intent. The City of Piedmont consists primarily of unique single-family residences set among mature trees and other vegetation. The residents wish to:

1. preserve the architectural heritage and beauty of the city’s homes, the mature vegetation, the tranquility and privacy that now exist, and significant views;

2. reduce on-street parking and traffic in the neighborhood streets and facilitate pedestrian and bicycle activity;

3. avoid overcrowding and its detrimental effects on city schools and other services and facilities;

4. preserve the city’s historical heritage;

5. preserve the existing stock of small homes and otherwise allow for a variety of housing types for all income levels, including single-family and multi-family dwellings;

6. ensure excellence of architectural design, and compliance with the Piedmont Design Guidelines;

7. allow retail, office, and service commercial uses that primarily serve city residents; and

8. promote property improvements without sacrificing the goals already mentioned.

These zoning regulations are designed to implement these purposes.

C. City Charter. The city’s zoning ordinance is also subject to the City Charter, particularly Section 9.01, General Plan, Section 9.02, Zoning System, and Section 9.04, General Laws Applicable.

Those sections read as follows:

Section 9.01 General Plan. The City Council shall adopt, and may from time to time, modify a general plan setting forth policies to govern the development of the City. Such plan may cover the entire City and all of its functions and services or may consist of a Planning & Land Use combination of plans governing specific functions and services or specific geographic areas which together cover the entire City and all of its functions and services. The plan shall also serve as a guide to Council action concerning such City planning matters as land use, development regulations and capital improvements.

Section 9.02 Zoning system. The City of Piedmont is primarily a residential city, and the City Council shall have the power to establish a zoning system within the City as may in its judgment be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property which is zoned for uses other than or in addition to a single-family dwelling maybe voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a singlefamily dwelling, and such rezoning shall not require a vote of the electors as set forth above.

Section 9.04 General laws applicable. All general laws of the State applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this Charter or with ordinances hereafter enacted, shall be applicable to the City. The City Council may adopt and enforce ordinances that, in relation to municipal affairs, shall control as against the general laws of the State.

In this subsection C, Section 9.02, the prohibition not to reduce, enlarge, or reclassify a zone without a vote is understood to mean the city may not change the zone boundaries, or change (reclassify) a property from one zone to another. [ Classification is the use. Zone names connote the useage, as commercial, public, multi-family, and single-family.]

 

The PCA article and Mr. Keating seem correct: the City Charter requires a ballot measure before a property zone can be “classified or reclassified.” (Piedmont City Charter, section 9.02). This rule is codified at Piedmont Municipal Code section 17.02.010 (C), which states that city zoning ordinances are “subject to the City Charter” (including section 9.02). At the end of Section 17.020.010 (C), the rule also states that Piedmont cannot “change the zone boundaries, or change (reclassify) a property from one zone to another” without a vote.

But this reclassification is exactly what the draft Housing Element (“HE”) seeks to do. Section IV.A.1.F of the HE (page 38) says that the City will allow multi-family housing (e.g., Zone C & D) on Zone B public lands. Currently, Zone B prohibits such construction. But the HE says the City plans to make zoning changes “within 3 years of Housing Element adoption” to allow this. If re-zoning requires a ballot measure, how can the City promise it to HCD? This zone “re-classification” position is hardly a solid one for the City. Can we honestly believe the HCD will miss this?

A similar situation happened to the City of Davis. The Davis HE called for re-zoning “within 3 years” to allow for developing open space and agricultural lands. But Davis has a rule (Measure J) which required a vote to do that. Sound familiar? In January 2022, the HCD rejected the Davis HE plan, in part, because the re-zoning plan was speculative due to vote requirement.

Our City Attorney and the housing consultants have all made their position abundantly clear: no vote is needed since building multi-family housing on city lands is not a “reclassification” (stated at 6/20/22 City Council meeting). Are those conclusions, and the plan to build out our city center and parks, really best for the City of Piedmont?

Mike McConathy, Piedmont Resident

Link to PCA article with comments following article:

Piedmont City Council Rejects Voter Control Over Zoning Reclassifications

Piedmont’s zoning system is being corrupted.

Interchanging single-family zoning and multiple-family zoning is impossible under the Piedmont City Charter.  Piedmont has a zone specifically for multiple-family dwellings, yet under the City Attorney’s interpretation of the City Charter,  all zones are multiple-family zones corrupting Piedmont’s zoning system controlled by voters.

