AGENDA PACKET
Town of Atherton
City Council
SEPTEMBER 06, 2023
SPECIAL MEETING
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
ROLL CALL – Holland, DeGolia, Lewis, Vice Mayor HawkinsManuelian, Mayor Widmer 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.
CONSENT AGENDA
1. APPROVAL OF ADDITIONAL CHANGE ORDER AUTHORITY ASSOCIATED WITH THE ATHERTON RAIL STATION REHABILITATION PROJECT, PROJECT NUMBER 56285
Report: ROBERT OVADIA, PUBLIC WORKS DIRECTOR
Recommendation: It is recommended that the Council increase the City Manager’s change order authority for Atherton Rail Station Rehabilitation Project, Project Number 56085 by $30,000; and appropriate an additional $30,000 to the project.
Description: This is an action item requesting the Council approve the change order limit for the City Manager related to the rail station project.
SPECIAL MEETING ITEMS
2. REVIEW AND APPROVE THE TOWN OF ATHERTON’S RESPONSE TO THE SAN MATEO COUNTY CIVIL GRAND JURY REPORT: “ACCESSORY DWELLING Meeting Agenda Packet – September 06, 2023
NUMBER 56285
Report: ROBERT OVADIA, PUBLIC WORKS DIRECTOR
Recommendation: It is recommended that the Council increase the City Manager’s change order authority for Atherton Rail Station Rehabilitation Project, Project Number 56085 by $30,000; and appropriate an additional $30,000 to the project.
Description: This is an action item requesting the Council approve the change order limit for the City Manager related to the rail station project.
SPECIAL MEETING ITEMS
2. REVIEW AND APPROVE THE TOWN OF ATHERTON’S RESPONSE TO THE SAN MATEO COUNTY CIVIL GRAND JURY REPORT: “ACCESSORY DWELLING UNITS: AFFORDABLE HOUSING’S PANACEA OR PREVARICATION?”
Report: GEOFF BRADLEY, AICP, PRINCIPALINCHARGE, MGROUP Recommendation: The Town of Atherton staff recommends the City Council review the proposed draft response to the Civil Grand Jury Report titled “Accessory Dwelling Units:
Affordable Housing’s Panacea or Prevarication?” and provide direction as needed to finalize the response. Staff will revise and complete the response and submit by the submission date of September 11, 2023.
Description: This will be a discussion and action item for Council to review, consider, and approve responses to the Grand Jury Report.
3. PROVIDE FEEDBACK AND DIRECTION REGARDING A PROPOSED
ORDINANCE CLARIFYING MAINTENANCE RESPONSIBILITIES AND
LIABILITY OF PROPERTY ADJACENT TO PUBLIC RIGHTOFWAY
Report: ROBERT OVADIA, PUBLIC WORKS DIRECTOR
Recommendation: It is recommended that the Council review and provide feedback to staff regarding the proposed ordinance adding Section 12.06.030D and Chapter 12.10 to the Atherton Municipal Code ("AMC") to clarify the maintenance responsibilities of property owner's of adjacent sidewalks and public rightofway, as defined therein.
Description: This is item will be a Council discussion regarding a proposed Ordinance that will clarify maintenance responsibilities and liability for property adjacent to the public rightofway.
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.
Meeting Agenda Packet – September 06, 2023
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 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 – September 06, 2023
Item No. 1
Town of Atherton
CITY COUNCIL STAFF REPORT – CONSENT AGENDA
TO: HONORABLE MAYOR AND CITY COUNCIL
GEORGE RODERICKS, CITY MANAGER
FROM: ROBERT OVADIA, PUBLIC WORKS DIRECTOR
DATE: SEPTEMBER 6, 2023
SUBJECT: APPROVAL OF ADDITIONAL CHANGE ORDER AUTHORITY
ASSOCIATED WITH THE ATHERTON RAIL STATION
REHABILITATION PROJECT, PROJECT NUMBER 56285
RECOMMENDATION
It is recommended that the Council increase the City Manager’s change order authority for Atherton Rail Station Rehabilitation Project, Project Number 56085 by $30,000; and appropriate an additional $30,000 to the project.
BACKGROUND
The City Council awarded a construction contract to Castillo Plumbing of Hayward for the Atherton Rail Station Rehabilitation Project, in the amount of $302,000. At the time of award, the Council authorized change order authority up to $30,000 for the project.
This project consists of rehabilitation the existing wood framed structure for use as a train museum and rail history interpretive center as well as integrate the building with the new Town Center. The main elements of the scope include: Wood repair/replacement, roof repair, weatherization of the structure, electrical and mechanical improvements, exterior improvements, interior improvements, fixtures, furnishings and site improvements. The building will be enclosed with new doors added.
Site work includes restriping accessible parking, providing an accessible path from town center and from parking into building with limited landscape treatment along track side.
ANALYSIS
During the course of construction, there were a few issues that were discovered and additional requests by the Town that are leading to change orders for the project. Though final pricing and cost agreements have not yet been reached on these potential change order (PCO) items, based on the rough order of magnitude (ROM) costs provided by the contractor, the total cost of the items know to date exceed the change order authority granted by the Council at the time of award. These item and their rough costs are listed and further described below:
Atherton Train Station Project
SEPTEMBER 6, 2023
5 8
5 PCO # and Description ROM
PCO #1 – Relocation of the station clock $4,618
PCO #2 – Additional concrete demolition and replacement $6,650 PCO#3 – Column, rafter & substrate Replacement $10,150
PCO#4 – Roof access panel additional framing $2,497
PCO#5 – Clay roof $28,000
Total $51,915
PCO #1 – Relocation of the station clock
This item was requested by the Town and includes the relocation of the clock from the Fair Oaks Lane side of the station building to the front landscape area, including a new foundation to support the clock and replacement of an approximately 2-foot x 2-foot concrete section and cutting of anchor rods for the existing clock.
PCO #2 – Additional concrete demolition and replacement This item includes the removal and replacement of approximately 214 sf of concrete along and adjacent to the accessible pathway from the parking area to the station entry. This item has been approved at $30/sf and is required for ADA compliant access and nearby transitions.
PCO#3 – Column, rafter & substrate Replacement
The contractor is seeking additional compensation for needed repairs associated with the columns, rafters and slat roof substrate. Though staff and the architect believe that these are predominantly included in the project scope, this item is listed as it may lead to a claim or change order after a more detailed investigation.
PCO#4 – Roof access panel additional framing
In opening the roof access panel location, it was discovered that there is a joist and roof truss that run through the location. A chord member of the roof truss will need to be relocated and additional framing may be required to box around the access area. This is a required change as part of the remodel.
PCO#5 – Clay roof
In starting the cleaning of the existing clay roof tiles, the contractor noted several areas where water was coming into the attic space and structure. Additionally, there were locations of water damage at the interface between the clay roof and flat roof areas. Though some roof repair was included in the project (tile replacement), the watertightness of the clay roof as a whole is in question.
The contractor will not warrantee the roofing with areas of watertightness in question. The intent is to remove the existing clay tiles, repair any damaged sheathing, either hot-mop or heavy roofing fabric for water tightness, reinstall the existing roof tiles and supplement as needed with replacement tiles. It is important to note that as the hip and corner roof tiles were cemented in, and that they will most likely need to be replaced. The ornamental nature of the corner pieces are unique and are no longer available. An effort to obtain something similar will be made. Formal
Atherton Train Station Project
SEPTEMBER 6, 2023
5 8
5 pricing on this item is pending quotation by a roofer. Staff recommends this be done to ensure that the roof does not leak in the future.
FISCAL IMPACT
The project has been allocated a total of $430,000 in the Capital Improvement Program, funded predominantly through a Measure A grant pursuant to the Memorandum of Understanding with Caltrain. An additional allocation of $30,000 is requested to fund the additional contingencies associated with construction. Absent the waterproofing issues associated with the roofing, the project would have been within the authorized allowance of $30,000.
The original project award was for $332,000 inclusive of $30,000 in change order allowance. Prior to construction there was approximately $96,000 spent on planning and design. All funds beyond the $400,000 from the Measure A Caltrain grant are from the Town’s Unallocated General Fund Balance. With the additional $30,000 in change order request, the total project cost to complete the building interior and exterior (not include artifacts and/or technology displays) would be approximately $458,000.
GOAL ALIGNMENT
This Report and its contents are in alignment with the following Council Policy Goals:
• Goal Area A – Maintain Fiscal Responsibility
• Goal Area B – Preserve Small Town Character and Quality of Life • Goal Area F – Be Forward-Thinking, Well-Managed, and Well-Planned
POLICY FOCUS
The Council policy focus should be on the integration of the station building into the Town Center and implementing required repairs to the building.
PUBLIC NOTICE
Public notification was achieved by posting the agenda, with this agenda item being listed, at least 72 hours prior to the meeting in print and electronically. Information about the project is also disseminated via the Town’s electronic News Flash and Atherton Online. There are approximately 1,200 subscribers to the Town’s electronic News Flash publications. Subscribers include residents as well as stakeholders –to include, but be not limited to, media outlets, school districts, Menlo Park Fire Protection District, service provides (water, power, and sewer), and regional elected officials.
COMMISSION/COMMITTEE FEEDBACK/REFERRAL
This item has not been before a Town Committee or Commission
Atherton Train Station Project
SEPTEMBER 6, 2023
5 8
5 ATTACHMENTS
1. Rough order of magnitude costs for potential change orders
Following submittal of the ROM for the roofing, the Contractor advised that pricing would be closer $28,000+.
Item No. 2
Town of Atherton
CITY COUNCIL STAFF REPORT – ACTION ITEM
TO: HONORABLE MAYOR AND CITY COUNCIL
GEORGE RODERICKS, CITY MANAGER
FROM: GEOFF BRADLEY, AICP, PRINCIPAL-IN-CHARGE, M-GROUP
BRITTANY BENDIX, TOWN PLANNER AND HOUSING
ELEMENT PROJECT MANAGER, M-GROUP
DATE: SEPTEMBER 6, 2023
SUBJECT: REVIEW AND APPROVE THE TOWN OF ATHERTON’S
RESPONSE TO THE SAN MATEO COUNTY CIVIL GRAND JURY
REPORT: “ACCESSORY DWELLING UNITS: AFFORDABLE
HOUSING’S PANACEA OR PREVARICATION?”
RECOMMENDATION
The Town of Atherton staff recommends the City Council review the proposed draft response to the Civil Grand Jury Report titled “Accessory Dwelling Units: Affordable Housing’s Panacea or Prevarication?” and provide direction as needed to finalize the response. Staff will revise and complete the response and submit by the submission date of September 11, 2023.
BACKGROUND
On June 12, 2023, the San Mateo County Civil Grand Jury (SMCCGJ) released its report “Accessory Dwelling Units: Affordable Housing’s Panacea or Prevarication?” (Report). The Report describes items that worsen housing affordability in the County, and provides notable findings from interviews and research, including recommendations to address these findings.
Pursuant to Penal Code Section 933.05, the Town of Atherton is required to provide a response to all findings and recommendations of SMCCGJ reports.
GOAL ALIGNMENT
This Report and its contents are in alignment with the following Council Policy Goals:
• Goal Area F – Be Forward-Thinking, Well-Managed, and Well-Planned
POLICY FOCUS
Grandy Jury Report - ADU
SEPTEMBER 6, 2023
5 8
4 The Grand Jury requires that the Town respond to the findings and recommendations in the report.
Staff has provided responses for the City Council’s consideration.
PUBLIC NOTICE
Public notification was achieved by posting the agenda, with this agenda item being listed, at least 72 hours prior to the meeting in print and electronically. Information about the project is also disseminated via the Town’s electronic News Flash and Atherton Online. There are approximately 1,400 subscribers to the Town’s electronic News Flash publications. Subscribers include residents as well as stakeholders –to include, but be not limited to, media outlets, school districts, Menlo Park Fire Protection District, service provides (water, power, and sewer), and regional elected officials.
COMMISSION/COMMITTEE FEEDBACK/REFERRAL
This item has not been before a Town Committee or Commission
ATTACHMENTS
1. Atherton Civil Grand Jury Response
2. San Mateo County Grand Jury Report 2022-2023
Town of Atherton
Report to Town Council
From: George Rodericks, City Manager 09/06/2023
Subject: Review and Approve the Town’s Response to the San Mateo County Civil Grand Jury Report: “Accessory Dwelling Units: Affordable Housing’s Panacea or Prevarication?” Recommendation
The Town of Atherton staff recommends the City Council review the proposed draft response to the Civil Grand Jury Report titled “Accessory Dwelling Units: Affordable Housing’s Panacea or Prevarication?” and provide direction as needed to finalize the response. Staff will revise and complete the response and submit it by the submission date of September 11, 2023.
San Mateo County Civil Grand Jury & Report – Town of Atherton Response On June 12, 2023, the San Mateo County Civil Grand Jury (SMCCGJ) released its report “Accessory Dwelling Units: Affordable Housing’s Panacea or Prevarication?” (Report). The Report describes items that worsen housing affordability in the County, and provides notable findings from interviews and research, including recommendations to address these findings. Pursuant to Penal Code Section 933.05, the Town of Atherton is required to provide a response to all findings and recommendations of SMCCGJ reports. The Town welcomes the opportunity to address and clarify all items directly and hopes to create a transparent dialogue amongst all jurisdictions within San Mateo County.
