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3. The JADU or the Single Family Dwelling in which the JADU is located shall be owner-occupied per the definition in Section 23F.04.010
Section 2. That the definition for Accessory Dwelling Unit in Berkeley Municipal Code Chapter 23F.04.010 is amended to read as follows:
Accessory Dwelling Unit (ADU): A secondary Dwelling Unit that is located on a lot with a proposed or existing Single Family Dwelling, Duplex, Multiple Dwelling Use, or Group Living Accommodation, which is occupied by one legally established Single Family Dwelling that conforms to the standards of Section 23C.24. An Accessory Dwelling Unit must comply with local building, housing, safety and other code requirements unless the City is prohibited from applying such requirements by Government Code Section 65852.2 or 65852.22 and provide the following features independent of the Single Family Dwelling, Duplex, Multiple Dwelling Use, or Group Living Accommodation: 1) exterior or independent access to Accessory Dwelling Unit; 2) living and sleeping quarters; 3) a full kitchen; and 4) a full bathroom. An Accessory Dwelling Unit also includes the following:
A. An efficiency unit, as defined in Section 17958.1 of the Health and Safety Code.
B. A manufactured home, as defined in Section 18007 of the Health and Safety Code.
Section 3. That the definition for Primary Dwelling Unit in Berkeley Municipal Code Chapter 23F.04.010 is rescinded:
Primary Dwelling Unit: A legally established Single Family Dwelling that is on a lot with an Accessory Dwelling Unit.
Section 4. That the following two definitions are adopted into Berkeley Municipal Code Chapter 23F.04.010:
Efficiency Kitchen: A kitchen that includes a sink, a cooking facility with appliances (e.g. microwave, toaster, oven, hot plate), and food preparation counter space and cabinets.
Junior Accessory Dwelling Unit (JADU): A unit that is contained within the walls of a Single Family Dwelling and includes a separate exterior entrance. A JADU may not be located in an Accessory Building or an Accessory Structure. A JADU may include separate sanitation facilities, or may share sanitary facilities with a Single Family Dwelling. At a minimum, a JADU shall include an Efficiency Kitchen with a working refrigerator.
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Section 5. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
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2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7140 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected]
Kate Harrison
Councilmember District 4
SUPPLEMENTAL
AGENDA MATERIAL
Meeting Date: September 28, 2021
Item Number: 29
Item Description: Response to Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance to Address Public Safety Concerns; Amending BMC Chapters 23C.24 and 23F.04
Submitted by: Councilmember Kate Harrison
The attached revised document contains four revisions to the item’s attached revisions to BMC Chapter 23C.24:
1. Rewrites 23C.24.040 (Development Standards) subsection B. 2. to remove the 150-ft2 limit on extensions to ADUs created from existing building or structures, provided that the extensions still conform to all other conditions, to strengthen the financial feasibility of potential ADUs.
2. Adds to 23C.24.040 (Development Standards) section A.1. to reaffirm that Objective Design Standards will guide ADU development.
3. Removes 23C.24.040 (Development Standards) subsection F, which allowed for some protrusions into the four-foot setback by right. Many of the items named for the intrusion into the setback would create noise or privacy concerns. Any protrusion into the four-foot setback would remain eligible for a case-by-case approval.
4. Removes 23C.24.050 (Special Provisions) subsection A, which allowed for rooftop decks by right. Rooftop decks are still possible with case-by-case approval but a by-right approval creates many concerns with fire safety, noise, and privacy.
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ORDINANCE NO. - N.S.
ACCESSORY DWELLING UNIT ORDINANCE
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That Berkeley Municipal Code Chapter 23C.24 is amended to read as follows:
Chapter 23C.24
Accessory Dwelling Units
Sections:
23C.24.010 Applicability of Regulations
23C.24.020 Purposes
23C.24.030 Permit Procedures
23C.24.040 Development Standards
23C.24.050 Special Provisions
23C.24.010 Applicability of Regulations
A. The provisions of this Chapter apply to all lots that have at least one existing or proposed Dwelling Unit or Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.
B. ADUs and JADUs are allowed on lots as follows:
a. One ADU and/or one JADU is allowed on a lot with one Single Family Dwelling.
b. One ADU is allowed on a lot with multiple Single Family Dwellings. c. For lots with a Duplex or Multiple Dwelling Uses, one of the following is allowed:
i. Up to two detached ADUs; or
ii. At least one ADU created from non-habitable portions of the existing dwelling structure (e.g. basement, attic, storage room). The maximum number of ADUs created from non-habitable portions of the existing dwelling structure shall not exceed 25% of the number of existing Dwelling Units on the lot.
d. One ADU is allowed on a lot with a Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.
