PREPARED BY: GRIFFEN DEMPSEY DATE OF MEETING: July 23, 2024
SUBJECT:
TITLE
AMENDMENT TO THE SAN PABLO ZONING CODE CHAPTER 17.60, SPECIAL RESIDENTIAL USES, SECTION 17.60.070, ACCESSORY DWELLING UNITS, CONCERNING PROCEDURES AND DEVELOPMENT STANDARDS FOR ACCESSORY DWELLING UNITS (ADUS).
CEQA: The proposed amendment is statutorily exempt from the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21080.17, which exempts the adoption of accessory dwelling unit ordinances or amendments thereto.
Label
Location: Citywide
APN: Citywide
Zoning: Citywide
CEQA: Statutorily Exempt Pursuant to California Public Resources Code Section 21080.17
PLAN #: PLAN2406-0002
Owner: Not Applicable
Applicant: City of San Pablo
Staff Contact: Griffen Dempsey, Assistant Planner
Recommendation
Conduct public hearing; adopt Resolution
Body
STAFF RECOMMENDATION
Approve Resolution recommending approval of PLAN2406-0002, subject to findings. This is a recommendation by the Planning Commission to the City Council for approval of an amendment to the Zoning Ordinance provisions in the Municipal Code related to accessory dwelling units.
PUBLIC HEARING NOTICE
A Public Hearing Notice was published in the West County Times (West Contra Costa edition of the East Bay Times) newspaper on Saturday, July 13, 2024.
ENVIRONMENTAL DOCUMENTATION
The proposed amendment is statutorily exempt from the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21080.17, which exempts the adoption of accessory dwelling unit ordinances or amendments thereto.
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 all 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 (copy attached). 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 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.
On June 26, 2023, the City received correspondence from HCD informing the City that its ADU regulations contained seven inconsistencies with applicable California Government Code sections. Subsequently, on December 18, 2023, the City-adopted Ordinance 2023-004 (copy attached), bringing the ordinance up to date with the changes requested by HCD per their review.
HCD REVIEW OF 2023 ADU ORDINANCE
Following the adoption of Ordinance 2023-004, the City submitted the Ordinance to HCD for review. On April 24, 2024, the City received a response from the agency stating that the Ordinance required further amendment to achieve full compliance with State ADU Law. A copy of this review letter is attached to this Staff Report for reference.
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. Enclosed Uses
Cal. Government Code Section 66333 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66333.>:
(d) …enclosed uses within the residence, such as attached garages, are considered part of the proposed or existing single-family residence.
According to HCD, Section 17.60.070(B)(6) of the San Pablo Zoning Ordinance defines Junior ADUs (JADUs) in a way that is not expressly inclusive of enclosed uses beyond the single-family residence and attached garages. This section currently reads as follows:
“Junior accessory dwelling unit” or “JADU” has the meaning set forth in Government Code Section 65852.22 <http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=65852.22>, as it may be amended: a unit that is no more than five hundred square feet in size and contained entirely within an existing single-family residence and/or attached garage.
Staff therefore proposes to make text changes to clarify that JADUs may be contained within any enclosed use within an existing or proposed single-family residence.
2. JADUs and Internal Access
Cal. Government Code Section 66333 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66333.>:
(e)(2) 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.
According to HCD, Section 17.60.070(B)(6) of the Zoning Ordinance does not specify that internal access between the primary dwelling and the JADU is required in cases where the JADU does not provide a separate bathroom. This section currently reads as follows:
A JADU may include separate sanitation facilities or may share sanitation facilities with the existing structure. It is required to have a separate entrance from the main entrance to the proposed or existing single-family residence and to include an efficiency kitchen which shall include a cooking facility with appliances and a food preparation counter and storage cabinets that are of reasonable size in relation to the size of the unit.
Staff therefore proposes to make text changes to specify that internal access is required when a JADU shares sanitation facilities with the primary residence.
3. Denial
Cal. Government Code Section 66317 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66317.>:
(a) The permitting agency shall either approve or deny the application to create or serve an accessory dwelling unit or a junior accessory dwelling unit within 60 days…
(b) If a permitting agency denies an application for an accessory dwelling unit or junior accessory dwelling unit pursuant to subdivision (a), the permitting agency shall, within the time period described in subdivision (a), return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant.