For your convenience, the Town of Atherton’s response includes:
• Background on the State of Housing in California & San Mateo County • Atherton Response to Issues
• Atherton Response to Findings
• Atherton Response to Recommendations
Background on the State of Housing in California & San Mateo County The State of California through its Department of Housing and Community Development (HCD) seeks to increase the number of available housing options for Californians across all income segments, focusing on affordability and specialized needs. One of HCD’s most important enforcement mechanisms for State housing mandates is the Housing Element iterative process.
Through this process, local jurisdictions submit evidence regarding progress made in meeting their assigned Regional Housing Needs Allocation (RHNA), submit proposals regarding the creation of public programs, providing additional background information about extenuating factors that prevent them from meeting certain goals (if applicable), provide projections regarding potential development of sites, and address other critical items relevant to the overall fairness and equity with regard to the availability and production of housing in their local communities.
Each jurisdiction’s RHNA is assigned by their Council of Government, which in Atherton’s case is the Association of Bay Area Governments (ABAG). Per the Report, ABAG considers each jurisdiction’s existing circumstances including “population, employment potential, proximity to transportation centers, open space, inclusivity, and diversification” (see Report page 3) when assigning RHNA numbers.
To meet these RHNA housing goals and other commitments to affordable housing, each city and town must use a variety of strategies and/or prove extenuating circumstances that dictate certain aspects of the strategy. This includes but is not limited to the development of ADUs.
Again, as mentioned by the SMCCGJ throughout the Report, the State has made a significant push to streamline and encourage the production of ADUs, likely due to the positive impact that increasing ADU production in historically Single-Family properties would have on the availability of housing stock. The SMCCGJ cited sources in the Report1 which confirm the positive impact this would have, specifically, allowing infill development of ADU units in Single-Family zones.
Atherton Response: Issues
In addition to addressing the Findings and Recommendations, the Town of Atherton seeks to address three issues mentioned in their Report. The Town seeks to clarify and provide additional information for these items. The Town will also directly address each Finding and Recommendation in subsequent sections. The issues in the Report are provided in italics followed by the Town’s response.
Issue 1. The San Mateo County Civil Grand Jury states that HCD does not regulate whether housing reported as low-income is used as low-income after it is actually developed. Further, their Report states San Mateo County jurisdictions, including Atherton, do not monitor or verify ADU affordability.
The San Mateo County Civil Grand Jury asserts in the Report that despite good intentions, the State does not include any regulation to ensure units reported as low-income are used as low-income. The Town of Atherton disagrees.
The Report acknowledges while HCD mandates all California jurisdictions create programs to monitor and verify ADU affordability every two years, affordable ADU housing is created but not used as lowincome. The Report implies this is because HCD does not specify how jurisdictions must prove ADUs are occupied by very low-, low- or moderate-income households. The Report also mentions that jurisdictions have yet to work with local independent agencies such as HIP Housing to track and verify the affordability of ADUs’ affordability and occupancy.
Atherton is a jurisdiction that is currently in the process of complying with Housing Element mandates.
HCD permits flexibility that allows local government agencies to build programs that can be implemented realistically given the character and circumstances present in each individual community.
Further, as the Report states (see Report page 11), HCD has not certified Atherton’s Housing Element Update, in part, because its affordable ADU program did not describe how affordability would be established. HCD requested that the program be revised to clarify actions to establish and track affordability. While HCD has left the finer points of verifying and tracking affordability to the Town of Atherton, the Town has a vested interest in meeting its Housing goals and has chosen to draft and 1*ADU-Equity-August-2022-Final.pdf (berkeley.edu), “ADUs for All: Breaking Down Barriers to Racial and Economic Equity in Accessory Dwelling Unit Construction,” UC Berkeley Center for Community Innovation - August 2022
implement a realistic and holistic housing strategy that, subject to HCD approval, focuses on maximizing the existing land uses to create an environment that allows affordable housing to be created throughout the entire community.
Issue 2. ADUs can exacerbate patterns of segregation and exclusion if left unregulated.
The Town agrees that ADUs, if left unregulated, can potentially worsen patterns of segregation and exclusion because homeowners tend to rent to family and friends. This is especially true in jurisdictions with a high level of segregation, such as Atherton. To both improve integration and mitigate the risk of ADUs worsening segregation, the Town’s 6th Cycle Housing Element Update has proposed strategies to ensure housing is set aside for the very-low, low- and moderate-income segments which historically have predominantly affected people of color.
For example, a program has been proposed that would institute the following:
• An impact fee that would fund a rental assistance subsidy for low-income units, as well as • Another program implementing the adoption of an inclusionary housing ordinance that will mandate that a certain number of units within new multi-family developments include affordable units.
There would also be zoning code amendments that would rezone certain areas to allow for these small multi-family units. The Town has already planned a program to work with HIP Housing, and any other similar agencies and non-profits, to make it easier for current and potential landlords to find and screen prospective lower-income tenants to rent their ADUs to. Further, the Town has also developed proposed educational programs to increase residents’ awareness of available resources and thus increase the likelihood of ADUs being developed.
Atherton seeks to remove as many barriers as possible to ensure that ADU production not only increases, but also mitigates historic patterns of segregation and exclusion. The Town plans to use a combination of ADUs, rental subsidies, educational programs, extensive community outreach and other strategies to raise awareness.
Issue 3. The San Mateo County Civil Grand Jury Report states that counting ADUs as affordable housing will likely result in cities issuing permits for fewer deed-restricted very-low, low-, and moderate-income apartments and homes.
The Report states that for “every ADU included in a Housing Element – regardless of whether the ADU is built and rented to very low-, low-, or moderate-income tenants – one verifiable, deed-restricted affordable housing unit will not be built in that jurisdiction by a developer.” We disagree with this statement.
The Town believes the barriers to building deed-restricted affordable housing, and affordable housing generally, turns on more than just a single variable, i.e., whether ADUs have been included as part of a jurisdiction’s strategy. Atherton believes that affordable housing must take into consideration the jurisdiction’s current land uses, political climate, current socioeconomic and racial demographics, and other important factors to determine the best path forward towards actual development of affordable housing.
The Town believes ADU’s play a critical role in easing the affordable housing crisis as part of a larger, thoughtful strategy, not as a lone panacea. It is widely agreed, and supported by studies/reports2, that “ADUs have many social, economic, and environmental benefits that can positively impact a local community and economy.”
The Town of Atherton sees ADUs as a critical component of a holistic housing approach that, when used in conjunction with other strategies (such as those already mentioned above - government subsidies, educational programs to demystify the permitting process, outreach programs, etc.), can produce actual improvement in the Town’s housing availability and affordability.
It is also worth reaffirming that each jurisdiction must meet its RHNA goals within the confines of its existing circumstances. These extenuating circumstances vary greatly from jurisdiction to jurisdiction and likely are at least in part why State law and HCD allows jurisdictions the flexibility to determine the details of how to meet their goals. The State must regulate every jurisdiction’s compliance with housing law, but wisely realizes it does not possess familiarity with the nuanced details of each jurisdiction (such as the current state of land uses, political climate, community sentiments, and local developer interest in building affordable housing).
In the Town of Atherton’s case, its most significant issues revolve around existing land use. There are no multi-family land uses, commercial or industrial uses in Atherton. There are eight schools, three of which are private. Another significant barrier to construction of affordable housing in the jurisdiction is the high cost of land. The current estimated cost of a developed acre is $7 - 8 million dollars. Given that ADUs are more cost-effective to construct than new multi-family housing, this provides additional support for ADUs as affordable housing.
Given these circumstances, when planning and drafting housing strategies to meet the assigned RHNA for its sixth cycle Housing Element Update, the most viable, cost-effective, and realistic strategy involves a high percentage of ADUs. The Town of Atherton has not and did not draft its housing strategy with the intent to rely solely on ADUs, rather the existing circumstances of the area dictated that the housing strategy must involve a high number of ADUs.
The Town of Atherton disagrees with comments made by the report that say, “just because the law makes it possible to count ADUs as affordable housing, it does not exempt cities and towns from credibly planning for badly needed affordable housing.” The Town of Atherton and its staff have made significant good faith efforts to host workshops to notify and include community members of the current state of housing and the need to improve and increase housing availability and affordability. The Town has also directed staff to develop the programs mentioned to address housing affordability in a manner that realistically meets the RHNA goals assigned.
The Town agrees that no jurisdiction should be allowed to evade its responsibility to plan and create more opportunities for affordable housing development. However, Atherton also believes in the programs it has proposed and welcomes the opportunity to continue to improve housing affordability and availability in our local community and San Mateo County. 2*ADU-Equity-August-2022-Final.pdf (berkeley.edu), “ADUs for All: Breaking Down Barriers to Racial and Economic Equity in Accessory Dwelling Unit Construction,” UC Berkeley Center for Community Innovation - August 2022
Atherton Response: Findings
Below, conforming with the requirements set forth by Penal Code Section 933.05, the Town of Atherton addresses each finding and recommendation. The findings in the Report are provided in italics followed by the Town’s response.
Finding F1. Due to recent changes in California ADU-related laws, local governments cannot condition ADU permits in San Mateo County on complying with affordability monitoring and verification.
The Town of Atherton partially disagrees with this finding. The Town agrees the State has passed legislation that requires the ministerial review and issuance of a permit for the development of an ADU if certain requirements are met. However, Atherton believes the finding should be presented within the context of legislative intent. It is our understanding that the intent is to streamline the permitting process for homeowners, decrease the costs of developing ADUs, and overall make building an ADU more accessible across all racial and socioeconomic groups.
By improving the costs and demystifying the process, the likelihood of these units being placed on the market as affordable housing units increases. In one of the sources cited by the Report3, barriers to ADUs being offered as affordable housing options are identified. Namely, the high cost of construction and fees, confusion surrounding the complexity of the permitting process, educational, proactive outreach to educate about ADU development resources and processes, public financing options, among others. These barriers tend to disproportionately affect people of color and low-income households. In addition to this clarification, Atherton also agrees with the Town of Woodside, that it would be possible to condition permits for ADUs that do not meet prescribed criteria.
Finding F2. San Mateo County and most of its municipalities rely on ADUs to meet their affordable housing commitments in their RHNA-6 plans.
The Town of Atherton partially disagrees with this finding. The Town has developed its housing policies and programs to meet its 6th cycle Housing Element Update requirements using a holistic and inclusive approach. The Town agrees that ADUs are a key portion of its affordable housing strategy. However, the Town is also considering multi-family housing and zoning program, the implementation of a rent subsidy program for low-income households, a program that involves working with HIP Housing, a local nonprofit, to streamline screening and referrals of low-income tenants for ADU landlords, in addition to the use of ADUs as infill development to maximize the current overwhelming single-family land uses.
While the current proposed 6th cycle Housing Element Update is still in development and pending certification by HCD, the Town welcomes HCD’s feedback and will continue to work collaboratively to achieve certification. Finally, the Town of Atherton cannot speak for other San Mateo County jurisdictions regarding their housing strategy or whether their programs and policies have been certified by HCD.
3 *ADU-Equity-August-2022-Final.pdf (berkeley.edu), “ADUs for All: Breaking Down Barriers to Racial and Economic Equity in Accessory Dwelling Unit Construction,” UC Berkeley Center for Community Innovation - August 2022
Finding F3. Atherton, Hillsborough, Portola Valley, and Woodside rely on ADUs to meet as much as 80 percent of their affordable housing commitments in their RHNA-6 plans.
The Town of Atherton partially disagrees with this finding. Atherton believes housing strategies are unique and crafted to each jurisdiction’s needs and should be viewed within proper context. The Town’s 6 th cycle Housing Element Update proposes ADUs, multi-family housing, rent subsidies, educational programs and outreach, and other policies to meet its affordable housing commitments.
The existing limitations of the jurisdiction dictate that Atherton includes a strong commitment to infill development in the form of ADUs. The Town agrees that it’s housing strategy uses ADUs to meet at least 80% of its affordable housing commitments but seeks to reaffirm that the strategy was and continues to be developed in good faith to maximize the realistic development of new housing, which would likely improve overall housing affordability within Atherton and regionally.
Finding F4. HCD has instructed San Mateo County jurisdictions to monitor and verify future ADU production and affordability every two years but has yet to specify how to verify whether very low-, lowor moderate-income households are occupying the ADUs as planned.
The Town of Atherton partially disagrees with this finding. The Town agrees that HCD has indicated that it must address how ADU production and affordability will be monitored. The Town also agrees the State has not taken an overly prescriptive approach regarding the methods used to track and verify affordability. That said, as cited by the Report, HCD has made it clear in correspondence with Town staff that it must provide details about the actions that will be taken to establish and track affordability.
Atherton believes that the flexibility provided by HCD to local jurisdictions has an overall positive impact on the effectiveness of housing policies and programs. Further, the Town of Atherton had proposed to work with HIP Housing, and agencies like it, to help landlords find and screen tenants low-income tenants. The Town is also open to discussing and supporting a regional ADU monitoring effort through ABAG or 21Elements, which is a long-standing collaborative effort amongst San Mateo County jurisdictions.
Finding F5. Other than Brisbane and Redwood City, San Mateo County and its jurisdictions have yet to articulate how they will monitor and verify ADU production or affordability.