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23C.24.020 Purposes
The purposes of this Chapter are to:
A. Implement California Government Code Section 65852.2 and 65852.22.
B. Increase overall supply and range of housing options in Berkeley.
C. Expedite small-scale infill development.
D. Support Housing Element goals of facilitating construction of Accessory Dwelling Units and increasing the number of housing units that are more affordable to Berkeley residents.
E. Encourage development of Accessory Dwelling Units in zoning districts with compatible land uses and infrastructure.
F. Reduce potential impacts of new development in high fire hazard severity areas.
23C.24.030 Permit Procedures
A. An application for an ADU or JADU is subject to ministerial review. Review must be completed within 60 days of submission of a complete application.
B. If an application to create an ADU or JADU is submitted as part of a project that requires discretionary review, a building permit shall not be issued for the ADU or JADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired.
23C.24.040 Development Standards
A. Development Standards in Paragraphs B through G, below, apply as follows:
1. Nothing in this Chapter shall preclude the application of Objective Development Standards, once adopted, to ADU’s.
1.2. Detached New Construction. A detached, new construction ADU is subject to Development Standards for ADUs. A detached, new construction ADU is defined as having a 3-foot separation from a Main Building per Section 23E.04.030.
2.3. Converted or Rebuilt Entirely from an Existing Building or Structure. An ADU converted or rebuilt entirely from an existing building or structure, in the same location with the same dimensions and roof height, is not subject to Development Standards for ADUs. These include:
a. An ADU created entirely within an existing Single Family Dwelling. b. An ADU created entirely within the existing non-habitable space of a Duplex or Multiple Dwelling Use.
c. An ADU created entirely within an existing detached Accessory Building or Accessory Structure.
d. An ADU created entirely within an existing Accessory Building or
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Accessory Structure that is demolished and rebuilt.
3.4. Addition to an Existing or Rebuilt Building or Structure. An ADU, fully or partially created by an addition of square footage to or changes in roof height is subject to Development Standards for ADUs. Paragraph B applies to the ADU’s maximum size and Paragraphs C through G apply to the added square footage and roof design. These include:
a. An ADU created by an addition or roof change to an existing Single Family Dwelling.
b. An ADU created by an addition or roof change to an existing detached Accessory Building or Accessory Structure.
c. And ADU created by an addition or roof change to an existing Accessory Building or Accessory Structure that is demolished and rebuilt.
4.5. Notwithstanding any other provision of this Chapter, no ADU is permitted to be built in the Hillside Overlay or Environmental Safety Residential (ES-R) districts unless it complies with the requirements of Government Code section 65852.2(e)(1).
5.6. A JADU is subject to applicable Development Standards in Paragraphs B and G.
B. Maximum Size
1. A detached, new construction ADU or an ADU fully or partially created by addition to an existing or proposed Single Family Dwelling is subject to the following maximum size limits:
a. 850 square feet for a studio or one-bedroom ADU.
b. 1000 square feet for an ADU with two or more bedrooms.
2. An ADU created from an existing Accessory Building or Accessory Structure or a portion of the existing building
that does not conform to the Development
Standards in Paragraphs C and D may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing building or structure extend beyond the physical dimensions of the existing building or structure as long as the new construction is outside the four-foot setback and conforms to all other conditions herein. Additions shall conform with the Development Standards in this Chapter
3. An ADU created from an existing Accessory Building or Accessory Structure that conforms to the Development Standards in Paragraphs C and D must comply with one of the following:
a. May include an expansion of not more than 150 square feet beyond the same physical dimensions of the existing building or structure; or
b. 850 square feet for a studio or one-bedroom ADU; or. c. 1000 square feet for an ADU with two or more bedrooms.
4. The maximum size of a JADU is 500 square feet.
C. Maximum Height is applied to ADUs as follows. See Chapter 23F.04 for definition.
1. Maximum Height of a detached, new construction ADU is 18 feet.
2. Maximum Height of new square footage added to a Single Family Dwelling, Accessory Building or Accessory Structure to create an ADU is 18 feet.
D. Rear and Side Setbacks. The required rear and side setbacks for a detached,
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new construction ADU or addition to an existing building or structure are 4 feet, unless a lesser setback is allowed for a comparable Accessory Building or Accessory Structure in the underlying zoning district.
