PREPARED BY: GRIFFEN DEMPSEY DATE OF MEETING: 12/18/2023
SUBJECT:
TITLE
ADOPTION OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN PABLO AMENDING SAN PABLO ZONING ORDINANCE CHAPTER 17.60, SPECIAL RESIDENTIAL USES, SECTION 17.60.070, ACCESSORY DWELLING UNITS, CONCERNING PROCEDURES AND DEVELOPMENT STANDARDS FOR ACCESSORY DWELLING UNITS (ADUS)
CEQA: This proposed action is statutorily exempt from the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21080.17, which exempts the adoption of local ordinances regulating accessory dwelling units.
Label
CITY MANAGER RECOMMENDATION
Recommendation
Waive second reading; adopt Ordinance
Body
Compliance statements
FY 2023-2025 Council Priority Workplan Compliance Statement
Updating the Zoning Ordinance to clarify and streamline the development standards and processes for ADUs would help to promote the City Council Major Policy Goal of Expand Housing Options, Priority 303 Diversify and improve the quality of housing stock, and Priority 301.3. Promote housing production to meet RHNA requirements (2023-2031).
PUBLIC HEARING NOTICE
The City Council held a public hearing on this item at its November 20, 2023 meeting. A public hearing notice was published in the West County Times (West Contra Costa edition of the East Bay Times) newspaper on November 9, 2023. The Planning Commission also held a public hearing on the proposed amendments on October 24, 2023, which was noticed in the West County Times (West Contra Costa edition of the East Bay Times) newspaper on October 14, 2023.
REQUESTED ACTION
The City Council is requested to adopt the attached Ordinance which omits any underlining or strikethrough revisions that were used to highlight the changes when the Council first reviewed and introduced the Ordinance on November 20, 2023. There were no revisions requested at the November 20, 2023 City Council meeting, and the City Council concurred with placing this item on the consent calendar for adoption.
BACKGROUND
On January 1, 2019, Senate Bill (SB) 1333 made amendments to existing State law (Government Code Sections 65852.2 and 65852.150) related to Accessory Dwelling Units (ADUs). Specifically, SB 1333 required cities to allow ADUs in zones that allow residential uses. On December 7, 2020, the City of San Pablo adopted Ordinance 2020-011, amending the Zoning Ordinance Chapters 17.34, 17.42, 17.54, 17.60, 17.68, 17.70, and Appendix A regarding ADUs, junior accessory dwelling units (JADUs), and accessory structures. This ordinance brought the Zoning Code up to date with the revised State laws at the time regarding ADUs, including Government Code Sections 65852.150 and 65852.2. This ordinance was submitted to the California Department of Housing and Community Development (HCD) for review and certification upon its adoption.
Since the adoption of Ordinance 2020-011, a number of subsequent bills have been passed by the California legislature to further amend State ADU law. These bills, including AB 345, AB 3182, AB 68, AB 881, SB 13, AB 587, AB 670, AB 671, AB 2221, AB 916, AB 561, and SB 897, have superseded the changes made to the San Pablo Zoning Code in 2020.
HCD REVIEW OF 2020 CITY ORDINANCE
On June 26, 2023, the City received correspondence from HCD informing the City that its ADU regulations no longer complied with Section 65852.2 of the California Government Code. According to the HCD analysis, San Pablo Zoning Ordinance Section 17.60.070: Accessory Dwelling Units was found to be out of compliance with the current version of relevant Government Code sections on the following topics:
1. Existing and Proposed Development
Cal. Government Code Section 65852.2: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=65852.2.&nodeTreePath=11.1.10.2&lawCode=GOV>
(a)(1)(D)(ii) The lot is zoned to allow single-family or multifamily dwelling residential use and includes a proposed or existing dwelling. [Emphasis added.]