The Town of Atherton partially disagrees with this. The Town of Atherton agrees that it has not yet achieved certification and therefore has not yet had the opportunity to solidify additional details about its ADU income verification and tracking programs. The Town, however, has had the opportunity to correspond with HCD who have provided feedback. Atherton and its staff plan on implementing this feedback to strengthen and clarify the details of relevant programs. Again, the Town of Atherton has already been working with the HIP Housing non-profit to assist local landlords in finding and screening low-income tenants and is open to exploring other options such as the regional ADU monitoring effort.
Finding F6. Without effective ADU monitoring and verification, it will be impossible to evaluate whether the jurisdictions are meeting their RHNA-6 obligations for low-, very-low, and moderate-income housing units.
The Town of Atherton agrees with this finding. The Town supports effective ADU monitoring and verification. As mentioned in previous response, Atherton has already been working with the HIP Housing non-profit to assist local landlords in finding and screening lower-income tenants, and is open to exploring other options such as the regional ADU monitoring effort.
Finding F7. ADU affordability and occupancy could be monitored by agencies such as HIP Housing which has proven systems and processes to verify occupancy of deed-restricted rental properties in San Mateo County.
The Town of Atherton partially disagrees with this finding. Atherton agrees that HIP Housing and other similar non-profits are equipped to verify occupancy of deed-restricted rental properties in San Mateo County. However, the Town cannot verify whether they have the capacity to monitor the affordability of all ADUs in San Mateo County.
Atherton Response: Recommendations
Recommendation R1. San Mateo County and each City should immediately stop using ADUs to meet their State-mandated very low-, low-, and moderate-income housing targets in their Housing Element submissions until they have also proposed an effective monitoring system that verifies how newly developed ADU’s will be used.
The Town of Atherton will not implement this recommendation because it is untenable and would likely have a significant negative impact on the actual development of affordable housing in the jurisdiction.
The Town seeks to meet its affordable housing commitments, including but not limited to the verification of all its affordable housing units.
The Town is currently actively working with HCD to develop an effective program to track and verify the affordable housing units within its jurisdiction over the 6th cycle Housing Element period for this reason.
Atherton believes prohibiting the use of any ADUs in its current 6th cycle Housing Element, in the middle of its discussions with HCD to strengthen its ADU programs is counterproductive and would require Town staff to re-write a Housing Element from the ground up. Further, the San Mateo County Civil Grand Jury in its Report highlighted it’s worry that jurisdictions did not have sufficient staff to draft, develop and revise their 6th cycle Housing Element Updates; a prohibition of this magnitude would severely exacerbate staff workload and would not produce the equitable results the Civil Grand Jury seeks. As mentioned prior, this type of recommendation ignores the qualities and characteristics of each jurisdiction.
Recommendation R2. By February 1, 2024, San Mateo County and each City should develop, adopt, and implement a verification system capable of monitoring and verifying how newly developed ADU’s are being used.
A portion of this recommendation is currently being implemented and while the verification protocol and policy undergoes revision. The Town of Atherton is actively working to strengthen its verification and monitoring systems of ADUs for its 6th cycle Housing Element Update. The Town has not yet solidified these protocols but has already implemented a portion of these programs. The Town has issued surveys to homeowners who are currently building or have built an ADU to track affordability.
The Town of Atherton agrees it is important to monitor and verify its affordable housing stock, including ADUs. Atherton also agrees with the Town of Woodside’s point that “engaging with and verifying the incomes of an [increasing] number of homeowners and residents every year in perpetuity would neither be practical nor cost-effective.”
Recommendation R3. By February 1, 2024, San Mateo County and each City should develop and adopt incentives for ADU owners which could be offered in exchange for deed restrictions that would include requirements for ADU tenants to participate in independent monitoring.
The Town of Atherton has implemented this recommendation and is currently exploring methods to expand on this option. The Town has plans to implement an inclusionary zoning ordinance that will require a minimum of 20% of any new multi-family units to be affordable to lower-income households.
Atherton supports the creation of a regional non-profit that would offer resources and other incentives on behalf of the Town and other jurisdictions to increase the production of affordable ADUs in exchange for a formal agreement to rent at rate affordable to lower-income households.
Recommendation R4. By February 1, 2024, San Mateo County and each City should track the intended use of ADUs – rented or non-rented – during the permitting process and offer incentives in exchange for deed restrictions that require ADUs to be used as rentals.
Part of this recommendation is already being implemented. The Town of Atherton already has a program in place which tracks the intended use of ADUs via a voluntary survey. The Town will continue to explore additional incentives to increase ADU production and their placement on the rental market, including but not limited to offering incentives in exchange for deed restrictions that require ADUs be used as rentals. Atherton also supports the creation of a regional non-profit that would offer resources and other incentives on behalf of the Town and other jurisdictions to increase the production of affordable ADUs in exchange for a formal agreement to rent at rate affordable to lower-income households. The Town of Atherton continues to work with HCD to revise and strengthen its 6th cycle Housing Element Update to achieve certification, including revising its ADU program.
Recommendation R5. By April 1, 2024, San Mateo County and each City should develop and adopt a new ADU affordability distribution formula specific to each jurisdiction to the extent they are used for meeting the very low-, low-, and moderate-income housing requirements in their RHNA housing elements.
This recommendation requires additional review and research. It will not be implemented unless any new ADU affordability distribution formula accounts for the nuances of each jurisdiction’s circumstances.
We also agree with the Town of Woodside’s statement that “the recommended affordability distribution of 30-30-30-10 includes a significant cushion on the more affordable end of the distribution to decrease the likelihood that jurisdictions u[sing] [it], might accidentally underproduce the amount of affordable housing projected.” The Town will look into alternative fair distribution formulas and consider whether appropriate and necessary in the jurisdiction given its circumstances.
Recommendation R6. San Mateo County and each City should consider working together to address Recommendations 2 and 3.
The Town of Atherton plans to implement this recommendation and continues to work collaboratively with San Mateo County.
Please feel free to contact City Manager George Rodericks at 650-752-0504 or [email protected] should you have any questions.
Best,
George Rodericks
City Manager, Town of Atherton
Accessory Dwelling Units:
Affordable Housing’s Panacea or Prevarication?
Release Date: June 12, 2023
2022-2023 San Mateo County Grand Jury
2022-2023 San Mateo County Civil Grand Jury 1
“You can always count on Americans to do the right thing – after they’ve tried everything else.” Winston Churchill
“Every man must decide whether he will walk in the light of creative altruism or in the darkness of destructive selfishness.” Martin Luther King, Jr.
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ISSUE
Are some San Mateo County communities misusing Accessory Dwelling Units (ADUs) to avoid the construction of multifamily low-income housing over the next eight years?
SUMMARY
Anointed the “epicenter of America’s housing dysfunction” by Harvard Business Review this year, the San Francisco Bay Area has faced an acute housing shortage at all levels for decades, especially for those who have the least.
And it is no longer news that many of the workers that San Mateo County communities depend upon daily – first responders, teachers, nurses, city employees, gardeners, and housekeepers, to name just a few – cannot afford a decent place to live and raise their families close to their jobs.
To address the issue, the State Legislature in 1969 passed the Housing Element Law, which says all California cities, towns, and counties, every eight years, must plan for the housing needs of all their residents regardless of income, which effectively requires development of affordable housing. Many changes and additions have been made to the law over the years, most recently eliminating zoning restrictions governing ADUs – small homes or apartments that share a single-family lot of a larger primary residence – and allowing communities to count them as affordable housing in their Regional Housing Needs Allocation (RHNA) plans.
At issue:
● Although their intentions have been good, the State has neglected to include any form of regulation to ensure low-income tenants ultimately use these ADUs as planned. ● Because owners often rent their ADUs to family and friends, they can exacerbate patterns of segregation and exclusion.1
● And perhaps most importantly – counting ADUs as affordable housing will likely result in cities issuing permits for fewer deed-restricted low-, very low-, and moderate-income apartments and homes.
Without accountability through oversight and regulations, low-, very low-, and moderate-income housing now planned in some San Mateo County jurisdictions may end up existing solely on paper and never in operation.
This problem is most acute in Atherton, Hillsborough, Portola Valley, and Woodside, where some residents are up in arms over the State-mandated housing requirements, and the city governments, trying to appease them, are proposing counting on ADUs to meet as much as 80 percent of their affordable housing targets.
1 Association of Bay Area Governments, “Final Regional Housing Needs Allocation (RHNA) Plan, San Francisco Bay Area, 2023-2031”, accessed May 27, 2023, https://abag.ca.gov/sites/default/files/documents/2021- 12/Final_RHNA_Allocation_Report_2023-2031-approved_0.pdf
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Assembly Bill 72 (2017) gives the California Department of Housing and Community Development (HCD) enforcement capability on local government’s land use, planning, and zoning requirements. In the current RHNA-6 (2023-2031) planning cycle, HCD demands that San Mateo County jurisdictions monitor and verify ADU affordability every two years. However, HCD has not specified how to prove the ADUs are rented to very low-, low- or moderate-income households, leaving it to the communities to find a solution.
So far, jurisdictions have yet to do so, even though local independent agencies such as HIP Housing have systems and services in place, which they use to verify affordability of deed-restricted affordable housing, and that could be adapted Countywide to monitor and verify ADUs’ affordability and occupancy in a manner that adheres to fair housing guidelines.
California needs to build 2.5 million homes by 2030 to meet current housing demands, according to the HCD. But the State averages only about 125,000 new homes annually – a shortfall by nearly two-thirds.
ADUs can, indeed, provide affordable housing. And to many citizens of affluent communities, they are an appealing alternative to multi-family, deed-restricted affordable housing projects. However, just because the law makes it possible to count ADUs as affordable housing, it does not exempt cities and towns from credibly planning for badly needed affordable housing.
BACKGROUND
One of the State’s long-standing priorities has been to increase the availability of affordable housing for all economic segments.
HCD – the California Department of Housing and Community Development – focuses on making this happen by working with local jurisdictions to create rental and homeownership opportunities for all Californians, including individuals and families who are experiencing homelessness.
Beginning in 1969, the State mandated that all California cities, towns, and counties must plan for the housing needs of all Californians, regardless of income. They meet this mandate by developing and updating a Housing Element, part of a local jurisdiction’s General Plan, which shows where they will allow new housing and describes the policies and strategies necessary to support building new housing.
The process of updating the Housing Element involves HCD working with various Councils of Governments (COG) to develop a RHNA plan that includes the Regional Housing Needs Determination (RHND), which assigns the number of housing units that each county and city are expected to facilitate being built in the subsequent eight years to accommodate projected growth.
In the case of the Bay Area, this Council of Governments is the Association of Bay Area Governments (ABAG), which represents all nine Bay Area counties, including San Mateo County and its 20 cities and towns. Components that ABAG considers in determining each Bay Area county’s and city’s allocation of housing units include population, employment potential, proximity to transportation centers, open space, inclusivity, and diversification, all of which are becoming increasingly important to the State, according to ABAG reports.
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Multiple bills in both houses of the State Legislature have been proposed over the years to change the process and increase the amount of State control over housing development. Particularly significant changes occurred during the 2017 legislative session when senators and assembly members proposed approximately 150 housing bills. That year the Governor ultimately signed a package of 15 bills related to funding for housing, streamlining development approvals, and increasing accountability for meeting the requirements of the Housing Element Law. These included bills that significantly changed the RHNA process, requiring additional outreach and reporting, modifying how to calculate the RHND to reflect unmet housing needs better, increasing the number of topics to be considered in the allocation methodology, and giving HCD, on behalf of the State, the ability to sue individual counties or cities for not meeting requirements.
Updating the Housing Element every eight years is an iterative process involving HCD, the regional COGs, the State Department of Finance (DOF), and local jurisdictions. (See Appendix D.) But the ultimate authority for approval of the RHNA, the RHND, and the associated Housing Elements resides with HCD.
The current approved RHNA plan developed by ABAG is known as RHNA-6, which spans 2023 to 2031.
HCD requires each jurisdiction to submit its completed Housing Element for review and approval by a specific date. For RHNA-6, the due date for San Mateo County and its cities was January 31, 2023.
Before the due date, the jurisdictions were able to send their draft Housing Elements to HCD for preliminary review and comments and make necessary modifications that HCD highlights. Any jurisdiction which fails to meet the deadline for submission of their completed Housing Element is subject to a potential “builders remedy” action that forces a city to allow building projects regardless of whether they meet most of the local zoning restrictions.
Once Housing Elements are approved, HCD monitors the progress of approved RHNA plans by requiring each jurisdiction to report its building permit activities annually. If progress is below expectations, the jurisdiction must develop alternative strategies for review and approval by HCD.
During the RHNA-5 (2015-2023) progress reviews submissions, cities began including ADUs as part of the overall housing inventory in their annual reports because State legislation (Government Code section 65852.150) that became effective in January 2017 stated that ADUs are a valuable form of housing in California, which also "provide housing for family members, students, the elderly, in-home health care providers, the disabled, and others, at below market prices within existing neighborhoods." Numerous Senate and Assembly bills were enacted in 2018 and 2020, requiring local jurisdictions to streamline and allow for ease of ADU production to increase housing for all income categories. With these encouragements, ADUs being deemed a viable housing option, and facing stringent RHNA-6 requirements of approximately three times more housing units than in the RHNA-5 cycle, a few affluent San Mateo cities have proposed using ADUs to satisfy most of their plans to meet the required number of housing units in the various income categories.
“ADUs are not a panacea, but they’re a good tool in the toolbox,” said a planning consultant working for a San Mateo County city. “Most land on The Peninsula is single-family homes. ADUs are opening land that was not open before. But higher density housing near transit is better.”