E. Front Yard Setback. The required front yard setback is the same as is established in the underlying zoning district.
Projections. Architectural features (Chimneys, Water Heater Enclosures, Flues, Heating and Cooling Equipment, Eaves, Cornices, Canopies, Awnings and Bay Window) may project two feet into the required setbacks, so long as there remains at least a two-foot setback from property lines.
F. Parking
1. Off-street parking is not required.
2. Replacement parking is not required, but is allowed if in compliance with Chapter 23D.12 and/or Chapter 23E.28.
G. Nothing in this Chapter shall preclude the issuance of Zoning Certificate for the construction or conversion of an ADU or JADU that complies with the requirements of Government Code section 65852.2(e)(1). The City shall not apply the Development Standards in this Chapter to the extent they are inconsistent with the requirements of Government Code sections 65852.2 and 65852.22.
H. A Zoning Certificate for the construction of an ADU or JADU may not be denied based on the failure of the applicant to correct a nonconforming zoning condition.
23C.24.050 Special Provisions
A. A rooftop deck may be established provided that the entire roof, deck and railing comply with Development Standards for ADUs in Section 23C.24.040 Paragraphs C through G.
B.A. A JADU must be owner-occupied. For purposes of this paragraph, “owner- occupied” means that a person with legal title to the property must reside in either the Single Family Dwelling or the JADU as their legal permanent residence.
C.B. The property owner shall file a deed restriction with the County Recorder providing that:
1. The ADU and/or JADU shall not be sold separately from the Dwelling Unit.
2. The ADU and/or JADU shall not be rented for a term that is shorter than 30 days.
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3. The JADU or the Single Family Dwelling in which the JADU is located shall be owner-occupied per the definition in Section 23F.04.010
Section 2. That the definition for Accessory Dwelling Unit in Berkeley Municipal Code Chapter 23F.04.010 is amended to read as follows:
Accessory Dwelling Unit (ADU): A secondary Dwelling Unit that is located on a lot with a proposed or existing Single Family Dwelling, Duplex, Multiple Dwelling Use, or Group Living Accommodation, which is occupied by one legally established Single
Family Dwelling that conforms to the standards of Section 23C.24. An Accessory Dwelling Unit must comply with local building, housing, safety and other code requirements unless the City is prohibited from applying such requirements by Government Code Section 65852.2 or 65852.22 and provide the following features independent of the Single Family Dwelling, Duplex, Multiple Dwelling Use, or Group Living Accommodation: 1) exterior or independent access to Accessory Dwelling Unit; 2) living and sleeping quarters; 3) a full kitchen; and 4) a full bathroom. An Accessory Dwelling Unit also includes the following:
A. An efficiency unit, as defined in Section 17958.1 of the Health and Safety Code.
B. A manufactured home, as defined in Section 18007 of the Health and Safety Code.
Section 3. That the definition for Primary Dwelling Unit in Berkeley Municipal Code Chapter 23F.04.010 is rescinded:
Primary Dwelling Unit: A legally established Single Family Dwelling that is on a lot with an Accessory Dwelling Unit.
Section 4. That the following two definitions are adopted into Berkeley Municipal Code Chapter 23F.04.010:
Efficiency Kitchen: A kitchen that includes a sink, a cooking facility with appliances (e.g. microwave, toaster, oven, hot plate), and food preparation counter space and cabinets.
Junior Accessory Dwelling Unit (JADU): A unit that is contained within the walls of a Single Family Dwelling and includes a separate exterior entrance. A JADU may not be located in an Accessory Building or an Accessory Structure. A JADU may include separate sanitation facilities, or may share sanitary facilities with a Single Family Dwelling. At a minimum, a JADU shall include an Efficiency Kitchen with a working refrigerator.
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Section 5. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
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Office of the City Manager
REVISED AGENDA MATERIAL
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Response to Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance to Address Public Safety Concerns
SUMMARY
At its April 7, 2021 meeting, Planning Commission recommended that the maximum height of ADUs be increased to 18 feet. The Zoning Ordinance amendment initially submitted with this staff report would limit the maximum height of an ADU located in the Hillside Overlay or the Environmental Safety (ES-R) zoning districts to 16 feet. The supplemental material updates the draft Zoning Ordinance amendment (Attachment), permitting a maximum height of 18 feet for all new ADUs city-wide, to more accurately reflect the Planning Commission’s recommendation.
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ORDINANCE NO. -N.S.