In the staff report for the August 1, 2022  Council meeting regarding adding 587 housing units, the City’s interpretation denies the actual and complete language in the City Charter.  The full wording of the Zoning System in the Piedmont City Charter describes the use of the 5 zones. 

There is a specific zone for multiple housing and there is another zone for multiple housing use.  Single-family zoning is allowed in all Piedmont zones. Single-family dwelling use under state law permits a house, an ADU (Accessory Dwelling Unit) and an additional unit within the confines of the main house making 3 housing units possible within Piedmont single-family zoned parcels.

Interchanging single-family zoning and multiple-family zoning is impossible under the City Charter. 

 Since all Piedmont zones allow single-family dwellings,  permitting multiple family dwellings on all Piedmont parcels corrupts Piedmont’s City Charter and the ability of voter to control zoning in Piedmont.

The City’s incorrect statement is copied below:

“Therefore, a vote of the electorate would not be required since, under Section 9.02 of the Charter, and its historical interpretation by the City Attorney, changes to the density within each zone do not require a vote of the electorate.”

Are all parcels going to be changed in size to allow the multiple housing proposal of the HE plan?  This eliminates voter control in this work-around plan to remove voter approval as stated in the City Charter.

The City’s interpretation of the Charter relies on several missteps made by City Officials regarding zoning, none of which have the pervasive and overwhelming impact of the proposed HE  changing zoning uses without allowing Piedmont voters in densifying Piedmont with multiple-family proposals in zones.

The City minimally owes it to Piedmont voters to research City records for not only the intent of the City Charter, but the actual words as copied below.

City Charter ARTICLE IX. General Provision

SECTION 9.02 ZONING SYSTEM The City of Piedmont is primarily a residential city, and the City Council shall have power to establish a zoning system within the City as may in its judgement be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property which is zoned for uses other than or in addition to a single-family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above.  

City Staff report for August 1, 2022 states:

“6) Questions Regarding the City Charter Questions have come up regarding Section 9.02 of the City Charter, and whether increasing densities or adding another residential use category within existing zones would require a vote of the electorate.

Agenda Report Page 9

“The City’s Charter provides that “[t]he Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election.” (City Charter, Section 9.02.) A vote of the electorate is thus required when changing a zone’s boundary or changing the zone of a property from one zone to another zone, but not to change densities for already allowed uses. Therefore, a vote of the electorate would not be required since, under Section 9.02 of the Charter, and its historical interpretation by the City Attorney, changes to the density within each zone do not require a vote of the electorate.

As noted in the City statement above, the use described by the zoning is totally omitted with the argument that density can be added to any zone without voter approval making all zones multi-family zoned.

The issue is one of great import as Piedmont voters are excluded from this monumental decision.

The City Council will consider this Charter issue on August 1. 2022.  Three of the City Council members are licensed members of the California Bar Association, Andersen, Long, and McCarthy. 

Should Piedmont adhere to the the City Charter with voter control over zoning uses/classifications or forfeit control to the City Council?

What should come first – voter approval of zoning reclassifications/use changes or City Council approval of the Housing Element (HE) requiring the reclassifications/use changes?

The question is not whether or not proposed changes are good or bad; the question is who has the right to change the zoning usage/classifications? State laws have limited control over city zoning laws. 

The currently proposed Piedmont Housing Element defeats the Piedmont City Charter.

The City Council proposes to change usage on public property to multiple family zoning via the Housing Element (HE).  Piedmont Parks, the Arts Center, City Hall, Veterans Building, Blair Park, Skate Board Park, and Corporation Yard – historic buildings and uses are proposed for change of use.

Once the HE has specified in writing the locations of the required 587 new housing units and is approved by the City Council along with the state, the City of Piedmont is required to adhere to the zoning changes specified in the HE.  The Piedmont Housing Element and General Plan are firm government commitments to to the state, commercial developers, individuals, organizations, groups, property owners to be implemented during the 8 year HE term. 

The process being utilized by the City Council makes zoning changes/reclassifications the sole authority of the City Council rejecting the language within the City Charter that  requires voter control over changes/reclassification of zones.

Will Piedmont voters have an opportunity to approve the change of use/ reclassification per the City Charter, or will the City Council put zoning changes in the HE and require voter approval of the zoning changes after the HE is approved? Piedmont’s proposed HE requires zoning use/reclassification turning parks and public property into multiple housing. 

