Atherton City Council
May 10, 2023

AGENDA PACKET
Town of Atherton – Joint Meeting
City Council
Planning Commission
MAY 10, 2023
SPECIAL MEETING – STUDY SESSION
4:00 PM
Council Chambers
80 Fair Oaks Lane, Atherton, CA 94027
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This Agenda may not reflect the actual order of items.  The order of items is subject to change based on Council action.

SPECIAL MEETING ­ STUDY SESSION
ROLL CALL –
City Council: Holland, DeGolia, Lewis, Vice Mayor Hawkins­Manuelian, Mayor Widmer Planning Commission: Lerner, Narancic, Polito, Lamb, Lane PUBLIC COMMENT – Public Comments can be emailed directly to [email protected]
As a Special Meeting, Public Comment is limited to items that are on the Agenda. Speakers’ time is limited to three minutes. Speakers may also speak when the item comes up on the Agenda during the meeting.

STUDY SESSION

1. STUDY SESSION TO DISCUSS CHANGES AND UPDATES TO THE ACCESSORY DWELLING ORDINANCE AND ASSOCIATED MUNICIPAL CODE SECTIONS.

Report: SUNG H. KWON, TOWN PLANNER
Recommendation: Staff recommends that the City Council and Planning Commission discuss and consider changes to the Accessory Dwelling Unit Ordinance and associated Municipal Code Sections. Staff requests that direction regarding changes be provided to staff.

Description: Discussion and direction regarding changes to the Town’s Accessory Dwelling Unit Ordinance.

CEQA: This Study Session is statutorily exempt from CEQA under Section 15262, Feasibility and Planning Studies.

COUNCIL REPORTS/COMMENTS
Meeting Agenda Packet – May 10, 2023

DWELLING ORDINANCE AND ASSOCIATED MUNICIPAL CODE SECTIONS.

Report: SUNG H. KWON, TOWN PLANNER
Recommendation: Staff recommends that the City Council and Planning Commission discuss and consider changes to the Accessory Dwelling Unit Ordinance and associated Municipal Code Sections. Staff requests that direction regarding changes be provided to staff.

Description: Discussion and direction regarding changes to the Town’s Accessory Dwelling Unit Ordinance.

CEQA: This Study Session is statutorily exempt from CEQA under Section 15262, Feasibility and Planning Studies.

COUNCIL REPORTS/COMMENTS

ADJOURN
PLEASE NOTE THE FOLLOWING INFORMATION:

If you challenge a Town zoning, planning, or any other decision in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this agenda, or in written correspondence delivered to the Town at, or prior to, the public hearing.  Judicial review of any Town administrative decision may be had only if a petition is filed with the court not later than the 90th day following the date upon which the decision becomes final.  Judicial review of environmental determinations may be subject to a shorter time period.

Copies of all staff reports and documents subject to disclosure that relate to each item of business referred to on the agenda are available for public inspection by 5:00 p.m. the Friday before each regularly scheduled City Council meeting.

Pursuant to the Americans with Disabilities Act, if you need special assistance in this meeting, please contact the City Clerk’s Office at (650) 752­0500.  Notification of 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.  (29 CRF

35.104 ADA Title II)
AB 2449 & AB 361:

AB 2449 reiterates standard Brown Act teleconference rules, re­codifies the rules set out in AB 361 for times of declared emergency, and also provides for relaxed teleconferencing rules when a member of the legislative body needs to attend remotely for an emergency, or other reasons supported by “just cause.”
Teleconference Rules Available January 1, 2023
A legislative body may hold a “hybrid” (partial teleconference, partial in­person) meeting without having to comply with certain procedural requirements (post agendas at teleconference locations, identify teleconference locations in the agenda, make all teleconference locations open to the public) in the following limited circumstances:

One or more members of the legislative body (but less than a quorum) have “just cause” for not attending the meeting in person (childcare or family caregiving need, contagious illness, physical or mental disability need, or travel while on official public business); or One or more members of the legislative body (but less than a quorum) experience an “emergency Meeting Agenda Packet – May 10, 2023

Teleconference Rules Available January 1, 2023
A legislative body may hold a “hybrid” (partial teleconference, partial in­person) meeting without having to comply with certain procedural requirements (post agendas at teleconference locations, identify teleconference locations in the agenda, make all teleconference locations open to the public) in the following limited circumstances:

One or more members of the legislative body (but less than a quorum) have “just cause” for not attending the meeting in person (childcare or family caregiving need, contagious illness, physical or mental disability need, or travel while on official public business); or One or more members of the legislative body (but less than a quorum) experience an “emergency circumstance” (a physical or family medical emergency that prevents in­person attendance).

The legislative body will continue to have the option to meet via teleconference by following traditional Brown Act rules of identifying, posting, and opening up their teleconference locations.

Meeting Agenda Packet – May 10, 2023

CITY COUNCIL (WITH THE PLANNING COMMISSION)

STUDY SESSION STAFF REPORT
TO: HONORABLE MAYOR AND CITY COUNCIL

GEORGE RODERICKS, CITY MANAGER
FROM: SUNG H. KWON, TOWN PLANNER
DATE: MAY 3, 2023
SUBJECT: STUDY SESSION TO DISCUSS CHANGES AND UPDATES TO THE

ACCESSORY DWELLING ORDINANCE AND ASSOCIATED MUNICIPAL
CODE SECTIONS.

CEQA: Statutorily Exempt from CEQA under Section 15262, Feasibility and Planning Studies

RECOMMENDATION
Staff recommends that the City Council and Planning Commission discuss and consider changes to the Accessory Dwelling Unit Ordinance and associated Municipal Code Sections. Staff requests that direction regarding changes be provided to staff.

BACKGROUND
In September 2022, the Governor signed into law AB2221 and AB 2097 that amended Government Code Sections 65585 and 65852.2. These Sections impose new limits on a local authority to regulate Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs) to further ease local restrictions. These State laws restrict what cities may require when new ADUs are considered with the intent of further reducing barriers and streamlining approvals to accommodate the development of ADUs. These new ADU laws took effect January 1, 2023.

Per this new legislation, if a jurisdiction’s ADU ordinance does not comply with the new ADU laws, that ordinance becomes null and void as a matter of law. Cities are more accountable now to the California Department of Housing Community Development (HCD) for conforming their local ordinances to State ADU law; and, HCD was granted authority to refer violations to the Attorney General. Once the revised ADU Ordinance is adopted, the Town must send the revised Ordinance to HCD within 60 days for a compliance review.

Item No. 1
Town of Atherton

May 3, 2023, Planning Commission/City Council Staff Report ADU Study Session

The Planning Commission was initially going to review the draft ADU Ordinance update on January 25, 2023; however, staff asked the Planning Commission to change the meeting to a Study Session so that staff could also bring forward ADU changes outlined in the Housing Element.

Given the wide range of changes required, staff is recommending a complete rewrite of the Ordinance to provide a clear distinction between what is required under State law and what can be considered as local options.

At the January 25 Planning Commission Study Session, a variety of comments were provided by the Planning Commission and members of the public. These comments are highlighted below:
• Consider waiving ADU fees (Planning and Building) for the first 1-2 years • Privacy and noise are important issues
• Onsite parking for ADUs are important
• Provide flexibility on entrances for ADUs. No entrance limitations for flag lots are necessary.
• Provide some flexibility in kitchen design and provide examples how other Cities are defining kitchens.

Other comments are provided as attachments.

Attachment #4 to this Staff Report is the Planning Commission Staff Report for the January 25, 2023 Study Session. The Report goes into further detail on the required ADU Ordinance Amendments. Specifically, page 2 of the Staff Report outlines the list of key areas of change as mandated by the State. Beginning on page 2, the Staff Report discusses the recommended changes to the Ordinance to address key areas. These include:
• Internal Connections from Attached ADUs to the Main Residence • Kitchen Definition (more below)
• Efficiency Units
• ADU Allowances
• Impact Fees
• Heritage Trees
• ADU Height
• Setbacks
• Garage Structures
• Parking
• Fire Sprinklers
• Non-conformities
• Utility Connections
• Sidewall Heights
• ADUs in the PFS Zone
The Report also included a redline version of the Ordinance. Attachment #1 is a color-coded plain language ordinance. The highlights in yellow are those areas mandated by the State. The highlights in turquoise are those areas where the Town has authority. Staff will review this attachment in detail at the City Council Study Session on May 3.

May 3, 2023, Planning Commission/City Council Staff Report ADU Study Session

Kitchen Definitions from other Agencies
Staff reached out to other local agencies to compare kitchen definitions. As shown in the table below, there is a wide variety of approaches as to how kitchens are defined. Many ADU applicants in Atherton have requested more specifics on kitchen requirements.

Table 1 – Kitchens Defined on other Agencies
Agency Kitchen Efficiency Kitchen (and JADU Kitchen)
Town of
Woodside
Section
153.005
KITCHEN. A portion of a dwelling designed
and used for food preparation and food
storage, and equipped with a sink, a
permanent stove/conventional oven that
complies with applicable Building Codes, and
other appliances such as a refrigerator.

EFFICIENCY KITCHEN. A kitchen with 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
junior accessory dwelling unit.

City of Menlo
Park
Section

16.79.020
"Accessory dwelling unit" (ADU) means
an attached or a detached residential dwelling
unit that provides complete independent
living facilities for one (1) or more persons
and is located on a lot with a proposed or
existing primary residence. The unit shall
contain permanent provisions for:
(A) Living;
(B) Sleeping;
(C) Eating;
(D) Cooking;
(E) Sanitation;
(F) Exterior access separate from the
primary dwelling.
"Junior accessory dwelling unit" (JADU)
means a dwelling unit that is no more than five
hundred (500) square feet in size and contained
entirely within an existing or proposed singlefamily dwelling. A JADU shall include cooking facility with appliances and a food preparation
counter and storage cabinets that are of
reasonable size in relation to the size of the
JADU.

County of San
Mateo
Zoning
Regulations
KITCHEN. Any room used, or intended, or
designed to be used for cooking and preparing
food.

For ADUs (not JADUs)
A kitchen area containing a refrigerator, sink,
and permanently installed cooking appliance,
which must include at least a fixed stovetop.

Efficiency Kitchen. An efficiency kitchen, as
defined in Government Code Sectionv65852.22,
is a kitchen that contains at least 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 junior
accessory dwelling unit.

City of
Redwood
City
Article 37
Accessory Dwelling Unit. An accessory
dwelling unit, commonly known as a second
unit or in-law unit, is an attached or detached
residential dwelling unit that is located on the
same parcel as an existing or proposed singlefamily dwelling, duplex, or multifamily dwelling and provides permanent provisions
for complete independent living, sleeping,
eating, cooking, and sanitation facilities
JADU
Shall contain a kitchen or an efficiency kitchen
that includes cooking appliances, a food
preparation counter, and storage cabinets that are
of reasonable size in relation to the junior
accessory dwelling unit.

City of San
Mateo
Section

27.04.133
"Cooking facility/kitchen" means a room or
portion thereof designated and/or customarily
used as a place for the preparation and
sanitation of food and containing a sink,
stove, refrigerator, oven, microwave, freezer,
or any other customarily used appliance or
fixture for the preparation and sanitation of
food as determined by the Zoning
Administrator. A "cooking facility/kitchen"
"Efficiency food preparation area" means a
small food preparation area for a junior accessory
dwelling unit which includes sink dimensions
with a maximum width of 16 inches and length
of 16 inches, waste line diameter of 1.5 inches;
food preparation with appliances that do not
require electrical service greater than 120 volts,
or natural or propane gas; a food preparation
counter and storage cabinets which do not exceed
six feet in length.

May 3, 2023, Planning Commission/City Council Staff Report ADU Study Session

does not include a "wetbar" or "efficiency
food preparation area."
City of Los
Altos
Section 14.14
ADU
A kitchen shall be provided for an ADU. A
full kitchen requires habitable space used for
preparation of food that contains at least a
sink, a refrigerator of no less than ten (10)
cubic feet, and either a cooktop and an oven,
or a range. A food preparation counter and
storage cabinets that are of reasonable size in
relation to the size of the ADU are also
required.

JADU
At least an efficiency kitchen must be provided in
the unit which shall include all the following:
(1) A cooking facility with appliances.

Appliances can include hot plate, or counter-top
cooking. A property owner does not need to have
a wall installed oven or stove to qualify for a
cooking appliance.
(2) A food preparation counter and storage
cabinets that are of reasonable size in relation to
the size of the JADU.

City of Palo
Alto
Title 18
Zoning
“Kitchen” means a room designed, intended
or used for cooking and the preparation of
food and dishwashing. Kitchen facilities
include the presence of major appliances,
utility connections, sink, counter, for storing,
preparing, cooking, and cleaning.
(A) For ADUs, major appliances shall mean
a minimum two burner installed range, and an
oven or convection microwave, as well as a
minimum 16 cubic foot freezer and
refrigerator combination unit. Kitchens shall
also include counter space for food
preparation equal to a minimum 24-inch
depth and 36-inch length, and a sink that
facilitates hot and cold water.

JADU
The junior accessory dwelling unit shall include
an efficiency kitchen, requiring the following
components: A cooking facility with appliances,
and; food preparation counter and storage
cabinets that are of reasonable size in relation to
the size of the junior accessory dwelling unit.

1. A cooking facility with appliances shall
mean, at minimum a one burner installed range,
an oven or convection microwave, a ten cubic
foot refrigerator and freezer combination unit,
and a sink that facilitates hot and cold water.

2. A food preparation counter and storage
cabinets shall be of reasonable size in relation to
a JADU if they provide counter space equal to a
minimum 24-inch depth and 36-inch length.

POLICY QUESTIONS
In addition to discussion of Attachment #1, there are specific topics that staff would like the City Council and Planning Commission to discuss so that staff can provide more detailed language for the ADU Ordinance. The list of questions are as follows:
1) Should the Tree Protection Ordinance (Section 8.10 Removal and Damage to Heritage Trees) apply to ADUs over 800 sq. ft.? Should Tree Protection be required for the extra floor area above 800 sq. ft.?
2) Can the Town Arborist have greater authority to approve tree exceptions for ADUs? 3) Should ADUs be allowed to be accessed from the rear of a double frontage lot? Can they be given a different street address?
4) Should ADUs between 800 and 1,200 feet be located outside the Accessory Structure/Building setbacks?
5) How should privacy be addressed considering Fire District comments for fire safety? (See Attachment #2)
6) Should ADUs be allowed over carports as well as garages? 7) How should kitchens be defined?
8) Should a third ADU be allowed on lots greater than 2 acres with a deed restriction? Should this also apply to SB9 lots?
9) What is the minimum size for a closet?

May 3, 2023, Planning Commission/City Council Staff Report ADU Study Session

10) Should an accessory building attached to a detached ADUs be allowed to be 16 feet high to match the ADU? (Accessory buildings have a height limit of 15 feet.) To frame these policy questions, the City Council and Planning Commission may wish to resolve these issues through a ministerial process as State law will prohibit reviews longer than 60-days.

This condensed timeline would make it very difficult for any ADU permit processes to be nonministerial (i.e. Commission review).

A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits. 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 from the date the permitting agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot. If the permit application to create or serve an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family or multifamily dwelling on the lot, the permitting agency may delay approving or denying the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency approves or denies the permit application to create the new single-family or multifamily dwelling, but the application to create or serve the accessory dwelling unit or junior accessory dwelling unit shall be considered without discretionary review or hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not approved or denied the completed application within 60 days, the application shall be deemed approved. A local agency may charge a fee to reimburse it for costs incurred to implement this paragraph, including the costs of adopting or amending any ordinance that provides for the creation of an accessory dwelling unit.

Draft ADU Ordinance language has been provided for reference to further frame the issues. The text highlighted in yellow are State Requirements and would be required. The text highlighted in turquoise would be Town specific requirements. The City Council and Planning Commission may wish to focus on the Town specific requirements. Please see Attachment #1.

CEQA
This Study Session is statutorily exempt from CEQA under Section 15262, Feasibility and Planning Studies.

NOTICE
Public notification was achieved by posting the City Council agenda, with this agenda item being listed, at least 72 hours prior to the meeting in print and electronically. Legal advertisement of this hearing was published in The Almanac newspaper, 15 days prior to the hearing date. At the time of the publication of this report, the Town has not received any public comment or inquiries on the application beyond what was attached to this staff report.

CONCLUSION
Staff requests that the City Council along with the Planning Commission discuss policy issues for ADUs/JADUs and provide direction to staff. Page 8 of 123 May 3, 2023, Planning Commission/City Council Staff Report ADU Study Session

ATTACHMENTS

1. Color Coded Draft Language for ADU Ordinance

2. Email from Fire District

3. Comments received from the public received after 1/25/23 PC Study Session

4. January 25, 2023 Packet

5. January 25, 2023 Minutes

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Draft ADU Ordinance Language
Zones Allowed
Accessory dwelling units and junior accessory dwelling units shall be allowed in all areas zoned to allow single family residential and multifamily residential uses in compliance with the development standards set forth in section 17.52.040 (Development Standards and General Requirements) of this Chapter.

AB2221
Location of ADUs
All ADUs shall be located on the same lot with an existing or proposed dwelling.

AB2221
Number of ADUs & JADUs/Density
On lots that allow Single Family Dwellings, the property owner can have both a) 1 JADU and b) 1 ADU that is attached or detached from the main residence, provided that:
i. The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling, existing space of a single-family dwelling, or in an accessory structure. The ADU may include an expansion of not more than 150 square feet beyond the same physical dimensions as an existing accessory structure. An expansion beyond the physical dimensions of an existing accessory structure shall be limited to accommodating ingress and egress.
ii. The space has exterior access separate from the proposed or existing single-family dwelling. iii. The side and rear setbacks are sufficient for fire and safety. iv. The junior accessory dwelling unit complies with the requirements of Section 65852.22.

AB2221
Multiple accessory dwelling units are allowed within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with state building standards for dwellings.

AB2221
At least one accessory dwelling unit is allowed within an existing multifamily dwelling. The total number of ADUs allowed is up to 25 percent of the existing multifamily dwelling units.

AB2221
Not more than two accessory dwelling units that are located on a lot that has an existing multifamily dwelling, but are detached from that multifamily dwelling and are subject to a height limit of 16 feet and four-foot rear yard and side setbacks.

AB2221

2 | Page
Any ADU or JADU does not count towards the allowable density for the lot upon which it is located.

AB2221
On lots of two (2) acres or more, the property owner may have two (2) ADUs, attached or detached, from the main residence provided that one of the two units are deed restricted as low income for a period of 10 years or more.

Policy Question 8) Should a third ADU be allowed on lots greater than 2 acres with a deed restriction? Should this also apply to SB9 lots?
These efficiency units shall include;
• For units that are not accessible or adaptable, a partial kitchen with a sink (minimum18 inches wide), cooking appliance a permanently installed two or more burner cooktop and oven, hood vent, and refrigerator (minimum 10 cubic feet), each having a clear working space of not less than 30 inches in front of the counter.
o Food preparation counter or counters that total at least 20 square feet. o Storage cabinets that total at least 30 cubic feet of shelf space. o A separate closet.
• Compliance with light and ventilation requirements of the Atherton Building Code. • A separate bathroom containing a water closet (toilet), lavatory (bathroom sink) and bathtub and/or shower.

Correction
Building Code 1208.4 Efficiency Dwelling Units
Size allowances (Floor Area)/Setbacks
All ADUs that comply with standards outlined in this chapter (and State Regulations) are exempt from floor area. (State code only requires 800 sq. ft. to be exempt) ADUs that are greater than 800 square feet shall comply with all local regulatory requirements.

Policy Question 4) Should ADUs between 800 and 1,200 square feet be located outside the Accessory Structure/Building setbacks?
A newly constructed detached or attached ADU that is 800 sq. ft. or less must be located at least 4 ft. from a side or rear property line. This type of ADU does not have a front yard setback and is not subject to the Heritage Tree Ordinance.

AB2221
For double frontage lots, the front yard is the yard that is adjacent to the designated front of the property. The rear yard shall be the yard adjacent to the property line on the opposite side of the property from the designated front property line. ADUs would be allowed to have access from rear property line on a double frontage lot.

3 | Page
Policy Question 3) Should ADUs be allowed to be accessed from the rear of a double frontage lot? Can they be given a different street address?
A newly constructed detached ADU that has a size over 800 sq. ft up to 1,200 sq. ft. shall be located outside the accessory building setbacks and is subject to the Heritage Tree Ordinance.

A newly constructed attached ADU that has a size over 800 sq. ft up to 1,200 sq. ft. shall be located outside the accessory building setbacks and is subject to the Heritage Tree Ordinance.

For any ADU, the maximum size for a studio or 1 bedroom shall be 850 square feet. A twobedroom ADU shall be limited to 1,200 sq. ft. ADUs cannot exceed 2 bedrooms.

AB2221
The maximum size for a JADU is 500 sq. ft. and is exempt from floor area.

Govt Code 65852.22.i.1
Efficiency ADUs and JADUs are allowed. No ADU or JADU may be smaller than the size required to allow an efficiency unit pursuant to Health and Safety Code Section 17958.1, which is 150 sq. ft. The maximum size of an efficiency unit is 500 sq. ft.

AB2221
Conversions of detached accessory structures to detached ADUs shall also be exempt from floor area.

Provided as clarifying language
Newly constructed attached ADUs with a size of 800 sq. ft. or less shall have side and rear setback of 4 ft.. There is no front setback requirement for attached ADUs with a size of 800 sq. ft. or less.

Additional square footage up to 1,200 sq. ft. would need to meet accessory structure setbacks.

ADUs shall not exceed 1,200 sq. ft.

AB2221
Newly constructed attached ADUs with a size over 800 sq. ft. to 1,200 sq. ft. shall be located in the main building area. These ADUs may encroach side and rear yard setbacks by not more than twenty percent (20%) of the required setback.

The increased floor area of an attached ADU shall not exceed fifty percent of the existing floor area of the main residence, unless necessary to accommodate at least an eight hundred (800) square foot ADU.

AB2221
If an existing multifamily dwelling has a rear or side setback of less than four feet, no modification is required of the existing multifamily dwelling as a condition of approving the application to construct an accessory dwelling unit.

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AB2221
JADUs shall have the same setbacks as the main residence.

Govt. Code 65852.22.a.4
Garage and accessory structures are not considered part of the ADU as noted living area definitions.

AB2221
The detached ADU shall maintain the required separation distances between main residence, accessory buildings and accessory structures as required in the accessory structures section of the zoning code.

No decks or mechanical equipment is allowed in the 4 ft. side and rear setback.