ACCESSORY DWELLING UNIT ORDINANCE
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That Berkeley Municipal Code Chapter 23C.24 is amended to read as follows:
Chapter 23C.24
Accessory Dwelling Units
Sections:
23C.24.010 Applicability of Regulations
23C.24.020 Purposes
23C.24.030 Permit Procedures
23C.24.040 Repealed by Ord. 7683-NS.
23C.24.050 Repealed by Ord. 7683-NS.
23C.24.060 Repealed by Ord. 7683-NS.
23C.24.070 Repealed by Ord. 7683-NS.
23C.24.010 Applicability of Regulations
The provisions of this Chapter apply to all lots that are zoned for residential use except 1) in the following zoning districts: Environmental Safety-Residential (ES-R), Manufacturing (M), Mixed Manufacturing (MM), Mixed Use-Light Industrial (MU-LI), and Unclassified (U); and 2) on a lot with frontage on a roadway with less than 26 feet in pavement width in the Hillside Overlay.
A. The provisions of this Chapter apply to all lots that have at least one existing or proposed Dwelling Unit or Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.
B. ADUs and JADUs are allowed on lots as follows:
1. One ADU and/or one JADU is allowed on a lot with one Single Family Dwelling.
2. One ADU is allowed on a lot with multiple Single Family Dwellings.
3. For lots with a Duplex or Multiple Dwelling Uses, one of the following is allowed:
a. Up to two detached ADUs; or
b. At least one ADU created from non-habitable portions of the existing dwelling structure (e.g. basement, attic, storage room). The maximum number of ADUs created from non-habitable portions of the existing dwelling structure shall not exceed 25% of the number of existing Dwelling Units on the lot.
4. One ADU is allowed on a lot with a Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.
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23C.24.020 Purposes
The purposes of this Chapter are to:
A. Implement California Government Code Section 65852.2 and 65852.22.
B. Increase overall supply and range of housing options in Berkeley.
C. Expedite small-scale infill development.
D. Support Housing Element goals of facilitating construction of Accessory Dwelling Units and increasing the number of housing units that are more affordable to Berkeley residents.
E. Encourage development of Accessory Dwelling Units in zoning districts with compatible land uses and infrastructure.
F. Reduce potential impacts of new development in high fire hazard severity areas. 23C.24.030 Permit Procedures
Zoning Certificates will be issued for Accessory Dwelling Units and Junior Accessory Dwelling Units per California Government Code Section 65852.2 and 65852.22.
A. An application for an ADU or JADU is subject to ministerial review. Review must be completed within 60 days of submission of a complete application.
B. If an application to create an ADU or JADU is submitted as part of a project that requires discretionary review, a building permit shall not be issued for the ADU or JADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired.
23C.24.040 Special Provisions Development Standards
Repealed by Ord. 7683-NS.
A. Development Standards in Paragraphs B through G, below, apply as follows:
1. Detached New Construction. A detached, new construction ADU is subject to Development Standards for ADUs. A detached, new construction ADU is defined as having a 3-foot separation from a Main Building per Section 23E.04.030.
2. Converted or Rebuilt Entirely from an Existing Building or Structure. An ADU converted or rebuilt entirely from an existing building or structure, in the same location with the same dimensions and roof height, is not subject to Development Standards for ADUs. These include:
a. An ADU created entirely within an existing Single Family Dwelling. b. An ADU created entirely within the existing non-habitable space of a Duplex or Multiple Dwelling Use.
c. An ADU created entirely within an existing detached Accessory Building or Accessory Structure.
d. An ADU created entirely within an existing Accessory Building or
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Accessory Structure that is demolished and rebuilt.
3. Addition to an Existing or Rebuilt Building or Structure. An ADU, fully or partially created by an addition of square footage to or changes in roof height is subject to Development Standards for ADUs. Paragraph B applies to the ADU’s maximum size and Paragraphs C through G apply to the added square footage and roof design. These include:
a. An ADU created by an addition or roof change to an existing Single Family Dwelling.
b. An ADU created by an addition or roof change to an existing detached Accessory Building or Accessory Structure.
c. And ADU created by an addition or roof change to an existing Accessory Building or Accessory Structure that is demolished and rebuilt.
4. Notwithstanding any other provision of this Chapter, no ADU is permitted to be built in the Hillside Overlay or Environmental Safety Residential (ES-R) districts unless it complies with the maximum size and setback requirements of Government Code section 65852.2(e)(1).