It has been publicly stated and proposed that park land would be declared surplus property and sold or reused/reclassified without voter approval.

Piedmont’s five zones are classified as: public, commercial, multi-family, single-family and single-family Estate – with all zones permitting single-family housing.   In Piedmont, the use determines the classification of a zone.

“Classified, Reclassified, and use” are keywords within the City Charter.

Voter approval on zoning is well established in Piedmont per the voter approved Piedmont City Charter.  Only voters can change zone usage/classifications.  Adherence to the City Charter is not a matter of how much it cost to adhere to the Charter; adherence is a matter of law. 

The words “classification and reclassifications”, describe the “use” within a zone as can be seen by reading the City Charter copied below:.

City Charter ARTICLE IX. General Provision

SECTION 9.02 ZONING SYSTEM The City of Piedmont is primarily a residential city, and the City Council shall have power to establish a zoning system within the City as may in its judgement be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property which is zoned for uses other than or in addition to a single-family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above..  

Since all zones allow single-family development, Michelle Kenyon, Piedmont’s contract City Attorney, stated in regard to the HE’s proposed changes that multiple family housing is housing, and therefore allowed in all zones.   Kenyon has used other cities’ definitions of “classification and reclassification”, rather than relying on language found in Piedmont’s City Charter with “use” determining a classification.

City Attorney Kenyon has instructed the Piedmont City Council and Planning Commission that Piedmont voter approval of the proposed land use changes/reclassifications are not required because: no new zone is being created; no zone is  being enlarged; no zone is being reduced.  Importantly, Kenyon’s advice results in the ability of the City Council to change the use/ reclassification of zones without voter approval.

City Charter ARTICLE IX. General Provision:

SECTION 9.02 ZONING SYSTEM (Excerpt from above)

“provided that any property which is zoned for uses other than or in addition to a single-family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above.”

As noted above, the City Charter allows property owners in the multifamily or commercial zone to rezone their property to exclusively be for single-family zoning.  The City Charter in this section informs the definition of “classification and rezoning” as “use” in the zones.  It is unknown how the Kenyon opinion accommodates the zone use/ classification  language written into the City Charter. 

Timing:

The City Council has known for over a year, there would be significant challenges to Piedmont zoning to accommodate 587 new housing units in Piedmont; while other cities have allowed voter participation, Piedmont voters have not been given a chance to act on the zoning per the City Charter, The deadline for placing a ballot measure on the November 2022 ballot ends in August. 

What if voters do not approve the HE changes?  Are voters no longer permitted to approve  or disapprove the zoning changes?  Does the City Council plan to follow outside counsel advice and eliminate voter approval?

Piedmont City Council, Tuesday, Jan. 21, 2020, 7:30  p.m., City Hall – viewable on the City website under videos.

At the Piedmont Planning Commission on Jan. 13th, numerous questions arose regarding changing Piedmont’s ordinances for Accessory Dwelling Units (ADUs) to conform to City staff interpretation of newly passed state laws.  Some of the issues raised were parking, notice, public input, number of people living in an ADU, safety, distance from public transit, staff review process, design review considerations, plantings, landscape requirements for privacy, construction plans, necessity to act prior to complete information, etc.

Four of the Planning Commissioners, voted to recommend approval to the City Council, with one opposed (Levine).

An important question has arisen regarding the necessity of moving ahead with a new Piedmont ordinance prior to the California Department of Housing and Community Development issuing a directive on how the new laws are to be implemented.  Piedmont’s Planning Staff acknowledged publicly it had been challenging to meld three new statutes together because of conflicts and lack of clarity.  Some community members have indicated the proposal includes unnecessary items while excluding items as noted above.

Nowhere in the staff documentation is there a direct correlation between the new state laws and the proposed changes to Piedmont’s laws. 

Given that the new state laws may (unless Charter cities are ruled exempt on zoning) preempt any conflicting Piedmont ordinances not complying with the new state laws, it has been stated that a hasty adoption of an incomplete new ordinance is not in Piedmont’s favor and should not be enacted by the Piedmont City Council until issues are resolved.

According to the Piedmont Planning Department, State laws place limits on a local jurisdiction’s ability to regulate ADUs (Accessory Dwelling Units) and Junior Accessory Dwelling Units (JADUs).  The staff report does not quote the relevant State law language for each inconsistency it cites.

READ the proposed Ordinance  HERE.