Separation Requirement
A separation of at least eight feet shall be maintained between any detached ADU and the proposed or existing primary residence, unless necessary to accommodate at least an eight hundred (800) square foot ADU.

Provided as clarifying language
Entrance Requirements
Any new attached ADU or JADU that is incorporated into a proposed or existing primary residence shall have a separate entrance facing the interior side or rear yard, where feasible. Any new detached ADU shall have a separate entrance facing towards the interior of the lot.

Govt. Code 65852.22.a.5.A JADU
AB2221 ADU
Passageway/Connections
Internal connections are not required for attached ADUs. Internal connections are allowed between the main residence building and attached ADUs. Internal connections are not allowed for detached ADUs to other accessory buildings. Internal connections are required for JADUs.

AB2221 & Govt. Code 65852.22.a.4
Height of ADUs
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.

AB2221
A maximum height of 18 feet is allowed 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

5 | Page
in Section 21155 of the Public Resources Code. 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 is also allowed.

AB2221
A maximum height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed multifamily, multistory dwelling.

AB2221
A maximum height of 25 feet or the allowed height of zoning district, whichever is lower, for an accessory dwelling unit that is attached to a primary dwelling.

AB2221
Accessory dwelling units are limited to 2 stories.

AB2221
ADUs are allowed above an existing garage with a height of up to 18 feet. A portion of the ADU can be located on the first floor.

Policy Question 6) Should ADUs be allowed over carports as well as garages? No sidewall height limitations apply to ADUs
HCD Comment on previous ADU Ordinance
Question related to ADUs attached to accessory buildings Policy Question 10) Should an accessory building attached to a detached ADUs be allowed to be 16 feet high to match the ADU? (Accessory buildings have a height limit of 15 feet.) Parking Requirements
Accessory dwelling units shall have one parking space per accessory dwelling unit or per bedroom, whichever is less. These spaces may be provided as tandem parking on a driveway.

AB2221
Parking requirements for accessory dwelling units shall not exceed one parking space per accessory dwelling unit or per bedroom, whichever is less. These spaces may be provided as tandem parking on a driveway.

Notwithstanding clause (i), a local agency may reduce or eliminate parking requirements for any accessory dwelling unit located within its jurisdiction.

Uncovered off-street parking for ADUs are permitted the setback areas including tandem parking.

AB2221

6 | Page
When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, no off-street parking spaces are required.

AB2221
No parking spaces for the ADU/JADU is required in the following circumstances:
(1) The accessory dwelling unit is located within one-half mile walking distance of public transit.
(2) The accessory dwelling unit is located within an architecturally and historically significant historic district.
(3) The accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure.
(4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
(5) When there is a car share vehicle located within one block of the accessory dwelling unit.

AB2221
Lighting Restrictions
Any lighting associated with an ADU or JADU shall be shielded or downlit and shall not shine onto adjoining properties, while meeting the minimum Building Code.

Screening
A solid 6 foot high fence shall be provided along the entire front, side or rear property line adjacent to where the ADU is located. Fences shall be at the property line.

Policy Question 5) How should privacy be addressed considering Fire District comments for fire safety? (See Attachment #2)
Existing Structures
No setback (for ADUs/JADUs) shall be required for an existing legal living area or accessory structure (including a garage) or a structure constructed in the same location and to the same dimensions as an existing structure that is converted to an accessory dwelling unit or to a portion of an accessory dwelling unit. A new structure constructed in the same location as the previously existing structure shall conform to setback requirements for the ADU.

AB2221
When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, off-street parking spaces do not need to be replaced.

AB2221

7 | Page
A demolition permit for a detached garage that is to be replaced with an accessory dwelling unit shall be reviewed with the application for the accessory dwelling unit and issued at the same time.

AB2221
Nonconforming zoning conditions do not have to be corrected as part of application for an accessory dwelling unit or junior accessory dwelling unit.

AB2221
Nonconforming zoning conditions do not need to be corrected as part of an ADU or JADU approval. An accessory dwelling unit shall be approved regardless of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit.

AB2221
Only ADUs/JADUs that do not present a threat to public health and safety shall be allowed a permit without correction of nonconforming zoning conditions, building code violations, or unpermitted structures.

AB2221
Heritage Tree Ordinance
The Heritage Tree Ordinance does not apply to ADUs upto 800 sq. ft and JADUs upto 500 sq. ft.

In all other cases, the Heritage Tree Ordinance applies.

AB2221
Policy Question 1) Should the Tree Protection Ordinance (Section 8.10 Removal and Damage to Heritage Trees) apply to ADUs over 800 sq. ft.? Should Tree Protection be required for the extra floor area above 800 sq. ft.?
Policy Question 2) Can the Town Arborist have greater authority to approve tree exceptions for ADUs?
The main residence and accessory buildings/structures are subject to the Heritage Tree Ordinance.

Windows
There are no window limitations for ADUs, except as required by the building code.

HCD Letter on previous ADU Ordinance
Basements
Kitchens for ADUs/JADUs are not allowed in a basement.

Policy Question???

8 | Page
Habitable basements are allowed under Detached ADUs; however, these basements shall count toward the floor area of the ADU. An internal connection from the ADU to the habitable basement is required. No special structures permit is required for these basements.

AB2221
“Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.

Habitable basements are allowed under Attached ADUs; however, these basements shall count toward the floor area of the ADU if located outside the main building area setback. An internal connection from the ADU to the habitable basement is required.

AB2221
“Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.

Basements under JADU will be considered as the basement for the main residence and will not count toward the sq. ft. of the JADU and no internal connection from the JADU will be allowed into the basement.

Non-habitable basements under ADUs are only allowed outside the accessory structure setback and are subject to the Heritage Tree Ordinance. Exterior access to the non-habitable basement shall be located outside the accessory structure setback. (AMC Section 17.44.030.B) The floor area of an attached ADU or JADU do not count toward the basement allowance under

17.44.030.A.

Fire Sprinklers
The installation of fire sprinklers is not required in an accessory dwelling unit if sprinklers are not required for the primary residence.

AB2221
The construction of an accessory dwelling unit shall not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling or an existing multifamily dwelling.

AB2221
Certificate of Occupancy
A certificate of occupancy for an accessory dwelling unit will only be issued after a certificate of occupancy is issued for the primary dwelling.

AB2221

9 | Page
Owner Occupancy
For an ADU/JADU that on a single family lot, no owner-occupancy will be required on an accessory dwelling unit before January 1, 2025. Any accessory dwelling unit that was permitted between January 1, 2020, and January 1, 2025 shall not have an owner-occupant requirement.

AB2221
Owner-occupancy will be not requirement for an accessory dwellings unit until January 1, 2025.

AB2221
Owner occupancy is not a requirement for all accessory dwelling unit that was permitted between January 1, 2020, and January 1, 2025.

AB2221
ADUs and JADUs permitted after January 1, 2025. Prior to finaling of the project for an ADU or JADU, the property owner shall record a deed restriction requiring that the owner of the property occupy either the primary dwelling unit, ADU, or JADU, or if the owner will not be residing in one of the units, lease the entire property including the primary dwelling unit, ADU, and JADU to a single tenant.

ADU/JADU Ownership & Rentals
An ADU or JADU may be rented separate from the primary residence but may not be sold or otherwise conveyed separate from the primary residence.

AB2221
Rentals of ADUs/JADUs shall be for more than 30 days. Short term rentals are not allowed for Accessory dwelling units.

AB2221
Impact fees
No Impact fees will be charges on ADU that are 750 square feet or less.

AB2221
Utilities
A new ADU with where there is an existing main residence shall not be required to have separate utility connections. A new ADU combined with a new house shall have separate utility connections. The connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical

10 | Page
Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.

AB2221
No impact fees will be charged on an accessory dwelling unit less than 750 square feet. Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.

AB2221
Building Code
Local building code requirements that apply to detached dwellings, except that the construction of an accessory dwelling unit shall not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code (Title 24 of the California Code of Regulations), unless the building official or enforcement agency of the local agency makes a written finding based on substantial evidence in the record that the construction of the accessory dwelling unit could have a specific, adverse impact on public health and safety.

Nothing in this clause shall be interpreted to prevent a local agency from changing the occupancy code of a space that was unhabitable space or was only permitted for nonresidential use and was subsequently converted for residential use pursuant to this section.

AB2221
Other Zoning Code
Title 17 Zoning

17.30.050 Certain Commercial-Residential Uses Prohibited.

No new commercial-residential uses are permitted anywhere in the Town of Atherton. Such prohibited uses include hotels, motels, boardinghouses, and transient guest quarters, rentals under 30 days, including bed and breakfasts. (Ord. 582 § 1 (Exh. A (part)), 2009) Title 17 Zoning

17.36.030 Allowed Uses and Permit Requirements.

Table 17.36.030-1 (Allowed Uses and Permit Requirements for PFS District) identifies the allowed uses in the PFS district subject to the development standards of this chapter and all other provisions of this title. Allowed use provisions are symbolized in the table as follows:

P = Land use permitted by right
CUP = Land use permitted with approval of a
conditional use permit
L/ER = Land use permitted with location and
environmental review
Table 17.36.030-1. Allowed Uses and Permit Requirements for PFS District

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Land Use
Zoning District
PFS
Public library P
Public school P
Town corporation yard P
Town hall and associated
community uses
P
Accessory Dwelling Unit in
conjunction with multifamily
residential uses (that
accommodate housing for very
low- and low-income
households)
P
Emergency shelters P4
Churches and places of worship CUP
Convents CUP
Country clubs CUP
Residential associated with
primary nonresidential use of
property on same site1
CUP
Multiple-family residential uses
that could accommodate housing
for very low- and low-income
households associated with
primary nonresidential use of
property on same site
L/ER5
Private schools CUP2, 3
Public utilities and facilities,
uses, and structures
CUP
Transportation terminal facilities CUP
Notes:
1 Examples include dorms or teacher housing associated with school site, convent when associated with religious institutions, etc. 2 Where a master plan for a private school has been prepared and filed with the town for public record, any application for a conditional use permit shall be compared to the master plan for consistency with that document. All building and/or faculty changes, improvements, or new construction shall require a conditional use permit. To that end, all conditional use permit applications shall include the following:
a. Maps and diagrams showing the proposal in relation to the master plan layout; b. History of student and faculty growth and projections of future growth, including an analysis of that growth’s consistency with the master plan projections;
c. A traffic and parking analysis of the proposal and comparison to the master plan projections; d. A circulation plan showing how the traffic and pedestrian circulation will function upon implementation of the proposals; and e. Other information that might be required for specific proposals, such as noise analyses, lighting plans, landscape screening plans, heritage tree locations, and other similar information. 3 In addition to other conditions of approval, the planning commission shall require the following items where relevant:
a. Identification of the approved uses and hours of operation; and

12 | Page
b. Clustering of high intensity or noise-intense structures and uses (such as gymnasiums, theaters, athletic facilities) away from neighboring residential uses, where possible.
4 Emergency shelters shall be permitted only when located within the Town Civic Center property; defined as Lots 1, 2, 24, 25 and 26, Watlinton Park RSM (Resubdivision Maps) 5/8.
5 Where a master plan for a private school has been prepared and filed with the town for public record that includes multifamily residential uses that could accommodate housing for very low- and low-income households, such multifamily residential uses shall be subject to planning commission public hearing and review of the location, size, proximity to heritage trees and environmental aspects of the project but shall not result in the denial of the use.

AB2221
Title 17 Zoning

17.60.020 Definitions.
“Accessory building” shall mean a detached building where fifty percent or more of the footprint of the enclosed space is covered. Accessory buildings are subordinate to, and their use is customarily incidental to, that of the main building, structure, or use on the same or attached/adjacent lot as regulated in this title. This classification includes: guest houses for occupancy no more than thirty days per year, garages, greenhouses, poolhouses, sunrooms, workshops, storage sheds, carports, patio covers, gazebos, barns, stables, and other agricultural outbuildings with solid roof construction. “Accessory structure” also means a structure that is accessory and incidental to a dwelling located on the same lot. Accessory Dwellings Units and Junior Accessory Dwelling Units have their own definition and special regulations.

AB2221
“Accessory dwelling unit” or “ADU” means a building or portion of a building designed for use and occupancy by people living independently of the occupants of the main residence building.

The ADU shall be on the same lot as the main residence. An ADU can be an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing single family or multifamily development. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation. An accessory dwelling unit also includes the following:

1. An efficiency unit.

2. A manufactured home, as defined in Section 18007 of the Health and Safety Code.

AB2221
Policy Question 9) What is the minimum size for a closet? “Junior accessory dwelling unit” or “JADU” means a unit that is no more than five hundred square feet in size and contained entirely within a single-family residence. A junior accessory dwelling unit shall include an efficiency kitchen, which shall include all of the following: a cooking facility with appliances, a food preparation counter and storage cabinets that are of reasonable size in relation to the size of the junior accessory dwelling unit. A junior accessory dwelling unit may include separate sanitation facilities or may share sanitation facilities with the existing structure.

Govt. Code 65852.22.a.4
Govt. Code 65852.22.i.1

13 | Page
“Efficiency unit” has the same meaning as defined in Section 17958.1 of the Health and Safety Code. “Efficiency unit” means a living unit which includes all of the following:
• Size of at least 150 square feet.
• For units that are not accessible or adaptable, a partial kitchen with a sink (minimum18 inches wide), cooking appliance a permanently installed two or more burner cooktop and oven, hood vent, and refrigerator (minimum 10 cubic feet), each having a clear working space of not less than 30 inches in front of the counter. Light and ventilation shall be provided. o Food preparation counter or counters that total at least 20 square feet. o Storage cabinets that total at least 30 cubic feet of shelf space o A separate closet.
• Compliance with light and ventilation requirements of the Atherton Building Code. • A separate bathroom containing a water closet (toilet), lavatory (bathroom sink) and bathtub and/or shower.

Correction
Building Code 1208.4 Efficiency Dwelling Units
“Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.

AB2221
“Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards.

AB2221
“Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit.

AB2221
“Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting.

AB2221
“Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.

AB2221
“Tandem parking” means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.

AB2221

14 | Page
“Junior Accessory dwelling unit” or “JADU” means a unit that is no more than 500 square feet in size and contained entirely within a single-family residence or multifamily development. A junior accessory dwelling unit shall include an efficiency kitchen, which shall include all of the following 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 junior accessory dwelling unit. A junior accessory dwelling unit may include separate sanitation facilities or may share sanitation facilities with the existing structure.

Govt. Code 65852.22.a.4
Govt. Code 65852.22.i.1
Efficiency kitchen defined by State Code
Health and Safety Code 65852.22(a)(6)
Require the permitted junior accessory dwelling unit to include an efficiency kitchen, which shall include all of the following:
(A) A cooking facility with appliances.
(B) A food preparation counter and storage cabinets that are of reasonable size in relation to the size of the junior accessory dwelling unit.
“Kitchen” (required for Attached and Detached ADUs) means any room or area intended or designed to be used or maintained for the cooking, storing, and preparation of food and includes facilities for cleaning, preparation, and storage of food and cooking and eating utensils. A standard kitchen shall have the following:

1. A cooktop, oven, hood vent (electrical burners with 110 amps allowed)

2. A refrigerator that has the following minimum dimensions 28 inches wide and 61 inches tall

3. Sink 24 inches wide with at least a 1.5 inch drain

4. Dishwasher

5. Food preparation counter or counters that total at least 20 square feet

6. Storage cabinets that total at least 40 cubic feet of shelf space

7. Kitchen area of at least 80 square feet
“Efficiency Kitchen” (allowed for JADUs and Efficiency Units) means a kitchen that includes each of the following:

1. A cook top, oven, and hood vent (electrical burners with 110 amps allowed)

2. Sink that is at least 18 inches wide with at least a 1.5 inch drain

3. Food preparation counter or counters that total at least 10 square feet in area.

4. Storage cabinets that total at least 30 cubic feet of shelf space.

5. Kitchen area of at least 50 sq. ft.

Policy Question 7) How should kitchens be defined?

15 | Page
Chapter 8.10 REMOVAL OF AND DAMAGE TO HERITAGE TREES

8.10.040 Permit process.

H. Accessory Dwelling Units that have a size of 800 sq. ft. or less shall be exempt from tree protection requirements.

1 Sung Kwon
From: Johnston, Jon <[email protected]>
Sent: Tuesday, April 11, 2023 7:36 AM
To: Sung Kwon; Radha Hayagreev
Cc: George Rodericks; Michael Greenlee
Subject: RE: ADU Regulations
[The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
No it is not. But it is immediately adjacent and is an area of influence.

Jon Johnston
Division Chief/Fire Marshal
Menlo Park Fire Protection District | 170 Middlefield Road | Menlo Park, CA 94025 (650) 688-8431
[email protected]
Mission Statement: To protect and preserve life and property from the impact of fire, disaster, injury and illness.
menlofire.org
From: Sung Kwon <[email protected]>
Sent: Monday, April 10, 2023 5:19 PM
To: Johnston, Jon <[email protected]>; Radha Hayagreev <[email protected]> Cc: George Rodericks <[email protected]>; Michael Greenlee <[email protected]> Subject: RE: ADU Regulations
Caution: This email originated from outside of the organization. Unless you recognize the sender's email address and know the content is safe, DO NOT click links, open attachments or reply.

Hi Jon,
Atherton is not in the WUI Area?
Sincerely,
Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Contract Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844

2 From: Johnston, Jon <[email protected]>
Sent: Monday, April 10, 2023 3:58 PM
To: Radha Hayagreev <[email protected]>; Sung Kwon <[email protected]> Cc: George Rodericks <[email protected]>; Michael Greenlee <[email protected]> Subject: RE: ADU Regulations
[The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Wildland Urban Interface. Atherton borders Woodside/280 which is WUI.

Jon Johnston
Division Chief/Fire Marshal
Menlo Park Fire Protection District | 170 Middlefield Road | Menlo Park, CA 94025 (650) 688-8431
[email protected]
Mission Statement: To protect and preserve life and property from the impact of fire, disaster, injury and illness.
menlofire.org
From: Radha Hayagreev <[email protected]>
Sent: Monday, April 10, 2023 2:21 PM
To: Johnston, Jon <[email protected]>; Sung Kwon <[email protected]> Cc: George Rodericks <[email protected]>; Michael Greenlee <[email protected]> Subject: Re: ADU Regulations
Caution: This email originated from outside of the organization. Unless you recognize the sender's email address and know the content is safe, DO NOT click links, open attachments or reply.

Hi Jon,
Pardon my ignorance, but what is WUI?
Regards,
Radha Hayagreev [She/her]
Contract Senior Planner (M-Group)
80 Fair Oaks Lane Atherton, CA 94027
[email protected] | 408-796-4370

3 From: Johnston, Jon <[email protected]>
Sent: Monday, April 10, 2023 1:53 PM
To: Sung Kwon <[email protected]>
Cc: Radha Hayagreev <[email protected]>; George Rodericks <[email protected]>; Michael Greenlee <[email protected]>
Subject: RE: ADU Regulations
[The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Yes. However, we encourage not blocking any window egress, and also if in future area of WUI, nothing will be allowed within 5 feet. So my recommendation is hardscape/non-combustible landscaping within 5’ of all structures.

Jon Johnston
Division Chief/Fire Marshal
Menlo Park Fire Protection District | 170 Middlefield Road | Menlo Park, CA 94025 (650) 688-8431
[email protected]
Mission Statement: To protect and preserve life and property from the impact of fire, disaster, injury and illness.
menlofire.org
From: Sung Kwon <[email protected]>
Sent: Monday, April 10, 2023 1:48 PM
To: Johnston, Jon <[email protected]>
Cc: Radha Hayagreev <[email protected]>; George Rodericks <[email protected]>; Michael Greenlee <[email protected]>
Subject: RE: ADU Regulations
Caution: This email originated from outside of the organization. Unless you recognize the sender's email address and know the content is safe, DO NOT click links, open attachments or reply.

Would it be Ok to add landscaping in the 4 ft setback between ADU and property line? Sincerely,
Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Contract Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844

4 From: Johnston, Jon <[email protected]>
Sent: Monday, April 10, 2023 1:43 PM
To: Sung Kwon <[email protected]>
Cc: Radha Hayagreev <[email protected]>; George Rodericks <[email protected]>; Michael Greenlee <[email protected]>
Subject: RE: ADU Regulations
[The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Only item is that we still need a visible address from the street.

Thanks,
Jon
Jon Johnston
Division Chief/Fire Marshal
Menlo Park Fire Protection District | 170 Middlefield Road | Menlo Park, CA 94025 (650) 688-8431
[email protected]
Mission Statement: To protect and preserve life and property from the impact of fire, disaster, injury and illness.
menlofire.org
From: Sung Kwon <[email protected]>
Sent: Monday, April 10, 2023 1:38 PM
To: Johnston, Jon <[email protected]>
Cc: Radha Hayagreev <[email protected]>; George Rodericks <[email protected]>; Michael Greenlee <[email protected]>
Subject: ADU Regulations
Caution: This email originated from outside of the organization. Unless you recognize the sender's email address and know the content is safe, DO NOT click links, open attachments or reply.

Hi Jon,
Do you have any thoughts about landscape screening for ADUs? Sincerely,
Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Contract Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027 Page 28 of 123
5 (408) 796-4844

1 Sung Kwon
From: George Rodericks
Sent: Friday, April 14, 2023 10:15 AM
To: Michael Greenlee; Sung Kwon
Subject: Fwd: Affordable housing solution for Atherton
Another.

George Rodericks
City Manager
Town of Atherton
80 Fair Oaks Lane
Atherton, CA 94027
(650) 752-0504 - Office
[email protected]
Schedule A Meeting With Me
PUBLIC DISCLOSURE NOTICE:

This email and any attached files were sent from an email account assigned to a public official for the Town of Atherton.

This email, replies to this email, or emails sent directly to this email account may constitute a public record and, if retained during the normal course of business, may be subject to disclosure to any person upon request.

Begin forwarded message:

From: Jeff Corfman <[email protected]>
Date: April 13, 2023 at 7:35:54 PM PDT
To: [email protected]
Subject: Affordable housing solution for Atherton
Dear Mayor Widmer,
I am talking to the Del Mar Mayor and City Council about options for their affordable housing mandate from the State.

Del Mar, needs over 100 units to meet housing requirements. We are talking about pre-fab ADUs.

Pre-fab ADUs are ;

1. low cost $250k vs. traditional construction $700k

2. installation time is days/weeks vs years

3. environmentally friendly solar and tiny footprint vs traditional construction

4. use cases are numerous (elderly, student, family, etc) Pre-fab ADUs are on foundation, connected to plumbing and electric but with solar, net net electricity donor to the grid. Some of the new startups have beautiful new designs. If you or anyone in your office wants to talk about it to see if there is overlap in Atherton please give me a call anytime.