According to HCD, Section 17.60.070(D) describes the review process for ADUs, but only allows for a timeline and process for approval of an ADU, without specifying the procedures and timelines in the instance of a denial. The section currently reads as follows:
An application for a permit to establish any of the following types of ADUs in a residential or mixed-use zoning district will be approved ministerially without discretionary review or public hearing within 60 days…
Staff therefore proposes to amend the text to provide for a clear process for denial, wherein the applicant will be provided a written comment set with a list of items that are defective or deficient and a description of how they can be corrected.
4. Accessory Structure Expansion
Cal. Government Code Section 66323 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66323.>:
(a)(1)(A) … (an ADU) may include an expansion of not more than 150 square feet beyond the same physical dimensions of the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress.
According to HCD, Section 17.60.070(D)(1)(b)(ii) allows for both conversions of accessory structures and primary residences to be expanded 150 square feet to accommodate ingress and egress, whereas the Government Code only allows for such expansion in the case of conversions of primary structures. This section currently reads as follows:
The existing primary residence or attached accessory structure may be expanded by no more than one hundred fifty square feet beyond its physical dimensions at the time of the application to accommodate ingress and egress.
Staff therefore proposes to make text changes to clarify that this type of expansion only applies to conversions of primary structures.
5. JADUs and Attachment
Cal. Government Code Section 66333 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66333.>:
(d) (a local ordinance shall) Require a permitted junior accessory dwelling unit to be constructed within the walls of the proposed or existing single-family residence. For purposes of this subdivision, enclosed uses within the residence, such as attached garages, are considered a part of the proposed or existing single-family residence.
According to HCD, Section 17.60.070(D)(1)(c) of the San Pablo Municipal Code currently allows for JADUs to be included in new-construction additions to single-family homes, which is not allowed in state law. This section currently reads:
Up to one ADU and one JADU are permitted as an attachment to an existing or proposed single-family dwelling.
Staff therefore proposes to amend the text of this section to remove reference to JADUs being permitted as attachments to existing or proposed single-family dwellings.
6. Front Setbacks
Cal. Government Code Section 66321 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66321.>:
(b)(3) Any requirement for a zoning clearance or separate zoning review or any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards (is prohibited).
According to HCD, Section 17.60.070(D)(1)(c)(v) of the Municipal Code currently requires that ADUs meet the same front yard setbacks as required in the zoning district where the project is located, which conflicts with the requirement of the state law that front setback requirements may not prevent the construction of an ADU of at least 800 square feet. This section currently reads as follows:
Front yard setbacks shall be as required in the district in which the lot is located.
Staff therefore proposes to amend the text to clarify that front setbacks are only required to meet the requirements of the zoning district when doing so would not be prohibitive of the construction of an ADU of at least 800 square feet with four-foot side and rear yard setbacks that is otherwise in compliance with all other local development standards.
7. Height
Cal. Government Code Section 66323 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66323.>:
(a)(2)(B) A height limitation as provided in subparagraph (A), (B), or (C) of paragraph (4) of subdivision (b) of Section 66321, as applicable.
Cal. Government Code Section 66321 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66321.>:
(b)(4)(B) … [local ordinances may apply a height limitation of no less than] 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 roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the primary dwelling unit.
According to HCD, Section 17.60.070(D)(1)(e)(v)(C) of the Municipal Code lays out the development standards for detached ADUs. The section mentions a height limitation that is only applicable to attached ADUs. The section currently reads as follows:
v. An ADU that complies with the following development standards shall be permitted, notwithstanding any other development standards:
… (C) The ADU does not exceed the following height limitations:
(1) A height of up to the maximum allowed height in the zoning district or twenty-five feet, whichever is less.
Staff therefore proposes to alter the text to clarify that these development standards apply specifically to detached ADUs, and to remove the erroneous text mentioning a height limit of 25 feet or the maximum height of the zone, whichever is less.
8. Photovoltaic Requirements
Per the July 2022 ADU Handbook, “Newly constructed ADUs are subject to the Energy Code requirement to provide solar panels if the unit(s) is a newly constructed, non-manufactured, detached ADU. Per the California Energy Commission (CEC), the panels can be installed on the ADU or on the primary dwelling unit. ADUs that are constructed within existing space, or as an addition to existing homes, including detached additions where an existing detached building is converted from non-residential to residential space, are not subject to the Energy Code requirement to provide solar panels.”
According to HCD, Sections 17.60.070(D)(1)(e)(viii), 17.60.070(D)(2)(b)(iv), and 17.60.070(G) refer to photovoltaic requirements for all detached ADUs and JADUs. The reference to JADUs is incorrect, and no exception is mentioned for manufactured detached ADU units. These sections currently read as follows:
(D)(1)(e)(viii). Newly constructed detached ADUs for which permit requests are submitted on or after January 1, 2020, require compliance with 2019 Energy Code photovoltaic (PV) systems requirements (Section 150.1(c)14).