Comments can be sent to the Piedmont City Council for their first consideration on Tuesday, Jan. 21 by clicking below. 

> citycouncil@piedmont.ca.gov.

To send comments via U.S. Mail, use the following address: Piedmont City Council c/o City Clerk, 120 Vista Avenue, Piedmont, CA 94611.

~~~~~~~~~

The staff recommended revisions to Piedmont’s ADU ordinance to address the identified inconsistencies with state laws are:

a. Once an application for an ADU has been deemed complete, the City has 60 days to take action on it, rather than the currently required 120 days.  What action does state law require and does it require the proposed changes immediately? 

Contrarily, if approved by the legislature and Governor, SB 50 would require beginning after January 1, 2023 creating new inconsistencies:

A local agency must notify a multi-family development proponent if the application does not qualify for ministerial approval within 60 days.  (However, a local agency could exempt a project from streamlined ministerial approval if the project will cause a specific adverse impact to public health and safety.)  To qualify, the project must be constructed on vacant land or convert an existing structure that does not require substantial exterior alteration into a multifamily structure, consisting of up to 4 residential dwelling units and that meets local height, setback, and lot coverage zoning requirements as they existed on July 1, 2019.

b. ADUs must be allowed in every zone in which residential use is allowed. In Piedmont, this is every zone.

c. A requirement for owner occupancy on the property is no longer allowed, at least through 2025.

d. Architectural review of construction related to an ADU is allowed, but it must be done ministerially without public hearing.

e. Any minimum size standard for an ADU must allow 850 square feet for studio or one-bedroom units, and 1,000 square feet for an accessory dwelling unit that provides more than one bedroom. (The current code limit is 800 square feet.)

f. When a garage or carport is demolished or converted for the purpose of creating an ADU, no replacement parking can be required, and existing nonconforming setbacks and coverage can be retained.

g. In addition to a regular ADU, the City must also allow a JADU. Both an ADU and a JADU can be constructed on a single lot.

h. There are four categories of ADUs the City must approve by right:

1. One ADU and one JADU within the existing building envelope of a single family dwelling, with an expansion of up to 150 square feet for ingress and egress.

2. On a lot with a single-family dwelling: A detached ADU that is not more than 800 square feet, that is no more than 16 feet in height and is set back at least 4 feet from side and rear property lines.

3. Within existing multi-family residential buildings: multiple ADUs converted from areas not currently used as living space (at least 1 ADU and not more than 25 percent of existing dwelling units).

4. Not more than two detached ADUs on a lot with an existing multi-family residential building that are no more than 16 feet in height and are set back at least 4 feet from side and rear property lines.

BACKGROUND: Current Regulations

The City adopted the current regulations for accessory dwelling units in May 2017. In brief, the current regulations require an owner of a single-family dwelling to seek an accessory dwelling unit permit to create an ADU as a dwelling unit independent of the primary residence. Except for Exempt ADUs (those created before 1930) either the primary or accessory dwelling unit must be owner occupied. The ADU may be attached or detached, but must have a separate exterior entrance.

As required by state law, an application for an accessory dwelling unit permit must be processed ministerially (without a public hearing) if it meets all the standards required for the ADU permit. New buildings or changes to buildings that are intended to contain the ADU require separate design review and building permits and must meet design review criteria and zoning provisions for buildings, or a variance from those provisions.

Revision of Incentives for Affordable Housing

The current code imposes a limit of 800 square feet on all ADUs and authorizes the Planning Commission to grant an exception to the size limit for units up to 1,000 square feet if the owner agrees to rent the unit to a low income household for a period of 10 years,

Page 2 of 112  – or 1,200 square feet if the owner agrees to rent the unit to a very low income household for a period of 10 years (Sec. 17.38.070.C.1).

Since May 2017, the City has received no applications for an ADU requesting an exception from the unit size requirement and has approved no ADU permits with a rent restriction.

The state law changes the minimum size standards permitted under local regulation, requiring revision of the City’s exception provisions. In accordance with Government Code section 65852.2(a)(3), it is recommended that exceptions to size requirements to provide an incentive to create affordable housing be processed ministerially.

City of Piedmont General Plan Housing Element

The majority of the General Plan Housing Element for 2015-2023 (separately available on the City’s website) is devoted to ADUs (referred to as second units in the Element) because, as a built-out city, ADUs are the main means by which the City is able to provide new housing units, either market rate or affordable.