Regards,

2 Jeff Corfman
212.203.8178

1 Sung Kwon
From: Kenneth Frederick <[email protected]>
Sent: Thursday, April 20, 2023 10:30 AM
To: Sung Kwon
Cc: George Rodericks
Subject: Follow-up on our ADU discussion from April 6th Attachments: Barriers to ADU proliferation in Atherton.docx [The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Sung:

It was good to meet you & hear your comments on an update to Atherton’s ADU policy. As I understand it, you plan to:
1) Review the current ADU policy
2) Meet with residents in a small “Town Hall” session
3) Issue a proposed new ADU Policy for the Town Council’s review and approval - Including a “Study Session” with the Town Council on May 3rd I promised to send you a summary of options that I collected from residents about a month ago - See Attachment. Several specific notes:
1) Time to completion is the primary driving cost of ADU’s - The Town should simplify & streamline the process
2) The “Tree Zone” issue is solvable and should be addressed ASAP 3) The legality of the ban on natural gas in ADU’s is now in question (Based on the recent Ninth District Court rejection of the ban)
- The Town should at least “put the natural gas ban on hold” until the issue plays out in the courts 4) The residents should be involved in the actual drafting of the new ordinance, not just speak at a “Town Meeting”.

I look forward to the discussions on May 3rd.

Best regards,
Ken
Kenneth C. Frederick
Silicon Valley, CA
[email protected]
(650) 279-9580

1 Barriers to ADU increase in Atherton: – Draft 3/23
Background/Summary:

Although the Atherton Town Council has proposed >280 ADU units in the next 8 years, the actual current rate of specific (not part of a large new house construction) ADU adoption in Atherton is relatively unknown/undocumented, but estimated by those knowledgeable to be quite low. The San Mateo RE tax appraiser indicates that almost all ADU’s she sees in Atherton are a part of a new construction. Her “off the cuff” estimate was ~10-12 per year are built as new ADU’s in a back yard. Since the Town plans an average of 35+/year over the entire 8 years we will have to remove all feasible & appropriate barriers to such ADU construction.

Three categories of barriers to more ADU construction exist. They are ones that Atherton Town Council has:

A) NO direct control, but can worsen the situation:

B) Total, or very significant control
C) Some control & very significant influence
Category A): Atherton has No direct control:
- The Resident’s Ability to afford to build an ADU:
1) Current economic & geopolitical outlooks are quite worrisome to residents & many are very reluctant to make an economic decision that will “lock” them into a major capital investment (~ $500K$1M) that will require ongoing significantly increased monthly cash payments (mortgage, maintenance, utilities, RE taxes, etc.) for life! 2) As Home loans increase from a few % points to >7% the construction of an ADU is much less affordable & fewer residents can build one
3) The Town Council cannot resolve the Global & Regional economic issues, but any additional code restrictions or other requirements for building ADU’s will only make it harder for residents to economically & emotionally justify the expense - For example banning natural gas connections to ADUs means the homeowner will unable to have a gas fireplace, gas cooking, gas-fed BBQ, etc. and emergency electrical power generators fed by natural gas
In order to enable/encourage residents to build significantly more ADU’s the Town must eliminate/reduce key barriers – And, do so quickly, clearly & make the entire process “simple’! The goals are to make the ADU decision & entire process for residents:
1) Clear & Simple
2) As rapid as possible (From application to the completed project) 3) As economical as possible (Delays that create a longer timeframe are often the greatest driver of higher ADU construction costs)

2 Category B): Atherton has Total Control
B.1) “Red Tape”:
- Atherton must understand all the current bottlenecks & then document the issues & create a simple, rapid way to reduce all “Red Tape”
- This includes requirements by Atherton, San Mateo Co. & the State - Any increase in ADU construction unit volume may “overwhelm” the current process labyrinth of governmental (all levels) approvals & required site inspections - The current process is very lengthy & costly (all time delays are very expensive for the homeowner) & the impact on homeowners is not always apparent to the Town - Increased ADU construction volume with the same process may create a combination of additional delays & additional hiring of Gov’t staff at various levels Possible Solution:
- Hire/Contract an Atherton ADU “Ombudsman” (Reporting to the Council) to propose process improvements at all levels
- Start with those controlled by Atherton & move quickly to San Mateo County - The residents should not have to deal with a multitude of agencies/bureaucracies - If the process is too difficult, many residents just will not have the time or energy to complete the process!
- The Town Council & Town Staff may not see this as an issue, but many residents do B.2 The “Tree Zones”:
- The current required 10x & 8x tree diameter distance to new buildings requirement makes many Atherton lots “unbuildable” or “unsuitable” for a larger ADU - We all want to save our Heritage trees, & new foundation technology/processes will allow much less distance requirements & still maintain/improve the health of the trees
Possible Solution:
- Work with an Arborist, Tree Services Company & Civil Engineering/Foundation technology expert to propose new techniques/technologies that can be verified to both reduce the distance minimums & maintain/improve tree health - Create a “Standard Process” that is clear & simple and does not require time consuming & expensive specific individual case “waivers” A Specific Possible Solution:
- “Screw Piling Foundation” – A technology used widely in in many parts of the country uses metal screwed-in pilings that do not disturb the soil in large areas

3 - The foundation is then constructed on the screw pilings (slightly above the ground) & the tree roots are not disturbed & receive appropriate water, etc.

C) Atherton Has Some Control & Influence:

San Mateo RE Taxes:
- The current process is cumbersome & the homeowner’s final new RE tax is unknown until the construction is complete.
- Thus, many “long term” residents will have their San Mateo taxes more than double, but they don’t know the new annual Tax cost until completed & inspected. - Many residents (particularly those “retired”) are reluctant to lock-in future, longterm costs that are “unknown” before the decision is made.

Possible Solution:
- Atherton negotiates a “Blanket RE Tax Agreement” with San Mateo Co. for the calendar year that sets a new Tax rate per sq. ft..
- Thus, if your ADU is completed in that year, the homeowner is assured that they know the new tax by just multiplying their ADU sq. ft, times the negotiated rate. - The homeowner has “certainty” & can make an informed decision in advance - Better yet, the new tax rate should be calculated on the actual “Building cost per sq. ft.” & not the average home value in Atherton/sq. ft.

Note:
- This will require the Mayor & Town Council to work with other local towns to negotiate concepts & details with the County.
- In conversations with residents considering ADU’s in surrounding towns, these issues are prevalent in our general area. However, the “Tree Zone” issue is more prevalent in Atherton due to the large number of heritage trees that we all want to preserve.

From: Kenneth Frederick
To: Sung Kwon
Cc: George Rodericks
Subject: May 3rd & ADU discussion
Date: 24 April, 2023 3:12:37 PM
Attachments: Ninth Circuit Overturns Berkeley’s Natural Gas Ban — Reichman Jorgensen Lehman Feldberg LLP.pdf [The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Sung:

I appreciate your extra efforts & look forward to the discussion on May 3rd at the Study Session. Given the Town’s dependence on accelerating the construction of more ADU’s to meet the HCD goals, it is important to enable residents to design and construct ADU’s that both meet their personal specific needs and are affordable.

As you are undoubtably aware, there is also a lot of interest by Atherton residents in the Town’s reaction to the 9th Circuit Court’s overturning of Berkeley’s ban on using natural gas in new residential buildings. (see attachment) We assume that the Town will now remove that bans on Natural gas that are in Code 15.19 & new ADU’s will be able to use natural gas.

Best,
Ken
Kenneth C. Frederick
Silicon Valley, CA
[email protected]
(650) 279-9580
From: Sung Kwon <[email protected]>
Date: Monday, April 24, 2023 at 8:46 AM
To: Ken Frederick <[email protected]>
Cc: George Rodericks <[email protected]>
Subject: RE: Follow-up on our ADU discussion from April 6th Hi Kenneth,
Thank you for your comments. I will add them to the Study Session Packet for the May 3.

Sincerely,

Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Consulting Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844
From: Kenneth Frederick <[email protected]>
Sent: Thursday, April 20, 2023 10:30 AM
To: Sung Kwon <[email protected]>
Cc: George Rodericks <[email protected]>
Subject: Follow-up on our ADU discussion from April 6th [The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Sung:

It was good to meet you & hear your comments on an update to Atherton’s ADU policy. As I understand it, you plan to:

1. Review the current ADU policy

2. Meet with residents in a small “Town Hall” session

3. Issue a proposed new ADU Policy for the Town Council’s review and approval Including a “Study Session” with the Town Council on May 3rd I promised to send you a summary of options that I collected from residents about a month ago - See Attachment. Several specific notes:

1. Time to completion is the primary driving cost of ADU’s The Town should simplify & streamline the process

2. The “Tree Zone” issue is solvable and should be addressed ASAP

3. The legality of the ban on natural gas in ADU’s is now in question (Based on the recent Ninth District Court rejection of the ban)
The Town should at least “put the natural gas ban on hold” until the issue plays out in the courts

4. The residents should be involved in the actual drafting of the new ordinance, not just speak at a “Town Meeting”.

I look forward to the discussions on May 3rd.

Best regards,

Ken
Kenneth C. Frederick
Silicon Valley, CA
[email protected]
(650) 279-9580

Ninth Circuit Overturns Berkeley’s Natural Gas
Ban
APRIL 17, 2023
Reichman Jorgensen Lehman & Feldberg Secures Landmark Ninth Circuit Victory for California Restaurant Association in Battle Over Berkeley’s Gas Ban (April 17, 2023) REDWOOD SHORES, Calif. — Reichman Jorgensen Lehman & Feldberg LLP (RJLF) secured a precedent-setting victory on behalf of the California Restaurant Association (CRA) against the City of Berkeley, overturning Berkeley’s ban on natural gas hookups. The Ninth Circuit reversed the District Court’s ruling that the City’s natural gas ban was consistent with federal law. The panel unanimously held that federal energy law preempts Berkeley’s ban on natural gas piping within buildings, and that Berkeley cannot bypass federal preemption by banning the pipes instead of natural gas products themselves. “We are extremely pleased the Ninth Circuit enforced the plain mandate of federal law on the critical issue of national energy policy,” Courtland L. Reichman, RJLF’s Managing Partner, said. “At stake was the CRA members’ ability to conduct business in the state of California, which puts not only the future of restaurants at risk, but also the vibrant culture and the jobs that those restaurants bring to the area.”
Berkeley Ordinance No. 7,672-N.S. banned natural gas infrastructure and the use of natural gas in newly constructed buildings beginning January 1, 2020, making Berkeley the first city in California to take such action. The case challenged the practice of cities across California of usurping state and federal regulations governing the use of energy in buildings. “Congress intended to set a national energy policy, and cities and states cannot bypass federal preemption by regulating piping instead of natural gas products,” RJLF partner Sarah O. Jorgensen shared. “The panel’s unanimous decision that Berkeley’s ban on natural gas piping is preempted by EPCA sets an important precedent for future cases, especially with other cities and states considering restrictions on natural gas, and it prevents a patchwork of disparate regulations and protects consumer choice.”

In the original complaint filed November 21, 2019, the CRA highlighted that its members include restaurants that “rely on gas for cooking particular types of food,” as well as for heating space and water, for backup power, and for affordable power, and that they would “be unable to prepare many of their specialties without natural gas.” Berkeley’s Ordinance harms the CRA’s members, who would not be able to move into or build new buildings while also preparing food in the manner and with the speed necessary and using a reliable and affordable energy source. The drastic step of requiring “all-electric” new buildings stands at odds with the need for a reliable, resilient, and affordable energy supply. The Berkeley Ordinance conflicts with both federal and state law, is contrary to the public interest, and harms CRA and its members, the CRA argued.

The District Court dismissed the complaint in July 2021, finding that the CRA had standing and the dispute was ripe, but disagreeing on the statutory interpretation of federal energy law. The CRA appealed that statutory interpretation to the Ninth Circuit. The significance of this first-in-the-nation attempt to ban natural gas at a local level prompted amici briefs from states, industry associations, and the Department of Justice. Brian C. Baran of RJLF argued the case for the CRA before a three-judge panel in May 2022.

Along with partners Courtland L. Reichman and Sarah O. Jorgensen, the CRA is represented by associates Brian C. Baran, Laura Carwile, and David King, as well as co-counsel Gary J.

Toman from Weinberg, Wheeler, Hudgins, Gunn & Dial LLC and Kylie Chiseul Kim from Kellogg, Hansen, Todd, Evans, Figel & Frederick LLP.

The case is California Restaurant Association v. City of Berkeley, Case No. 21-16278 (9th Cir.).

About The California Restaurant Association
The California Restaurant Association (CRA) is the largest nonprofit statewide restaurant trade association in the nation. Representing the restaurant and hospitality industries since 1906, the CRA is made up of nearly 22,000 restaurant locations in California.

About Reichman Jorgensen Lehman & Feldberg LLP

H O M E T H E FIR M OUR TEA M CO N TACT US N E W S & EVE N TS CAREERS OFFICES DISCLAI M ER NEXT
GCR Honors RJLF Trial Win with 2023 Behavioural Matter of the Year Award Reichman Jorgensen Lehman & Feldberg LLP (RJLF) is an elite national trial firm that handles high-stakes commercial litigation, intellectual property, and white collar disputes. The firm is majority women-owned and rejects the billable hour in favor of fee arrangements that align client interests. RJLF’s attorneys are diverse, exceptionally credentialed, and passionate about trial advocacy. From offices in Silicon Valley, New York, Washington, D.C., and Atlanta, the firm tries cases and argues appeals throughout the country. For more information, visit www.reichmanjorgensen.com.

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© 2023 Reichman Jorgensen Lehman & Feldberg LLP

From: Flaherty
To: Sung Kwon
Subject: May 3rd Joint Session re. ADUs
Date: 26 April, 2023 10:32:50 AM
Attachments: ADU Notes_Kwon.docx
[The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Dear Sung:

My husband and I have been building spec homes in Atherton for 37 years (over 20 projects). We also build in LaJolla, Delmar, Coronado, Encinitas and Idaho: over 100 houses overall. I have met with Bill Widmer, George Roderick and Rick DeGolia several times re. ADU guidelines. I also sent the City Council a list of recommendations (attached) for consideration. I doubt they made it to your attention.

I pass the recommendations along for any that you feel might be appropriate.

I will also be at tonight's Planning Commission meeting. Perhaps we'll see each other there.

With best regards,
Carol Flaherty
Cell: 650-799-4592
Current construction project: 30 Adam Way

Biggest issues for Atherton residents wanting to add an ADU:

1. Existing tree locations.

2. Arduous and lengthy Building Dept. approval process, including high fees.

3. Current height restrictions on ADUs over garages.

4. Parking spaces. Garage and driveway are already installed at existing homes.

Detached ADUs:
o Need a streamlined permit process. Current processing time for new homes is 3-4+ months with many costly resubmissions. State mandate < 60 days. o For new construction projects: Separate the ADU and garage applications from the main residence. Would enable a faster permit to start ADU construction. Today, all three go hand-in-hand.
o Reduce Planning Commission fees for ADU tree variances. I was quoted almost $2400 for a hearing, because I needed a variance for an oak tree that was 1 foot inside the 8x diameter distance from that tree to the proposed ADU. I would also have to wait two months for a hearing, because the next meeting’s agenda was already full. o Give the City Arborist the authority to approve lesser tree distances for ADUs (4-6x diameter). ADUs are typically built on slab, which is far less intrusive to tree roots than basements. There’s no need for an 8-10x tree diameter distance between the tree and the ADU.
o Reduce fees for City Arborist to approve Tree Protection Zone (TPZ) applications/permit (a reduction from 10x diameter to 8x diameter). I paid $888 for a TPZ reduction from 10x to 8x on 3 trees.
o ADU permit fees, in general, should be limited to more reasonable amounts. They are quite high. The number of necessary permits should also be reviewed. Maybe some could be consolidated under an “umbrella permit”.
o Eliminate or reduce the separate address fee.
o Eliminate the monthly arborist report (due by 15th of each month). Go to quarterly. o Allow higher back or side fences (8’) between two adjacent properties where one or both have an ADU. Would apply where ADU is 4’ from property line. o Must be same architectural style, window/door frame style & color, roof composition & color, and finish/siding as the existing main house. No particle board siding or metal siding. o Waive the landscape shielding plan for ADUs that aren’t part of new construction. There’s very little opportunity for shielding when you’re 4’ from the property line on an existing lot. You have what you have.
o Allow one ADU vehicle to be parked on the existing driveway or in existing garage. No additional parking required for ADU.
o The 800SF limit allowance of “free” square footage is a problem for some existing homes. Many homes are already maxed out, and 800 SF is very small. I’d allow up to 1200 SF on parcels where the existing house is already built. 800SF is also too small for an ADU addition over a garage.

ADUs over existing garages:
o Must match footprint of existing garage and be of same architectural style, composition and color.
o Should be exempt from 8-10x distance between a protected tree and the building; lesser standard should be developed.
o Any exterior staircase must be enclosed and non-visible from the front street. o If existing garage is greater than 1200 SF, additional space will be exempt from size restrictions to match existing footprint (up to a maximum 3-car garage area – you can’t be exempt if you have a 6-car garage). For example, if an existing three-car garage is 1,300 SF, that would be allowed without counting the extra 100 SF towards the overall building allowance on the parcel. o Must have fire sprinkler system.
o Requires inspection of existing garage foundation to insure adequacy of support. o ? whether existing garage will require insulation and drywall.

Other: Where a home has an ADU, allow 8’ fences at the back and sides. At current fence heights (6”), neighbors will look right onto the adjoining ADU windows and vice versa. Fence heights are too low for a 4’ setback.

D ADU Ordinance Amendments: Consideration of a recommendation to the Town Council to approve amendments to Atherton Municipal Code Chapters 17.52 Accessory Dwelling Units, Chapter 17.60 Definitions, and Chapter 17.36 Public Facilities and Schools District (PFS).

CEQA; The proposal has been determined to be exempt from the provisions of the California Environmental Quality Act (CEQA) to CEQA Section 15305, Minor Alterations in Land Use Limitations.

Recommendation: Staff recommends that the Planning Commission conduct the public hearing and recommend that the City Council approve amendments to Atherton Municipal Code Chapters 17.52 “Accessory Dwelling Units”, Chapter 17.60 “Definitions” and Chapter

17.36 Public Facilities and Schools District (PFS) based on the following finding and for the reasons outlined in the staff report.

DATE: PLANNING COMMISSION MEETING OF JANUARY 25, 2023
TO: THE PLANNING COMMISSION
FROM: SUNG H. KWON, AICP, TOWN PLANNER

SUBJECT: CONSIDERATION OF A RECOMMENDATION TO THE CITY COUNCIL

TO APPROVE AMENDMENTS TO ATHERTON MUNICIPAL CODE
CHAPTERS 17.52 ACCESSORY DWELLING UNITS, CHAPTER 17.60
DEFINITIONS, AND CHAPTER 17.36 PUBLIC FACILITIES AND
SCHOOLS DISTRICT (PFS).

RECOMMENDATION:

Staff recommends that the Planning Commission conduct the public hearing and recommend that the City Council approve amendments to Atherton Municipal Code Chapters 17.52 “Accessory Dwelling Units”, Chapter 17.60 “Definitions” and Chapter 17.36 Public Facilities and Schools District (PFS) based on the following finding and for the reasons outlined in this report:

The proposed zoning text amendments are consistent with the general plan goals, policies, and implementation programs.

Basis for finding: The proposed Zoning Ordinance amendments allow the Town to be compliant with recent changes in state law related to the development of Accessory Dwelling Units and Junior Accessory Dwelling Units. Amendments proposed address the following General Plan Goal, Objectives, and Policy:

Housing Element Goal 3.620
(5th Cycle Housing Element)
Use second dwelling units to meet a substantial
portion of the Town’s moderate to very low
income housing need.

Land Use Objective 1.3 To retain the quality of life, character and existing in the Town’s residential
neighborhoods.

Housing Element Objective 3.661
(5th Cycle Housing Element)
D. Continue to encourage the development of
second units, which can provide an affordable
option for Seniors.

ADU PC 1.25.23 Staff report

January 25, 2023 Planning Commission Staff Report
AMC Amendments Ch. 17.52 “Accessory Dwelling Units”, Ch.17.60 “Definitions” and Ch 17.36 “Public Facilities and Schools District (PFS)”

Housing Element Policy 3.622
(5th Cycle Housing Element
A. Actively promote the Second Dwelling Unit
provision of the Atherton Zoning Ordinance by
encouraging homeowners and developers to
include attached or detached Second Dwelling
Units in existing or new homes.

BACKGROUND:

In September 2022, the Governor signed into law AB2221 and AB 2097 that amended Government Code sections 65585 and 65852.2 which impose new limits on a local authority to regulate Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs) in order to further ease local restrictions. These State laws restrict what cities may require when new ADUs are considered with the intent of further reducing barriers and streamlining approvals to accommodate the development of ADUs.

These new ADU laws took effect January 1, 2023. Per this new legislation, if a jurisdiction’s ADU ordinance does not comply with the new ADU laws, that ordinance becomes null and void as a matter of law. Cities are more accountable now to the California Department of Housing Community Development (HCD) for confirming their local ordinances to the state ADU law, and HCD may refer a violation to the Attorney General. Once the revised ADU Ordinance is adopted, the Town will send the revised Ordinance to HCD within 60 days.

Key areas of change as mandated by the state legislation relative to the Town’s existing ADU Ordinance are as follows:

1. No front yard setback for ADUs

2. Increase height allowances for ADUs

3. ADUs allowed in Public Facilities and School District (PFS) Zoning District as multifamily residences are allowed with environmental review.

4. Garage Conversion Allowance for ADUs.

5. Utility and Impact fee limitations for ADUs.

6. Elimination of Heritage Tree Protection for ADUs.

ANALYSIS:

State Requirements
This update to the ADU Ordinance is intended to comply with State Regulations. Table 1 highlights major changes in the development standards and notes the requirement source.