5. A JADU is subject to applicable Development Standards in Paragraphs B and G.
B. Maximum Size
1. A detached, new construction ADU or an ADU fully or partially created by addition to an existing or proposed Single Family Dwelling is subject to the following maximum size limits:
a. 850 square feet for a studio or one-bedroom ADU.
b. 1000 square feet for an ADU with two or more bedrooms.
2. An ADU created from an existing Accessory Building or Accessory Structure that does not conform to the Development Standards in Paragraphs C and D may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing building or structure. Additions shall conform with the Development Standards in this Chapter
3. An ADU created from an existing Accessory Building or Accessory Structure that conforms to the Development Standards in Paragraphs C and D must comply with one of the following:
a. May include an expansion of not more than 150 square feet beyond the same physical dimensions of the existing building or structure; or b. 850 square feet for a studio or one-bedroom ADU; or. c. 1000 square feet for an ADU with two or more bedrooms.
4. The maximum size of a JADU is 500 square feet.
C. Maximum Height is applied to ADUs as follows. See Chapter 23F.04 for definition.
1. Maximum Height of a detached, new construction ADU is 18 feet.
2. Maximum Height of new square footage added to a Single Family Dwelling, Accessory Building or Accessory Structure to create an ADU is 18 feet.
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D. Rear and Side Setbacks. The required rear and side setbacks for a detached, new construction ADU or addition to an existing building or structure are 4 feet, unless a lesser setback is allowed for a comparable Accessory Building or Accessory Structure in the underlying zoning district.
E. Front Yard Setback. The required front yard setback is the same as is established in the underlying zoning district.
F. Projections. Architectural features (Chimneys, Water Heater Enclosures, Flues, Heating and Cooling Equipment, Eaves, Cornices, Canopies, Awnings and Bay Window) may project two feet into the required setbacks, so long as there remains at least a two-foot setback from property lines.
G. Parking
1. Off-street parking is not required.
2. Replacement parking is not required, but is allowed if in compliance with Chapter 23D.12 and/or Chapter 23E.28.
H. Nothing in this Chapter shall preclude the issuance of Zoning Certificate for the construction or conversion of an ADU or JADU that complies with the requirements of Government Code section 65852.2(e)(1). The City shall not apply the Development Standards in this Chapter to the extent they are inconsistent with the requirements of Government Code sections 65852.2 and 65852.22.
I. A Zoning Certificate for the construction of an ADU or JADU may not be denied based on the failure of the applicant to correct a nonconforming zoning condition. 23C.24.050 Development Standards Special Provisions
Repealed by Ord. 7683-NS.
A. A rooftop deck may be established provided that the entire roof, deck and railing comply with Development Standards for ADUs in Section 23C.24.040 Paragraphs C through G.
B. A JADU must be owner-occupied. For purposes of this paragraph, “owner- occupied” means that a person with legal title to the property must reside in either the Single Family Dwelling or the JADU as their legal permanent residence.
C. The property owner shall file a deed restriction with the County Recorder providing that:
1. The ADU and/or JADU shall not be sold separately from the Dwelling Unit.
2. The ADU and/or JADU shall not be rented for a term that is shorter than 30 days.
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3. The JADU or the Single Family Dwelling in which the JADU is located shall be owner-occupied per the definition in Section 23F.04.010 23C.24.060 Modification of Development Standards with an Administrative Use Permit
Repealed by Ord. 7683-NS.
23C.24.070 Findings
Repealed by Ord. 7683-NS.
Section 2. That the definition for Accessory Dwelling Unit in Berkeley Municipal Code Chapter 23F.04.010 is amended to read as follows:
Accessory Dwelling Unit (ADU): A secondary Dwelling Unit that is located on a lot with a proposed or existing Single Family Dwelling, Duplex, Multiple Dwelling Use, or Group Living Accommodation, which is occupied by one legally established Single Family Dwelling that conforms to the standards of Section 23C.24. An Accessory Dwelling Unit must comply with local building, housing, safety and other code requirements unless the City is prohibited from applying such requirements by Government Code Section 65852.2 or 65852.22 and provide the following features independent of the Single Family Dwelling, Duplex, Multiple Dwelling Use, or Group Living Accomodation: 1) exterior or independent access to Accessory Dwelling Unit; 2) living and sleeping quarters; 3) a full kitchen; and 4) a full bathroom. An Accessory Dwelling Unit also includes the following:
A. An efficiency unit, as defined in Section 17958.1 of the Health and Safety Code.
B. A manufactured home, as defined in Section 18007 of the Health and Safety Code.
Section 3. That the definition for Primary Dwelling Unit in Berkeley Municipal Code Chapter 23F.04.010 is rescinded:
Primary Dwelling Unit: A legally established Single Family Dwelling that is on a lot with an Accessory Dwelling Unit.