Housing Element policies and programs that relate to ADUs include the following:

Policy 1.2: Housing Diversity. Continue to maintain planning, zoning and building regulations that accommodate the development of housing for all income levels.

Policy 1.5: Second Units. Continue to allow second units (in-law apartments) “by right” in all residential zones within the City, subject to dimensional and size requirements, parking standards, and an owner occupancy requirement for either the primary or secondary unit. Local standards for second units may address neighborhood compatibility, public safety, and other issues but should not be so onerous as to preclude the development of additional units.

Policy 1.6: Second Units in New or Expanded Homes. Strongly encourage the inclusion of second units when new homes are built and when existing homes are expanded.

Program 1.C: Market Rate Second Units. Maintain zoning regulations that support the development of market rate second units in Piedmont neighborhoods.

Policy 3.1: Rent-Restricted Second Units. Continue incentive-based programs such as reduced parking requirements and more lenient floor area standards to encourage the creation of rent restricted second units for low and very low income households.

Policy 3.2: Occupancy of Registered [Permitted] Units. Encourage property owners with registered [permitted] second units to actively use these units as rental housing rather than leaving them vacant or using them for other purposes. Page 3 of 112

Policy 3.3: Conversion of Unintended Units to Rentals.Encourage property owners with “unintended second units” to apply for City approval to use these units as rental housing. “Unintended” second units include spaces in Piedmont homes (including accessory structures) with second kitchens, bathrooms, and independent entrances that are not currently used as apartments.

Policy 3.4: Legalization of Suspected Units. Work with property owners who may be operating second units without City approval to legalize these units. Where feasible and consistent with the health and safety of occupants, consider planning and building code waivers to legalize such units, on the condition that they are rent and income restricted once they are registered.

Policy 3.5: Second Unit Building Regulations. Maintain building code regulations which ensure the health and safety of second unit occupants and the occupants of the adjacent primary residence.

Policy 4.4: Updating Standards and Codes. Periodically update codes and standards for residential development to reflect changes in state and federal law, new technology, and market trends.

Policy 5.2: Second Units, Shared Housing, and Seniors. Encourage second units and shared housing as strategies to help seniors age in place. Second units and shared housing can provide sources of additional income for senior homeowners and housing resources for seniors seeking to downsize but remain in Piedmont.

CALIFORNIA GOVERNMENT CODE SECTIONS 65852.2 AND 65852.22: In September 2019, Governor Gavin Newsom signed AB 68, AB 881, and SB 13 into law.  

Read the full Planning Department Report by clicking below

Planning-ADU-Report-2020-01-13

No more single-family housing zones in Piedmont.

Piedmonters who falsely relied on Piedmont’s City Charter and voters rights to protect single-family zoning in Piedmont have lost their authority under new state legislation changing Piedmont and housing in California by opening development opportunities while eliminating Charter City rights and public input in determining  housing requirements.  

Piedmont housing is dramatically impacted by the signing in October 2019 of state legislation AB 68, AB 881, and SB 13.  The legislation was unopposed by Piedmont’s City Council.  The laws essentially eliminate Piedmont’s  single-family zoning which was controlled by Piedmont’s City Charter and voting rights.

While some cities strenuously resist AB 68, AB 881, and SB 13, Piedmont’s City Council guided by the Piedmont Planning Department has stepped in line to become a different city by discarding Piedmont voters’ rights specified in the Piedmont City Charter to either support or oppose the changes.

Developers for decades, who have wanted to change and densify Piedmont, will now have “by right” without public input the ability to densify  Piedmont properties up to 3 units on a former single-family property.

At 5:30 p.m. on January 13, 2020, the Piedmont Planning Commission will review an ordinance amending Chapter 17 (Planning and Land Use) of the City Code to conform the City’s regulations regarding Accessory Dwelling Units to new state laws and make a recommendation to the City Council.  See staff report below.

A week later, at 7:30 p.m. on January 21, 2020, the City Council will consider the proposed ordinance and the recommendation of the Planning Commission and could approve the first reading of the ordinance.

Both meetings will be  held at City Hall, 120 Vista Avenue, City Council Chambers and will be televised via the City website under videos.

Background – 

On January 1, 2020, new state laws came into effect which limit a local jurisdiction’s ability to regulate Accessory Dwelling Units (ADUs). These units are frequently referred to as “Granny Units” or “Secondary Units.” With the new legislation, parcels can contain up to 3 units without the owner being a resident. 