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Added a city manager: “I think they (ADUs) are a piece of the solution, but not all of it. I think ADUs are an important way to provide opportunities for other things – where people want multigenerational living onsite, for caretakers, or other folks – they can reside in an ADU even if they’re not paying rent.”
DISCUSSION
While HCD-approved RHNA Housing Elements do not require the cities and counties to build affordable housing, the jurisdictions must adjust zoning ordinances, issue permits to allow construction of affordable housing, and initiate programs that incentivize such construction.
However, as shown in Chart 1 below, significant portions of San Mateo County's affordable housing in RHNA-5 (2015-2023) plans did not materialize – most likely due to a lack of permit applications.
With RHNA-5’s significantly lower targets, the less-than-expected performance during the RHNA-5 cycle foreshadows the enormous challenge the County’s cities and towns now face in meeting the RHNA-6 goals for the next eight years, which are approximately three times larger, as shown in Chart 2 below.
Chart 1: RHNA-5 Affordable Housing Required vs. Permitted
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Chart 2: RHNA-5 Affordable Housing Allocations vs RHNA-6 Besides increasing affordable housing targets by nearly 300 percent, the State has made other significant changes in the ADU laws to address the current housing crunch.
Law Year Impact
AB671 2019 Through Housing Elements, HCD to promote ADUs for affordable rent AB670 2019 Any local covenants and restrictions on new housing are void AB587 2019 Deed-restricted sale of ADU is allowed separately from the main house AB 68 2019 Removes local restrictions on minimum size, requirement of owner occupancy, parking requirements for garage conversion, and any impact fee.
AB 3182 2020 Permitting process within 60 days
SB9 2021 Facilitates lot split and allows more than1 ADU per property AB 345 2021 Allows owners to sell ADUs separately
AB 2221 2023 Pre-specific time permit frame for approval of ADU applications SB 897 2023 Increases the ADU height limit to 18’ and allows retro permitting of previous unauthorized ADUs.
The net effect of these changes was to minimize municipal-level regulations on ADUs – such as parking requirements, property line setbacks, height limits, or the number of ADUs on one property – and make
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ADUs an acceptable means to meet affordable housing obligations. Given these changes, namely high mandatory targets for affordable housing, enthusiastic support by the State of ADUs as affordable housing, and requiring zero land use rezoning for ADUs, nearly all San Mateo County cities and towns include ADUs in their RHNA-6 Housing Elements.
The issue, however, is that for every ADU included in a Housing Element – regardless of whether the ADU is built and rented to very low-, low-, or moderate-income tenants – one verifiable, deed-restricted affordable housing unit will not be built in that jurisdiction by a developer.
So, How Did We Get Here?
California cities and counties can now use ADUs to help satisfy their RHNA requirements. But calculating how many ADUs to put into a Housing Element and how to distribute them into each income category, differ from other housing options.
ABAG instructs San Mateo County jurisdictions that the standard method is first to estimate the number of ADUs that homeowners will build in a planning period, which is 2023 through 2031 for RHNA-6.
In its technical memo “Using ADUs to Satisfy RHNA,” ABAG advises members that the estimate should be based on the average number of ADU building permits issued each year, multiplied by eight, because there are eight years in a housing element cycle.
“Most cities base their determination of annual ADU permits by averaging the building permits approved each year since 2019 when State law made it easier to construct the units,” the technical memo explains:
“There is a small amount of flexibility in the calculations,” the memo continues. “If numbers were low in 2019 but were high in 2020, 2021, and 2022, a jurisdiction could potentially use 2020-2022 as the baseline. This rationale would be bolstered if there was a logical explanation for the change, e.g., the jurisdiction further loosened regulations in 2020. Projecting a higher number of ADUs than what has been demonstrated through permit approvals in recent years may be possible, but more challenging. A slightly larger number may be warranted if a robust, funded, and clear plan to increase production has been put in place. However, you are strongly encouraged to coordinate with HCD before deviating from the standard methodology.”
Once cities complete their estimate, they must distribute those units into each income category.
To help its members, ABAG analyzed ADU affordability. Using data from a 2020 statewide survey of homeowners who had constructed ADUs in 2018 or 2019, ABAG concluded that the assumptions in the chart below are generally applicable in most jurisdictions. Many Bay Area jurisdictions chose to use these numbers instead of conducting their own affordability analysis.
Percent Income Category
30% Very Low Income
30% Low Income
30% Moderate Income
10% Above Moderate
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“UC Berkeley Terner Center did a statewide survey of ADU affordability, and they worked with ABAG to adjust it for the Bay Area specifically,” said a San Mateo County planner. “So those (numbers) are based on surveys and data analysis of actual ADUs that have been produced, and the rents that are being offered to tenants. We are just accepting their analysis as is.” San Mateo County jurisdictions have almost unanimously adopted ABAG’s 30-30-30-10 formula.
However, a 2021 report and recommendations for RHNA-6 prepared by ABAG’s Housing Technical Assistance Team, titled “DRAFT Affordability of Accessory Dwelling Units,” says that although ADUs are often affordable, jurisdictions should be cautious about relying on them too heavily because of fair housing concerns:
“Many ADUs are affordable to lower and moderate-income households because they are rented to family and friends of the homeowners,” the report states. “If minorities are underrepresented among homeowners, the families and potentially friends of the homeowners will be primarily white. Therefore, relying too heavily on ADUs could inadvertently exacerbate patterns of segregation and exclusion.” The report also acknowledges that ADUs often do not serve large families, another critical fair housing concern.
And while ADUs accomplish an essential fair housing goal by adding new homes in parts of the municipality that are more likely to be areas of opportunity, the report recommends that jurisdictions with fair housing concerns "may want to use more conservative assumptions based on open market rentals, excluding units made available to family and friends," as summarized below:
Percent Income Category
5% Very Low Income
30% Low Income
50% Moderate Income
15% Above Moderate
So far, 16 San Mateo County cities have chosen the 30-30-30-10 formula, implying there are no fair housing concerns in their jurisdictions.
Only two cities – San Carlos and San Mateo – use ABAG’s more conservative formula of 5-30-50-15 in their plans. One city – Belmont – used its own judgment.2 And one – Colma – does not use ADUs in their plans at all to meet State requirements.
But in all cases, these statistical estimates may not reflect the actual usage of constructed ADUs.
Determining that would require actual verification by each local jurisdiction.
2 City of Belmont, “General Housing Element Draft 2023-2031”, p. 25, accessed May 27, 2023, https://www.belmont.gov/home/showpublisheddocument/21721/637968613354630000
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ADUs planned in RHNA-6
(May 11, 2023)
City Very Low Low Moderate Above
Moderate
Total ADUs Total
RHNA-6
Requirement
Atherton 56 56 56 112 280 348
Belmont 0 0 80 0 80 1785
Brisbane 12 12 12 4 40 1588
Burlingame 50 50 50 17 167 3257
Colma - - - - 0 202
Daly City 151 151 151 50 503 4838
East Palo Alto 35 34 34 12 115 829
Foster City 7 7 7 3 24 1896
Hillsborough 84 84 84 28 280 554
Menlo Park 26 25 26 8 85 2946
Millbrae 34 34 33 11 112 2199
Pacifica 56 56 56 19 187 1892
Portola Valley 28 28 28 8 92 253
Redwood City 152 152 152 50 506 4588
San Bruno 72 72 72 24 240 3165
San Carlos 10 61 102 30 203 2735
San Mateo 22 132 220 66 440 7015
South San
Francisco
113 113 113 38 377 3956
Unincorporated
San Mateo
107 107 107 36 357 2833
Woodside 36 36 36 12 120 328
(This table includes all San Mateo County jurisdictions that have submitted Housing Element plans to HCD for review. As of June 1, 2023, Half Moon Bay and Daly City have not submitted RHNA-6 plans for HCD review.) Accordingly, if HCD approves cities and towns' current Housing Elements, San Mateo County may end up with many affordable housing units that exist only on paper because they are counted as affordable units by the State but never made available or occupied by people who need affordable housing:
“BMR (below market rate) unit displacement is a legitimate issue,” said a city planning consultant. “RHNA looks at (the number of) units, not the number of people being housed. For the State, they’re all counted the same – an ADU or three-bedroom apartment, five vs. one or two people. In the eyes of the State, they’re all the same.”
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Finally, the cities and towns relying primarily on ADUs to meet their RHNA-6 housing targets do not meet the overall objectives required by HCD and RHNA of:
● Increasing the housing supply and mix of housing types, tenure, and affordability ● Promoting infill development and socioeconomic equity, protecting environmental and agricultural resources, and encouraging efficient development patterns ● Promoting an improved intraregional relationship between jobs and housing ● Balancing disproportionate household income distributions ● Affirmatively furthering fair housing
Housing and Community Development Pushes Back
Four San Mateo County municipalities – Atherton, Hillsborough, Portola Valley, and Woodside – rely heavily on ADUs to meet low-income housing requirements in their RHNA-6 Housing Elements.
May 17, 2023
While HCD does not single out those four cities for their heavy reliance on ADUs to meet their affordable housing needs, throughout the process of submission and review of draft RHNA-6 plans, HCD consistently instructed San Mateo County cities and towns that they must monitor and verify ADU production and affordability at least every two years but has not specified an acceptable process for verifying the affordability level of ADUs as planned.
Should San Mateo County and its cities seek outside help on this issue, there are a handful of independent non-profit agencies and for-profit real estate management companies operating today in the Bay Area that have established systems and processes for monitoring and verifying rented occupied housing for continued affordability and adherence to fair housing guidelines while maintaining tenant and owner privacy – which was an issue continually raised by City Managers and other officials during Grand Jury interviews.
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
ADUs as Percent of RHNA6 Affordable Housing
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ADU Affordability Monitoring Emphasized in HCD Review Letters to Jurisdictions Atherton (4-4-23)
Program 3.812 (New Construction of Affordable Accessory Dwelling Units): While the element was revised to include timing of each action, it is unclear how affordability will be established. The program should be revised to clarify actions to establish and track affordability.
East Palo Alto (4-25-23)
Accessory Dwelling Units (ADU): As noted in the prior review, the element should include a program that commits to frequent monitoring (every other year) for production and affordability, and specific commitment to adopt alternative measures such as rezoning or amending the element within a specific time (e.g., six months) as needed.
Foster City (4-24-23)
Program H-D-4-h (ADU Monitoring): While the program commits to evaluating alternative actions by the end of 2026, it must commit to specific alternative actions and monitor production and affordability of ADUs more than once in the planning period (e.g., every two years).
Hillsborough (1-10-23
This analysis should specifically address whether the ADU strategy to accommodate lower-income households contributes to continued exclusion and disparities in access to opportunity and how the strategy promotes housing choice for a variety of households including lower-income households, and large families.
To support assumptions for ADUs in the planning period, the element should reduce the number of ADUs assumed per year and reconcile trends with HCD records, including additional information such as more recent permitted units and inquiries, resources and incentives, other relevant factors, and modify policies and programs as appropriate. Further, programs should commit to additional incentives and strategies, frequent monitoring (every other year), and specific commitment to adopt alternative measures such as rezoning or amending the element within a specific time (e.g., six months) if ADU production assumptions are not being achieved.
Millbrae (1-24-23)
Accessory Dwelling Units (ADU): To support assumptions for ADUs in the planning period, programs should commit to additional incentives and strategies, frequent monitoring (every other year) of production and affordability and specific commitment to adopt alternative measures such as rezoning or amending the element within a specific time (e.g., 6 months) if needed.
Depending on the analysis, the element must commit to monitor ADU production and affordability throughout the planning period and implement additional actions if not meeting target numbers within a specified time period (e.g., within six months).
Redwood City (7-8-22)
Programs must be expanded to include incentives to promote the creation and affordability of Accessory Dwelling Units (ADUs).
Examples include exploring and pursuing funding, modifying development standards and reducing fees beyond State law, increasing awareness, pre-approved plans and homeowner/applicant assistance tools. In addition, given the city’s assumptions for ADUs, the element should include a program to monitor permitted ADUs and affordability every other year and take appropriate action such as adjusting assumptions or rezoning within a specified time period (e.g., 6 months).
San Bruno (3-29-23)
Accessory Dwelling Units (ADU): While the element revised the ADU assumptions, Program 4-P must be revised to commit to additional incentives and strategies, frequent monitoring (every other year) and specific commitment to adopt alternative measures such as rezoning or amending the element within a specific time (e.g., 6 months) if needed. The element must also address affordability assumptions for ADU projections.
San Mateo (3-27-23)
Accessory Dwelling Units (ADU): Program 1.4 must commit to also monitoring affordability of the ADU units that are permitted as well as provide additional incentives or identify additional sites if production and affordability assumptions are not met.
County of San Mateo (4-20-23)
Accessory Dwelling Units (ADU): Further, programs should commit to additional incentives and strategies, frequent monitoring for production and affordability (every other year) and specific commitment to adopt alternative measures such as rezoning or amending the element within a specific time (e.g., 6 months) if needed. The element must also address affordability assumptions for ADU projections, by clarifying what ABAG assumptions are utilized.
South San Francisco (3-30-23)
The element should include a commitment to reconcile trends with reported units within the Cities submitted annual progress report. Further, as Stated in the previous review, programs should commit to additional incentives and strategies, frequent monitoring (every other year) and specific commitment to adopt alternative measures such as rezoning or amending the element within a specific time (e.g., six months) if number and affordability assumptions are not met.