Staff Proposed Amendments
In addition to the amendments as required by state legislation to Chapter 17.52 “Accessory Dwelling Units”, staff is recommending the following, additional amendments for consistency with General Plan land use policies, clarity, and internal Zoning Ordinance consistency.  Internal Connection from Attached ADU to Main Residence. Although, the Municipal Code does not allow internal connections from attached ADUs to the main residence, it has been the ADU PC 1.25.23 Staff report

January 25, 2023 Planning Commission Staff Report
AMC Amendments Ch. 17.52 “Accessory Dwelling Units”, Ch.17.60 “Definitions” and Ch 17.36 “Public Facilities and Schools District (PFS)”

practice of the Town to allow these internal connections. The ADU ordinance is being update to ratify this allowance. Allowance of an internal connection between a detached ADU to other accessory structures is not proposed.
 Kitchen Definition. Definitions for kitchens within an ADU and a JADU are outlined for internal consistency within Chapter 17.60 “Definitions”. Under the definitions there are proposed requirements for a typical kitchen required for ADUs and an efficiency kitchen which is only allowed for JADUs.

Table 1: Summary of ADU Amendments
Development
Standard
Existing
Regulation
Proposed Amendment Requirement
State Requirements
Efficiency
Units and
Manufactured
Homes
None Allow efficiency units and
manufactured homes.

AB2221
ADU
Allowances

17.52.040.A Clarify ADU limitations for single
family residential and add
allowance for multifamily
residential.

AB2221
Impact Fees None No Impact fees will be charges on
ADU that are 750 square feet or
less.

AB2221
Heritage
Trees

17.52.040.C Damage or removal of heritage
trees can not be the basis for
denying an ADU/JADU. This
limitation is proposed for removal.

Multiple ADUs may be allowed in
multifamily residential.

AB2221
ADU Height 17.52.040.C
16 feet for
detached ADUs
18 feet height limit when ½ mile
from major transit stop.
18 feet height limit for multifamily
development
25 feet height limit for attached ADU
2 story limit for ADUs
AB2221
Setbacks –
Front
Attached = Same
as Main
Residence
Detached = 120’
from the front
property line, or
30’ behind the
No Limitation in front yard setback AB2221
ADU PC 1.25.23 Staff report

January 25, 2023 Planning Commission Staff Report
AMC Amendments Ch. 17.52 “Accessory Dwelling Units”, Ch.17.60 “Definitions” and Ch 17.36 “Public Facilities and Schools District (PFS)”

front line of the
main residence,
whichever is less.

Existing
Garage and
Accessory
Structures

17.52.040.D Expanded ADU conversion
allowance language. Noted that no
replacement parking is required.

Existing zoning code does not
require parking for single family
residence.

AB2221
Parking 17.52.040.H Revised parking requirements AB2097 Fire
Sprinklers

17.52.040.K Clarified that construction of an
ADU would not trigger a need to
provide fire sprinklers for the main
residence.

AB2221
Nonconformity
Zoning &
Building
None Nonconforming zoning conditions
do not need to corrected for ADUs.

Can delay enforcement of building
standard.

AB2221
Utility
Connections
None No new utility connections required
for ADU if there is an existing house.

AB2221
ADU Sidewall
Height
Detached = 16’
max with 11’
sidewall
No sidewall limitation for ADUs. HCD Letter
ADUs in PFS
(Multifamily
Zone)
Allowed use as
shown in Table

17.36.030-1.

Allow ADUs in PFS for multifamily
residential use in PFS
HCD Letter
Location 17.52.040.B Remove the habitable area language for location of ADU.

HCD Letter
Zoning Code Clarifications
Passageway None Allow passageway from attached
ADU to main residence.

No passageway will be allowed from
detached ADU to other accessory
structures.

Kitchen
Definition
Not detailed Specific standards for standard
kitchens and efficiency kitchens are
proposed by staff.

CONCLUSION:

To respond to the current state housing crisis, the State Legislature passed a series of bills designed to encourage the production of both ADUs and JADUs. Cities are expected to update their local ordinances to comply with the state legislation. If the Town fails to conform its local ordinance, applicants would be permitted to develop under the state legislation. Since the Town currently has ADU PC 1.25.23 Staff report

January 25, 2023 Planning Commission Staff Report
AMC Amendments Ch. 17.52 “Accessory Dwelling Units”, Ch.17.60 “Definitions” and Ch 17.36 “Public Facilities and Schools District (PFS)”

several ADU applications pending, adopting the local updates will allow the Town to process applications with more clarity and compliance. The attached ordinance is drafted to comply with the minimum, more permissive state regulations. Additionally, adoption of amendments to the ADU Ordinance to incorporate the more permissive state requirements, may further promote the development of ADUs in Town, which may in turn assist the Town fulfilling its Regional Housing Needs Allocations (RHNA) requirements which will be assigned by the state during the next upcoming, required Housing Element cycle.

ALTERNATIVES:

The Commission could recommend additional or revised amendments on the draft Ordinance or not recommend approval of any amendments to the City Council.

FISCAL IMPACT:

The cost associated with the preparation of the draft Ordinance amendments are included within the annual Planning Department budget. The cost to implement the Ordinance will be paid for the applicants of related development projects.

ENVIRONMENTAL IMPACT:

The project is Categorically Exemption per Section 15305 of the CEQA Guidelines. Section 15305 relates to Minor Alterations in Land Use Limitations, as the ordinance amendments would not result in any changes to land use or density.

FORMAL MOTION:

I move that the Planning Commission recommend City Council determination of CEQA exemption and recommend adoption of amendments to Atherton Municipal Code Chapter 17.52 Accessory Dwelling Units, Chapter 17.60 Definitions, and Chapter 17.36 Public Facilities and School Districts (PFS) based on the findings and for the reasons as outlined in the Staff Report.

____________________________________
Sung H. Kwon, AICP, Town Planner
Attachments:

1. Draft Ordinance Amendments tracked changes

2. Draft Ordinance Amendments clean

3. HCD Comment Letter

4. Town Response to HCD Comment Letter

5. Draft Planning C Resolution recommending adoption of revisions to the ADU regulations to the City Council
ADU PC 1.25.23 Staff report

Attachment 1
Ordinance ______ Page 1 of 12 Date
DRAFT ORDINANCE _____

AN ORDINANCE OF THE CITY COUNCIL OF THE TOWN OF ATHERTON TO AMEND CHAPTERS 17.52, 17.60 AND 17.3660 OF THE ATHERTON MUNCIPAL

CODE REGULATING ACCESSORY DWELLING UNITS AND JUNIOR ACCESSORY

DWELLING UNITS
WHEREAS, the Town of Atherton has historically regulated the construction of accessory structures within zones designated for residential use in a manner that is consistent with the character of the Town and that values the privacy of the Town’s residents, and
WHEREAS, California has a shortage of housing and particularly affordable housing and the State Legislature has in recent years undertaken a number of measures to incentivize the construction of additional housing stock to address this shortage, and WHEREAS, the City Council supports the construction of additional housing stock throughout the state but strongly opposes the State Legislature’s approach to incentivizing such construction where that approach usurps local land use control, and WHEREAS, the City Council opposes the changes in state law that take away local land use control over the development of accessory dwelling units and junior accessory dwelling units, and makes conforming changes to the Atherton Municipal Code under protest.

The City Council of the Town of Atherton does hereby ordain as follows:

Section 1. TITLE
This Ordinance shall be known as the Town of Atherton ("Town") Accessory Dwelling Unit Ordinance. This Ordinance shall be applicable in the incorporated territory of the Town.

Section 2. PURPOSE & AUTHORITY
The purpose of this Ordinance is to adopt regulations governing the development of accessory dwelling units ("ADUs") and junior accessory dwelling units ("JADUs]") in accordance with the changes made to State ADU laws found at Government Code section 65852 et seq. by various Senate and Assembly Bills, including SB 13, AB 68, and AB 881.

Section 3. AMENDMENTS TO ATHERTON MUNICIPAL CODE CHAPTER

17.52 Chapter 17.52 is hereby deleted and re-enacted to read as follows:

Attachment 1: ADU PC 1.25 - ADU ordinance tracked changes

Attachment 1
Ordinance ______ Page 2 of 12 Date
Chapter 17.52

ACCESSORY DWELLING UNITS
Sections:

17.52.010 Purpose.

17.52.020 Zones Allowed.

17.52.030 Definitions.

17.52.040 Development Standards and General Requirements.

17.52.050 Application Review.

17.52.010 Purpose.

The purpose of this chapter is to regulate accessory dwelling units in residential zoning districts and on residential property consistent with state law (California Government Code Section 65852 et seq.). Implementation of this chapter is intended to provide for additional housing opportunities by increasing the number of units available within existing neighborhoods while maintaining the character of the area. The City Council of the Town of Atherton adopts this chapter to comply with SB 13, AB 68, and AB 881, AB 2221, and AB 2097 under protest, as it is the Council’s position that in enacting these laws, the legislature has improperly usurped local land use authority.

17.52.020 Zones Allowed.

Accessory dwelling units and junior accessory dwelling units shall be allowed in all areas zoned to allow single family residential and multifamily residential uses in compliance with the development standards set forth in section 17.52.040 (Development Standards and General Requirements) of this Chapter. Regardless of any development standards, a minimum ADU of 800 square feet shall be allowed.

17.52.030 Definitions.

A. “Accessory dwelling unit” or “ADU” means a building or portion of a building designed for use and occupancy by people living independently of the occupants of the main residence building. The ADU shall be on the same lot as the main residence. and containing separate kitchen, bath, sleeping, or living facilities. The term “attached accessory dwelling unit” means an accessory dwelling unit that is structurally attached to the main residence but which has independent, direct access from the exterior. An ADU can be an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing single family or multifamily development. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation. An accessory dwelling unit also includes the following:

1. An efficiency unit.

2. A manufactured home, as defined in Section 18007 of the Health and Safety Code.
“Efficiency unit” means a living unit which includes all of the following:
 Size of at least 150 square feet.

Attachment 1: ADU PC 1.25 - ADU ordinance tracked changes

Attachment 1
Ordinance ______ Page 3 of 12 Date
 For units that are not accessible or adaptable, a partial kitchen with a sink (minimum18 inches wide), a permanently installed two or more burner cooktop and oven, hood vent, and refrigerator (minimum 10 cubic feet), each having a clear working space of not less than 30 inches in front of the counter. o Food preparation counter or counters that total at least 20 square feet. o Storage cabinets that total at least 30 cubic feet of shelf space o A separate closet.
 Compliance with light and ventilation requirements of the Atherton Building Code.  A separate bathroom containing a water closet (toilet), lavatory (bathroom sink) and bathtub and/or shower.

The term “detached accessory dwelling unit” means an accessory dwelling unit that is not structurally attached to the main residence.
“Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.

B. “Junior Accessory dwelling unit” or “JADU” means a unit that is no more than 500 square feet in size and contained entirely within a single-family residence or multifamily development. A junior accessory dwelling unit shall include an efficiency kitchen, which shall include all of the following 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 junior accessory dwelling unit. A junior accessory dwelling unit may include separate sanitation facilities or may share sanitation facilities with the existing structure.

17.52.040 Development Standards and General Requirements.

Unless otherwise stated in Section 17.52.050 of this Ordinance, ADUs and JADUs are permitted, provided the following standards and requirements are incorporated and met.

A. Maximum Number.

1. Only one ADU and one JADU shall be allowed on each lot or parcel with a zoning designation of single-family residential provided that:
i. The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling, existing space of a single-family dwelling, or in an accessory structure. The ADU may include an expansion of not more than 150 square feet beyond the same physical dimensions as an existing accessory structure. An expansion beyond the physical dimensions of an existing accessory structure shall be limited to accommodating ingress and egress.
ii. The space has exterior access separate from the proposed or existing single-family dwelling.
iii. The side and rear setbacks are sufficient for fire and safety. iv. The junior accessory dwelling unit complies with the requirements of Section 65852.22.

Attachment 1: ADU PC 1.25 - ADU ordinance tracked changes

Attachment 1
Ordinance ______ Page 4 of 12 Date

2. Multifamily Zones
i. Multiple accessory dwelling units are allowed within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with state building standards for dwellings. At least one accessory dwelling unit is allowed within an existing multifamily dwelling. The total number of ADUs allowed is up to 25 percent of the existing multifamily dwelling units.
ii. No more than two accessory dwelling units are allowed on a parcel that has an existing multifamily dwelling.
.

B. Location. The ADU shall be attached to the existing main residence or located within the habitable area of the existing main residence or detached from the main residence and located on the same lot as the main residence.

C. Heritage Tree, Setbacks, Height, Other Development Requirements.

1. Heritage Trees. In all instances, the location of any newly constructed ADU or JADU shall meet the minimum requirements in accordance with Chapter 8.10 Removal of and Damage to Heritage Trees for any existing heritage trees.

1. Height.
i. The maximum height of an attached ADU shall meet the height requirements for the main residence of the zone in which the unit is to be located. The maximum height of a detached ADU shall be one-story and shall not exceed a maximum overall height of sixteen (16) feet and maximum sidewall height of eleven (11) feet on a lot with an existing or proposed single family or multifamily dwelling unit.
ii. .A maximum height of 18 feet is allowed 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. 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 is also allowed. iii. A maximum height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed multifamily, multistory dwelling. iv. A maximum height of 25 feet or the height to the primary dwelling, whichever is lower, for an accessory dwelling unit that is attached to a primary dwelling.
v. Accessory dwelling units are limited to 2 stories.

2. 2. Setbacks and other Development Standards. Except as specified below, all ADUs and JADUs shall comply with the setback requirements of the zone in which a unit is to be located..

3. Attachment 1: ADU PC 1.25 - ADU ordinance tracked changes

Attachment 1
Ordinance ______ Page 5 of 12 Date
i. Attached ADUs shall be located in the main building area and may encroach into the side and rear yard setbacks by not more than twenty percent (20%) of the required setback, and may apply additional exemptions from floor area limitations as noted in Section 17.52.040 (C)(5) of this Chapter, however; such rear and side setbacks may be reduced to four (4) feet but will then not be eligible for additional exemptions from floor area limitations as noted in Section 17.52.040 (C)(5) of this Chapter.
i.
ii. Detached accessory dwelling units shall have be subject to the setbackhave and other development standards as set forth in Chapter 17.40 Accessory Buildings and Structures of the Atherton Municipal Code. Detached ADU’s which meet the minimum side and rear setbacks of Chapter 17.40 Accessory Buildings and Structures may apply additional exemptions from floor area limitations as noted in Section 17.52.040 (C)(5) of this Chapter, however; such rear and side setbacks may be reduced toof four (4) feet without applying the additional exemptions from floor area limitations as noted in Section 17.52.040 (C)(5) of this Chapter. A detached ADU can include a detached garage.
ii. JADUs shall have the same setbacks as the main residence. iii. No setback requirement shall apply to any ADU or JADU constructed in an existing living area, a converted existing accessory structure or building, or for a new ADU or JADU constructed in the same location and built to the same dimensions as an existing structure.
iv. No front yard setback is required for an ADU that is 800 square feet or less in size.
v. If an existing multifamily dwelling has a rear or side setback of less than four feet, no modification is required of the existing multifamily dwelling as a condition of approving the application to construct an accessory dwelling unit. iii.

4.3. Floor Area.
i. No ADU or JADU may be smaller than the size required to allow an efficiency unit pursuant to Health and Safety Code Section 17958.1. ii. The maximum size for a JADU is 500 square feet. The maximum size of a detached or attached ADU shall not exceed twelve hundred (1,200) square feet.
i.
iii. For any ADU, the maximum size for a studio or 1 bedroom shall be 850 square feet. A two-bedroom ADU shall be limited to 1,200 square feet. In order for an ADU to exceed 800 square feet, the ADU must meet the accessory structure setbacks. ADUs cannot exceed 2 bedrooms.
ii.iv. The increased floor area of an attached ADU shall not exceed fifty percent of the existing floor area of the main residence, unless necessary to accommodate at least an eight hundred (800) square foot ADU. v. No floor area limitation shall be required for any conversion of an existing legal non-conforming building to an ADU.

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Attachment 1
Ordinance ______ Page 6 of 12 Date

5.4. Exemption from Maximum Floor Area Limitations.
i. The first eight hundred (800) square feet of floor area of each newly constructed ADUs, and five hundred (500) square feet for JADUs shall be excluded from maximum floor area calculations.
ii. Additional floor area for newly constructed ADUs or JADUs may be excluded from maximum floor area calculations where staff determines the following conditions are met:
a. Newly constructed detached ADUs which meet and/or exceed the minimum side and rear setbacks of Chapter 17.40 Accessory Buildings and Structures will be allowed additional floor area exemptions in addition to the first eight hundred (800) square feet of floor area up to a total of twelve hundred (1,200) square feet.
b. Newly constructed attached ADUs which are located in the main buildable area and encroach into the side and rear yard setbacks by not more than twenty percent (20%) of the required setback shall be allowed additional floor area exemptions in addition to the first eight hundred (800) square feet of floor area up to a total of twelve hundred (1,200) square feet.

5. Windows. Accessory buildings and structures may include windows and/or skylights, except that no window or skylight openings that face the side or rear property line shall be located over nine feet above the ground level. This does not apply ADUs.

D. Existing GarageExisting Structure. No setback shall be required for an existing, legal living area or accessory structure or a structure constructed in the same location and to the same dimensions as an existing structure that is converted to an accessory dwelling unit or to a portion of an accessory dwelling unit. A setback of at least four feet from the side and rear lot lines shall is required for an accessory dwelling unit that is not converted from an existing structure or a new structure constructed in the same location and to the same dimensions as an existing structure. attached or detached garage and/or other existing structure that is converted to an ADU or JADU.

When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, off-street parking spaces do not need to be replaced.

A demolition permit for a detached garage that is to be replaced with an accessory dwelling unit shall be reviewed with the application for the accessory dwelling unit and issued at the same time.

E. Passageway. No passageway, as defined in California Government Code Section 65852.2, shall be required in conjunction with the construction of an ADU or JADU. Internal connections are allowed for attached ADUs and JADUs. Internal connections are not allowed for detached ADUs to other accessory buildings.

F. Owner Occupancy. The owner occupancy requirements detailed in this section shall apply to all lawfully permitted ADUs and JADUs within the Town:

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Attachment 1
Ordinance ______ Page 7 of 12 Date

1. ADUs and JADUs permitted before January 1, 2020. The owner-occupancy requirements applicable to the ADU or JADU at the time of its permitting shall apply.

2. ADUs and JADUs permitted between January 1, 2020 and January 1, 2025. No owner-occupancy requirements shall apply.

3. ADUs and JADUs permitted after January 1, 2025. Prior to finaling of the project for an ADU or JADU, the property owner shall record a deed restriction requiring that the owner of the property occupy either the primary dwelling unit, ADU, or JADU, or if the owner will not be residing in one of the units, lease the entire property including the primary dwelling unit, ADU, and JADU to a single tenant.

G. ADU Rental. An ADU or JADU may be rented separate from the primary residence but may not be sold or otherwise conveyed separate from the primary residence. Rentals of any ADU or JADU must be for longer than thirty days.

H. Parking Requirement.

1. Unless subject to one of the exceptions immediately below, each ADU shall have assigned to it one parking space per ADU. Parking shall be accessible from a public street and screened from view of the public street. These spaces may be provided as tandem parking on an existing driveway. No parking for an ADU is required when located within one-half mile walking distance of public transit.

2. No additional parking required. No additional parking shall be required if one of the following conditions applies to the ADU:
i. ADU is located within one-half mile of public transit. ii.i. ADU is part of a proposed or existing primary residence or an existing accessory structure.
iii.ii. On-street parking permits are required but not offered to the occupant of the ADU.
iv.iii. A car share vehicle is located within one block of the ADU.

I. Separation Requirement. A separation of at least eight feet shall be maintained between any detached ADU and the proposed or existing primary residence, unless necessary to accommodate at least an eight hundred (800) square foot ADU.

J. Entrance Requirements. Any new attached ADU or JADU that is incorporated into a proposed or existing primary residence shall have a separate entrance facing the side or rear yard, where feasible. Any new detached ADU or JADU shall have a separate entrance facing towards the interior of the lot.

K. Compliance with Applicable Requirements. ADUs and JADUs unit shall meet all applicable zoning and fire regulations and shall comply with local building codes. Fire sprinklers shall not be required for the accessory dwelling unit if they are not required for the primary residence. The construction of an accessory dwelling unit shall not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling.

L. Lighting Restrictions. Any lighting associated with an ADU or JADU shall be shielded or downlit and shall not shine onto adjoining properties, while meeting the minimum Building Code.

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Attachment 1
Ordinance ______ Page 8 of 12 Date
M. Landscape Screening. Landscape screening for the ADU shall be installed to the greatest extent feasible.

N. Density. Any ADU or JADU does not count towards the allowable density for the lot upon which it is located.

O. Nonconforming zoning conditions do not need to be corrected as part of an ADU or JADU approval. An accessory dwelling unit shall be approved regardless of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit.

Q. 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), the Town of Atherton 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 the Town of Atherton 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.

P. A certificate of occupancy for an accessory dwelling unit will only be issued after a certificate of occupancy is issued for the primary dwelling.

R. A new ADU with where there is an existing main residence shall not be required to have separate utility connections. A new ADU combined with a new house shall have separate utility connections. The connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.

No impact fees will be charged on an accessory dwelling unit less than 750 square feet.

Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.

17.52.050 Application Review.

A completed application for an ADU or JADU that complies with the provisions of this chapter shall be considered ministerial, without discretionary review or a public hearing, within sixty days after receiving a complete application unless either:

A. The applicant requests a delay, in which case the 60-day time period is tolled for the period of the requested delay; or
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Ordinance ______ Page 9 of 12 Date
B. If a permit application for an ADU or JADU is submitted along with a permit application to create a new primary residence, the Town may delay acting on the permit application for the ADU or JADU until the Town acts on the permit application to create the new primary residence. At such time the permit application for such ADU or JADU is considered, it will still be considered ministerially without discretionary review or a public hearing, regardless of its having been submitted along with an application for a new primary residence.

Section 4. AMENDMENTS TO ATHERTON MUNICIPAL CODE CHAPTER

17.60 Chapter 17.60 is hereby amended to the definition of "Second Dwelling UnitKitchen" and add the definition of "Junior Accessory Dwelling Unit, as follows:
“Kitchen” means any room or area intended or designed to be used or maintained for the cooking, storing, and preparation of food and includes facilities for cleaning, preparation, and storage of food and cooking and eating utensils. A standard kitchen shall have the following:

1. A cooktop, oven, hood vent

2. A refrigerator that has the following minimum dimensions 28 inches wide and 61 inches tall

3. Sink 24 inches wide with at least a 1.5 inch drain

4. Dishwasher

5. Food preparation counter or counters that total at least 20 square feet

6. Storage cabinets that total at least 40 square feet of shelf space

7. Kitchen area of at least 80 square feet
“Efficiency Kitchen” means a kitchen that includes each of the following:

1. A cook top, oven, and hood vent

2. Sink that is at least 18 inches wide with at least a 1.5 inch drain

3. Food preparation counter or counters that total at least 10 square feet in area.

4. Storage cabinets that total at least 30 square feet of shelf space.

5. Kitchen area of at least 50 sq. ft.

Section 5. AMENDMENTS TO ATHERTON MUNICIPAL CODE CHAPTER

17.36 17.36.030 Allowed Uses and Permit Requirements.