(D)(2)(b)(iv). Newly constructed detached ADUs for which permit requests are submitted on or after January 1, 2020, require compliance with 2019 Energy Code photovoltaic (PV) systems requirements.
(G). Building Code Compliance. Notwithstanding any other provision of this section, ADUs shall be developed in compliance with Title 15 <https://www.codepublishing.com/CA/SanPablo/>, Buildings and Construction. Newly constructed detached ADUs and JADUs for which permit requests are submitted on or after January 1, 2020, require compliance with 2019 Energy Code photovoltaic (PV) systems requirements.
Staff therefore propose that the text of these sections shall be altered to remove reference to JADUs and to make clear the exception is for manufactured detached ADUs.
9. Multifamily Front Setbacks
Cal. Government Code Section 66321 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66321.>:
(b)(3) Any requirement for a zoning clearance or separate zoning review or any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards (is prohibited).
According to HCD, Section 17.60.070(D)(2)(b)(ii) of the Municipal Code currently requires that multifamily ADUs meet the same front yard setbacks as required in the zoning district where the project is located, which conflicts with the requirement of the state law that front setback requirements may not prevent the construction of an ADU of at least 800 square feet. This section currently reads as follows:
Front yard setbacks shall be as required in the district in which the lot is located.
Therefore, staff proposes to amend the text of this section to clarify that the front yard setbacks of the zone are not applicable in cases where they would prevent a unit of at least 800 square feet with compliant height and side and rear setbacks from being constructed.
10. Parking Exceptions
Cal. Government Code Section 66322 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66322.>:
(a)(6) […Municipalities shall not require parking for an ADU] [w]hen a permit application for an accessory dwelling unit is submitted with a permit application to create a new single-family dwelling or a new multifamily dwelling on the same lot, provided that the accessory dwelling unit or the parcel satisfies any other criteria listed in this paragraph.
According to HCD, Section 17.690.070(F)(3) of the Municipal Code enumerates situations in which an ADU or JADU are excepted from parking requirements. However, the above exemption is not among those listed in this section of the municipal code. Therefore, staff proposes amending the Code to provide for parking exceptions when a permit for an ADU is filed alongside a permit for a new single-family or multifamily dwelling on the same lot, provided the ADU meets all other criteria of the section.
11. JADU Terms
Cal. Government Code Section 66323 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66323.>:
(d) A local agency shall require that a rental of the accessory dwelling unit created pursuant to this subdivision be for a term longer than 30 days.
According to HCD, Section 17.60.070(H) of the Municipal Code mandates that no ADU or JADU be rented for a term of less than thirty days. However, state law only places this limitation on ADUs, not on JADUs. This section currently reads as follows:
No ADU or JADU may be rented or offered for rent for a term of less than thirty days.
Therefore, staff proposes to amend the text of this section to remove reference to JADUs.
12. Deed Restrictions
Cal. Government Code Section 66317 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66317.>:
(c) No local ordinance, policy, or regulation, other than an accessory dwelling unit ordinance consistent with this article shall be the basis for delay or denial of a building permit or a use permit under this section.
Cal. Government Code Section 66315 <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66315.>:
Section 66314 establishes the maximum standards that a local agency shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in Section 66314, shall be used or imposed.
According to HCD, Section 17.60.070(I) of the Municipal Code states that new ADU and JADU units must record a deed restriction prior to permits being issued. However, State law does not cite deed restrictions as an allowable standard that a local agency may impose on an ADU or JADU. This section currently reads as follows:
Before obtaining a permit authorizing the establishment of an ADU or JADU, the applicant shall… Enter into an agreement of restrictions with the city that refers to the deed…
Therefore, staff proposes amending the text of this section to shift the deed restriction requirement so that it is no longer required for issuance of a building permit, but rather for issuance of a Certificate of Occupancy.
13. Separate Conveyance
Cal. Government Code Section 66342: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66342.>
In addition to the requirement that a local agency allow the separate sale or conveyance of an accessory dwelling unit pursuant to Section 66341, a local agency may also adopt a local ordinance to allow the separate conveyance of the primary dwelling unit and accessory dwelling unit or units as condominiums.