Woodside (10-14-22)
Depending on the analysis, the element must commit to monitor ADU production and affordability throughout the planning period and implement additional actions if not meeting target numbers within a specified time period (e.g., within six months).
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In their HCD approved housing plans, Brisbane and Redwood City aren’t definitive about how they will monitor ADU affordability but imply they will use surveys to comply with HCD instructions.
Redwood City plans to collect ADU rental data during its permitting process. And Brisbane says, if available, it will participate in a regional forgivable ADU construction loan program in exchange for limiting rentals of the ADUs to extremely low-income households for 15 years. Brisbane said it is also exploring a possible city forgivable loan program if the regional program doesn’t materialize. “We can’t force people to report to us or to be honest with us,” said one jurisdiction’s planner.
Another city’s chief planner concluded that a deed restriction – any limitation on a property that affects the ability of the property owner to utilize the property as they wish, such as a requirement to verify a tenant’s income and rent charged – “is the best way to (enforce) affordability.” Alternatively, one city planning official suggested the formation of a Countywide nonprofit to income-qualify and match renters to available ADUs, thereby monitoring and enforcing affordability because the smaller towns and cities don't have the resources to perform that function on their own.
Finally, a fourth city planner offered an alternative view: “We’re not a city hiding behind ADUs. ABAG gave us a formula. We plopped it in. If the State said you can’t count ADUs at all, that would be fine.” A Long, Long Way to Go
The Superior Court of California requires all San Mateo County Civil Grand Jury investigation reports to be completed and published by June 30 annually.
And although the law required San Mateo County cities and towns to submit their housing plans by January 31, 2023, as of June 1, Daly City has yet to adopt and submit a draft plan to HCD for review and approval.
Meanwhile, plans from Foster City, Half Moon Bay, Millbrae and Pacifica are now under HCD review.
So far, HCD has reviewed and rejected plans from 14 jurisdictions: Atherton, Belmont, Burlingame, Colma, East Palo Alto, Hillsborough, Menlo Park, Portola Valley, San Bruno, San Carlos, San Mateo, South San Francisco, Woodside, and San Mateo County, which is responsible for unincorporated areas.
As of the publication of this report, only Redwood City and Brisbane had completed the process and received the green light from HCD to proceed.
One reason cited for the delay is most San Mateo County cities and towns don’t have a large enough staff to manage the workload that RHNA planning represents, so they outsource. And many could not find timely help because the consultants were busy preparing RHNA-6 plans for Southern California cities, which were due before San Mateo County municipalities. That caused many communities here to fall behind and are now out of compliance with the timing of their Housing Element submissions.
These delays, coupled with citizen objections to multifamily housing in their communities, almost guarantee RHNA-6 disputes will end up in the courts and remain unresolved for many years to come and postpone the building of sorely needed affordable housing indefinitely.
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FINDINGS
F1. Due to recent changes in California ADU-related laws, local governments cannot condition ADU permits in San Mateo County on complying with affordability monitoring and verification.
F2. San Mateo County and most of its municipalities rely on ADUs to meet their affordable housing commitments in their RHNA-6 plans.
F3. Atherton, Hillsborough, Portola Valley, and Woodside rely on ADUs to meet as much as 80 percent of their affordable housing commitments in their RHNA-6 plans.
F4. HCD has instructed San Mateo County jurisdictions to monitor and verify future ADU production and affordability every two years but has yet to specify how to verify whether very low-, low- or moderate-income households are occupying the ADUs as planned.
F5. Other than Brisbane and Redwood City, San Mateo County and its jurisdictions have yet to articulate how they will monitor and verify ADU production or affordability.
F6. Without effective ADU monitoring and verification, it will be impossible to evaluate whether the jurisdictions are meeting their RHNA-6 obligations for low-, very-low, and moderate-income housing units.
F7. ADU affordability and occupancy could be monitored by agencies such as HIP Housing which has proven systems and processes to verify occupancy of deed-restricted rental properties in San Mateo County.
RECOMMENDATIONS
R1. San Mateo County and each City should immediately stop using ADUs to meet their Statemandated very low-, low-, and moderate-income housing targets in their Housing Element submissions until they have also proposed an effective monitoring system that verifies how newly developed ADU’s will be used.
R2. By February 1, 2024, San Mateo County and each City should develop, adopt, and implement a verification system capable of monitoring and verifying how newly developed ADU’s are being used.
R3. By February 1, 2024, San Mateo County and each City should develop and adopt incentives for ADU owners which could be offered in exchange for deed restrictions that would include requirements for ADU tenants to participate in independent monitoring.
R4. By February 1, 2024, San Mateo County and each City should track the intended use of ADUs – rented or non-rented – during the permitting process and offer incentives in exchange for deed restrictions that require ADUs to be used as rentals.
R5. By April 1, 2024, San Mateo County and each City should develop and adopt a new ADU affordability distribution formula specific to each jurisdiction to the extent they are used for meeting the very low-, low-, and moderate-income housing requirements in their RHNA housing elements.
R6. San Mateo County and each City should consider working together to address Recommendations 2 and 3.
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REQUEST FOR RESPONSES
Pursuant to Penal Code Section 933.05, the Civil Grand Jury requests responses from San Mateo County and all 20 cities’ governing bodies for each and every Finding and Recommendation.
The governing bodies should be aware that their comments or responses must be conducted subject to the Brown Act's notice, agenda, and open meeting requirements.
RESPONSE REQUIREMENTS
California Penal Code Section 933.05 provides: For purposes of subdivision of Section 933, as to each Grand Jury finding, the responding person or entity shall report one of the following:
(1) The respondent agrees with the finding.
(2) The respondent disagrees wholly or partially with the finding; in which case the response shall specify the portion of the disputed finding and shall include an explanation of the reasons.
For purposes of subdivision of Section 933, as to each Grand Jury recommendation, the responding person or entity shall report one of the following actions:
(1) The recommendation has been implemented, with a summary regarding the implemented action. (2) The recommendation has yet to be implemented but will be implemented in the future, with a timeframe for implementation.
(3) The recommendation requires further analysis, with an explanation and the scope and parameters of an analysis or study and a timeframe for the matter to be prepared for discussion by the officer or head of the agency or department being investigated or reviewed, including the governing body of the public agency when applicable. This time frame shall be at most six months from the Grand Jury report's publication date.
(4) The recommendation will not be implemented because it is not warranted or is not reasonable, with an explanation therefore.
METHODOLOGY
The San Mateo County Civil Grand Jury used numerous approaches to develop this report. ● Preliminary Research
The Grand Jury studied RHNA-5 historical information and RHNA-6 Housing Elements submitted to HCD by the cities and towns in San Mateo County as they became available.
Before conducting in-depth research, the Grand Jury studied ABAG's reports on RHNA-6 housing allocations, introducing numerous issues and a means to understand how jurisdictions establish housing allocations. Additionally, the Grand Jury reviewed a 2021 ABAG report on ADU affordability for RHNA-6 and RHNA-5 annual progress reports to understand history.
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The Grand Jury also reviewed a report on ADUs titled “A Solution on the Ground: Assessing the Feasibility of Second Units in Unincorporated San Mateo County, Implementing the Backyard Revolution: Perspectives of California's ADU Owners,” April 22, 2021, Karen Chapple, Dori Ganetsos, Emmanuel Lopez, UC Berkeley Center for Community Innovation.
An additional resource for Preliminary Research has been the press. Particularly following the January 31, 2023 deadline for RHNA-6 submissions, nearly 60 articles provided insights and analysis the Grand Jury could not find elsewhere.
For a complete list of sources, see the Bibliography below. ● Survey
After conducting its Preliminary Research, the Grand Jury sent an eight-question survey in October 2022 to the city managers of the 20 San Mateo County cities and towns and the San Mateo County planning and building department responsible for the County's unincorporated areas.
See Appendix A for survey results.
● Interviews
Much of the time spent by the Grand Jury on this investigation was in more than 30 interviews with 21 city managers and planning managers, five heads of nonprofit housing entities in San Mateo County, and executives at ABAG, HCD, and several other government bodies. ● Continued Research
Because RHNA-6 submissions and HCD replies are ongoing, the Grand Jury has continued to monitor the status of RHNA-6 submissions and HCD responses.
This report reflects submissions received prior to the report's due date of June 30, 2023.
GLOSSARY
Accessory Dwelling Units (ADUs)
An accessory dwelling unit (ADU) is a legal and regulatory term for a secondary house or apartment that shares the building lot of a larger primary home. The unit is often used to provide additional income through rent or to house a family member. For example, an elderly parent could live in a small unit and avoid having to move to an assisted living facility. (Source: Investopedia) Affordable Housing: Very Low Income; Low Income; Moderate Income; Above Moderate Income Affordable housing is generally defined as housing on which the occupant is paying no more than 30 percent of gross income for housing costs, including utilities. (Source: www.hud.gov)
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Association of Bay Area Governments (ABAG)
The Association of Bay Area Governments (ABAG) is the Council of Governments (COG) for the ninecounty Bay Area. One of California’s earliest COGs, ABAG was founded to protect regional assets from State control. ABAG continues to serve the Bay Area by providing a regional venue for collaboration and problem-solving. ABAG’s work program includes management over key regional assets, such as the San Francisco Estuary and the Bay Trail Project. It also offers a variety of cost-effective member services programs such as Pooled Liability Assurance Network (PLAN) Corporation (offering affordable liability, property insurance, claims management, risk management, and bond coverage to 30 municipalities) and financial services (offering tax-exempt capital financing for the acquisition, construction, and rehabilitation of affordable multifamily housing, health care facilities, schools, and other community facilities). ABAG POWER Natural Gas Pool conducts pooled purchasing of natural gas on behalf of 38 local governments and special districts. ABAG is also the COG that allocates the regional housing needs assessment (RHNA). (Source: CALCOG)
Below Market Rate (BMR)
A BMR unit is a housing unit that is priced to be affordable to households that are of moderate income or below. These housing units are often built by local government, nonprofits, or as a requirement of the developer (Inclusionary Affordable Housing Ordinance). As a result, these homes have certain deed restrictions recorded on the property, ensuring the home remains affordable for future generations. (Source: County of San Mateo)
California Department of Finance (DOF)
The California Department of Finance is a state cabinet-level agency within the government of California.
The Department of Finance is responsible for preparing, explaining, and administering the state's annual financial plan, which the Governor of California is required under the California Constitution to present by January 10 of each year to the public. The Department of Finance's other duties include analyzing the budgets of proposed laws in the California State Legislature, creating, and monitoring current and future economic forecasts of the state, estimating population demographics and enrollment projections, and maintaining the state's accounting and financial reporting systems.