Table 17.36.030-1 (Allowed Uses and Permit Requirements for PFS District) identifies the allowed uses in the PFS district subject to the development standards of this chapter and all other provisions of this title. Allowed use provisions are symbolized in the table as follows:

P = Land use permitted by right
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CUP = Land use permitted with approval of a
conditional use permit
L/ER = Land use permitted with location and
environmental review
Table 17.36.030-1. Allowed Uses and Permit Requirements for PFS District Land Use
Zoning District
PFS
Public library P
Public school P
Town corporation yard P
Town hall and associated
community uses
P
Accessory Dwelling Unit in
conjunction with multifamily
residential uses (that
accommodate housing for very
low- and low-income
households)
P
Emergency shelters P
4 Churches and places of worship CUP
Convents CUP
Country clubs CUP
Residential associated with
primary nonresidential use of
property on same site1
CUP
Multiple-family residential uses
that could accommodate
housing for very low- and lowincome households associated with primary nonresidential use
of property on same site
L/ER5
Private schools CUP2, 3
Public utilities and facilities,
uses, and structures
CUP
Transportation terminal
facilities
CUP
Notes:
1 Examples include dorms or teacher housing associated with school site, convent when associated with religious institutions, etc.
2 Where a master plan for a private school has been prepared and filed with the town for public record, any application for a conditional use permit shall be compared to the master plan for consistency with that document. All building and/or faculty changes, improvements, or new construction shall require a conditional use permit. To that end, all conditional use permit applications shall include the following:
a. Maps and diagrams showing the proposal in relation to the master plan layout; Attachment 1: ADU PC 1.25 - ADU ordinance tracked changes

Attachment 1
Ordinance ______ Page 11 of 12 Date
b. History of student and faculty growth and projections of future growth, including an analysis of that growth’s consistency with the master plan projections;
c. A traffic and parking analysis of the proposal and comparison to the master plan projections; d. A circulation plan showing how the traffic and pedestrian circulation will function upon implementation of the proposals; and e. Other information that might be required for specific proposals, such as noise analyses, lighting plans, landscape screening plans, heritage tree locations, and other similar information. 3 In addition to other conditions of approval, the planning commission shall require the following items where relevant:
a. Identification of the approved uses and hours of operation; and b. Clustering of high intensity or noise-intense structures and uses (such as gymnasiums, theaters, athletic facilities) away from neighboring residential uses, where possible.
4 Emergency shelters shall be permitted only when located within the Town Civic Center property; defined as Lots 1, 2, 24, 25 and 26, Watlinton Park RSM (Resubdivision Maps) 5/8.
5 Where a master plan for a private school has been prepared and filed with the town for public record that includes multifamily residential uses that could accommodate housing for very low- and low-income households, such multifamily residential uses shall be subject to planning commission public hearing and review of the location, size, proximity to heritage trees and environmental aspects of the project but shall not result in the denial of the use.

Section 5. SEVERABILITY & REVIVAL OF PRIOR TOWN ADU ORDINANCE If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the Ordinance and the application of such provision to other persons or circumstances shall not be affected thereby. To the extent that prior Town ordinances governed any portion of this Ordinance held invalid, such prior Town ordinances shall again become effective if any portion of this Ordinance is held invalid.

Section 6: EFFECTIVE DATE
This Ordinance shall be posted in at least three public places according to law and shall take effect and be in force from and after 30 days after its passage and adoption.

Town of Atherton, a municipal corporation
MAYOR: __________________________________

BILL WIDMER
ATTEST: __________________________________

ANTHONY SUBER, CITY CLERK
APPROVED AS TO FORM: __________________________________ MONA G. EBRAHIMI, CITY ATTORNEY

STATE OF CALIFORNIA
COUNTY OF SAN MATEO SS:

TOWN OF ATHERTON
I, Anthony Suber, City Clerk of the Town of Atherton, do hereby certify that the foregoing Ordinance had its first reading and was introduced during the public meeting of the City Council on the __th day of _________, and had its second reading and was adopted and passed during the public meeting of the City Council on the ____st day of _______, 2023, by the following vote:

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Ordinance ______ Page 12 of 12 Date
AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: __________________________

ANTHONY SUBER
City Clerk
Attachment 1: ADU PC 1.25 - ADU ordinance tracked changes

Attachment 2
Ordinance ______ Page 1 of 11 Date
DRAFT ORDINANCE _____

AN ORDINANCE OF THE CITY COUNCIL OF THE TOWN OF ATHERTON TO AMEND CHAPTERS 17.52, 17.60 AND 17.36 OF THE ATHERTON MUNCIPAL

CODE REGULATING ACCESSORY DWELLING UNITS AND JUNIOR ACCESSORY

DWELLING UNITS
WHEREAS, the Town of Atherton has historically regulated the construction of accessory structures within zones designated for residential use in a manner that is consistent with the character of the Town and that values the privacy of the Town’s residents, and
WHEREAS, California has a shortage of housing and particularly affordable housing and the State Legislature has in recent years undertaken a number of measures to incentivize the construction of additional housing stock to address this shortage, and WHEREAS, the City Council supports the construction of additional housing stock throughout the state but strongly opposes the State Legislature’s approach to incentivizing such construction where that approach usurps local land use control, and WHEREAS, the City Council opposes the changes in state law that take away local land use control over the development of accessory dwelling units and junior accessory dwelling units, and makes conforming changes to the Atherton Municipal Code under protest.

The City Council of the Town of Atherton does hereby ordain as follows:

Section 1. TITLE
This Ordinance shall be known as the Town of Atherton ("Town") Accessory Dwelling Unit Ordinance. This Ordinance shall be applicable in the incorporated territory of the Town.

Section 2. PURPOSE & AUTHORITY
The purpose of this Ordinance is to adopt regulations governing the development of accessory dwelling units ("ADUs") and junior accessory dwelling units ("JADUs]") in accordance with the changes made to State ADU laws found at Government Code section 65852 et seq. by various Senate and Assembly Bills, including SB 13, AB 68, and AB 881.

Section 3. AMENDMENTS TO ATHERTON MUNICIPAL CODE CHAPTER

17.52 Chapter 17.52 is hereby deleted and re-enacted to read as follows:

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Attachment 2
Ordinance ______ Page 2 of 11 Date
Chapter 17.52

ACCESSORY DWELLING UNITS
Sections:

17.52.010 Purpose.

17.52.020 Zones Allowed.

17.52.030 Definitions.

17.52.040 Development Standards and General Requirements.

17.52.050 Application Review.

17.52.010 Purpose.

The purpose of this chapter is to regulate accessory dwelling units in residential zoning districts and on residential property consistent with state law (California Government Code Section 65852 et seq.). Implementation of this chapter is intended to provide for additional housing opportunities by increasing the number of units available within existing neighborhoods while maintaining the character of the area. The City Council of the Town of Atherton adopts this chapter to comply with SB 13, AB 68, AB 881, AB 2221, and AB 2097 under protest, as it is the Council’s position that in enacting these laws, the legislature has improperly usurped local land use authority.

17.52.020 Zones Allowed.

Accessory dwelling units and junior accessory dwelling units shall be allowed in all areas zoned to allow single family residential and multifamily residential uses in compliance with the development standards set forth in section 17.52.040 (Development Standards and General Requirements) of this Chapter. Regardless of any development standards, a minimum ADU of 800 square feet shall be allowed.

17.52.030 Definitions.

A. Accessory dwelling unit” or “ADU” means a building or portion of a building designed for use and occupancy by people living independently of the occupants of the main residence building. The ADU shall be on the same lot as the main residence. An ADU can be an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing single family or multifamily development. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation. An accessory dwelling unit also includes the following:

1. An efficiency unit.

2. A manufactured home, as defined in Section 18007 of the Health and Safety Code.
“Efficiency unit” means a living unit which includes all of the following:
 Size of at least 150 square feet.
 For units that are not accessible or adaptable, a partial kitchen with a sink (minimum18 inches wide), a permanently installed two or more burner cooktop and oven, hood vent, and refrigerator (minimum 10 cubic feet), each having a clear working space of not less than 30 inches in front of the counter.

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o Food preparation counter or counters that total at least 20 square feet. o Storage cabinets that total at least 30 cubic feet of shelf space o A separate closet.
 Compliance with light and ventilation requirements of the Atherton Building Code.  A separate bathroom containing a water closet (toilet), lavatory (bathroom sink) and bathtub and/or shower.

The term “detached accessory dwelling unit” means an accessory dwelling unit that is not structurally attached to the main residence.
“Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.

B. “Junior Accessory dwelling unit” or “JADU” means a unit that is no more than 500 square feet in size and contained entirely within a single-family residence or multifamily development. A junior accessory dwelling unit shall include an efficiency kitchen, which shall include all of the following 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 junior accessory dwelling unit. A junior accessory dwelling unit may include separate sanitation facilities or may share sanitation facilities with the existing structure.

17.52.040 Development Standards and General Requirements.

Unless otherwise stated in Section 17.52.050 of this Ordinance, ADUs and JADUs are permitted, provided the following standards and requirements are incorporated and met.

A. Maximum Number.

1. Only one ADU and one JADU shall be allowed on each lot or parcel with a zoning designation of single-family residential provided that:
i. The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling, existing space of a single-family dwelling, or in an accessory structure. The ADU may include an expansion of not more than 150 square feet beyond the same physical dimensions as an existing accessory structure. An expansion beyond the physical dimensions of an existing accessory structure shall be limited to accommodating ingress and egress.
ii. The space has exterior access separate from the proposed or existing single-family dwelling.
iii. The side and rear setbacks are sufficient for fire and safety. iv. The junior accessory dwelling unit complies with the requirements of Section 65852.22.

2. Multifamily Zones
i. Multiple accessory dwelling units are allowed within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with state building standards Attachment 2: ADU 1.25 Pc - ADU PC ordinance clean

Attachment 2
Ordinance ______ Page 4 of 11 Date
for dwellings. At least one accessory dwelling unit is allowed within an existing multifamily dwelling. The total number of ADUs allowed is up to 25 percent of the existing multifamily dwelling units.
ii. No more than two accessory dwelling units are allowed on a parcel that has an existing multifamily dwelling.

B. Location. The ADU shall be attached to the existing main residence or detached from the main residence and located on the same lot as the main residence.

C. Setbacks, Height, Other Development Requirements.

1. Height.
i. The maximum height of an attached ADU shall meet the height requirements for the main residence of the zone in which the unit is to be located. The maximum height of a detached ADU shall be one-story and shall not exceed a maximum overall height of sixteen (16) feet on a lot with an existing or proposed single family or multifamily dwelling unit. ii. A maximum height of 18 feet is allowed 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. 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 is also allowed. iii. A maximum height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed multifamily, multistory dwelling. iv. A maximum height of 25 feet or the height to the primary dwelling, whichever is lower, for an accessory dwelling unit that is attached to a primary dwelling.
v. Accessory dwelling units are limited to 2 stories.

2. Setbacks and other Development Standards. Except as specified below, all ADUs and JADUs shall comply with the setback requirements of the zone in which a unit is to be located.
i. Attached ADUs shall be located in the main building area and may encroach into the side and rear yard setbacks by not more than twenty percent (20%) of the required setback, and may apply additional exemptions from floor area limitations as noted in Section 17.52.040 (C)(5) of this Chapter, however; such rear and side setbacks may be reduced to four (4) feet but will then not be eligible for additional exemptions from floor area limitations as noted in Section 17.52.040 (C)(5) of this Chapter.
ii. Detached accessory dwelling units shall have rear and side setbacks of four (4) feet. A detached ADU can include a detached garage. JADUs shall have the same setbacks as the main residence.
iii. No setback requirement shall apply to any ADU or JADU constructed in an existing living area, a converted existing accessory structure or building, or for a new ADU or JADU constructed in the same location and built to the same dimensions as an existing structure.

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Attachment 2
Ordinance ______ Page 5 of 11 Date
iv. No front yard setback is required for an ADU that is 800 square feet or less in size.
v. If an existing multifamily dwelling has a rear or side setback of less than four feet, no modification is required of the existing multifamily dwelling as a condition of approving the application to construct an accessory dwelling unit.

3. Floor Area.
i. No ADU or JADU may be smaller than the size required to allow an efficiency unit pursuant to Health and Safety Code Section 17958.1. ii. The maximum size for a JADU is 500 square feet. The maximum size of a detached or attached ADU shall not exceed twelve hundred (1,200) square feet.
iii. For any ADU, the maximum size for a studio or 1 bedroom shall be 850 square feet. A two-bedroom ADU shall be limited to 1,200 square feet. In order for an ADU to exceed 800 square feet, the ADU must meet the accessory structure setbacks. ADUs cannot exceed 2 bedrooms.
iv. The increased floor area of an attached ADU shall not exceed fifty percent of the existing floor area of the main residence, unless necessary to accommodate at least an eight hundred (800) square foot ADU. v. No floor area limitation shall be required for any conversion of an existing legal non-conforming building to an ADU.

4. Exemption from Maximum Floor Area Limitations.
i. The first eight hundred (800) square feet of floor area of each newly constructed ADUs, and five hundred (500) square feet for JADUs shall be excluded from maximum floor area calculations.
ii. Additional floor area for newly constructed ADUs or JADUs may be excluded from maximum floor area calculations where staff determines the following conditions are met:
a. Newly constructed detached ADUs which meet and/or exceed the minimum side and rear setbacks of Chapter 17.40 Accessory Buildings and Structures will be allowed additional floor area exemptions in addition to the first eight hundred (800) square feet of floor area up to a total of twelve hundred (1,200) square feet.
b. Newly constructed attached ADUs which are located in the main buildable area and encroach into the side and rear yard setbacks by not more than twenty percent (20%) of the required setback shall be allowed additional floor area exemptions in addition to the first eight hundred (800) square feet of floor area up to a total of twelve hundred (1,200) square feet.

5. Windows. Accessory buildings and structures may include windows and/or skylights, except that no window or skylight openings that face the side or rear property line shall be located over nine feet above the ground level. This does not apply ADUs.

Attachment 2: ADU 1.25 Pc - ADU PC ordinance clean

Attachment 2
Ordinance ______ Page 6 of 11 Date
D. Existing Structure. No setback shall be required for an existing legal living area or accessory structure or a structure constructed in the same location and to the same dimensions as an existing structure that is converted to an accessory dwelling unit or to a portion of an accessory dwelling unit. A setback of at least four feet from the side and rear lot lines shall is required for an accessory dwelling unit that is not converted from an existing structure or a new structure constructed in the same location and to the same dimensions as an existing structure.

When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, off-street parking spaces do not need to be replaced.

A demolition permit for a detached garage that is to be replaced with an accessory dwelling unit shall be reviewed with the application for the accessory dwelling unit and issued at the same time.

E. Passageway. No passageway, as defined in California Government Code Section 65852.2, shall be required in conjunction with the construction of an ADU or JADU. Internal connections are allowed for attached ADUs and JADUs. Internal connections are not allowed for detached ADUs to other accessory buildings.

F. Owner Occupancy. The owner occupancy requirements detailed in this section shall apply to all lawfully permitted ADUs and JADUs within the Town:

1. ADUs and JADUs permitted before January 1, 2020. The owner-occupancy requirements applicable to the ADU or JADU at the time of its permitting shall apply.

2. ADUs and JADUs permitted between January 1, 2020 and January 1, 2025. No owner-occupancy requirements shall apply.

3. ADUs and JADUs permitted after January 1, 2025. Prior to finaling of the project for an ADU or JADU, the property owner shall record a deed restriction requiring that the owner of the property occupy either the primary dwelling unit, ADU, or JADU, or if the owner will not be residing in one of the units, lease the entire property including the primary dwelling unit, ADU, and JADU to a single tenant.

G. ADU Rental. An ADU or JADU may be rented separate from the primary residence but may not be sold or otherwise conveyed separate from the primary residence. Rentals of any ADU or JADU must be for longer than thirty days.

H. Parking Requirement.

1. Unless subject to one of the exceptions immediately below, each ADU shall have assigned to it one parking space per ADU. These spaces may be provided as tandem parking on an existing driveway. No parking for an ADU is required when located within one-half mile walking distance of public transit.

2. No additional parking required. No additional parking shall be required if one of the following conditions applies to the ADU:
i. ADU is part of a proposed or existing primary residence or an existing accessory structure.

Attachment 2: ADU 1.25 Pc - ADU PC ordinance clean

Attachment 2
Ordinance ______ Page 7 of 11 Date
ii. On-street parking permits are required but not offered to the occupant of the ADU.
iii. A car share vehicle is located within one block of the ADU.

I. Separation Requirement. A separation of at least eight feet shall be maintained between any detached ADU and the proposed or existing primary residence, unless necessary to accommodate at least an eight hundred (800) square foot ADU.

J. Entrance Requirements. Any new attached ADU or JADU that is incorporated into a proposed or existing primary residence shall have a separate entrance facing the side or rear yard, where feasible. Any new detached ADU shall have a separate entrance facing towards the interior of the lot.

K. Compliance with Applicable Requirements. ADUs and JADUs unit shall meet all applicable zoning and fire regulations and shall comply with local building codes. Fire sprinklers shall not be required for the accessory dwelling unit if they are not required for the primary residence. The construction of an accessory dwelling unit shall not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling.

L. Lighting Restrictions. Any lighting associated with an ADU or JADU shall be shielded or downlit and shall not shine onto adjoining properties, while meeting the minimum Building Code.

M. Landscape Screening. Landscape screening for the ADU shall be installed to the greatest extent feasible.

N. Density. Any ADU or JADU does not count towards the allowable density for the lot upon which it is located.

O. Nonconforming zoning conditions do not need to be corrected as part of an ADU or JADU approval. An accessory dwelling unit shall be approved regardless of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit.

Q. 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), the Town of Atherton 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 the Town of Atherton 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.

Attachment 2: ADU 1.25 Pc - ADU PC ordinance clean

Attachment 2
Ordinance ______ Page 8 of 11 Date

P. A certificate of occupancy for an accessory dwelling unit will only be issued after a certificate of occupancy is issued for the primary dwelling.

R. A new ADU with where there is an existing main residence shall not be required to have separate utility connections. A new ADU combined with a new house shall have separate utility connections. The connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.

No impact fees will be charged on an accessory dwelling unit less than 750 square feet.

Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.

17.52.050 Application Review.

A completed application for an ADU or JADU that complies with the provisions of this chapter shall be considered ministerial, without discretionary review or a public hearing, within sixty days after receiving a complete application unless either:

A. The applicant requests a delay, in which case the 60-day time period is tolled for the period of the requested delay; or
B. If a permit application for an ADU or JADU is submitted along with a permit application to create a new primary residence, the Town may delay acting on the permit application for the ADU or JADU until the Town acts on the permit application to create the new primary residence. At such time the permit application for such ADU or JADU is considered, it will still be considered ministerially without discretionary review or a public hearing, regardless of its having been submitted along with an application for a new primary residence.

Section 4. AMENDMENTS TO ATHERTON MUNICIPAL CODE CHAPTER

17.60 Chapter 17.60 is hereby amended to the definition of "Kitchen" and add the definition of "Junior Accessory Dwelling Unit, as follows:
“Kitchen” means any room or area intended or designed to be used or maintained for the cooking, storing, and preparation of food and includes facilities for cleaning, preparation, and storage of food and cooking and eating utensils. A standard kitchen shall have the following:

1. A cooktop, oven, hood vent

2. A refrigerator that has the following minimum dimensions 28 inches wide and 61 inches tall

3. Sink 24 inches wide with at least a 1.5 inch drain

4. Dishwasher
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Attachment 2
Ordinance ______ Page 9 of 11 Date

5. Food preparation counter or counters that total at least 20 square feet

6. Storage cabinets that total at least 40 square feet of shelf space

7. Kitchen area of at least 80 square feet
“Efficiency Kitchen” means a kitchen that includes each of the following:

1. A cook top, oven, and hood vent

2. Sink that is at least 18 inches wide with at least a 1.5 inch drain

3. Food preparation counter or counters that total at least 10 square feet in area.

4. Storage cabinets that total at least 30 square feet of shelf space.

5. Kitchen area of at least 50 sq. ft.

Section 5. AMENDMENTS TO ATHERTON MUNICIPAL CODE CHAPTER

17.36 17.36.030 Allowed Uses and Permit Requirements.

Table 17.36.030-1 (Allowed Uses and Permit Requirements for PFS District) identifies the allowed uses in the PFS district subject to the development standards of this chapter and all other provisions of this title. Allowed use provisions are symbolized in the table as follows:

P = Land use permitted by right
CUP = Land use permitted with approval of a
conditional use permit
L/ER = Land use permitted with location and
environmental review
Table 17.36.030-1. Allowed Uses and Permit Requirements for PFS District Land Use
Zoning District
PFS
Public library P
Public school P
Town corporation yard P
Town hall and associated
community uses
P
Accessory Dwelling Unit in
conjunction with multifamily
residential uses (that
accommodate housing for very
low- and low-income
households)
P
Emergency shelters P
4 Churches and places of worship CUP
Convents CUP
Country clubs CUP
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Attachment 2
Ordinance ______ Page 10 of 11 Date
Land Use
Zoning District
PFS
Residential associated with
primary nonresidential use of
property on same site1
CUP
Multiple-family residential uses
that could accommodate
housing for very low- and lowincome households associated with primary nonresidential use
of property on same site
L/ER5
Private schools CUP2, 3
Public utilities and facilities,
uses, and structures
CUP
Transportation terminal
facilities
CUP
Notes:
1 Examples include dorms or teacher housing associated with school site, convent when associated with religious institutions, etc.
2 Where a master plan for a private school has been prepared and filed with the town for public record, any application for a conditional use permit shall be compared to the master plan for consistency with that document. All building and/or faculty changes, improvements, or new construction shall require a conditional use permit. To that end, all conditional use permit applications shall include the following:
a. Maps and diagrams showing the proposal in relation to the master plan layout; b. History of student and faculty growth and projections of future growth, including an analysis of that growth’s consistency with the master plan projections;
c. A traffic and parking analysis of the proposal and comparison to the master plan projections; d. A circulation plan showing how the traffic and pedestrian circulation will function upon implementation of the proposals; and e. Other information that might be required for specific proposals, such as noise analyses, lighting plans, landscape screening plans, heritage tree locations, and other similar information. 3 In addition to other conditions of approval, the planning commission shall require the following items where relevant:
a. Identification of the approved uses and hours of operation; and b. Clustering of high intensity or noise-intense structures and uses (such as gymnasiums, theaters, athletic facilities) away from neighboring residential uses, where possible.
4 Emergency shelters shall be permitted only when located within the Town Civic Center property; defined as Lots 1, 2, 24, 25 and 26, Watlinton Park RSM (Resubdivision Maps) 5/8.
5 Where a master plan for a private school has been prepared and filed with the town for public record that includes multifamily residential uses that could accommodate housing for very low- and low-income households, such multifamily residential uses shall be subject to planning commission public hearing and review of the location, size, proximity to heritage trees and environmental aspects of the project but shall not result in the denial of the use.