Section 4. That the following two definitions are adopted into Berkeley Municipal Code Chapter 23F.04.010:
Efficiency Kitchen: A kitchen that includes a sink, a cooking facility with appliances (e.g. microwave, toaster, oven, hot plate), and food preparation counter space and cabinets.
Junior Accessory Dwelling Unit (JADU): A unit that is contained within the walls of a Single Family Dwelling and includes a separate exterior entrance. A JADU may not be located in an Accessory Building or an Accessory Structure. A JADU may include separate sanitation facilities, or may share sanitary facilities with a Single Family Dwelling. At a minimum, a JADU shall include an Efficiency Kitchen with a working refrigerator.
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Section 5. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
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Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
PUBLIC HEARING
October 26, 2021
(Continued from October 12, 2021)
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Response to Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance to Address Public Safety Concerns; Amending BMC Chapters 23C.24 and 23F.04
RECOMMENDATION
Conduct a public hearing and, upon conclusion, adopt the first reading of a local Accessory Dwelling Unit (ADU) Ordinance [Berkeley Municipal Code (BMC) Chapter 23C.24] and amendments to relevant Definitions [BMC Chapter 23F.04] in the Zoning Ordinance.
SUMMARY
This report responds to a City Council referral from January 26, 2021, which requested a new local ADU Ordinance to provide public safety measures as allowed by State ADU law [Government Code Sections 65852.2 and 65852.22]. This report also provides background on State ADU regulations, explains where jurisdictions have flexibility to adopt local ordinances, and outlines the proposed Zoning Ordinance amendments recommended by Planning Commission for adoption by Council.
FISCAL IMPACTS OF RECOMMENDATION
None.
CURRENT SITUATION AND ITS EFFECTS
A local ADU Ordinance is a Strategic Plan Priority Project, advancing our goal to create a resilient, safe, connected, and prepared city. Over the past five years, Berkeley has adopted three comprehensive ADU Ordinance amendments in order to maintain compliance with changing State ADU law. The most recent round of State regulations, which came into effect on January 1, 2020, replaced Berkeley’s ADU Ordinance and significantly reduced jurisdictions’ abilities to regulate ADU development.
State ADU Law
ADUs are recognized as low cost, low impact, infill development. As such, they provide much needed housing to the community. State law mandates a streamlined, ministerial permit process that removes barriers to ADU development. State law requires all
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Referral Response: Local ADU Ordinance PUBLIC HEARING
October 26, 2021
jurisdictions to issue ministerial or “by-right” building permits for ADUs in accordance with the regulations listed below. Jurisdictions can develop more lenient local ordinances to encourage ADU development but they cannot be more restrictive nor limit ADU development.
Issue over-the-counter building permits for ADUs that comply with State regulations.
Apply the following development standards:
o Maximum size of no less than 800 to 1200 square feet (allowable scenarios are discussed below);
o Maximum height of no less than 16 feet; and
o Rear and side setbacks of no more than 4 feet.
Allow at least one ADU on every lot that has an existing or proposed dwelling unit. More specifically, allow:
o One ADU and one JADU on a lot with a Single Family Dwelling. o One ADU on a lot with multiple Single Family Dwellings. o At least two detached or at least one interior ADU on a lot with a Duplex or a Multifamily Dwelling or a mixed-use project.
Allow ADUs created by conversions or re-construction of existing buildings or structures (such as garages and sheds) on a lot, even if existing structures don’t conform to maximum size, maximum height and required setback (mentioned above) for ADUs.
Require fire sprinklers only if the primary dwelling unit(s) has or requires fire sprinklers.
Do not require off-street parking for the ADU if within a half-mile of public transit. Do not require off-street parking for the primary dwelling unit if the proposed ADU requires removal of existing off-street parking.
Do not require owner occupancy of ADUs or associated primary dwelling units except in the case of a JADU, where an owner must live in either the primary unit or the JADU.
Do not allow short term rentals of ADUs.
There are additional regulations in State law that dictate how ADUs can be created (e.g., by conversion, by new construction, by addition to existing structures), where they can be created (e.g., attached to primary dwelling units, within the walls of an existing structure, free-standing on a lot), and when and how fees can be assessed. In order to communicate the nuances of State ADU law, the Planning Department prepared a table of State ADU regulations (see Attachment 2). In the absence of a local ADU Ordinance, Berkeley has been and will continue to issue building permits for ADUs according to the State’s regulations.