California Department of Housing and Community Development (HCD) The California Department of Housing and Community Development (HCD) develops housing policy and building codes (i.e., the California Building Standards Code), regulates manufactured homes and mobile home parks, and administers housing finance, economic development, and community development programs. (Source: https://www.hcd.ca.gov/about-hcd)
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Council of Governments (COG)
Councils of Governments (COGs) are voluntary associations representing member local governments, mainly cities, and counties, that seek to provide cooperative planning, coordination, and technical assistance on issues of mutual concern that cross jurisdictional lines. (Source: WRCOG) Deed Restrictions
A deed restriction is a term widely used in real estate to refer to any limitation on a property that limits the ability of the property owner to utilize the property as they wish. (Source: CA Realty Training) General Plan
State law requires every city and county in California to prepare a General Plan for its future growth and development. A General Plan covers land use, transportation, housing, open space, natural resources, and public services. Local General Plans have been mandatory in California since the 1950s. State law also requires the cities and counties to periodically update their General Plans in response to changing conditions. Each General Plan includes maps expressing the community's vision of how and where it will grow and change. The General Plan typically has a time horizon of about 20 years. Once a General Plan is adopted, it is used by the City Council, local commissions, and City Staff as they make day-to-day decisions about the community's future. (Source: City of San Rafael) Housing Element
Since 1969, California has required that all local governments (cities and counties) adequately plan to meet the housing needs of everyone in the community. California's local governments meet this requirement by adopting housing plans as part of their General Plan (also required by the State). General Plans serve as the local government's blueprint for how the city or county will grow and develop and include eight elements: land use, transportation, conservation, noise, open space, safety, environmental justice, and housing. California's Housing Element Law acknowledges that, for the private market to address Californians' housing needs and demand, local governments must adopt plans and regulatory systems that provide opportunities for (and do not unduly constrain) housing development. As a result, housing policy in California rests mainly on the effective implementation of local General Plans and, in particular, local Housing Elements. (Source: California Department of Housing and Community Development)
Jurisdiction (city, town, or county)
1: the power, right, or authority to interpret and apply the law; a matter that falls within the court’s jurisdiction
2: a: the authority of a sovereign power to govern or legislate b: the power or right to exercise authority: CONTROL
3: the limits or territory within which authority may be exercised (Source: Merriam-Webster) Regional Housing Needs Allocation (RHNA)
Every eight years, ABAG develops the Regional Housing Needs Allocation (RHNA) plan approved by HCD and used to assign each city and county in the Bay Area their fair share of new housing units to build. These housing units are intended to accommodate existing needs and projected growth in the region. The RHNA process is critical because it requires all cities and counties to plan for the region's housing needs, regardless of income, to prepare for future growth and ease the California's acute housing crisis. (Source: ABAG)
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Regional Housing Needs Determination (RHND)
The California Department of Housing and Community Development (HCD) identifies the total number of homes each region in California must plan to meet the housing needs of people at all income levels. They base the number on population projections produced by the California Department of Finance and adjustments incorporating the region's current housing needs. The jurisdictions separate the total number of housing units from HCD into four income categories that cover everything from housing for very lowincome households to market-rate housing. ABAG is responsible for developing a methodology to allocate a portion of this housing need to every local government in the Bay Area. (Source: ABAG)
BIBLIOGRAPHY
Government Agencies
● Department of Housing and Urban Development Office of Policy Development and Research. “U.S Accessory Dwelling Units: Case Study”. https://www.huduser.gov/portal/publications/adu.pdf. June 2008
● U.S. Department of Housing and Urban Development. “Glossary of Terms to Affordable Housing”. https://archives.hud.gov/local/nv/goodstories/2006-04-06glos.cfm. August 18, 2011 ● Department of Housing and Community Development Division of Housing Policy. “ADU Law Amendments Memorandum”. https://www.hcd.ca.gov/community-development/housingelement/housing-element-memos/docs/Accessory-Dwelling-Unit-Legislation.pdf. May 29, 2018 ● California Legislative Information. “Assembly Bill No. 68”. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB68. 2019-2020 ● OpenStates. “California Senate Bill SB 13”. https://openStates.org/ca/bills/20192020/SB13/. 2019- 2020
● 21 Elements. “Second Units and Junior Second Units”. http://www.21elements.com/second-units. 2020
● Department of Housing and Community Development Division of Housing Policy. “Local Agency Accessory Dwelling Units, Memorandum”. https://www.hcd.ca.gov/community-development/housingelement/docs/ADU_TA_Memo_Final_01-10-20.pdf. January 10, 2020 ● Department of Housing and Community Development Division of Housing Policy. “Final Regional Housing Need Determination”. https://www.hcd.ca.gov/community-development/housingelement/docs/ABAGRHNA-Final060920(r).pdf. June 9, 2020 ● Association of Bay Area Governments. “Housing Element Law. Changes from 1969 to the Present”. https://abag.ca.gov/sites/default/files/rhna_background.pdf. August 1, 2020 ● California Legislative Information. “Assembly Bill No. 3182”. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB3182. September 28, 2020
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● Southern California Association of Governments. “SCAG Regional Accessory Dwelling Unit Affordability Analysis”. https://scag.ca.gov/sites/main/files/fileattachments/adu_affordability_analysis_120120v2.pdf?1606868527. December 1, 2020 ● Association of Bay Area Governments. “DRAFT Affordability of Accessory Dwelling Units”. http://21elements.com/documents-mainmenu-3/housing-elements/rhna-6-2022-2030/1327-draft-aduaffordability-report-sep-8-2021-1/file. September 8, 2021 ● California Legislative Information. “Assembly Bill No. 345”. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB345. September 28, 2021
● Association of Bay Area Governments. “Using ADUs to Satisfy RHNA”. https://abag.ca.gov/technicalassistance/using-adus-satisfy-rhna. March 10, 2022 ● Auditor of the State of California. “Regional Housing Needs Assessments”. https://www.auditor.ca.gov/pdfs/reports/2021-125.pdf. March 17, 2022 ● California Department of Housing and Community Development. “Accessory Dwelling Unit Handbook”. https://www.hcd.ca.gov/sites/default/files/2022-07/ADUHandbookUpdate.pdf. July 2022 ● Association of Bay Area Governments. “Final Regional Housing Needs Allocation (RHNA) Plan: San Francisco Bay Area, 2023-2031”. https://abag.ca.gov/sites/default/files/documents/2022- 12/Final%20RHNA%20Methodology%20Report%202023-2031_update_11-22.pdf. November 2022 ● State of California Department of Justice. “Attorney General Bonta Puts city of Huntington Beach on Notice That Its Proposed Ordinance Violates State Housing Law”. https://oag.ca.gov/news/pressreleases/attorney-general-bonta-puts-city-huntington-beach-notice-its-proposed-ordinance. February 13, 2023
● Department of Housing and Community Development Division of Housing Policy Development. “RE:
Town of Atherton’s 6th Cycle (2023-2031) Adopted Housing Element”. https://www.dropbox.com/home/Grand%20Jury%202022%20-%202023/Committees/ADUs/ADU%20- %20research%20materials/Housing%20Elements/Pending?preview=Atherton_HCD_Letter40423.pdf.
April 4, 2023
Grand Jury Reports
● San Mateo County Civil Grand Jury. “Second Units: Adding New Housing In The Neighborhood”. https://www.sanmateocourt.org/documents/grand_jury/2019/second_units.pdf. 2019-2020 Independent Agencies
● UC Berkeley. “A Solution on the Ground: Assessing the Feasibility of Second Units in Unincorporated San Mateo County”. https://smcrecovery.org/wp-content/uploads/2021/08/UC-Report-on-ADUfeasability.pdf. January 2017 ● Ramsey-Musolf, Darrel. “Accessory Dwelling Units as Low-Income Housing: California’s Faustian Bargain”. https://www.mdpi.com/2413-8851/2/3/89. September 18, 2018
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● AARP. “The ABCs of ADUs”. https://www.hcd.ca.gov/policy-research/docs/adu-guide-websingles.pdf. 2019 ● California YIMBY (Yes in My Back Yard). “AB 881”. https://cayimby.org/ab-881/. October 9, 2019 ● Center of Community Innovation. “The ADU Scorecard: Grading ADU Ordinances in California”. https://www.aducalifornia.org/wp-content/uploads/2020/02/ADU-Scorecard-InterimReport-200201-
1.pdf. February 1, 2020
● UC Berkeley Center for Community Innovation. “Implementing the Backyard Revolution: Perspectives of California’s ADU Owners”. https://www.aducalifornia.org/wpcontent/uploads/2021/04/Implementing-the-Backyard-Revolution.pdf. April 22, 2021 ● Terner Center for Housing Innovation, UC Berkely. “First Ever Statewide ADU Owner Survey Shows Growth, Room for Improvement”. https://ternercenter.berkeley.edu/blog/cci-adu-survey/. April 22, 2021
● University of California, Berkeley. “California ADU”. https://www.aducalifornia.org/. August 16, 2021 ● Colburn, Gregg. Aldern, Clayton. “Homelessness is a Housing Problem”. https://homelessnesshousingproblem.com/. 2021-2022
● Sumner, Scott. “California housing prices and homelessness”. https://www.econlib.org/californiahousing-prices-and-homelessness/. May 23, 2022 ● Williams, Paul. “Carving out a Path for Public Developers”. https://housingchronicle.substack.com/p/carving-out-a-path-for-public-developers. July 14, 2022 ● Terner Center for Housing Innovation, UC Berkeley. “ADUs for All: Breaking Down Barriers to Racial and Economic Equity in Accessory Dwelling Unit Construction”. https://ternercenter.berkeley.edu/research-and-policy/adu-equity-barriers/. August 4, 2022 ● Bertolet, Dan. “Washington Bill Would Boost In-Law Apartments Throughout the State”. https://www.sightline.org/2023/01/21/washington-bill-would-boost-in-law-apartments-throughout-theState/. January 21, 2021 ● Ohanian, Lee. “California’s Failed Soviet-Style Housing Mandates Should End Now”. https://www.hoover.org/research/californias-failed-soviet-style-housing-mandates-should-end-now.
February 7, 2023
● Hamilton, Emily. “Learning from Houston’s Townhouse Reforms”. https://www.mercatus.org/research/policy-briefs/learning-houstons-townhouse-reforms. April 11, 2023
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APPENDICES
● A: Survey Results
● B: Timeline of Important Legislative Events
● C: ADUs: An American Tradition
● D: Housing Elements Are an Iterative Process
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APPENDIX A
Survey Results
Who responded to the survey
Survey responses
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APPENDIX B
Timeline of Important Legislative Events
1. 1970 — the Legislature directed HCD to develop guidelines for housing element preparation on one and five year cycles. SB 1489 (Moscone), emphasized housing need, passed in 1971, and ABX 1 of 1971 established more standards. The California Housing Finance Agency (CalHFA), which also assisted communities in providing affordable housing, was created in 1975. The legislation authorized HCD to review local housing elements for conformity to its guidelines.
2. 1976 — Fair-share was added to the guidelines by HCD. The COGs are now given the responsibility by HCD to distribute shares of low-income and moderate-income housing. The local housing element had to include these income requirements — whether or not communities wanted them. HCD also was given responsibility to review local housing elements. Statewide hearings in 1977 brought out a number of positions on housing elements and HCD requirements.
3. Mid 1980’s — AB 2853 (Roos), provided for faster permit processing and higher densities, and allowed the housing element to meet State goals and be reviewed by HCD. COGs would continue to formulate the fair share for each community, but HCD had final approval of the numbers and each community was to revise its Housing Element every five years.
4. 1990s — Cities and counties looked at housing elements, if certified, as providing protection against lawsuits. In addition, this decade also created the concept of regional allocation “sharing burdens of lower- income households among geographic areas,” without mandated goals.
5. 1993 — The Senate Committee on Local Government held hearings on housing element progress and heard concerns that communities were not doing enough and that housing elements were despised by local governments. Bills changed the cycle timeframe, including AB 2172 (Hauser), SB 1703 (Costa) and SC 320 (Committee). Main topics for discussion by the Committee on Housing and Land Use hearings in 1995 were the housing allocations and the Department of Finance (DoF) projections. A common complaint was that the DoF projections were not complete enough for communities to develop appropriate allocations. The COGs projections also were criticized.
6. 1998 — AB 438 (Torlakson), allowing for the creation of sub-RHNA areas, looked at how housing units were counted. 2001 — SB 910 (Dunn) would have included imposing fines on jurisdictions not complying; and would have tied RHNA to transportation planning on a six year cycle. However, this bill did not pass. 2002 — SB 423 (Torlakson) created a jobs and housing balance incentive program, also known as Workforce Housing Incentive Program. In 2003, at HCD’s request, a working group of stakeholders met to make recommendations, which included:
● Develop more transparency in determining fair shares
● Clarify land inventories of building sites
● Ensure inventories were buildable
● Increase HCD review consistency of local elements
● Explore city self-certification
● Devise better housing element enforcement that would penalize non-compliance.
7. 2004 — AB 2348 (Mullin) clarified the relationship between the land inventory and adequate sites requirement, provided guidance on the content of adequate land inventory, and provided greater development certainty. AB 2158 (Lowenthal) revised the process for determining allocation from just
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DoF to include transportation planning numbers and created a review process.
8. 2005 — AB 1233 (Jones) assured that unmet need from previous RHNA cycles was added into the next cycle.
9. 2017 Housing Legislative Package
Approximately 150 housing bills were submitted in 2017. Fifteen relating to funding, streamlining and accountability, were signed by the governor. These bills significantly changed how RHNA is conducted, requiring additional outreach and reporting, increasing the number of factors included, and the ability of HCD to sue individual cities for not meeting requirements.
SB 2 (Atkins) Building Homes and Jobs Act is projected to generate hundreds of millions of dollars annually for affordable housing, supportive housing, emergency shelters, transitional housing, and other housing needs via a $75 to $225 recording fee on specified real estate documents.
SB 3 (Beall) Veterans and Affordable Housing Bond Act of 2018 places a $4 billion general obligation bond on the November 2018 ballot to fund affordable housing programs and the veterans homeownership program (CalVet).
SB 35 (Wiener) streamlines multifamily housing project approvals, at the request of a developer, in a city that fails to issue building permits for its share of the regional housing need by income category.
SB 35 city approval of a qualifying housing development on a qualifying site is a ministerial act, without need for CEQA review or public hearings.
AB 73 (Chiu) streamlines the housing approval process by allowing jurisdictions to create a housing sustainability district to complete upfront zoning and environmental review in order to receive incentive payments for development projects that are consistent with the ordinance.
SB 167 (Skinner), AB 678 (Bocanegra), and AB 1515 (Daly) are three measures that were amended late in the 2017 legislative session to incorporate changes to the Housing Accountability Act (HAA).
The HAA significantly limits the ability of a jurisdiction to deny an affordable or market-rate housing project that is consistent with existing planning and zoning requirements.
AB 1505 (Bloom) allows a jurisdiction to adopt an ordinance that requires a housing development to include a certain percentage of rental units affordable to and occupied by households with extremely low, very low, low or moderate income.
AB 879 (Grayson) expands upon existing law that requires, by April 1 of each year, general law cities and charter cities to send an annual report to their respective city councils, the State Office of Planning and Research (OPR) and HCD that includes information related to implementation of the General Plan.
AB 1397 (Low) makes numerous changes to how a jurisdiction establishes its housing element site inventory.
AB 72 (Santiago) provides HCD broad new authority to find a jurisdiction’s housing element out of substantial compliance if it determines that REGIONAL the jurisdiction fails to act in compliance with
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its housing element and allows HCD to refer violations of law to the attorney general.
10. 2018 — SB 828 (Wiener) changed the way HCD determines each region’s RHND, adding a number of new factors for consideration and accounting for “unmet need” in the existing housing stock by applying “adjustment factors” to a region’s total projected households, not just the incremental housing growth.