Section 5. SEVERABILITY & REVIVAL OF PRIOR TOWN ADU ORDINANCE If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the Ordinance and the application of such provision to other persons or circumstances shall not be affected thereby. To the extent that prior Town ordinances governed any portion of this Ordinance held invalid, such prior Town ordinances shall again become effective if any portion of this Ordinance is held invalid.

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Attachment 2
Ordinance ______ Page 11 of 11 Date
Section 6: EFFECTIVE DATE
This Ordinance shall be posted in at least three public places according to law and shall take effect and be in force from and after 30 days after its passage and adoption.

Town of Atherton, a municipal corporation
MAYOR: __________________________________

BILL WIDMER
ATTEST: __________________________________

ANTHONY SUBER, CITY CLERK
APPROVED AS TO FORM: __________________________________ MONA G. EBRAHIMI, CITY ATTORNEY

STATE OF CALIFORNIA
COUNTY OF SAN MATEO SS:

TOWN OF ATHERTON
I, Anthony Suber, City Clerk of the Town of Atherton, do hereby certify that the foregoing Ordinance had its first reading and was introduced during the public meeting of the City Council on the __th day of _________, and had its second reading and was adopted and passed during the public meeting of the City Council on the ____st day of _______, 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: __________________________

ANTHONY SUBER
City Clerk
Attachment 2: ADU 1.25 Pc - ADU PC ordinance clean

STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
December 14, 2021
Lisa Costa Sanders, Town Planner
Planning Department
Town of Atherton
150 Watkins Avenue
Atherton, CA 94027
Dear Lisa Costa Sanders:

RE: Review of the Town of Atherton Accessory Dwelling Unit (ADU) Ordinance Thank you for submitting the Town of Atherton’s (Town) ADU Ordinance Number 646, adopted October 21, 2020. The ordinance was received by the California Department of Housing and Community Development (HCD) on May 28, 2021. HCD is submitting these written findings pursuant to Government Code section 65852.2, subdivision (h). HCD finds that the ordinance does not comply with section 65852.2 in several respects, noted below. HCD requests that the Town provide a written response to these findings no later than January 13, 2022. HCD will review and consider any written response received from the Town before that date in advance of taking further action authorized by Government Code section 65852.2, subdivision (h).

Although the ADU ordinance meets some statutory requirements, it must be revised to comply with State ADU Law as follows:
• Allowed areas for the creation of ADUs: Municipal Code section 17.52.020, Zones Allowed, notes that ADUs may be allowed in all areas zoned to allow single-family residential uses but is silent as to multifamily uses. As such, the code appears to constrain the development of ADUs on sites with a proposed or existing multifamily dwelling structure. State ADU Law allows ADUs to be created on sites that are zoned to allow single-family or multifamily dwelling residential use where a proposed or existing dwelling exists, regardless of whether it is a single-family or multifamily dwelling. (Gov. Code, § 65852.2, subd. (a)(1)(D)(ii).) Thus, the local ordinance is impermissibly narrow as to the location of ADUs and should be revised to expand the areas allowing the creation of ADUs.
• Municipal Code section 17.52.040, Development Standards and General Requirement: Section 17.52.040.C.3.b refers to Chapter 17.40 Accessory Buildings and Structures and provides that ADUs are subject to the setback and development Attachment 3 - ADU 1.25 PC - ADU ordinance HCD letter

Lisa Costa Sanders, Town Planner

standards in that chapter. Although HCD has not comprehensively evaluated the Town’s zoning code, it observes that Chapter 17.40 contains multiple constraints that cannot be imposed on ADUs under State ADU Law.

A local agency may impose development standards, such as setbacks, for the creation of ADUs. Setbacks may include front, corner, street, and alley setbacks.

However, setbacks must not unduly constrain the creation of ADUs and cannot be required for ADUs proposed pursuant to Government Code section 65852.2, subdivision (e). Further, required setbacks may be no more than four feet from the side and rear lot lines for an attached or detached ADU. (Gov. Code, § 65852.2, subd. (a)(1)(D)(vii).) The Town’s setbacks set out in section 17.40.040 exceed these provisions.

Other problematic restrictions relate to height, location, floor area ratio calculation, habitation, and window and skylight height limitations. These requirements appear to exceed the standards of State ADU Law and may be excessive and burdensome to the reasonable creation of ADUs. The Town should review and revise its code for compliance with State ADU Law to assure that local standards do not exceed state standards. As such, reference to Chapter 17.40 should be removed from the ADU ordinance. (Gov. Code, § 65852.150, subd. (b).) Standards applicable to ADUs should be clearly stated in Chapter 17.52 to avoid confusion. • Municipal Code section 17.52.040.A, Maximum Number: Although the ordinance limits ADUs to sites zoned for single-family residential use, ADUs are permitted to be created on sites zoned to allow both single-family and multifamily residential use. (Gov. Code, § 65852.2, subd. (a)(1)(D)(ii).), In addition, multiple ADUs may be created on a site, with an existing multiple family dwelling structure (Gov. Code, § 65852.2, subds. (e)(1)(C) and (e)(1)(D).) Junior Accessory Dwelling Units (JADUs) are limited to one per single-family lot on sites zoned to allow single-family dwelling use and may be created with an ADU on the same site. (Gov. Code, §§ 65852.2, subds. (e)(1)(A), (e)(1)(B), and 65852.22, subd. (a).) The ordinance should be revised to permit ADUs on all sites that permit single-family or multifamily use and shall allow multiple ADUs on sites with an existing multifamily dwelling structure, which does include a duplex.
• Municipal Code section 17.52.040.B, Location: This section places impermissible limits on the location of ADUs. It provides: “The ADU shall be [1] attached to the existing main residence or [2] located within the habitable area of the existing main residence or [3] detached from the main residence and located on the same lot as the main residence.” (Bracketed material added.) Statute allows ADUs to be created with an existing or proposed primary dwelling, which may be either a singlefamily or multifamily dwelling structure. In addition, an ADU may be created from any area within an existing structure and is not limited to being created from habitable space. (Gov. Code, § 65852.2, subds. (a)(1)(D)(ii), (a)(1)(D) (iii), and Attachment 3 - ADU 1.25 PC - ADU ordinance HCD letter

Lisa Costa Sanders, Town Planner

(e)(1)(A).) The ordinance should be revised to reflect locations allowed by State ADU Law.
• Municipal Code section 17.52.040.C.2, Height: Under State ADU Law, a local agency may impose height limits provided that the limit is no less than 16 feet. (Gov. Code, § 65852.2, subd. (a)(1)(B)(i).) Although the Town’s ordinance does not limit the height of an ADU below 16 feet, it does limit the height of a sidewall to be not greater than 11 feet. The Town’s sidewall height requirement is more restrictive that the standards contained in State ADU Law and must be revised to not constrain design options that are 16 feet or less in height. (Gov. Code, § 65852.2, subd. (a)(6).)
• Municipal Code section 17.52.040.C.3.ii,
1 Setbacks: The ordinance establishes the
same standards for detached ADU setbacks as those for Accessory Buildings and Structures in Chapter 17.40. These standards may exceed standards for ADU setbacks. (Gov. Code, § 65852.2, subds. (a)(1)(D)(vii), (c)(2)(C), and (e)(1).) The ordinance should be revised to remove the standards of this Chapter. • Municipal Code section 17.52.040.5.ii,
2 Exemption from Maximum Floor Area
Limitations: The section refers to Chapter 17.40 for side and rear lot line setbacks.

As noted elsewhere, the setbacks noted in this Chapter greatly exceed the allowed setbacks of State ADU Law. In addition, local agencies shall not limit the maximum size of an ADU to be less than 850 square feet for a studio or one-bedroom and not less than 1,000 square feet for an ADU exceeding one bedroom. The creation of an ADU, constrained by lot size, lot coverage, floor area ratio or open space requirements, shall be allowed to be at least 800 square feet. As previously noted, Chapter 17.40 contains standards well in excess of that permitted by state law and cannot be applied to ADUs. The ordinance should be revised to remove the reference. (Gov. Code, § 65852.2, subd. (a) and (c)(2)(C).) • Compliance with Applicable Requirements: Municipal Code section 17.52.040.K. notes that ADUs and JADUs shall meet all applicable zoning and fire regulations and shall comply with local building codes. The inclusion of this language is confusing and overbroad. Although ADU statute requires ADUs and JADUs to comply with local building codes, local development standards shall not exceed state standards. (Gov. Code, § 65852.2, subd. (a)(6).) The ordinance (Chapter

17.52) must be revised to identify the specific, applicable codes and standards that apply to ADUs, consistent with state law.

In these respects, revisions are necessary to comply with statute. 1 This section is codified as Municipal Code section 17.52.040.C.3.b. 2 This section is codified as Municipal Code section 17.52.040.C.5.b.

Attachment 3 - ADU 1.25 PC - ADU ordinance HCD letter

Lisa Costa Sanders, Town Planner

HCD will consider any written response to these findings, such as a revised ordinance or a detailed plan to bring the ordinance into compliance with law by a date certain, before taking further action authorized pursuant to Government Code section 65852.2.

Please note that HCD may notify the Attorney General’s Office in the event that the City fails to take appropriate and timely action under section 65852.2, subdivision (h).

HCD appreciates the Town’s efforts in the preparation and adoption of an ADU ordinance and welcomes the opportunity to assist the Town in fully complying with State ADU Law. Please feel free to contact Greg Nickless, of our staff, at 916-274-6244 or at [email protected].

Sincerely,
David Zisser
Assistant Deputy Director
Local Government Relations and Accountability
Attachment 3 - ADU 1.25 PC - ADU ordinance HCD letter

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_____________________________________________________________________________________ January 11, 2022
David Zisser
Assistant Deputy Director
Local Government Relations and Accountability
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
Dear Mr. Zisser,
RE: Review of the Town of Atherton Accessory Dwelling Unit (ADU) Ordinance Thank you for your review of the Town of Atherton’s ("Town") Accessory Dwelling Unit (“ADU”) Ordinance, Chapter 17.52 of the Atherton Municipal Code (“AMC”). As requested in your letter dated December 14, 2021, the Town has prepared the following written responses to the comments provided by the Department of Housing and Community Development, Division of Housing Policy Development (“HCD”).

HCD Comment 1:

Allowed areas for the creation of ADUs: Municipal Code Section 17.52.020, Zones Allowed, notes that ADUs may be allowed in all areas zoned to allow single-family residential uses but is silent as to multifamily uses. As such, the code appears to constrain the development of ADUs on sites with a proposed or existing multifamily dwelling structure. State ADU Law allows ADUs to be created on sites that are zoned to allow single-family or multifamily dwelling residential use where a proposed or existing dwelling exists, regardless of whether it is a single-family or multifamily dwelling. (Gov. Code, § 65852.2, subd. (a)(1)(D)(ii).) Thus, the local ordinance is impermissibly narrow as to the location of ADUs and should be revised to expand the areas allowing the creation of ADUs.

Town Response: The Town of Atherton is currently divided into four zoning designations:

Residential district R-1A (Chapter 17.32 of the AMC”), Residential district R-1B (Chapter

17.32 of the AMC), Parks and open space district (POS District, Chapter 17.34 of the AMC), and the Public facilities and school district (PFS District, Chapter 17.37 of the AMC). Both residential districts, R-1A and R-1B, allow single-family residential uses, including accessory dwelling units, but prohibit multifamily uses. No type of residential use is permitted in the POS zoning district.

Parcels zoned PFS may be used by right for public libraries, public schools, Town corporation yards, Town hall (and associated uses), and emergency shelters. Additionally, parcels zoned PFS may, with a conditional use permit, be used for additional uses including but not limited Town of Atherton
Planning Department
80 Fair Oaks Lane
Atherton, California 94027
Phone: (650) 752-0544
Fax: (650) 614-1224
Attachmetn 4 - ADU 1.25 PC - ADU ordinance Town Response

Page | 2
to churches, country clubs, and private schools. Finally, parcels zoned PFS may also be used for residential uses associated with the primary non-residential use of the property on the same site (such as dorms or teacher housing associated with a school site, or convent associated with a religious institution), and multiple-family residential uses that could accommodate housing for very low- and low-income households associated with primary nonresidential use of property on same site (such as where a master plan for a private school has been prepared and filed with the Town for public record that includes multifamily residential uses that could accommodate housing for very low- and low-income households, such multifamily residential uses shall be subject to planning commission public hearing and subject to issuance of a Conditional Use Permit).

Beyond the allowed use for multiple-family housing upon issuance of Conditional Use Permit for a primary nonresidential use in the PFS zoning district, no other zoning districts within the Town allow multifamily residential uses. Given these circumstances, the Town believes its ADU ordinance complies with Gov. Code, § 65852.2(a)(1)(D)(ii). Nevertheless, the Town proposes an amendment to its ADU ordinance to specify that ADUs may be constructed in association with multifamily residential uses that accommodate housing for very low- and lowincome households associated with primary nonresidential uses in the PFS zoning district.

HCD Comment 2, paragraph 1:

Municipal Code section 17.52.040, Development Standards and General Requirement:

Section 17.52.040.C.3.b refers to Chapter 17.40 Accessory Buildings and Structures and provides that ADUs are subject to the setback and development standards in that chapter.

Although HCD has not comprehensively evaluated the Town’s zoning code, it observes that Chapter 17.40 contains multiple constraints that cannot be imposed on ADUs under State ADU Law.

Town Response: It is unclear which provisions of Chapter 17.40 HCD is referencing in this comment. The Town respectfully requests clarification on this comment from HCD with citations to those portions of Chapter 17.40 of the AMC that violate state law and which state laws are allegedly violated.

HCD Comment 2, paragraph 2:

A local agency may impose development standards, such as setbacks, for the creation of ADUs. Setbacks may include front, corner, street, and alley setbacks. However, setbacks must not unduly constrain the creation of ADUs and cannot be required for ADUs proposed pursuant to Government Code section 65852.2, subdivision (e). Further, required setbacks may be no more than four feet from the side and rear lot lines for an attached or detached ADU. (Gov. Code, § 65852.2, subd. (a)(1)(D)(vii).) The Town’s setbacks set out in section

17.40.040 exceed these provisions.

Town Response: The Town’s setback provisions for the creation of ADUs is specified in Section 17.52.040 C (3) of the AMC. As noted within this subsection, specifically Section

17.52.040 C 3 a-c, newly-constructed attached and detached ADUs are allowed to have fourfoot rear and side yard setbacks. These sections further specify that should such attached or detached ADU have greater than four-foot rear and side setbacks (i.e. meet the main building area setbacks for attached ADUs or the side and rear setbacks of Chapter 17.40, an additional Attachmetn 4 - ADU 1.25 PC - ADU ordinance Town Response

Page | 3
exemption from floor area limits may apply. Effectively, this language is intended to allow a development to voluntarily situate such attached or detached ADU more than four-feet from a side or rear setback in exchange for additional floor area exemption in addition to and beyond the first 800 square feet as mandated by State law. Nothing in this language explicitly requires either an attached or detached ADU to have more than a four-foot side and/or rear yard setback.

Thus, the Town believes the setback requirements contained in Section 17.52.040 for the creation of ADU’s complies with Gov. Code sections 65852.2(e) and 65852.2(a)(1)(D)(vii).) and does not unduly constrain the creation of ADUs for the reasons as noted and cited. It is further noted that Section 17.52.040 C 5 b of the AMC is simply incentive language available for an applicant to voluntarily chose to develop an ADU with greater than four-foot side or rear setbacks. This proposed incentive approach, which does not constrain, nor prohibit, development of an ADU with four-foot side or rear setbacks was specifically explained and discussed with HCD staff on May 14, 2020.

HCD Comment 2, paragraph 3:

Other problematic restrictions relate to height, location, floor area ratio calculation, habitation, and window and skylight height limitations. These requirements appear to exceed the standards of State ADU Law and may be excessive and burdensome to the reasonable creation of ADUs. The Town should review and revise its code for compliance with State ADU Law to assure that local standards do not exceed state standards. As such, reference to Chapter 17.40 should be removed from the ADU ordinance. (Gov. Code, § 65852.150, subd. (b).) Standards applicable to ADUs should be clearly stated in Chapter

17.52 to avoid confusion.

Town Response:
• Height. Development requirements related to ADU height are specified in Section

17.52.040 C 2 of the AMC. The Town proposes to amend this subsection to remove reference to a maximum sidewall height of eleven feet. See subsection excerpt below, with language proposed to be removed struck through.

Height. The maximum height of an attached ADU shall meet the height requirements for the main residence of the zone in which the unit is to be located. The maximum height of a detached ADU shall be one story and shall not exceed a maximum overall height of sixteen feet and maximum sidewall height of eleven feet. • Location. Development requirements related to location are specified in Section

17.52.040 B of the AMC. The Town proposes to amend this subsection to remove reference to requiring an ADU to be located within the habitable area of the existing main residence. See subsection excerpt below, with language proposed to be removed struck through.

Location. The ADU shall be attached to the existing main residence or located within the habitable area of the existing main residence or detached from the main residence and located on the same lot as the main residence.

Attachmetn 4 - ADU 1.25 PC - ADU ordinance Town Response

Page | 4
• Floor Area Calculation. Development requirements related to floor area calculations are specified in Section 17.52.040 C 4 a-d of the AMC. The Town finds all floor area requirements to meet the standards of State ADU Law and not to be excessive and burdensome to the reasonable creation of ADUs. The Town respectfully requests HCD clarify the concerns with this subsection.
• Habitation. As it relates to habitation, see Town response to proposed amendments in response to the “Location” bullet point above.
• Windows and Skylights. Development regulations related to windows and skylights on detached ADUS are specified in Section 17.40.040 H of the AMC. There are no such regulations related to windows on attached ADUs. The 9-foot height limit on windows and skylights, and associated requirement that any opening of either skylight or window shall not face a side or rear property line is intended to maintain a reasonable degree of privacy between properties, does not limit the overall maximum allowable height of 16 feet for the construction of a detached ADU. The Town proposes to integrate the language of Section 17.40.040 H, directly into a revised ADU Ordinance. • Reference to Chapter 17.40. The Town proposes to remove any reference to Chapter

17.40 within the ADU Ordinance, and any associated development standards noted above that the Town believes does not exceed the standard of State law, nor excessive and burdensome to the reasonable creation of ADUs, shall be clearly specified and stated within a revised ADU Ordinance.

HCD Comment 3:

Municipal Code section 17.52.040.A, Maximum Number: Although the ordinance limits ADUs to sites zoned for single-family residential use, ADUs are permitted to be created on sites zoned to allow both single-family and multifamily residential use. (Gov. Code, § 65852.2, subd. (a)(1)(D)(ii).), In addition, multiple ADUs may be created on a site, with an existing multiple family dwelling structure (Gov. Code, § 65852.2, subds. (e)(1)(C) and (e)(1)(D).) Junior Accessory Dwelling Units (JADUs) are limited to one per single-family lot on sites zoned to allow single-family dwelling use and may be created with an ADU on the same site. (Gov. Code, §§ 65852.2, subds. (e)(1)(A), (e)(1)(B), and 65852.22, subd. (a).) The ordinance should be revised to permit ADUs on all sites that permit single-family or multifamily use and shall allow multiple ADUs on sites with an existing multifamily dwelling structure, which does include a duplex.

Town Response: Please see Town response to Comment 1 above.

HCD Comment 4:

Municipal Code section 17.52.040.B, Location: This section places impermissible limits on the location of ADUs. It provides: “The ADU shall be [1] attached to the existing main residence or [2] located within the habitable area of the existing main residence or [3] detached from the main residence and located on the same lot as the main residence.” (Bracketed material added.) Statute allows ADUs to be created with an existing or proposed primary dwelling, which may be either a singlefamily or multifamily dwelling structure. In addition, an ADU may be created from any area within an existing structure and is not Attachmetn 4 - ADU 1.25 PC - ADU ordinance Town Response

Page | 5
limited to being created from habitable space. (Gov. Code, § 65852.2, subds. (a)(1)(D)(ii), (a)(1)(D) (iii), and (e)(1)(A).) The ordinance should be revised to reflect locations allowed by State ADU Law.

Town Response: See Town Response to Comment 3, bullet point “Location” above.

HCD Comment 5:

Municipal Code section 17.52.040.C.2, Height: Under State ADU Law, a local agency may impose height limits provided that the limit is no less than 16 feet. (Gov. Code, § 65852.2, subd. (a)(1)(B)(i).) Although the Town’s ordinance does not limit the height of an ADU below 16 feet, it does limit the height of a sidewall to be not greater than 11 feet. The Town’s sidewall height requirement is more restrictive that the standards contained in State ADU Law and must be revised to not constrain design options that are 16 feet or less in height. (Gov. Code, § 65852.2, subd. (a)(6).)
Town Response: See Town Response to Comment 2, bullet point regarding “Height” above.

HCD Comment 6:

Municipal Code section 17.52.040.C.3.ii, 1 Setbacks: The ordinance establishes the same standards for detached ADU setbacks as those for Accessory Buildings and Structures in Chapter 17.40. These standards may exceed standards for ADU setbacks. (Gov. Code, § 65852.2, subds. (a)(1)(D)(vii), (c)(2)(C), and (e)(1).) The ordinance should be revised to remove the standards of this Chapter.

Town Response: See Town response to Comment 2 above related to setbacks, as the Town believes setback requirements for ADUs complies with section 65852.2, subdivision (e) and Gov. Code, § 65852.2, subd. (a)(1)(D)(vii).) and does not unduly constrain the creation of ADUs for the reasons as noted and cited in this response. See also Town response to Comment 2 above related to proposal to remove reference to Chapter 17.40.