According to HCD, Section 17.60.070 of the Municipal Code does not currently have any provisions allowing for separate conveyance of ADUs, except in the case where the property was built or developed by a qualified nonprofit corporation. The Government Code enumerates that municipalities may choose whether to allow separate conveyance. At this time, Staff are not including provisions to allow for separate conveyance, as this change would require additional analysis and study to determine the best course of action, including assessment of potential costs and benefits.
14. Applications
Cal. Government Code Section 66321: <https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV§ionNum=66321.>
(b)(3) Any requirement for a zoning clearance or separate zoning review or any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor are ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards (is prohibited).
According to HCD, Section 17.60.070(L) of the Municipal Code currently requires that ADUs be submitted to the Planning division for review and approval prior to submittal for a building permit application. This section currently reads as follows:
An application for an ADU permit must be submitted to the zoning administrator for plan check/zoning clearance before a building permit application is submitted to the city.
Therefore, staff proposes amending this section to remove reference to a separate plan check/zoning clearance requirement, instead moving the zoning and land use check to the list of required items to be submitted for an ADU permit application.
SUMMARY OF CHANGES
This is a City-initiated text amendment to Section 17.60.070 of the Municipal Code to better reflect Sections 66310 to 66342 of the Government Code, which govern the regulations and processes that local agencies may impose on ADUs.
The proposed amendment is consistent with the most recent updates to Sections 66310 to 66342, and includes the following revisions:
1. Updates language to specify that JADUs may be constructed within any enclosed space of an existing or proposed single-family home.
2. Clarifies JADU regulations to indicate that, when a JADU shares a bathroom with the primary residence, an interior entry to the main living area of the primary residence must be provided.
3. Updates language regarding ADU approvals to clarify the process for denial of an ADU.
4. Revises language surrounding expansions of existing structures, narrowing allowance to expansions of 150 square feet to accommodate ingress and egress to accessory structures only.
5. Removes reference to JADUs being allowed as attachments to an existing or proposed single-family dwelling or existing attached accessory structure.
6. Introduces language to allow for ADUs that do not follow front setbacks in cases where the front setback requirements of the zone would have the effect of preventing an ADU of at least 800 square feet that is compliant with other requirements from being built.
7. Removes reference to height limits for attached ADUs in a section that specifically refers to detached ADUs.
8. Adds language specifying that manufactured ADUs are exempt from photovoltaic requirements.
9. Introduces further language to allow for ADUs that do not follow front setbacks in cases where the front setback requirements of the zone would have the effect of preventing an ADU of at least 800 square feet that is compliant with other requirements from being built.
10. Inserts a new clause to the list of parking exemptions for cases when a permit for an ADU is submitted with a permit to create a new single-family or multifamily dwelling on the same lot.
11. Removes reference to 30-day rental duration minimums for JADUs.
12. Alters reference to deed restrictions as a prerequisite for obtaining a permit for an ADU or JADU, making it a prerequisite for obtaining a Certificate of Occupancy instead.
13. Removes reference to separate plan check/zoning clearance for ADUs and JADUs, shifting requirements to the standard ADU permit requirements.
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.
Housing Element Goal H-1: Increase housing supply and facilitate production of at least 800 new homes by 2031.
Program 1-L: Accessory Dwelling Units
Housing Element Policy 1-3: Identify and work to reduce or remove regulatory and process-related barriers to housing development in San Pablo.
Housing Element Policy 1-5: Continue to encourage the provision of a variety of housing choices and types in the community, including innovative forms of 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 in accordance with state law.
STAFF RECOMMENDATION
Adopt Resolution recommending that the City Council approve zoning text amendments to Chapter 17.60 in order to comply with current State law.
CONCLUSION
The purpose of this public hearing is for the Planning Commission to review the proposed zoning ordinance amendment, take public testimony, and make a recommendation to the City Council.
The Draft Text Amendment (Exhibit 1 to Attachment A) incorporates the recommended amendments to the Zoning Ordinance in strike-out and underline format.
ATTACHMENTS
A. Resolution PC24-13 recommending approval of the Zoning Ordinance amendment to the City Council.
B. Proposed Text Amendment
C. Ordinance 2023-004, adopted December 18, 2023
D. Ordinance 2020-011, adopted December 20, 2020
E. HCD Review of San Pablo’s ADU Ordinance Under State ADU Law, April 24, 2024
F. Proof of Publication
Cc: Mike Van Gorder, Staff, Housing and Community Development,
mike.vangorder@hcd.ca.gov <mailto:mike.vangorder@hcd.ca.gov>