The Piedmont staff believes and interprets existing state law to require extensive reduction in resident planning for a desirable single-family community.

  According to the staff provisions affected by the changes to state law include, but are not limited to:

• ministerial review and approval of all ADU permit applications= no public hearings  or neighborhood input
• off-street parking requirements = off-street parking requirements eliminated
• garages can be converted to ADU’s with no set back requirements
• unit size limitations on applications = size increases 
• approval timelines = 60 day term
• owner occupancy requirement  = owner no longer needs to be a resident on the property
• allowance for junior accessory dwelling units (JADUs) = Small ADU
• ADUs on multi-family properties = increased densities
• ADUs that must be approved by-right
• allowance for 3 dwelling units on a property
• setback requirements in certain situations = eliminated

“Local laws which do not conform to these new state standards are preempted and cannot be enforced. City staff has developed the proposed ordinance which will be considered by the Planning Commission and the City Council to conform Piedmont’s ADU regulations to the new state law.”  Piedmont Planning Department

Link to staff report:

https://piedmont.ca.gov/UserFiles/Servers/Server_13659739/File/Government/Departments/Planning%20Division/Planning-ADU-Report-2020-01-13.pdf

Documents on the City Website

Documents related to this effort are available on the City website. A staff report to the Planning Commission dated January 13, 2020 is provided on the website (see Agenda Report mid-webpage). It includes the proposed changes that will bring the City’s regulations for ADUs into compliance with the new state laws, while preserving the City’s rent-restricted ADU program, as well as the City’s ability to regulate ADUs and JADUs.

The Planning Commission’s responsibility is to make a recommendation for consideration by the City Council, which is the decision-making body. The City Council staff report for this item will be posted on the City website no later than 12 noon on Friday, January 17, 2020.

Public Engagement:

Following no consideration of the legislation by the Piedmont City Council, the legislation was signed in October 2019.  Piedmont is now moving to an expedited review and rapid adoption of a new ordinance, which does not comply with the Piedmont City Charter.

According to the City, the opportunity for public input is available throughout this rapidly moving process. Interested members of the public are encouraged to attend the public meetings. Both the Planning Commission meeting on January 13, 2020 and the City Council meeting on January 21, 2020 will be televised live on KCOM-TV, the City’s government access TV station and available through streaming video on the City’s web site at piedmont.ca.gov/

Written comments regarding the proposed ordinance may be sent to the City Council and Planning Commission via email to: :@piedmont.ca.gov. Comments intended for the Planning Commission’s consideration preferably should  be submitted by 5 p.m., Thursday, January 9, 2020 for distribution to the Planning Commission.

Comments can be sent to the Piedmont City Council for their first consideration on Jan. 21. 

> citycouncil@piedmont.ca.gov.

To send comments via U.S. Mail, use the following address: Piedmont City Council c/o City Clerk, 120 Vista Avenue, Piedmont, CA 94611.

If you have questions about the ordinance, contact Planning & Building Director Kevin Jackson by email at kjackson@piedmont.ca.gov. Any correspondence sent to the City will be considered a public record.

Contact: Kevin Jackson, Planning and Building Director at Tel: (510) 420-3039   Fax: (510) 658-3167  kjackson@piedmont.ca.gov.

The staff reports for the meeting are:

06/05/17 – Approval of a Modification to a Conditional Use Permit for Sarah Baldwin, DMD at 1375 Grand Avenue, Suite 101

06/05/17 – Introduction and 1st Reading of Ord. 732 N.S. Making a Technical Correction to Section 8.1 of the City Code to Clarify that the 2016 California Fire Code is in Effect

06/05/17 – Authorize the City Administrator to Sign a Letter of Support Authorizing Participation in the 2017 East Bay SunShares Program

06/05/17 – PUBLIC HEARING Regarding the Proposed Budget and Fee Proposals for FY 17-18 and the Levy of the Municipal Services Tax and Sewer Tax

a. Presentation of Report from the Budget Advisory & Financial Planning Committee

b. Report on the FY 17-18 Budget Proposal

06/05/17 – Introduction and 1st Reading of Ordinance 733 N.S. Amending Chapter 17 of the City Code Related to the Grand Avenue Sub Area of Zone D

06/05/17 – Report from the Chief of Police Regarding Diversity Education and Outreach as well as Collaboration with PUSD and Other Stakeholders (Oral Report)

06/05/17 – Consideration of the Award of Contract for the Linda Avenue Crosswalk Improvement Project to Bay Construction in the Amount of $328,672.80 and approval of an Overall Construction Budget of $406,515

06/05/17 – Consideration of the Operational Analysis for the Aquatics Center Master Plan Conceptual Design

The agenda for the City Council – Monday, June 5, 2017   < meeting.

On March 6th, 2017, I attended a Piedmont City Council meeting, that occurs every two weeks to discuss bills and pass laws. This particular meeting focused on planned revisions to the City Code, specifically revisions to planning and land use, Chapter 17, and repeals of policies in the City Code. The Council also talked about adopting Interim Design Guidelines.