HCD Comment 7:

Municipal Code section 17.52.040.5.ii, 2 Exemption from Maximum Floor Area Limitations: The section refers to Chapter 17.40 for side and rear lot line setbacks. As noted elsewhere, the setbacks noted in this Chapter greatly exceed the allowed setbacks of State ADU Law. In addition, local agencies shall not limit the maximum size of an ADU to be less than 850 square feet for a studio or one-bedroom and not less than 1,000 square feet for an ADU exceeding one bedroom. The creation of an ADU, constrained by lot size, lot coverage, floor area ratio or open space requirements, shall be allowed to be at least 800 square feet.

As previously noted, Chapter 17.40 contains standards well in excess of that permitted by state law and cannot be applied to ADUs. The ordinance should be revised to remove the reference. (Gov. Code, § 65852.2, subd. (a) and (c)(2)(C).) Town Response: See Town response to Comment 2 above related to setbacks. Again, the Town believes associated setback requirements for the creation of ADU’s to comply with section 65852.2, subdivision (e) and Gov. Code, § 65852.2, subd. (a)(1)(D)(vii).) and does not unduly constrain the creation of ADUs for the reasons as noted and cited in this response. The Attachmetn 4 - ADU 1.25 PC - ADU ordinance Town Response

Page | 6
maximum size allowed for an ADU in the Town of Atherton is 1,200 square feet per Section

17.52.040 C 4 b, which exceeds the minimum required for both one and two-bedroom ADUs by state law. The Town’s ADU Ordinance allows for the creation of ADUs at least 800 square feet in size irrespective of floor area maximums (Section 17.52.040 C 4 c). The Town proposes to amend Section 17.52.040 C 4, to include clarifying language specifying that the maximum size of an ADU shall not limited to be less than 850 square feet for a studio or one-bedroom, and not less than 1,000 square feet for an ADU exceeding one-bedroom. See Town response to Comment 2 above related to proposal to remove reference to Chapter 17.40.

HCD Comment 8:

Compliance with Applicable Requirements: Municipal Code section 17.52.040.K. notes that ADUs and JADUs shall meet all applicable zoning and fire regulations and shall comply with local building codes. The inclusion of this language is confusing and overbroad.

Although ADU statute requires ADUs and JADUs to comply with local building codes, local development standards shall not exceed state standards. (Gov. Code, § 65852.2, subd. (a)(6).) The ordinance (Chapter 17.52) must be revised to identify the specific, applicable codes and standards that apply to ADUs, consistent with state law.

Town Response: As applicable fire and building code regulations often change, this language was left intentionally open ended to remain current with the State of California’s latest fire safety and building code requirements. The Town does not enforce any codes that exceed the standards required by the State of California, so there is no condition where local development standards would exceed state standards. There is no circumstance where any building may be constructed without conforming to necessary State of California fire safety and building code regulations. As such, the Town believes Section 17.52.040 K to comply with state standards. (Gov. Code, § 65852.2, subd. (a)(6).)
In addition to the specific responses to HCD’s comments on the Town’s ADU regulations, the Town notes that prior to presenting the City Council with the proposed amendments to the ADU Ordinance for final adoption on October 6, 2020, staff met with HCD staff both on May 14 and October 6, 2020 to review drafts of the ADU Ordinance and get HCD’s feedback. Both drafts shared with HCD included the regulations regarding height, setbacks, and floor area exemptions noted in HCD’s letter dated December 14, 2021. At both those times, HCD did provide guidance on necessary revisions to the draft ADU Ordinance which were subsequently incorporated, however, none of the issues noted in the letter dated December 14, 2021 were flagged as potentially problematic by HCD.

Please contact me at [email protected], or 650-773-7249 with further questions, comments, or concerns.

Sincerely,
Stephanie B. Davis, AICP
Attachmetn 4 - ADU 1.25 PC - ADU ordinance Town Response

Page | 7
Principal Planner
Cc: Lisa Costa Sanders, Town Planner; Deputy Town Attorney Attachmetn 4 - ADU 1.25 PC - ADU ordinance Town Response

Attachment 5
1 DRAFT PLANNING COMMISSION RESOLUTION 2023-_____

A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF

ATHERTON TO RECOMMEND CHANGES TO THE ATHERTON MUNICIPAL CODE CHAPTERS 17.52, 17.60 AND 17.36.

WHEREAS, the State of California passed AB 2221 and AB 2097 that necessitates updates to the Accessory Dwelling Unit regulations; and WHEREAS, the Town of Atherton seeks to remain in compliance with State Regulations; and
WHEREAS, the Town of Atherton encourages the development of accessory dwelling units to produce housing; and
WHEREAS, the Planning Commission held a duly noticed public hearing as prescribed by law to consider revisions to Chapter 17.52 accessory dwelling units, Chapter 17.60 definitions, and Chapter 17.36 Public Facilities and Schools District (PFS) of the Atherton Municipal Code at the regular January 25, 2023 meeting to conform to state requirements; and
WHEREAS, the Planning Commission, received public comment, and discussed elements of the Accessory Dwelling Unit Regulations; and WHEREAS, the Planning Commission finds that revisions to Chapters 17.52,

17.60, and 17.36 are in conformance with the General Plan, particularly the following Goal, Objectives, and Policy:

Housing Element Goal 3.620
(5th Cycle Housing Element)
Use second dwelling units to meet a
substantial portion of the Town’s moderate
to very low income housing need.

Land Use Objective 1.3 To retain the quality of life, character and existing in the Town’s residential
neighborhoods.

Housing Element Objective 3.661
(5th Cycle Housing Element)
D. Continue to encourage the development
of second units, which can provide an
affordable option for Seniors.

Housing Element Policy 3.622
(5th Cycle Housing Element
A. Actively promote the Second Dwelling
Unit provision of the Atherton Zoning
Ordinance by encouraging homeowners
and developers to include attached or
detached Second Dwelling Units in
existing or new homes.

Attachment 5 - ADU 1.25 PC - PC resolution Rec to CC re ADU Ord.

Attachment 5
2 NOW THEREFORE BE IT RESOLVED, that the Planning Commission of the City of Atherton in its independent judgment and based on substantial evidence in the record, hereby recommends to the City Council:

1. That the revisions to the ADU regulations are exempt from CEQA under Section 15305

2. To adopt revisions to the Chapters 17.52, 17.60, and 17.36 to conform to state regulations.
********************
Passed and adopted as a Resolution of the Planning Commission of the Town of Atherton at a regular meeting thereof held on the January 25, 2023 by the following vote:

AYES, PLANNING COMMISSIONERS

NOES, PLANNING COMMISSIONERS

ABSENT, PLANNING COMMISSIONERS

CHAIR of the Planning Commission
ATTEST:

TOWN PLANNER of the Town of Atherton
Attachment 5 - ADU 1.25 PC - PC resolution Rec to CC re ADU Ord.

2/8/23, 3:15 PM Mail - Radha Hayagreev - Outlook
https://outlook.office365.com/mail/id/AAQkAGI5MjEwY2ZhLTFlMjUtNGQzOC1hOTI2LTI2NGM5MGU3YTQ0MgAQAORZcyBaE0LspYa%2FnMqoK7Y… 1/2 RE: ADU Ordinance
Jon Daseking <[email protected]>
Wed 1/25/2023 12:24 PM
To: Sung Kwon <[email protected]>
Cc: Pei-Ching Chou <[email protected]>;Radha Hayagreev <[email protected]> [The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Hi Sung,
I am planning to attend the PC meeting tonight in regard to ADUs. I have read through the proposed changes to Ordinance Chapter 17.52 and came across a few typo/coordination items that I thought you may want to be aware of before the meeting. You may have already caught these but here you go:

1. 17.52.030 Definitions (A) under Efficiency unit, bullet point 2.2, “Storage cabinets that total at least 30 cubic feet of shelf space”, and 17.60, “Kitchen” (6) Storage cabinets that total at least 40 square feet of shelf space: One refers to cubic feet and the other refers to square feet. One should change to coordinate with the other? Same is true for 17.60, “Efficiency Kitchen” (4) Storage cabinets that total at least 30 square feet of shelf space.

2. 17.52.040 Development Standards and General Requirements (A)(1)(iv): Last part should be revised to read “…requirements of California Government Code Section 65852.22?”

3. 17.52.040 Development Standards and General Requirements (C)(1)(v): First part should read “Attached Accessory dwelling units are…” since detached ADUs are limited to one story per 17.52.040 (C)(1)(i) above.

4. 17.52.040 Development Standards and General Requirements (C)(5): Add “to” to last line, “This does not apply to ADUs.”

5. 17.52.040 Development Standards and General Requirements (E): For clarity, you may want to consider revising the second line to read as follows: “Internal connections are allowed between the main residence building and for attached ADUs and JADUs.”
I will see you tonight.

Regards,
Jon
Jon W. Daseking
Director of Design | Architect | CGBP

PACIFIC PENINSULA ARCHI TECTURE
Architecture | Custom Homes | Real Estate Development
Tel: 650 323 7900 ext 126
www.pacificpeninsula.com
From: Jon Daseking
Sent: Thursday, January 12, 2023 2:53 PM
To: 'Sung Kwon' <[email protected]>
Cc: Pei-Ching Chou <[email protected]>; Radha Hayagreev <[email protected]> Subject: RE: ADU Ordinance Page 95 of 123
2/8/23, 3:15 PM Mail - Radha Hayagreev - Outlook
https://outlook.office365.com/mail/id/AAQkAGI5MjEwY2ZhLTFlMjUtNGQzOC1hOTI2LTI2NGM5MGU3YTQ0MgAQAORZcyBaE0LspYa%2FnMqoK7Y… 2/2 Hi Sung,
Yes, that would be great. Thank you for the heads up – much appreciated.

Warm regards,
Jon
Jon W. Daseking
Director of Design | Architect | CGBP

PACIFIC PENINSULA ARCHI TECTURE
Architecture | Custom Homes | Real Estate Development
Tel: 650 323 7900 ext 126
www.pacificpeninsula.com
From: Sung Kwon <[email protected]>
Sent: Thursday, January 12, 2023 2:48 PM
To: Jon Daseking <[email protected]>
Cc: Pei-Ching Chou <[email protected]>; Radha Hayagreev <[email protected]> Subject: ADU Ordinance
Hi Jon,
We will be taking revisions to the ADU Ordinance to the Planning Commission on January 25, 2023. Would you like us to send you the link to the agenda packet once it is posted? Sincerely,
Sung H. Kwon, MCRP MBAAICP
Principal Planner, M-Group
Contract Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844

Chair Lane noted that he would vote in favor of the motion so that the applicant could move forward with their project.

M/S Lamb/Narancic Ayes: 5 Noes: 0 Absent: 0
D. ADU Ordinance Amendments: Consideration of a recommendation to the Town Council to approve amendments to Atherton Municipal Code Chapters 17.52 Accessory Dwelling Units, Chapter 17.60 Definitions, and Chapter 17.36 Public Facilities and Schools District (PFS).

Chair Lane stated that City Manager asked the Commission to make the item a study session instead of an action item.

Town Planner Sung Kwon stated that staff recommended the study session to hear comments and suggestions and that no formal recommendation is required.

Chair Lane explained the process of the item and added that it is related to the draft Housing Element. He asked staff if his explanation was accurate.

Town Planner Sung Kwon responded in the affirmative.

Deputy City Attorney Andres Booher added that the City Manager recommended that the Commission treat the item as a study session as Town anticipates revisions to the ADU ordinance and desired comments from the public on the matter.

Town Planner Sung Kwon presented the staff report.

Chair Lane asked for clarification on ADUs and other additional structures.

Town Planner Sung Kwon responded that staff would recommend not allowing connecting a detached ADU with another detached structure such as garages.

Chair Lane directed Vice Chair Lamb to the section which proposes that ADUs can not be denied on the basis of heritage trees. He expressed concern with multiple issues in the proposed changes.

Chair Lane asked staff if they wanted to add anything.

Town Planner Sung Kwon responded by informing the Commission about the letters send about the item.

Chair Lane read the first letter from Donald Stansky about the consideration of his proposed ADU.

Chair Lane read the second letter from John Dasking about edits to the spelling and grammar on the agenda item.

Chair Lane asked if the Commission had any questions for Staff.

Commissioner Narancic asked if the new allowances was for two story ADUs.

Chair Lane responded that the allowances refer to ADUs above garages.

Commissioner Narancic asked for clarification if the two story limit on ADUs refers to all ADUs.

Town Planner Sung Kwon responded that there were limitations.

Chair Lane asked if the allowance were for two story ADUs and ADUs above garages.

Commissioner Konce asked if the requirement that ADUs contain a kitchen, bedroom, and bathroom includes ADUs on second floors of garages.

Chair Lane added that the first letter he read was looking for comment on a proposed ADU and is not concerning the agenda item.

Vice Chair Lamb asked for clarification on the definition of attached.

Deputy City Attorney Andres Booher responded that specifics about the definition is what the City Manager is looking for from the Commission.

Vice Chair Lamb stated that the term attached varied from city to city. He added that the proposed ordinance concerning heritage trees was slated for removal.

Chair Lane responded in agreement and added that the purpose of the meeting was to define the specifics of the ordinance.

Commissioner Konce asked what elements were required for an ADU.

Town Planner Sung Kwon read the current definition of an ADU, stating that it contains a separate kitchen, bathroom, and sleeping facility. He also read the current definitions of attached and detached.

Chair Lane stated that the study was intended to make the review process quicker.

Commissioner Konce asked what was defined as a kitchen.

Town Planner Sung Kwon responded that the staff wanted recommendations by the Commission on what the definitions were.

Chair Lane opened up the public comment.

Donald Stansky, resident of 40 Ashfield Road stated that his request was sent in as a response to the survey the Commission and that he had waited for a response for a significant amount of time. He added that his inquiry was whether he could put a second story on his garage for an ADU. He hoped that the Commission’s recommendations make it cost effective to build ADUs.

Chair Lane thanked the speaker for his comments.

Town Planner Sung Kwon noted that the email was sent to a different person and that when he had heard about the email he contacted the speaker.

Chair Lane discussed that the Commission had not previously addressed the expansion of garages and the addition of an ADU.

Lauren Gruner stated that she could not find the proposed ADU ordinance. She added that the Town in the past did not allow for separate utilities for ADUs and main houses, and that allowing separate utilities would make it easier to rent out ADUs. She agreed with the removal of the 30 day maximum usage. She applauded the allowances of conversions of existing structures to ADUs. She wanted clarification on what defines a kitchen. She stated that she did not like the inclusionary fee. She also believed that a public awareness campaign about ADUs and housing numbers would be beneficial to the Town meeting housing requirements. This could include ADU owners renting out to Menlo College teachers. She stated that she had questions about whether property owners could expand rooms to make JADUs.

Commissioner Narancic recommended that the speaker write down her ideas so that they could be included in the record.

Town Planner Sung Kwon asked if the speaker wanted the definitions of ADUs.

Commissioner Konce added that it may not be possible to set up separate utilities on a homeowner’s property.

Lauren Gruner responded that the homeowner would still set up the utilities in her proposal, but currently can not set up separate utilities.

Commissioner Konce stated that she had not heard from PG&E that a homeowner could subdivide utilities.

Lauren Gruner noted that other jurisdictions allow it.

Chair Lane added that Atherton in the past restricted subdividing utilities and that subdividing utilities is possible.

Commissioner Konce stated that she believed that subdividing utilities would not happen in Atherton.

Chair Lane clarified that the issue was whether the Town allowed the subdivision of utilities at all.

Town Planner Sung Kwon explained that the proposed ordinance required detached ADUs have separate utilities, but not attached ADUs.

Lauren Gruner asked if the homeowner was allowed to have utilities on an existing ADU.

Deputy City Attorney Andres Booher responded that the proposed draft states that the homeowner could if the homeowner chose.

Commissioner Konce stated that she believed that the homeowner should be responsible for the utilities on their properties.

Chair Lane responded that with ADUs, the homeowner becomes a landlord and that the homeowner is protected as a landlord.

Commissioner Konce stated that she did not know that.

Vice Chair Lamb stated that ADUs are set up to be completely separate units in a legal sense.

Commissioner Konce asked who pays property taxes.

Vice Chair Lamb responded that the question was too specific for the meeting.

Deputy City Attorney Andres Booher asked the Commission what their opinions were on requiring detached ADUs to have separate utility connections or should be allowed.

Commissioners Narancic and Chair Lane responded in agreement.

Chair Lane added that he wanted property owners to have control on the issue.

Commissioner Konce responded that she was confused about how ADUs can have separate utilities if ADU renters do not own the ADU and are not on the deed or the mortgage of the property.

Chair Lane corrected her and stated that the owner of the property and the ADU can have the ability to set up separate utilities for the ADU on the property and their main home.

Chair Lane introduced the next speaker.

Gregory Connoly resident at 43 Virginia Lane observed that if the Town wants to encourage homeowners to construct ADUs, they should allow property owners to install electric burners with 110 amps rather than 240 amps to reduce a cost barrier. He added that the fees for building an ADU are a cost barrier for homeowners and he thought that the fees would be waiver.

Chair Lane explained that the fee waiver was being discussed and was not instated. He added that the Town Council will have to address the incentives in the future.

Town Planning Sung Kwon stated that the Town Council would be reviewing the draft Housing Element on January 31st.

Chair Lane clarified that the Town Council when discussing the Housing Element would be considering ADU fees.

Gregory Connoly reiterated that he would recommend removing the fees to encourage ADUs.

Michael Templeton, resident at 80 Palmer Lane stated that his neighbor is creating an ADU and considering an SB 9 conversion. He expressed concern about noise and privacy. He added that parking is a problem. He proposed that a separate noise ordinance for ADUs and main homes, as well as better enforcing the current noise ordinance. He stated that the visual space and footprint is something that must be considered and he proposed that a smaller footprint would allow for more trees. He added that landscape screening has not been enforced. He also continued and stated that building height impacts shading of neighboring properties and he proposed that structure positions and placement on lots should be considered so that it reduces impact on neighbors.

Chair Lane informed the speaker that he should send staff all the ideas that he has so that the Commission can address them.

Michael Templeton continued that the heritage tree ordinance was important and he expressed concern about how his neighbor’s ADUs impact his heritage trees.

John Daseking, architect at Pacific Peninsula Architecture expressed concern about entrances for ADUs and stated that the rules for attached ADUs are too restrictive concerning the requirement to have an entrance facing a side yard or a rear yard. He proposed a requirement saying that the entrance should not face the front rather than where specifically it should face. He suggested that entrances should not face front property line.

Chair Lane agreed with the proposal but felt that the wording could be improved. He added that flag lots have a front side and that restricting entrances from the front would limit property owners.

Commissioner Konce asked if ADU lots had a separate address.

Chair Lane responded that the question was not for the speaker and that he would answer it later.

Chair Lane asked if there were any other speakers.

Lee Kenna, resident of 162 Fair Oaks Lane stated that he was working on an expansion of his house and had considered building an ADU. He stated that he wanted to combine the ADU and the garage but added that there are restrictions for the setbacks for an ADU and the garage which are different and do not allow them to be added. He proposed a variance that allows for an ADU that is attached to a detached garage to have the same setback.

Town Planner Sung Kwon added that detached ADUs have a height limit of 16 ft. and that detached accessory structures have a height limit of 15ft. He noted that if the speaker wanted to have the same roof for both, they would not be able to have the same roof line with the current ordinance.

Chair Lane asked the speaker how large their lot is.

Lee Kenna responded that the lot is 1.2 acres and hoped to complete the project in the next year. He asked what the next steps were.

Chair Lane responded that the Town Council would meet on January 31st to gather input then add other ordinances.

Town Planner Sung Kwon added that the current meeting was a study session and that the input would go to the Town Council.

Chair Lane asked if parts of the ADU ordinance would be included in the Housing Element.

Town Planner Sung Kwon responded that potential policies could be outlined in the Housing Element.

Chair Lane informed the speaker to check in with staff and outlined the process of getting the Housing Element approved by the State.

Lee Kenna asked if more information would be available in late February.

Chair Lane responded that the information would become available around March or April.

Town Planner Sung Kwon added that there was not an exact date yet.

Chair Lane added that the timeline would be dependent on the State approval of the Housing Element and that the meeting is the first step of a longer process.

Chair Lane closed public comment and brought the item to the Commission for discussion.

Commissioner Konce stated concern about home insurance and ADUs and wanted to remind home owners that they may have additional liability if they construct ADUs on their property.

Chair Lane added that there are other liabilities.

Commissioner Konce added that insurance payments in Atherton are high.

Chair Lane asked if any other commissioners had any comments or questions.

No comments or questions were presented.

Chair Lane wanted to make sure that the recommendation of incentives for better planning is sent to the Town Council. He added that the Town can not stop people from doing things, but can encourage people to do the right thing. He stated that incentives must consciously encourage using property better. He expressed concern about the lack of restrictions on parking. He wanted to incentivize ADU building in the first year of the ordinance to encourage property owners to build ADUs and maintain the ambience of the Town. He added that SB 9 lot splits should be incentivized to be sped up.

Deputy City Attorney Andreas Booher asked for clarification on the fee waiving that Chair Lane proposed.

Chair Lane stated that any incentive should be employed in the first two years including free approval of ADUs among other incentives.

Town Planner Sung Kwon provided a clarification on the planning review fee and the building permit fee.

Chair Lane stated that the Town Council should consider either and added that the more incentives the better.

Commissioner Konce stated that she agreed with the comment a speaker made about treating ADUs as studio apartments to reduce the barrier to construct or convert them.

Chair Lane added the example of bachelor settings with a small kitchen strip installed in a wall. He stated that would be an acceptable minimum.

Commissioner Konce added that a wardrobe included would be considered a minimum for a bedroom.

Town Planner Sung Kwon asked what the requirement for kitchens should be.

Chair Lane that a kitchen should be defined from a fire safety standard. He does not believe a hot plate would be appropriate.

From: Sung Kwon
To: George Rodericks
Cc: City Attornery Mona Ebrahimi
Subject: FW: Invitation to Atherton Planning Commission and City Council Joint Study Session on May 3 Date: Wednesday, May 3, 2023 9:47:00 AM
Good Morning Council and Commission,
Here is another comment letter from a member of the public.

Sincerely,
Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Consulting Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844
From: Jill Woodford <[email protected]>
Sent: Tuesday, May 2, 2023 9:55 PM
To: Sung Kwon <[email protected]>
Cc: Rachael Londer <[email protected]>; Jill Woodford <[email protected]> Subject: Re: Invitation to Atherton Planning Commission and City Council Joint Study Session on May 3 [The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
HI Sung - Thank you for giving me the opportunity to review your proposed ordinance. I have taken some time to review it. My feedback is below:

You may want to clarify that any addition to an existing structure that is being converted must comply with setbacks, but the existing structure typically does not need to comply as it is grandfathered in at its current location. That is typically how cities handle converted buildings with 150 sq ft additions.