Section 17.60.070(D) of the San Pablo Zoning Ordinance is not expressly inclusive of proposed dwellings, as is mandated by state law. This section currently reads as follows:
… An application for a permit to establish any of the following types of accessory dwelling units in a residential or mixed-use zoning district will be approved ministerially without discretionary review or public hearing within sixty days of receipt of a complete application if there is an existing single-family or multifamily dwelling on the lot. [Emphasis added.]
Staff therefore proposes to make text changes to clarify that the timing for ministerial approval of an ADU application where there is no existing dwelling will occur concurrently with approval of the proposed dwelling.
2. Height Limits
Cal. Government Code Section 65852.2: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=65852.2.&nodeTreePath=11.1.10.2&lawCode=GOV>
(c)(2)(D) Any height limitation that does not allow at least the following, as applicable:
(i) A height of 16 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit.
(ii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit that is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. A local agency shall also allow an additional two feet in height to accommodate a roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the primary dwelling unit.
(iii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed multifamily, multistory dwelling.
(iv) A height of 25 feet or the height limitation in the local zoning ordinance that applies to the primary dwelling, whichever is lower, for an accessory dwelling unit that is attached to a primary dwelling. This clause shall not require a local agency to allow an accessory dwelling unit to exceed two stories.
Section 17.60.070(D) of the San Pablo Zoning Ordinance sets forth height limitations for ADUs. The height limitations of this section uniformly reference a 16-foot limit, which does not account for the exceptions for 18 and 25 feet discussed in the Government Code. The height limitations in this section read as follows:
…(D)(1)(c)(iii) Attached ADUs may be up to sixteen feet in height.
…(D)(1)(e)(iii) The ADU shall not exceed sixteen feet in height.
…(D)(1)(e)(v) An ADU that is eight hundred square feet or smaller and up to sixteen feet in height with at least four-foot side and rear yard setbacks shall be permitted, notwithstanding any other development standards.
City staff therefore proposes to make text changes to reflect the height limits allowed by State law. In addition, City staff also propose a modification to the height limitations to allow for detached ADUs on the site of existing multistory, multifamily dwelling units to have up to an additional two feet of height in order to accommodate an alignment with the roof pitch of the primary dwelling unit. State law allows an accommodation for roof pitch of ADUs on the sites of existing multifamily dwelling units that are within one-half mile walking distance of a high-quality transit corridor or major transit stop, but does not provide the same allowance for ADUs on the site of existing multistory, multifamily dwelling units that are not within this distance. Staff has included this allowance to promote consistency between ADU regulations for units that are both closer to and further from transit in excess of the requirements of State law.
3. Unit Mixture
Cal. Government Code Section 65852.2: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=65852.2.&nodeTreePath=11.1.10.2&lawCode=GOV>
(e)(1) Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create any of the following:
(A) One accessory dwelling unit and one junior accessory dwelling unit per lot with a proposed or existing single-family dwelling…
(i) The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure…
(B) One detached, new construction, accessory dwelling unit that does not exceed four-foot side and rear yard setbacks… [Emphasis added].
Section 17.60.070(E)(1) concerns the location of accessory dwelling units. This section limits single-family properties to one ADU and one JADU, whereas state law allows one attached ADU, one detached ADU, and one JADU. This section states the following:
Up to one accessory dwelling unit (ADU) and one junior accessory dwelling unit (JADU) that meet the requirements of this section may be located… [Emphasis added.]
City staff therefore proposes text changes to reflect these various circumstances in State law where more than one ADU and one JADU are allowed.
4. Height Exceptions
Cal. Government Code Section 65852.2: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=65852.2.&nodeTreePath=11.1.10.2&lawCode=GOV>
(c)(2)(D) Any height limitation that does not allow at least the following, as applicable:
(i) A height of 16 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit.
(ii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit that is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. A local agency shall also allow an additional two feet in height to accommodate a roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the primary dwelling unit.
(iii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed multifamily, multistory dwelling.