11. 2018 — AB 1771 (Bloom) and AB 686 (Santiago) strengthened the mandate for regions and local governments to combat discrimination, overcome historic patterns of segregation, and create equal access to opportunity through housing planning and decision-making, in other words, to “affirmatively further fair housing.” AB 1771 (Bloom) added to RHNA an enhanced focus on racial equity with an explicit mandate that COGs’ housing distribution plans affirmatively further fair housing and required COGs to survey jurisdictions on their fair housing activities, to identify regional barriers to furthering fair housing, and to recommend strategies or actions to overcome those barriers. AB 686 (Santiago) created a mandate that local jurisdictions plan and administer housing and community development programs and activities in a manner that affirmatively further fair housing.
12. 2019 — AB 1486 (Ting) strengthened the Surplus Lands Act (SLA), which requires that local agencies provide right of first refusal to affordable housing developers when disposing of surplus land by expanding the scope of land subject to the right of first refusal requirement, updating the mechanics of the surplus land disposal process, extending HCD’s enforcement mandate to include the SLA and establishing financial penalties for violation of the act.
AB 1487 (Chiu), authorized ABAG and MTC to place on the ballot regional housing measures to help fund affordable housing and established 3 REGIONAL HOUSING NEEDS ALLOCATION the Bay Area Regional Housing Authority. The 2019-20 State Budget also included significant new resources to support housing planning, including $250 million for local governments and COGs for planning activities. The Bay Area is receiving approximately $50 million in combined funds, split between ABAG and local jurisdictions.
SB 330 (Skinner) made further revisions to the HAA, establishing new criteria for housing approvals at the local level, including prohibiting a local agency from subjecting a project to new ordinances, rules or fees after an application is submitted and limiting the number of hearings on a project to five. The bill also prohibits a local agency from lowering the allowed residential density below that level in effect on January 1, 2018 in high rent, low-vacancy areas, as defined. The bill’s provisions sunset in five years.
AB-881, “Accessory dwelling units,” and AB-68, “Land use: accessory dwelling units”: Makes many of the current restrictions that cities place on ADUs obsolete. It also provides for a streamlined process for approvals.
These bills require permits for ADUs added to single-family and multifamily homes to be approved or denied faster. Current law permits these decisions to take 120 days, but this new law requires decisions within 60 days. These approvals or denials must be issued ministerially, so that way, there are fewer potential issues to encounter. Cities and counties may establish minimum and maximum ADU size requirements, but the maximum size cannot be less than 850 square feet for a one-bedroom ADU or 1,000 square feet for more than one bedroom.
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Most importantly, these bills prohibit any lot coverage, minimum lot size, etc. requirements that municipalities have. Cities have enacted these laws to have the effect of making it impossible to build an ADU. Cities cannot require the correction of nonconforming zoning conditions as part of the approval process.
SB-13 Accessory dwelling units are similar to AB-881 and AB-68 with a couple of significant differences. Before this bill, local agencies could require that the person applying for the ADU occupy either the primary residence or the proposed new structure. This bill exempts from these requirements all proposed ADUs until Jan. 1, 2025. Additionally, this bill removes the impact fee for ADUs smaller than 750 square feet. Even for ADUs larger than that, the impact fees assessed must correlate with the square footage of the primary residence.
SB-13 makes building ADUs cheaper and also removes an essential regulation. Now, landlords who rent their properties out can apply for an ADU for their rental properties.
AB-670, “Common interest developments: accessory dwelling units,” makes it easier for people within HOA complexes to construct ADUs. Specifically, it prevents banning or unreasonably restricting on single-family lots on the construction of these units. Presently, many HOAs have CCRs ("conditions, covenants and restrictions") that prevent people from building ADUs. HOAs may worry about the uniformity of the properties if one has an ADU on it, or they might be concerned that they don't know who is and who isn't renting from an ADU. Regardless, HOAs now need to have a way for people to construct ADUs if they so choose.
HOAs will likely challenge this bill, at least to some degree, in court, but for now, if you live in an HOA complex with single-family homes, you can construct an ADU.
AB-671, “Accessory dwelling units: incentives," requires that general plans incentivize homeowners in some way to construct these ADUs and make them available for low-to-moderate-income households to rent. While it doesn't specify what these incentives will be, it does require local agencies to think about financial incentives and construct a plan.
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APPENDIX C
ADUs: An American Tradition
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APPENDIX D
Housing Elements Are an Iterative Process
Item No. 3
Town of Atherton
CITY COUNCIL STAFF REPORT – STUDY SESSION
TO: HONORABLE MAYOR AND CITY COUNCIL
GEORGE RODERICKS, CITY MANAGER
FROM: ROBERT OVADIA, PUBLIC WORKS DIRECTOR
DATE: SEPTEMBER 6, 2023
SUBJECT: PROVIDE FEEDBACK AND DIRECTION REGARDING A
PROPOSED ORDINANCE CLARIFYING MAINTENANCE
RESPONSIBILITIES AND LIABILITY OF PROPERTY
ADJACENT TO PUBLIC RIGHT-OF-WAY
RECOMMENDATION
It is recommended that the Council review and provide feedback to staff regarding the proposed ordinance adding Section 12.06.030-D and Chapter 12.10 to the Atherton Municipal Code ("AMC") to clarify the maintenance responsibilities of property owner's of adjacent sidewalks and public right-of-way, as defined therein.
BACKGROUND
Chapter 8.20 of the AMC defines public nuisance and provides for nuisance abatement code enforcement on private property. For street frontage areas, the Town has historically used a combination of local law (Chapter 12.06 Encroachments) and state law (California Streets and Highways Code 5610) to pass along maintenance responsibilities and legal liability for street frontage areas to adjacent property owners. Street frontage areas are those portions of the public right-of-way between the property line and the paved street.
When the Town identifies an issue with the frontage area, the adjacent property owner is notified their frontage is in violation via Code Enforcement and they are required to bring it into compliance within a reasonable period of time, depending on the nature of the issue (i.e., trees, shrubs, sidewalks, irrigation, drainage, DG, etc.). In areas where there are sidewalks with uplifting, the Town has notified the property owners of the risk assessment and required them to grind such areas down or replace the sidewalk to eliminate the risk. Alternatively, they can pay the cost of the Town to do so as part of a sidewalk risk remediation program.
In the case of construction projects, the Town reviews plans for compliance with the encroachment ordinance for any frontage being improved. For any improvements placed in the right-of-way via an encroachment permit, the property owner is required to obtain a revocable permit that passes
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6 on all liability and a responsibility for maintenance of those improvements to the property owner.
Each year, Town staff receives numerous complaints regarding frontage maintenance issues ranging from weeds, ruts, and depressions to sidewalk trip hazards and blocked access routes and visibility issues due to tree limbs and shrubbery, downed trees, or deteriorated pavement or other surface treatments. Due to the limited funds available to the Town for the maintenance of streets, the Town does not have the resources to take on the maintenance obligations for all these deficiencies in the right-of-way. The Town currently only maintains trees in the Town Center, the Park, and selected areas of the Town (i.e., medians, ECR, Middlefield Road, etc.) where the Town has taken over responsibility for tree maintenance along major thoroughfares. Most of the lot frontages throughout Town remain the responsibility of the adjacent property owners.
While the Town does not have the resources to address all these issues, this ordinance provides procedures whereby the Town can intercede in the case of emergencies where an imminent risk of harm exists due to the condition of this area between the street and the property line, and provides for cost recovery from the adjacent property owner for such emergency work.
Finally, due to the maintenance responsibility resting with adjacent property owners, the proposed ordinance also imposes liability on property owners for any injuries caused due to the nuisance conditions occurring on the public rights of way located on or adjacent to their properties.
ANALYSIS
Since 1941, Section 5610 of the Streets and Highways Code has provided:
The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.
Through this section, the Streets and Highways Code permits local jurisdictions to impose on property owners the duty maintain the area between their property line and the street to ensure those areas between the street and their property line are free of nuisances and hazards that could endanger people or property, or interfere with the use of the public right-of-way.
Historically, the Town has relied Section 5610 in combination with our Encroachment Ordinance to hold property owners responsible for maintaining the frontage area. The Encroachment Ordinance prescribes that no one can place anything in the adjacent street frontage area without the permission of the Town and that anything put within that right-of-way is the responsibility of the adjacent property owner to maintain. Through the Encroachment Ordinance, the Town imposes standards for landscaping in the frontage areas, which include maximum heights, clearances, and
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6 setbacks. The property owners are responsible for maintaining such landscaping in a healthy growing condition so as not to create a safety hazard or public nuisance and they are required to maintain the frontage strips free of weeds, litter and debris and they shall not impede any drainage.
While the Town has relied on Section 5610, recent case law has held that in order to continue to pass along maintenance obligations to adjacent property owners, local jurisdictions must affirmatively point to this authority in its ordinances. To date, the Town has not done so. The proposed ordinance adds Chapter 12.10 to the AMC to accomplish this requirement as well as make a few clarifications with respect to maintenance obligations, liability, enforcement procedures, and provides a cost-recovery mechanism for the Town where it must intercede dude to hazards that pose an imminent risk of harm.
Absent the ordinance codifying Section 5610 as the basis for holding adjacent property owner responsible for frontage maintenance, the Town cannot pass along liability improvements within the frontage areas and could be held liable for any dangerous condition of the frontage area, regardless of cause. If the Town were to be liable for dangerous conditions in the right-of-way, which currently exist due to maintenance adjacent property owners have failed to undertake, staff would need to begin a much more proactive code enforcement and risk assessment program to identify where those risks are and proactively mitigate risks through an aggressive tree trimming and right-of-way maintenance program.
Despite the fact that the Streets and Highways Code permits assigning maintenance obligations on adjacent property owners, not all jurisdictions do so. There are no statistics on what percentage of jurisdictions state-wide hold adjacent property owners responsible, but it is a very common practice to do so. In San Mateo County, approximately two-thirds of the incorporated cities do place maintenance responsibilities on adjacent property owners.
FISCAL IMPACT
None at this time.
GOAL ALIGNMENT
This Report and its contents are in alignment with the following Council Policy Goals:
• Goal Area B – Preserve Small Town Character and Quality of Life • Goal Area D – Manage Circulation and Improve Safety
• Goal Area F – Be Forward-Thinking, Well-Managed, and Well-Planned
POLICY FOCUS
The Council’s policy focus should be on maintenance and liability responsibilities associated with improvements in the public right-of-way beyond the paved roadway.
PUBLIC NOTICE
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6 Public notification was achieved by posting the agenda, with this agenda item being listed, at least 72 hours prior to the meeting in print and electronically. Information about the project is also disseminated via the Town’s electronic News Flash and Atherton Online. There are approximately 1,200 subscribers to the Town’s electronic News Flash publications. Subscribers include residents as well as stakeholders –to include, but be not limited to, media outlets, school districts, Menlo Park Fire Protection District, service provides (water, power, and sewer), and regional elected officials.
COMMISSION/COMMITTEE FEEDBACK/REFERRAL
This item has not been before a Town Committee or Commission
ATTACHMENTS
1. Draft Ordinance
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ORDINANCE No. 66X
AN ORDINANCE OF THE CITY COUNCIL OF THE TOWN OF ATHERTON ADDING SECTION
12.06.030-D AND CHAPTER 12.10 TO THE ATHERTON MUNICIPAL CODE, CLARIFYING
MAINTENANCE RESPONSIBILITIES ON OWNERS OF PROPERTY ADJACENT TO PUBLIC
RIGHTS OF WAY AND IMPOSING LIABILITY ON OWNERS OF PROPERTY ADJACENT TO
PUBLIC SIDEWALKS FOR INJURIES SUFFERED
WHEREAS, the Town of Atherton ("Town") wishes to protect the public peace, safety, welfare, and tranquility of its residents, and;
WHEREAS, the Town wishes to encourage the maintenance of well-kept properties. The Town recognizes that property values and the general welfare of the community are founded in large part on the appearance, maintenance and safety of properties, and; WHEREAS, owners of property adjacent to public sidewalks and rights-of-way are usually in the best position to quickly identify and address potentially dangerous conditions that might occur on them, and;
WHEREAS, pursuant to Section 5610 of the Streets and Highways Code, the owners of property adjacent to public sidewalks owe a duty to the Town to maintain such sidewalks in such condition that the sidewalk will not endanger persons or property or interfere with the public convenience in its use, and;
WHEREAS, the Town is empowered through its police powers to impose maintenance obligations on property owners for their property, as well as abutting rights-of-way. Those property owners are best positioned to address and to also notify the Town of dangerous conditions of property that they abut, and;
WHEREAS, imposing liability on owners of property adjacent to public sidewalks and rights of way incentivizes those property owners to regularly inspect and maintain their adjacent public sidewalks and landscaping and;
WHEREAS, this Ordinance clarifies the maintenance responsibilities of adjacent property owners, and makes them liable for personal injuries or property damage that result from the property owner's failure to maintain the adjacent sidewalk, or adjacent landscaping, and; WHEREAS, the City Council hereby finds that this Ordinance is not subject to review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines sections 15060, subdivision (c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15061, subdivision (b)(3) (there is no possibility the activity in question may have a significant effect on the environment).
NOW, THEREFORE, the City Council of the Town of Atherton incorporates the findings in the recitals above and adopts them as though fully set forth herein and does hereby ordain as follows:
Section 1. PURPOSE AND AUTHORITY
The purpose of this ordinance is to clarify the sidewalk maintenance responsibilities of adjacent property owners and them liable to members of the public for injuries or property damage that
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result from the property owner's failure to maintain the adjacent sidewalk as required in this Chapter. The authority is derived from the State Constitution and Streets and Highways Code Chapter 22 of Division 7, Part 3.