The meeting began with the pledge of allegiance, and most notably the passage of a resolution affirming the action of the Alameda County Mayor’s Conference against hate speech through the passage of Resolution 01-17, as well as a discussion of its importance. Council members thanked the Mayor for his participation during the meeting and stressed the importance the resolution had as a symbol of progress.

Next, the meeting opened to a public forum. I was the first speaker, and I urged the Council to choose one of the best candidates, my mother, Tracey Woodruff, who had been interviewed before the start of the meeting, for the Climate Action Plan Task Force. The next (and last) speakers were also students. Katy Savage spoke about stopping the blockage of storm drains and Shannon Baack spoke about putting crosswalks on dangerous parts of  St James Drive.

After Shannon left the stand, the Council began the main agenda. The first issue they presented was the recommended City Code changes, specifically zoning code changes and short term rental changes, mostly concerning fine tuning the code to address current building patterns and to increase ease of use, as well as simplification of the chapters.

After a staff report on the specific changes of the City Code, the discussion of the code began. During the discussion, it was brought up by a Council member that the laws regarding the Grand Avenue sub area had been getting a lot of attention but are a small part of the code. It was proposed that when the changes are adopted, the regulations of the Grand Avenue sub area would be reverted to status quo. Although the city said they would try to work with the people who had complaints regarding the Grand Avenue sub area while keeping the status quo, City Administrator Paul Benoit said that the entire public is never happy about any one decision, and that the decision regarding zoning laws will be no different.

Councilmember Jen Cavanaugh stressed the importance of public knowledge and perception of the problems addressed by the City Council. The more people know about a problem and the changes it requires, the less people are unhappy when the Council makes a decision. In fact, a couple of Council members stressed the importance of the process of the creation and approval of such changes.

Every step is important. Overlooking or rushing something could cause easily preventable mistakes and an unhappy public. Council members understand the importance of a careful process. During the discussion, it was made clear that this meeting was not to be the meeting where the changes were finally approved. Rather, its purpose was to determine the intent of the Council members and include them in the final draft of the changes to the code, in regards to the Grand Avenue sub area.

The floor was then opened up to public forum. The Mayor suggested that those who want to passionately speak on the Zone D regulations for the Grand Avenue sub area and short term rental should “save their fire” for a later meeting, when the Council focuses on those two issues.

The first speaker approved the Council’s decision regarding the short-term rentals. The second speaker, Joy Koletsky Jacobs was upset that Grand Avenue sub area residents weren’t adequately notified of the meetings regarding the changes to the code for said sub area. She asked that residents be notified by mail and not email, as a person is more likely to give attention to their mail rather than their email. The third speaker, Mark Loper, decided to save his fire for a later date.

The fourth speaker, Ted Kinch, spoke of his worry about the loss of parking and increase of traffic that might come with the Zone D changes, which includes the Civic Center. The center is near a school, so the increased traffic might lead to problems with children walking to school.

The fifth speaker, Miguel de Avelon thanked the council for separating the Zone D and short term rental changes. The sixth speaker, Dimitri Magganas, expressed his neutrality on most of the changes, but disliked the idea of having AirBnB in Piedmont.

After public forum closed, the Council reviewed the addendum revisions. These included limiting the number of signs in commercial establishments to a percentage of window area rather than a strict number cap, and reverting short term rental regulations to the current status quo, as well as changing the regulation of Zone D, which includes the Grand Avenue sub area regulations for lot coverage, landscaping, structural height, street yard setback, side and rear yard setback and reverts them to current regulations.

The floor to ceiling height for the Civic Center sub area will also be increased from 12 feet to 15 feet in the draft.  Another recommended change was to permit ground floor residential use except for entry into the upper floors, as well as reverting parking for Zone D to current regulations, meaning that the parking spaces required for dwelling units greater than 700 square feet to 2 rather than 1.5, as well as deleting the provision that exempts parking for the first 1500 square square feet of commercial floor area. For commercial uses, they recommend keeping the one parking space per 150 square feet for high volume spaces and 250 square feet for low volume spaces.