(iv) A height of 25 feet or the height limitation in the local zoning ordinance that applies to the primary dwelling, whichever is lower, for an accessory dwelling unit that is attached to a primary dwelling. This clause shall not require a local agency to allow an accessory dwelling unit to exceed two stories.
Section 17.60.070 (F) enumerates additional development standards for ADUs. Presently, this section limits ADUs to sixteen feet in height. As described in section 2 above, this limitation conflicts with the height provisions of government Code Section 65852.2, which provide different height limits under certain circumstances. Section 17.60.070 (F) reads as follows:
…(2)(d) Notwithstanding the setback requirements set forth in subsections (F)(2)(a) and (c) of this section, a building separation of at least six feet between buildings shall be maintained, as required by the building code; provided, however, that this standard shall not prevent the development of an ADU that is eight hundred feet or less, up to sixteen feet in height, with at least four-foot side and rear yard setbacks. [Emphasis added.]
Therefore, City staff proposes text changes to reflect the State law requirements.
5. Parking
Cal. Government Code Section 65852.2: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=65852.2.&nodeTreePath=11.1.10.2&lawCode=GOV>
(d) Notwithstanding any other law, and whether or not the local agency has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), all of the following shall apply:
(1) The local agency shall not impose any parking standards for an accessory dwelling unit in any of the following instances:
…(D) When onstreet parking permits are required but not offered to the occupant of the accessory dwelling unit.
Section 17.60.070 (F)(3)(c) of the Zoning Code enumerates instances in which no additional off-street parking is required for an accessory dwelling unit. This section does not include the above-mentioned exception for when on-street parking permits are required but not offered to the occupant of the accessory dwelling unit. The section reads as follows:
c. No additional off-street parking is required for an accessory dwelling unit in any of the following instances:
i. The accessory dwelling unit is located within one-half mile walking distance of public transit, as defined by Government Code Section 65852.2 <http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=65852.2>.
ii. The accessory dwelling unit is located within an architecturally and historically significant historic district.
iii. The accessory dwelling unit is an internal conversion.
iv. A car share vehicle pick-up location is within one block of the accessory dwelling unit. A “car share vehicle” has the same meaning as in Vehicle Code Section 22507 <http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH§ionNum=22507>.
While the City does not require parking permits anywhere in the City, City staff proposes to include the State law requirement in the event the City adopts parking permits in the future.
6. Subordinate Entry
Cal. Government Code Section 65852.2: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=65852.2.&nodeTreePath=11.1.10.2&lawCode=GOV>
(e)(1) Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create any of the following:
(A) One accessory dwelling unit and one junior accessory dwelling unit per lot with a proposed or existing single-family dwelling if all of the following apply:
… (ii) The space has exterior access from the proposed or existing single-family dwelling.
Cal. Government Code Section 65852.22: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=65852.22.&nodeTreePath=11.1.10.2&lawCode=GOV>
(a) Notwithstanding Section 65852.2, a local agency may, by ordinance, provide for the creation of junior accessory dwelling units in single-family residential zones. The ordinance may require a permit to be obtained for the creation of a junior accessory dwelling unit, and shall do all of the following:
(5) (A) Require a permitted junior accessory dwelling unit to include a separate entrance from the main entrance to the proposed or existing single-family residence.
(B) If a permitted junior accessory dwelling unit does not include a separate bathroom, the permitted junior accessory dwelling unit shall include a separate entrance from the main entrance to the structure, with an interior entry to the main living area.
Zoning Code section 17.60.070(F)(6) governs independent access for ADUs. This section includes requirements for the location and visibility of the entrance to an ADU or JADU, which may constrain the creation of an accessory unit so as to make it infeasible. State law precludes the City from adopting or imposing regulations that place a burden on ADU development, and only allows ADUs to be denied if they are in violation of specific development standards. This section states the following:
…An accessory dwelling unit must have independent exterior access separate from that of the primary dwelling unit. The independent exterior access must be located on the building side or building rear; or not visible from the street; or otherwise visually subordinate to the primary dwelling unit. [Emphasis added.]