Section 2. FINDINGS.
The recitals set forth above are hereby incorporated by reference herein.
Section 3. ADDITION OF SECTION 12.06.030-D OF THE ATHERTON MUNICIPAL CODE
Section 12.06.030-D is hereby added to read:
D. “Sidewalk” shall have the same meaning as in Section 5600 of the California Streets and Highways Code. This term is interpreted to include the lot frontage strip that forms the areas between the property line and the street line that are publicly accessible or used for ingress and egress to the abutting property, regardless of whether such areas are improved in any manner.
Section 4. ADDITION OF CHAPTER 12.10 OF THE ATHERTON MUNICIPAL CODE Chapter 12.10 is hereby added to read:
12.10 Maintenance and Repair of Sidewalks and Rights-of-Way
12.10.010 Maintenance and Repair of Sidewalks
A. Anything in this chapter to the contrary notwithstanding, the maintenance and repair of sidewalk areas and the making, confirming and collecting of assessments for the cost and expenses of said maintenance and repair may be done and the proceedings therefor may be had and taken in accordance with this part and the procedure therefor provided in Chapter 22 of Division 7, Part 3, of the Streets and Highways Code of the state as the same is now in effect or may hereafter be amended. In the event of any conflict between the provisions of said Chapter 22 of Division 7, Part 3, of the Streets and Highways Code of the state and this Chapter, the provisions of this Chapter shall control.
B. For the purposes of this chapter, the definition of sidewalk shall be the same as in Section 12.06.030-D.
B. The owners of lots or portions of lots adjacent to or fronting on any portion of a sidewalk area between the property line of the lots and the street line, including but not limited to parking strips, sidewalks, curbs and gutters, and persons in possession of such lots by virtue of any permit or right shall repair and maintain such sidewalk areas and pay the costs and expenses therefor, including a charge for the Town of Atherton's costs of inspection and administration whenever the Town awards a contract for such maintenance and repair and including the costs of collection of assessments for the costs of maintenance and repair under subsection A. of this section or handling of any lien placed on the property due to failure of the property owner to promptly pay such assessments.
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C. For the purposes of this part, maintenance and repair of sidewalk area shall include, but not be limited to, maintenance and repair of surfaces including grinding, removal and replacement of sidewalks, repair and maintenance of curb and gutters, removal and filling or replacement of parking strips, removal of weeds and/or debris, supervision and maintenance of signs allowed pursuant to Chapter 15.36, tree and landscape maintenance, tree root pruning and installing root barriers, trimming of trees and shrubs and/or ground cover and trimming shrubs within the area between the property line of the adjacent property and the street pavement line, including parking strips and curbs, so that the sidewalk area will remain in a condition that is not dangerous to property or to persons using the sidewalk in a reasonable manner and will be in a condition which will not interfere with the public convenience in the use of said sidewalk area.
D. Notwithstanding the provisions of Section 5614 of the Streets and Highways Code, the Director of Public Works (director) may in his or her discretion, and for sufficient cause, extend the period within which required maintenance and repair of sidewalk areas must commence by a period of not to exceed ninety days from the time the notice referred to in said Section 5614 is given.
E. Liability. The owners of lots or portions of lots (property owners) required by this Chapter to maintain and repair the sidewalk area shall owe a duty to members of the public to keep and maintain the sidewalk area in a safe and non-dangerous condition. If, as a result of the failure of any property owner to maintain the sidewalk area in a non-dangerous condition as required by Chapter 12.10, any person suffers injury or damage to person or property, the property owner shall be liable to such person for the resulting damages or injury.
12.10.020 Maintenance and Repair of Adjacent Trees and Landscaping and Duty to Warn A. The property owner of a lot or portion of a lot adjacent to or fronting on any portion of a street shall maintain and replace, if necessary, any street trees, shrubs, hedges or other landscaping adjacent to or fronting on the subject property in such condition that the street trees, shrubs, hedges or other landscaping comply with this Chapter. Each property owner shall plant and replace any removed or otherwise missing street trees in accordance with the requirements of subsection(c), below.
B. A property owner required by this section to plant, maintain, and replace, if necessary, trees, shrubs, hedges and other landscaping shall owe a duty to members of the public using streets to maintain such trees, shrubs, hedges or other landscaping in a safe and nonhazardous condition for users of the streets. For purposes of this section, maintenance of trees, shrubs, hedges and other landscaping includes, but is not limited to: watering, pruning, fertilizing, pest control, removal of branches, leaves, and other debris, weed abatement, and protection of the critical root zone.
C. A property owner required by this section to maintain any street trees, shrubs, hedges, or landscaping shall comply with the following:
1. Immediately notify the Director of Public Works of any dangerous or hazardous conditions of the adjacent public right of way;
2. Provide the necessary maintenance so that the street tree, shrub, hedge or landscaping is not in a hazardous condition or in a condition that will likely become a hazardous condition;
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3. Provide a minimum eight-foot vertical pedestrian clearance from the top of the sidewalk and a minimum fourteen-foot vertical vehicular clearance from the top of the street, to any part of a tree;
4. Provide adequate clearance for unobstructed pedestrian and vehicular view of all authorized traffic signals, traffic cameras, street lights, regulatory signs, street name signs, and other similar type of equipment or signs;
5. All maintenance shall be completed in accordance with the Atherton Municipal Code, Heritage Tree Protection Guidelines and other applicable permit requirements and standards;
12.10.030 Hazardous conditions; sight obstructions on private property.
A. No owner or person in possession or control of any premises shall maintain any tree, shrub, hedge or other landscaping located on such premises in a manner that causes or may cause a hazardous condition on a street or sidewalk.
B. No owner or person in possession or control of any premises on any corner or interior lot abutting upon a street shall permit the existence of any tree, shrub, hedge, landscaping, mound of earth, or boulders that obscure and impair the view of intersecting or entering traffic from a street of passing motorists or pedestrians or which impairs the view of the street signs, traffic signs, or any other control devices or signs placed upon the streets for the safety and convenience of the public.
12.10.040 Notice of violation.
If the director determines that the condition of any sidewalk, tree, shrub, hedge, or landscaping constitutes a violation of any provision of this chapter, the director shall, by notice in writing, notify the owner of the property in violation to prune or remove the tree, shrub, hedge, or landscaping or take any other necessary corrective action to cure the violation.
12.10.050 Notice of violation - Delivery.
The notice of violation specified in Section 12.10.040 may be given by delivering a written notice personally to the property owner, or by mailing the notice, postage prepaid, to the property owner thereof at his or her last known address as the same appears on the last equalized assessment rolls of the county.
12.10.060 Notice of violation - Contents.
A. Any notice of violation issued by the director pursuant to Section 12.10.050 shall contain the following information:
1. The date of the inspection.
2. The address or a description of the property where the violation is located.
3. A description of the violation.
4. A description of the corrective action required to address the violation.
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5. A definitive time period to complete the corrective action.
12.10.070 Notice of violation - Hearing.
The notice of violation shall further specify that the property owner receiving such notice may file with the Town his or her written objection to such notice and such written objection must be received by the Town within seven (7) calendar days of the notice. The written objection shall clearly outline the objection to the notice and the basis for such objection. The Town shall duly review all timely written objections that comply with this section and provide the property owner with an opportunity to be heard, and will thereafter render a written decision within a reasonable amount of time to sustain, overrule, or amend the notice of violation. The written decision shall be provided to the owner in the manner specified in Section 12.10.060, and such decision will be final.
12.10.080 Work performed by the Town.
A. If the corrective action required by notice is not completed within the time specified in the notice of violation, the Town shall have the authority to perform this work or cause this work to be performed and the owner of the abutting property shall be billed for the costs incurred. The property owner shall be responsible for all costs associated with the corrective action including but not limited to the costs of planting, removal or pruning of the tree, shrub, hedge, pavement work, or landscaping, administration time and expense, late charges, and the handling of any lien placed on the property owner's property due to failure of the property owner to pay within the required period.
B. After the Town completes the corrective action as set forth in this section, the Town shall mail an invoice to the property owner. The property owner shall remit full payment to the Town on or before the date specified in the invoice.
C. Any invoice not fully paid by the date specified on the invoice shall be deemed delinquent and the director shall initiate the assessment procedures set forth herein.
12.10.090 Emergency services performed by Town.
A. In cases of imminently hazardous conditions, the director shall have the authority to perform or cause to be performed the corrective work to abate the imminently hazardous condition without observance of any notice requirements. The property containing or adjacent to a tree, shrub, hedge, sidewalk, or landscaping that poses an imminently hazardous condition or the property adjacent to or fronting on the subject street tree, shrub, hedge, sidewalk, or landscaping that poses an imminently hazardous condition may be assessed for the costs incurred in accordance with this part. The Town shall send an invoice to the property owner setting forth the costs and expenses as described herein and the date specified for full payment to the Town.
B. If the property owner has failed to pay the invoice, the director shall issue a notice of cost informing the property owner of the failure to pay the invoice and that failure to pay the amount will result in the initiation of proceedings to place a lien against the property owner's property.
12.10.100 Notice of hearing before city council.
After completion of the work and failure of a property owner to pay the amounts set forth in the invoice, the director shall cause notice of the public hearing on the cost to be given to the property
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owner in the manner specified in this part, which shall specify the day, hour and place when the city council will hear and pass upon a report by the director of the cost of the work, the amount proposed to be assessed against the property, together with written objections, if any, which may be raised by any person liable to be assessed for the cost of such work.
12.10.110 Report to city council.
If the property owner does not pay the invoice by the required date, the director shall prepare and file with the city council a report specifying the work which has been done, the cost thereof, a description of the real property upon which the tree, shrub, hedge, or landscaping was located or of the real property adjacent to or fronting upon the street on which such street tree, shrub, hedge, or landscaping was located and the assessment against the parcel of land proposed to be levied to pay the cost thereof.
12.10.120 Hearing on assessment costs.
A. Upon the day and hour fixed for the hearing, the city council shall hear and pass upon the report of the director, together with any written or oral objections which may be raised by any property owner liable to be assessed for the corrective work. The city council may make such modifications in the report as it may deem just, after which, the report as submitted or as modified shall be confirmed. The decision of the city council on all objections shall be final and conclusive.
B. This hearing serves to provide the full opportunity of a person subject to an invoice to be heard and object to the determination that a violation occurred and was not corrected. The failure of any person to appear at the hearing shall constitute a failure to exhaust administrative remedies.
12.10.130 Assessment deemed a lien.
The cost of any corrective action may be assessed by the city council against the parcel of property upon which the tree, shrub, hedge, or landscaping is located, or the parcel of property which fronts upon or is adjacent to the street on which such street tree, shrub, hedge, or landscaping is located, and such cost so assessed, if not paid within five days after its confirmation by the city council, shall constitute a special assessment against that parcel of property, and shall be a lien on the property for the amount thereof, which lien shall continue until the assessment and all interest thereon is paid, or until discharged.
12.10.140 Lien - Recordation and collection.
The city council, after confirmation of the report of the director, may order a notice of lien to be delivered to the county recorder, who shall enter the amount thereof on the county assessment book opposite the description of the particular property, and the amount shall be collected, together with all taxes against the property. Thereafter, the amount of the lien shall be collected at the same time and in the same manner as taxes against the property are collected, and shall be subject to the same penalties and interest, and to the same procedure under foreclosure and sale in case of delinquency.
12.10.150 Liability.
A. If any property owner fails to maintain any sidewalk, trees, shrubs, hedges, landscaping or other improvements in a nonhazardous condition as required by this Chapter, and any person
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suffers damage or injury to person or property, the property owner shall be solely liable for all damages or injuries caused by such failure.
B. Nothing contained in this chapter shall be deemed to impose any liability upon the Town, its officers or employees, nor to relieve the owner of any private property from the duty to keep sidewalks, trees, shrubs, hedges, or landscaping upon said private property, or under his or her control or upon streets in front of or contiguous to such private property, in a safe condition.
12.10.160 Remedies.
The provisions of this chapter are nonexclusive and supplementary to any existing rights and remedies, and the provisions of this chapter may be enforced by any remedies provided for in this municipal code or otherwise available at law. Violations of this chapter may be prosecuted criminally, civilly, or administratively, either undertaken separately or in conjunction with other remedies, at the sole discretion of the Town. Nothing in this chapter shall be deemed to prevent the Town from commencing any administrative or legal proceeding to enforce this chapter, Municipal Code, or any law.
Section 4. SEVERABILITY
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held to be unconstitutional or otherwise invalid by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance.
The City Council of the Town of Atherton hereby declares that it would have adopted the remainder of this chapter and ordinance, including each section, subsection, sentence, clause, phrase or portion irrespective of the invalidity of any other article, section, subsection, sentence, clause, phrase or portion. 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 5: EFFECTIVE DATE AND PUBLICATION
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. The City Clerk is hereby directed to publish a summary of this Ordinance in an adjudicated newspaper of general circulation serving the residents of the Town of Atherton within fifteen (15) days after its passage.
Introduced on the ___ day of ____________________, 2023.
Passed and adopted as an ordinance of the City Council of the Town of Atherton at a regular meeting thereof held on the ___ day of __________________, 2023 by the following vote:
Ayes:
Noes:
Abstentions:
______________________________
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Mayor Bill Widmer
ATTEST:
______________________________
Anthony Suber, City Clerk/ACM