Public Safety
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Referral Response: Local ADU Ordinance PUBLIC HEARING
October 26, 2021
In previous versions of Berkeley’s ADU Ordinance, the City took steps to ensure public safety in fire-prone areas such as the Environmental Safety Residential district (Berkeley’s Fire Zone 3) and lots with frontage on narrow roads in the Hillside Overlay district (Berkeley’s Fire Zone 2). See Attachment 3 for a map of Berkeley’s Fire Zones.
In previous iterations of the ADU Ordinance, the City addressed safety concerns by requiring an Administrative Use Permit (AUP) in Fire Zones 2 and 3 with required findings for minimum fire safety requirements. An AUP is a discretionary permit that allows public review and evaluations by staff in the Planning Department. This involves consultation with other departments, including the Fire Department, to identify detrimental impacts of projects and require mitigation measures, such as requiring fire sprinklers, adjusting the location of the ADU on the lot, and/or requiring off-street parking.
New State ADU regulations require the City to issue over-the-counter building permits for ADUs, removing the City’s authority to require discretionary permits, such as AUPs.
Recognizing public safety issues in Berkeley’s most severe fire hazard districts, the City prohibited ADUs in Fire Zones 2 and 3 via an Urgency Ordinance adopted in December 2019 and extended in January 2020. This prohibition was rescinded in September 2020, when the California Department of Housing and Community Development (HCD) published guidance on State ADU law (see Attachment 4) stating that geographic prohibitions for public safety reasons could not be exercised through land use regulation. Guidance from the State clarified that public safety measures are only available through local amendments to the Fire Code, which limits the range of measures that can be utilized, particularly regarding the location of the unit and the provision of off-street parking.
To address this, City Council referred to the City Manager amendments to the Zoning Ordinance and the Fire Code aimed at reducing impacts of additional density in Fire Zones 2 and 3. The Disaster and Fire Safety Commission (DFSC) made separate recommendations to City Council in a Memorandum submitted on March 24, 2021 that addresses emergency access and egress impacts of on-street parking and fire sprinkler requirement. The Planning Commission is recommending modifications to development standards to limit ADU size and ADU placement in these areas.
Options for a Local ADU Ordinance
State law establishes a maximum size for all ADUs at 1,200 square feet, which can be reduced in a local ordinance to 850 square feet if designed as a studio or one-bedroom and 1,000 square feet if designed with two or more bedrooms1. 1 ADUs created by conversion of an existing building or structure (e.g. conversion of an attic or basement, conversion of a detached garage) can exceed maximum size requirements per State law.
ADUs created in this manner are allowed no more than a 150 square foot addition, intended for ingress and egress.
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Referral Response: Local ADU Ordinance PUBLIC HEARING
October 26, 2021
State law also provides that the local development standards of underlying zoning districts do not apply to ADUs unless explicitly codified in a local ADU ordinance, and only for particular elements such as usable open space, lot coverage, front yard setbacks and design criteria, as long as these standards do not make ADU development “infeasible.” In other words, local ordinances must allow for an ADU of 800 square feet, with a height of 16 feet and side and rear setbacks of 4 feet, on all lots zoned for residential use with at least one proposed or existing dwelling unit, even if the project does not comply with objective development standards in the local ADU ordinance.
Planning Commission Recommendation
On January 26, 2021 City Council referred to the City Manager development of Zoning Ordinance amendments and Fire Code amendments that address emergency access and egress challenges created by new State ADU laws (see Attachment 5). Requested amendments to the Zoning Ordinance involve limitations on the base maximum size of an ADU and required compliance with objective development standards such as front yard setbacks, open space and/or lot coverage.
On April 7, 2021, Planning Commission discussed amendments that responded to Council’s short-term referral. At that meeting, Planning Commission discussed State ADU regulations and focused on allowable modifications to ADU size and height limits .