Therefore, City staff proposes text changes to allow for front-facing, street-visible, and non-subordinate entry only when there is no feasible alternative.
BUILDING STANDARD ENFORCEMENT
The City of San Pablo recently retained Civica Law Group, APC to review the City’s municipal code to identify areas where the City’s code enforcement tools should be amended to expand cost recovery options and to ensure compliance with State Law. This review recommended an additional amendment to the ADU provisions to address the five-year stay on enforcement set forth in SB 13.
Cal. Government Code Section 65852.2: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=65852.2.&nodeTreePath=11.1.10.2&lawCode=GOV>
(n) In enforcing building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code for an accessory dwelling unit described in paragraph (1) or (2), a local agency, upon request of an owner of an accessory dwelling unit for a delay in enforcement, shall delay enforcement of a building standard, subject to compliance with Section 17980.12 of the Health and Safety Code:
(1) The accessory dwelling unit was built before January 1, 2020.
(2) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is compliant at the time the request is made.
Cal. Health and Safety Code Section 17980.12: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=17980.12.&lawCode=HSC>
(a) (1) An enforcement agency, until January 1, 2030, that issues to an owner of an accessory dwelling unit described in subparagraph (A) or (B) below, a notice to correct a violation of any provision of any building standard pursuant to this part shall include in that notice a statement that the owner of the unit has a right to request a delay in enforcement pursuant to this subdivision:
(A) The accessory dwelling unit was built before January 1, 2020.
(B) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is compliant at the time the request is made.
(2) The owner of an accessory dwelling unit that receives a notice to correct violations or abate nuisances as described in paragraph (1) may, in the form and manner prescribed by the enforcement agency, submit an application to the enforcement agency requesting that enforcement of the violation be delayed for five years on the basis that correcting the violation is not necessary to protect health and safety.
(3) A local agency shall not require, as a condition for ministerial approval of a permit application for the creation of an accessory dwelling unit or a junior accessory dwelling unit, the correction of a violation on the primary dwelling unit, provided that correcting the violation is not necessary to protect health and safety.
(4) The enforcement agency shall grant an application described in paragraph (2) if the enforcement agency determines that correcting the violation is not necessary to protect health and safety. In making this determination, the enforcement agency shall consult with the entity responsible for enforcement of building standards and other regulations of the State Fire Marshal pursuant to Section 13146.
(5) The enforcement agency shall not approve any applications pursuant to this section on or after January 1, 2030. However, any delay that was approved by the enforcement agency before January 1, 2030, shall be valid for the full term of the delay that was approved at the time of the initial approval of the application pursuant to paragraph (4).
(b) For purposes of this section, “accessory dwelling unit” has the same meaning as defined in Section 65852.2.
(c) This section shall remain in effect only until January 1, 2035, and as of that date is repealed.
The San Pablo Zoning Code does not currently have a section that addresses the potential to request a stay in enforcement. Staff therefore proposes an amendment to this section of the Municipal Code (Section 17.60.070) to allow owners to request a delay in enforcement of building standards for an ADU consistent with Section 17980.12 of the Health and Safety Code.
PLANNING COMMISSION AND CITY COUNCIL ACTION
On October 24, 2023, the Planning Commission held a public hearing on the proposed amendments. There were no public comments and no comments by the Planning Commission. The Planning Commission adopted Resolution PC23-14 recommending approval of the Ordinance (5 in favor - 0 opposed).
The City Council conducted a public hearing, waived reading, and introduced the ordinance on November 20, 2023.
SUMMARY OF CHANGES
This is a City-initiated text amendment to Section 17.60.070 of the Municipal Code to better reflect Sections 65852.2 and 65852.22 of the Government Code, which govern the regulations and processes that local agency may impose on ADUs. The proposed amendment is consistent with the most recent updates to Sections 65852.2 and 65852.22, and includes the following revisions:
1. Updates language to ensure that all rules apply to accessory dwelling units proposed on the site of both existing and proposed dwelling units.