The Council then discussed deferring the discussion of short term rentals and Zone D (Grand Avenue sub area) to a later date. They decided to save the resolution for those issues for another meeting. Councilmember Jen Cavenaugh then went on to thank the public for their attendance to the meetings.

The conversation then turned to parking, regarding the changes that this new draft brings. In the draft, uncovered and tandem parking counts towards a house’s parking requirements. When questioned on the inclusion of tandem parking in the revision, the Planning Director explained that this was decided based on precedent from the Planning Commission. Although the code allowed tandem parking, it was pointed out that it is an unused practice in most cases, and that most would rather park in their driveway or on the street.

There was worry that the parking revisions were discouraging on-street parking by not allowing people to park in 20 foot setback (distance from building to property line). However, people are welcome to park in their own 20 foot setback, it is just not counted towards required parking for a home.

One Council member pointed out that the law assumes that if you add a room you add a car, which has not proven to be in correlation. He says that he doesn’t want parking to be a problem for people who want to expand their house, and pointed out that adding more ways to fill the parking requirement will help those who want to expand. In their review, the Planning Commission has the power to request more parking from a residence than meets the parking requirement, if they feel that the parking situation around the residence is unsafe.

Finally, Council member Teddy G. King pointed out that efforts to accommodate vehicles has become a problem in California, in regards to carbon emissions and global warming, and that the city of Piedmont has adopted an environmental policy that has to do with moving people out of their vehicles. Tandem parking would help relieve streets of congestion, and serve as an alternative to multiple parking spots, thus decluttered streets and encouraging fewer cars.

Another planned change is to Zone C, multi-family home parking requirements. This change would reduce the parking requirements of a multi-family home if they are to be redeveloped. The concern brought up with this change is that the multi-family homes are usually next to residential neighborhoods, and that nearby residents are upset by redevelopment because they fear it means fewer parking spaces. However, the changes are not limiting parking; they are lowering the required amount. The thinking is that the city doesn’t want to force residents to build unnecessary and useless parking.

The developers are free to put in more parking if they feel the need to do so, the City just doesn’t want to force people to create parking if they don’t need it. More parking spaces makes moving to Piedmont more expensive, as new residents have to pay for their own parking.  This lowers the number of people moving to Piedmont. This is consistent with the Planning Commissions goal of creating a low density urban environment.

The Council then moved on to the changes regarding Zone E, which are essentially very large residential properties. The changes proposed are roughly the same as those proposed for Zone A, allowing people to build up to their property line. Both Zone A and E have the same development pattern: a front yard, a house in the middle of the property, a backyard, and garages and others structures towards the back of the property. The revision is meant to incentivize this building pattern by making it easier to build accessory structures in the back of the property next to the property line. This is to ensure that the front yard remains open, that the house is not next to an accessory structure, and that the backyard remains open between the buildings. This building pattern creates space between the structures and on the property, a more ideal and pleasing design for both the residents and their neighbors as it allows for more privacy.

A revision also allows people to build site features without having to add them to their lot coverage. The intent of the structure coverage limit is to limit the amount of structures on a building that would have a negative impact on nearby structures. However, having a small number of additional structures on a property really doesn’t have any adverse effect, so the Planning Commission decided to allow a certain amount to be built on a property without adding to the coverage limit.

Site features such as a hot tub, built-in barbeque or bench really don’t have a negative impact, and these are the features that people usually want to add. Because people apply for such changes on a regular basis, the Planning Commission wants to remove this requirement of an application, so that it can be addressed in code rather than variance. Essentially, the Planning Commission is trying to improve the process to make it easier for residents.

During the discussion of revisions to property regulations the clock struck 9:30 p.m. This was the student curfew for school activities, and so I had to leave the meeting in accordance with the school code. Although the meeting continued for another half hour I was unable to write about it, because I wasn’t there.

by Xavier Woodruff-Madeira, Piedmont High School Senior

Editors Note:  Opinions expressed are those of the author.