Per state law, any ADU or JADU (UNDER 800 SQ FT), does not count toward FAR, lot coverage, etc. You may apply FAR, Lot coverage, and other zoning to ADUs over 800 sq ft.If that was the intent, you may want to change the sentence third from bottom to clarify. I would also further this statement to ensure that an existing ADU is not counted toward FAR of a new single family home. The 800 sq ft exemption should be applied regardless of whether the ADU was built before or after the main home.

PAGE 2
It is very unusual to give ADUs exemption from the front setback and Tree Ordinance? Per HCD ADU Handbook: “A local agency may still apply front yard setbacks for ADUs, but front yard setbacks cannot preclude an ADU of at least 800 square feet and must not unduly constrain the creation of all types of ADUs. (Gov.

Code, §65852.2, subd. (c) and (e).)” You might clarify that the front setback will not apply and the Tree Protection Ordinance will not apply if either would preclude an 800sq ft ADU. If there is any opportunity on a property to put an 800 sq ft ADU elsewhere, either from converted space or attached ADU or detached ADU, that would need to happen before an ADU could be placed within the front setback or threaten a heritage tree. This is how most jurisdictions in the Bay Area I have worked with handle this. If you are creating this exemption to encourage more ADUs, maybe consider an alternative front setback of 20’. The way I read this, there is either no front setback or 4’ front setback, both of which are very unusual.

The # of bedrooms in an ADU cannot be restricted to 2 bedrooms per HCD: "A limit on the number of bedrooms could be construed as a discriminatory practice towards protected classes, such as familial status, and would be considered a constraint on the development of ADUs. Building code standards for minimum bedroom size still apply.” Multiple cities have received letters of non-compliance from HCD regarding this topic. https://www.hcd.ca.gov/sites/default/files/docs/policy-and-research/ordinancereview-letters/adu-ordinance-review-letters(1).xlsx PAGE 3
Regarding attached ADUs which may encroach into the side setback by 20% - I would want to see a couple of use cases to consider what this will look like for a two-story 25’ tall ADU.

Later on Page 5 it states there are no restrictions on windows which could impact the neighbors.

PAGE 4
ADUs above existing garage limited to 18' - is this for detached? If the garage is attached to the house, would the height then be 25’ or height of house? Are ADUs limited to two stories above ground plus an unconditioned basement? PAGE 5
Most cities apply the Heritage Tree Ordinance unless it precludes an 800 sq ft ADU. (Also on Page 11)
PAGE 6
Is there a health or safety reason for not allowing an ADU/JADU in a basement? I have seen several basement conversions to ADUs, and if under 800 sq ft, it seems this statement does not comply with state law.

Thank you for taking the time to consider my comments. It’s quite late, and I may have

misunderstood or missed something. I am happy to discuss any questions or comments.

Regards,
Jill

From: Sung Kwon
To: George Rodericks; City Attornery Mona Ebrahimi
Cc: Francesca Reyes
Subject: FW: ADU Study Session
Date: Tuesday, May 2, 2023 5:08:00 PM
Attachments: ADU Kenna Residence 1200 FT2. 162 Fair Oaks Lane. 2 May. 2023.pdf Good Evening Council and Commission,
Here is comment letter from a member of the public.

Sincerely,
Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Consulting Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844
From: Lee Kenna <[email protected]>
Sent: Monday, May 1, 2023 9:46 PM
To: Sung Kwon <[email protected]>
Cc: Cachi Kenna ([email protected]) <[email protected]>; [email protected]
Subject: RE: ADU Study Session
[The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Hello, Mr. Kwon,
I do plan to attend the ADU Study Session at 4:00 PM on Wednesday, and would appreciate your asking the CC/PC how I should best propose a change of their guidance regarding the current limitations on setback distance for an ADU from the side property line, such as we have at our corner lot of Fair Oaks with Virginia Lane at 162 Fair Oaks Lane in Atherton.If there is flexibility in this regard we plan to submit documents for approval of construction of an ADU along with plans for the remodel of our home in the next 12 months.

The preliminary plans developed so far would add an ADU which comes under the maximum 1200 allowable SQFT for an ADU, and includes as well as the bedroom/kitchen/bath combination a garage-sized storage area close to the side street, in this case Virginia Lane. If this were planned as a “small” ADU the currently planned setback would be allowed, but with the garage attached it becomes a large ADU and the 50 ft. setback limit from the side on Virginia Lane currently would apply. It is in this restriction that we will seek a variance, or hopefully new guidance in the side

street setback distance, relaxed for a “large” ADU. We would request the setback requirement of 50 ft. from the side of our lot on Virginia Lane be relaxed to 30 ft. so the design attached would fall within the acceptable limit for a 1200 Ft2 ADU. In this case the ADU would include a garage/storage area sufficiently large to hold 2 vehicles. I plan to include with a future formal application to the CC/PC, signed letters from my next-door neighbors on Virginia Lane accepting this proposed setback on the Virginia Lane side of their property.

I attach here a scan of the latest proposal from our architects to develop an ADU on the Virginia Lane side of our property. The second sketch shows their latest ADU design and the accompanying garage space which they propose to attach on the Virginia Lane side of the ADU proper, both still coming in under 1200 ft2. I have a larger format copy available which I can review with you in person on Wednesday.I plan to come by the Atherton town hall tomorrow, Tuesday May 2 in the morning, to discuss this with you in advance of the Planning meeting on Wednesday. I would very much appreciate your suggestions as to how I may best proceed, to propose and win approval from the Planning Commission for this project to proceed.

Best,
Lee Kenna
650-740-1847
From: Sung Kwon <[email protected]>
Sent: Wednesday, April 26, 2023 8:50 AM
To: Lee Kenna <[email protected]>; Cachi Kenna ([email protected]) <[email protected]>
Subject: RE: ADU Study Session
Hello Mr. Kenna,
Yes please feel free to ask questions as it will be a study session. Do you have a specific question you would like me to ask the CC/PC?
Sincerely,
Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Consulting Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844
From: Lee Kenna <[email protected]>
Sent: Tuesday, April 25, 2023 8:00 PM

To: Sung Kwon <[email protected]>; Cachi Kenna ([email protected]) <[email protected]>
Subject: Re: ADU Study Session
[The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Thank you, Mr. Kwon. I will plan to be there. Is there an agenda for the meeting? Should we come with specific questions to discuss about our individual ADU development situations? Lee Kenna
Get Outlook for iOS
From: Sung Kwon <[email protected]>
Sent: Tuesday, April 25, 2023 8:00:59 PM
Subject: ADU Study Session
Hello all,
Just wanted to let you know that there will be joint PC/CC study session on the ADU Ordinance on May 3, 2023 at 4PM. Please feel free to contact me if you would like more information.

Sincerely,
Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Consulting Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844

Disclaimer
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Disclaimer
The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.

This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast, a leader in email security and cyber resilience. Mimecast integrates email defenses with brand protection, security awareness training, web security, compliance and other essential capabilities. Mimecast helps protect large and small organizations from malicious activity, human error and technology failure; and to lead the movement toward building a more resilient world. To find out more, visit our website.

From: Sung Kwon
To: George Rodericks; City Attornery Mona Ebrahimi
Cc: Francesca Reyes
Subject: FW: May 3rd ADU discussion
Date: Tuesday, May 2, 2023 5:09:00 PM
Attachments: Barriers to ADU proliferation in Atherton.docx Ninth Circuit Overturns Berkeley’s Natural Gas Ban — Reichman Jorgensen Lehman Feldberg LLP.pdf Good Evening Council and Commission,
Here is another comment letter from a member of the public.

Sincerely,
Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Consulting Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844
From: Kenneth Frederick <[email protected]>
Sent: Monday, May 1, 2023 6:52 PM
To: Sung Kwon <[email protected]>
Cc: George Rodericks <[email protected]>; Rachael Londer <[email protected]> Subject: May 3rd ADU discussion
[The e-mail below is from an external source. Please do not open attachments or click links from an unknown or suspicious origin.]
Sung:

Thanks for your continued support & response. FYI, I’ve been discussing the current ADU rules and the changes that are needed to support greater participation with many knowledgeable Atherton residents. We chatted at the April 6th session and have discussed our thoughts since then. I’ve compiled several recommendations in the attachment & have also referenced the recent Ninth Circuit court case.

In the “Barriers” attachment you will find an updated list of items that many residents propose as improvements to the ADU regulations that will enable more new construction of ADU’s.

In Summary, there are at least Six items the residents recommend:

1. Reducing the total concept-to-finished construction time by prudently streamlining the entire ADU process

2. Reducing the TPZ requirements while maintaining an appropriate high level of heritage tree protection
a. Reducing the TPZ distance requirement in the code to a lower number for newer, proven foundation technologies
b. Reducing the number of arborist’s reports, but maintaining detailed updates

3. Allowing “merged” ADU/Main House sewage lines when proven adequate

4. Creation of a “Library” of pre-approved ADU designs that a resident can consider for their own construction

5. Negotiating with San Mateo County to create a “pre-determined” new Real Estate Tax rate that will be known in advance and accessed once the ADU is completed That is, the resident knows their new tax rate in advance of starting the project &

6. Cancelling the Atherton ban on natural gas in new ADU construction buildings The Ninth Circuit Court has overthrown the Berkeley ban on natural gas usage, and it would be prudent for the Town to put its ban “On Hold” until all the appeals and cases are resolved in the courts
The Town has higher priorities than spending time and taxpayer’s money on lawsuits with its own residents
If any of these are not deemed appropriate for inclusion in the updated ADU regulations, a response as to the reasons why they are not included would be greatly appreciated.

Hopefully, these items will be addressed on May 3rd.

Best,
Ken
Kenneth C. Frederick
Silicon Valley, CA
[email protected]
(650) 279-9580
From: Sung Kwon <[email protected]>
Date: Monday, April 24, 2023 at 3:14 PM
To: Ken Frederick <[email protected]>
Cc: George Rodericks <[email protected]>
Subject: RE: May 3rd & ADU discussion

Hi Kenneth,
Thank you for the information. The Town is looking into this issue.

Sincerely,
Sung H. Kwon, MCRP MBA AICP
Principal Planner, M-Group
Consulting Town Planner
Town of Atherton
80 Fair Oaks Lane (New Town Center)
Atherton, CA 94027
(408) 796-4844

Ninth Circuit Overturns Berkeley’s Natural Gas
Ban
APRIL 17, 2023
Reichman Jorgensen Lehman & Feldberg Secures Landmark Ninth Circuit Victory for California Restaurant Association in Battle Over Berkeley’s Gas Ban (April 17, 2023) REDWOOD SHORES, Calif. — Reichman Jorgensen Lehman & Feldberg LLP (RJLF) secured a precedent-setting victory on behalf of the California Restaurant Association (CRA) against the City of Berkeley, overturning Berkeley’s ban on natural gas hookups. The Ninth Circuit reversed the District Court’s ruling that the City’s natural gas ban was consistent with federal law. The panel unanimously held that federal energy law preempts Berkeley’s ban on natural gas piping within buildings, and that Berkeley cannot bypass federal preemption by banning the pipes instead of natural gas products themselves. “We are extremely pleased the Ninth Circuit enforced the plain mandate of federal law on the critical issue of national energy policy,” Courtland L. Reichman, RJLF’s Managing Partner, said. “At stake was the CRA members’ ability to conduct business in the state of California, which puts not only the future of restaurants at risk, but also the vibrant culture and the jobs that those restaurants bring to the area.”
Berkeley Ordinance No. 7,672-N.S. banned natural gas infrastructure and the use of natural gas in newly constructed buildings beginning January 1, 2020, making Berkeley the first city in California to take such action. The case challenged the practice of cities across California of usurping state and federal regulations governing the use of energy in buildings. “Congress intended to set a national energy policy, and cities and states cannot bypass federal preemption by regulating piping instead of natural gas products,” RJLF partner Sarah O. Jorgensen shared. “The panel’s unanimous decision that Berkeley’s ban on natural gas piping is preempted by EPCA sets an important precedent for future cases, especially with other cities and states considering restrictions on natural gas, and it prevents a patchwork of disparate regulations and protects consumer choice.”

In the original complaint filed November 21, 2019, the CRA highlighted that its members include restaurants that “rely on gas for cooking particular types of food,” as well as for heating space and water, for backup power, and for affordable power, and that they would “be unable to prepare many of their specialties without natural gas.” Berkeley’s Ordinance harms the CRA’s members, who would not be able to move into or build new buildings while also preparing food in the manner and with the speed necessary and using a reliable and affordable energy source. The drastic step of requiring “all-electric” new buildings stands at odds with the need for a reliable, resilient, and affordable energy supply. The Berkeley Ordinance conflicts with both federal and state law, is contrary to the public interest, and harms CRA and its members, the CRA argued.

The District Court dismissed the complaint in July 2021, finding that the CRA had standing and the dispute was ripe, but disagreeing on the statutory interpretation of federal energy law. The CRA appealed that statutory interpretation to the Ninth Circuit. The significance of this first-in-the-nation attempt to ban natural gas at a local level prompted amici briefs from states, industry associations, and the Department of Justice. Brian C. Baran of RJLF argued the case for the CRA before a three-judge panel in May 2022.

Along with partners Courtland L. Reichman and Sarah O. Jorgensen, the CRA is represented by associates Brian C. Baran, Laura Carwile, and David King, as well as co-counsel Gary J.

Toman from Weinberg, Wheeler, Hudgins, Gunn & Dial LLC and Kylie Chiseul Kim from Kellogg, Hansen, Todd, Evans, Figel & Frederick LLP.

The case is California Restaurant Association v. City of Berkeley, Case No. 21-16278 (9th Cir.).

About The California Restaurant Association
The California Restaurant Association (CRA) is the largest nonprofit statewide restaurant trade association in the nation. Representing the restaurant and hospitality industries since 1906, the CRA is made up of nearly 22,000 restaurant locations in California.

About Reichman Jorgensen Lehman & Feldberg LLP

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GCR Honors RJLF Trial Win with 2023 Behavioural Matter of the Year Award Reichman Jorgensen Lehman & Feldberg LLP (RJLF) is an elite national trial firm that handles high-stakes commercial litigation, intellectual property, and white collar disputes. The firm is majority women-owned and rejects the billable hour in favor of fee arrangements that align client interests. RJLF’s attorneys are diverse, exceptionally credentialed, and passionate about trial advocacy. From offices in Silicon Valley, New York, Washington, D.C., and Atlanta, the firm tries cases and argues appeals throughout the country. For more information, visit www.reichmanjorgensen.com.

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1 Barriers to ADU construction increases in Atherton: – Draft 5/1/23 Background/Summary:

Although the Atherton Town Council has proposed >280 ADU units in the next 8 years, the actual current rate of individual (not part of a large new house construction) ADU adoption in Atherton is relatively unknown, but estimated by those knowledgeable to be quite low. The San Mateo RE tax appraiser indicates that almost all ADU’s she sees in Atherton are a part of a new construction. Her “off the cuff” estimate was ~10-12 per year are built as just new ADU’s in a back yard. Since the Town plans an average of 35+/year over the entire 8 years we will have to remove all feasible & appropriate barriers to such ADU construction. - Note: The Town may now have better data on actual ADU construction over time Three categories of barriers to more ADU construction exist. They are ones that Atherton Town Council has either:

A) NO direct control, but can worsen the situation:

B) Total, or very significant control
C) Some control & very significant influence
Category A): Atherton has No direct control:
- The Resident’s Economic Ability to afford to build an ADU:
1) Current economic & geopolitical outlooks are quite worrisome to residents & many are very reluctant to make an economic decision that will “lock” them into a major capital investment (~ $500K$1M) that will require ongoing significantly increased monthly cash payments (mortgage, maintenance, utilities, RE taxes, etc.) for life! 2) As Home loans increase from a few % points to >7% the total cost of an ADU is much less affordable & fewer residents can build one, nor renters afford to rent one. 3) The Town Council cannot resolve the Global & Regional economic issues, but any additional code restrictions or other requirements for building ADU’s will only make it harder for residents to economically & emotionally justify the large expense - For example banning natural gas connections in ADUs means the homeowner will be unable to have a gas fireplace, gas cooking, gas BBQ, etc. and only pay for a connection for emergency electrical power generators fed by natural gas In order to enable/encourage residents to build significantly more ADU’s the Town must eliminate/reduce key barriers – And, do so quickly, clearly & make the entire process “simple’! The goals are to make the ADU decision & entire process for residents:
1) Clear & Simple
2) As rapid as possible (From application to the completed project)

2 3) As economical as possible (Delays that create a longer timeframe are often the greatest driver of higher ADU construction costs)
Category B): Atherton has Total Control Over
B.1) “Red Tape”:
- Atherton must understand all of the current bottlenecks, then document the issues & create a simple, rapid way to reduce all “Red Tape”
- This includes requirements by Atherton, San Mateo Co. & the State - Any increase in ADU construction unit volume may “overwhelm” the current process labyrinth of governmental (all levels) approvals & required site inspections - The current process is very lengthy & costly (all time delays are very expensive for the homeowner) & the impact on homeowners is not always apparent to the Town - Increased ADU construction volume with the same process may create a combination of additional delays & additional hiring of Gov’t staff at various levels Possible Solution:
- Hire/Contract an Atherton ADU “Ombudsman” (Reporting to the Council) to propose process improvements at all levels
- Start with those controlled by Atherton & move quickly to San Mateo County - The residents should not have to deal with a multitude of agencies/bureaucracies - If the process is too difficult, many residents just will not have the time or energy to complete the process!
- The Town Council & Town Staff may not see this as an issue, but many residents do B.2) The “Tree Protection Zones” & Reporting:
a) TPZ: The required 10x tree diameter distance to new construction requirement makes many Atherton lots “unbuildable” or “unsuitable” for a larger ADU - We all want to save our Heritage trees, but new foundation technology/processes will allow much less distance requirements & still maintain/improve the health of the trees
b) Monthly Arborist Report: The currently required monthly report by a certified arborist is both too costly and an “overreach”
- Arborists are hard to schedule & expensive
- The status of the TPZ can be more efficiently and effectively accomplished by the homeowner submitting time-stamped photos showing current conditions on the site - An arborist can them make a six-month report to the Town in the previous format

3 Possible Solutions:
a) TPZ Modifications:
- Work with an Arborist, Tree Services Company & Civil Engineering/Foundation technology expert to propose new techniques/technologies that can be verified to both reduce the distance minimums & maintain/improve tree health - Create a “Standard Process” that is clear & simple and does not require time consuming & expensive specific individual case “waivers” - A Specific Possible TPZ Solution: “Screw Piling Foundation” - A technology used widely in in many parts of the country uses metal screwed-in pilings that do not disturb the soil in large areas
- The foundation is then constructed on the screw pilings (slightly above the ground) & the tree roots are not disturbed & receive appropriate water, etc. b) Periodic Arborist Reports on the Status of the TPZ Protection: - - The status of the TPZ can more efficiently and effectively be accomplished by the homeowner submitting monthly time-stamped photos showing the current conditions on the site
- An arborist can them make a six-month report to the Town in the previous format that collaborates the TPZ status
- If the homeowner submits a monthly report showing any significant changes in the TPZ, the Town Arborist will review and make a site visit as appropriate B.3) ADU Sewage Connections:
- Apparently the current requirement is for the ADU to have its own dedicated sewage connection to the main sewage line in the street
- In some cases, the proposed ADU site is behind the main house and the main house is between the ADU and the main street sewage line
- In those cases, connecting the ADU to the main street sewage system can be prohibitively expensive
Possible Solution:
- With supporting analysis showing suitable sewage capacity in the main house’s system, ADU sewage connection via connection to the main house’s system should be allowed B.4) Cost & Time for ADU Design/Plan Approval:

4 - The final approval of a specific ADU design can take many negotiations and modifications & thus create significant time delays & architectural fees - The cost of a “bespoke” plan for an ADU can be significant - This combination of architect fees, uncertainty and delays in approval can be quite costly and disruptive to timely construction

Possible Solution:
- The Town accepts submission (for a fee) of “standard designs” of ADU’s that, after review, are “pre-approved” when suitably situated on a lot - Thus, the Town would have a catalog of ADU’s that have been approved for construction in Atherton & residents could choose one to construct – IF they wish - Residents can always choose to create their own bespoke plans to suit their goals

C) Atherton Has Some Control & Influence:

San Mateo RE Taxes:
- The current process is cumbersome & the homeowner’s final new RE tax is unknown until the construction is complete.
- Thus, many “long term” residents will have their San Mateo taxes more than double, but they don’t know the new annual Tax cost until completed & inspected. - Many residents (particularly those “retired”) are reluctant to lock-in future, longterm costs that are “unknown” before the decision is made.

Possible Solution:
- Atherton negotiates a “Blanket RE Tax Agreement” with San Mateo Co. for the calendar year that sets a new Tax rate per sq. ft..
- Thus, if your ADU is completed in that year, the homeowner is assured that they know the new tax by just multiplying their ADU sq. ft, times the negotiated rate. - The homeowner has “certainty” & can make an informed decision in advance - Better yet, the new tax rate should be calculated on the actual “Building cost per sq. ft.” & not the average home value in Atherton/sq. ft.

Note:
- This will require the Mayor & Town Council to work with other local towns to negotiate concepts & details with the County.

5 - In conversations with residents considering ADU’s in surrounding towns, these issues are prevalent in our general area. However, the “Tree Zone” issue is more prevalent in Atherton due to the large number of heritage trees that we all want to preserve.

In Summary, there are at least Six items the Town should specifically address:
1) Reducing the total concept-to-finished construction time by prudently streamlining the entire process
2) Reducing the TPZ process requirements while maintaining an appropriate high level of heritage tree protection
a) Reducing the TPZ distance requirement in the code to a lower number for newer, proven technologies
b) Reducing the number of arborist’s reports, but maintaining monthly updates 3) Allowing “merged” ADU/Main House sewage lines when proven adequate 4) Creating a “Library” of pre-approved ADU designs that residents can consider for their own construction
5) Negotiating with San Mateo County to create a “pre-determined” new Real Estate Tax rate that will be known in advance and accessed once the ADU is completed - That is, the resident knows their new tax rate in advance of starting the project &
6) Cancelling the Atherton ban on natural gas in new ADU construction buildings - The Ninth Circuit Court has overthrown the Berkeley ban on natural gas usage and it would be prudent for the Town to put its ban “On Hold” until all of the appeals and cases are resolved in the courts
- The Town has higher priorities than spending time and tax payer’s money on lawsuits with its own residents