2. Expands and clarifies the limits on the number of ADUs per single-family property to one attached ADU, one detached ADU, and one JADU.
3. Increases height limit for attached ADUs on sites with existing or proposed single-family dwellings from 16 feet to 25 feet or the maximum allowed height in the zone, whichever is less.
4. Allows an increased height limit of 18 feet for detached ADUs on sites with existing or proposed single-family dwellings that are within one-half mile walking distance of a major transit stop or high-quality transit corridor. An additional two feet are allowed to accommodate roof pitch to match the primary dwelling unit.
5. Updates height limits for detached ADUs on the sites of existing multistory, multifamily dwellings and multifamily dwellings within one-half mile walking distance of a major transit stop or high-quality transit corridor to allow for up to 18 feet of height, with two feet additional height to match the roof pitch of the primary structure.
6. Updates language surrounding applicable development standards to reflect changes to maximum height.
7. Adds provision that no off-street parking is required for an ADU when on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
8. Removes requirements for independent access for an ADU or JADU to be located on the side or rear of the building, or otherwise to be clearly subordinate to the primary entrance.
9. Introduces language allowing for owners to request a delay in enforcement of building standards consistent with Section 17980.12 of the Health and Safety Code.
10. Makes additional minor grammatical changes.
GENERAL PLAN COMPLIANCE
State law requires the City’s Zoning Ordinance to be consistent with the General Plan. (Gov. Code Section 65860.) The proposed ordinance is consistent with the following General Plan policies:
LU-G-5 Promote a variety of housing types and prices within neighborhoods to serve the economic needs of all segments of the community.
LU-I-16 Support residential infill on vacant lots within existing neighborhoods.
LU-G-1 Promote a sustainable, balanced land use pattern that responds to existing and future needs of the City, as well as physical and natural constraints.
H-3.3.1 Promote Second Units. Continue to promote the development of second units as an affordable housing alternative in single-family areas, with reduced setback requirements.
H-3.3.3 Encourage Innovative and ‘Non-Traditional’ Forms of Housing. Provide opportunities and facilitate innovative housing approaches in financing, design, construction and types of housing to increase the variety and supply of lower and moderate-income housing.
The proposed ordinance would promote the creation of small-scale, low-impact housing that can help meet the varied needs of the San Pablo community. By promoting the continued development of ADUs in the city, this amendment will help further a sustainable land-use pattern of small, dense housing that is affordable to residents and provides options for families of all types and individuals of all ages and walks of life.
ZONING ORDINANCE COMPLIANCE:
By updating the Zoning Ordinance to facilitate its administration and to be consistent with the most recent ADU-related legislation, the proposed amendments are consistent with the purposes of the Zoning Ordinance:
Pursuant to Zoning Ordinance Section 17.01.020, “Purpose,” the purpose of the ordinance is to promote growth of the city in an orderly manner and to promote and protect the public health, safety, peace, comfort, and general welfare in conformance with the general plan. In addition, pursuant to Zoning Ordinance Section 17.32.010, “Purpose,” the ordinance helps to produce healthy, safe, and attractive neighborhoods in San Pablo, consistent with the policy direction in the San Pablo general plan.
The proposed amendment helps to reduce barriers to constructing accessory dwelling units, while also upholding the various land use protections contained in the Zoning Ordinance.
CONCLUSION
Staff recommends that the City Council adopt the attached ordinance amending the Zoning Ordinance (Title 17) Chapter 17.60, Section 17.60.070, regarding compliance with the latest legislation regarding ADUs.
FISCAL IMPACT
The proposed amendments should have a positive fiscal impact on the City of San Pablo as they will help to further facilitate the development of accessory dwelling units within the City, resulting in increased investments and improvements to property values.
ATTACHMENT
Att A - Proposed City Council Ordinance