Planning Commission unanimously voted to recommend a set of Zoning Ordinance amendments that update BMC Chapter 23C.24 [Accessory Dwelling Units] and related definitions in BMC Chapter 23F.04 [Definitions] (see Attachment 1). The proposed Zoning Ordinance amendments provide a new ADU Ordinance that is intuitive and written with language that is clear and easy to understand. The bullets below provide rationale where elements of the proposed ordinance are more lenient than State ADU law or involve a level of complexity that benefits from explanation:
The Maximum Size: The referral asks that Berkeley implement size restrictions on ADUs. With no local ordinance, ADUs with a maximum size of 1200 square feet are allowed by State law. The proposed ADU Ordinance allows a maximum size of 850 square feet for studio and one-bedroom ADUs and 1000 square feet for ADUs with two or more bedrooms. Maximum size is further limited to 800 square feet if a project is located in Fire Zones 2 or 3 or if a project cannot meet front yard setbacks.
Maximum Height: State law allows a maximum height of 16 feet for ADUs. The proposed ADU Ordinance allows an 18-foot maximum height to allow flexibility in ADU design. An 18-foot structure can accommodate two stories, thereby resulting in a possible 50% reduction in building footprint. Planning Commission’s recommendation helps achieve the referral’s goals of preserving open space and minimizing lot coverage, and providing flexibility in design.
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Referral Response: Local ADU Ordinance PUBLIC HEARING
October 26, 2021
Objective Development Standards: The referral asks that Berkeley introduce objective standards for open space and lot coverage to control the maximum size of ADUs. Size controls were requested to ensure lots with ADUs maintain space for emergency access and egress in the event of a disaster. Instead of using open space and lot coverage as metrics, the proposed ADU Ordinance uses a limit in the number of bedrooms (as explained above) and the location of the lot in Fire Zones 2 and 3 to control ADU size. The proposal to use the location of lots in State-designated fire-prone area as an objective standard is a simple and intuitive way to limit ADU size for public safety reasons. This eliminates the need to calculate open space and/or lot coverage for proposed projects and provides a direct connection between fire-safety concerns and infill development. Setbacks: The referral asks that Berkeley introduce objective standards to provide guidance on setbacks. State law explicitly states that side and rear setback requirements can be no more than 4 feet and is silent on front yard setbacks. The proposed ADU Ordinance utilizes setbacks of the underlying zoning district as an objective standard.
o The proposed ADU Ordinance is more lenient than the State if the underlying zoning district has a rear or side setback of less than four feet, such as in some mixed-use districts, where comparable accessory buildings may have a reduced setback requirement.
o Front yard setbacks are applied in the draft ordinance as they would be in the underlying zoning district. These standards will not limit the ability for a property owner to build an ADU; instead they require objective standards for placement of the ADU. If there is no other location suited to placement of the ADU, then the maximum ADU size will be limited to minimize the impacts to the front yard.
ADUs on lots with Group Living Accommodations: The draft Zoning Ordinance amendments allow one ADU on lots with GLAs. The State is silent on whether or not ADU Law applies to GLAs. Over the past year, the Zoning Officer interpreted State ADU law to extend to GLAs (excluding Fraternity Houses, Sorority Houses or Dormitories) by allowing one ADU per lot with a GLA, similar to the regulations for multifamily properties. GLAs are a common residential use in Berkeley and this interpretation is consistent with the State’s direction to encourage ADU development. ADUs on lots with GLAs must not be offered for rent as an extension of the GLA, but rented as an independent unit, per State ADU law.
In addition to the items listed above, the proposed amendments include modifications to the ADU and JADU definitions to comply with State law and maintain consistency with the BMC. BMC Chapter 23C.24 is re-written to reflect the requirements of Government
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Referral Response: Local ADU Ordinance PUBLIC HEARING
October 26, 2021
Code Section 65852.2 and 65852.22 in as clear and concise a manner as possible. The proposed ADU Ordinance has been developed with feedback from members of the public, the ADU Task Force, Berkeley Planning staff, and colleagues from other jurisdictions. If City Council adopts the new ADU Ordinance, Planning staff will publish updated documentation, such as FAQs, a flow chart and a table of regulations. These will explain in non-technical language the regulations in Berkeley’s local ADU Ordinance.
BACKGROUND
In the past six years, Berkeley’s ADU Ordinance has been modified multiple times to conform to State law and to facilitate the construction of ADUs. Prior to the latest revisions to the State’s ADU regulations, Planning Commission was considering other amendments to the local ADU Ordinance to facilitate the construction of ADUs.
However, State law that came into effect on January 1, 2020 requires increased flexibility, has rescinded the AUP process for ADUs, and streamlined the ADU permitting process significantly. In addition, the number of building permits issued for ADUs in Berkeley has increased steadily over the past five years, as illustrated in Table
1. For these reasons, and because of the short-term nature of this referral, the focus of this referral response is narrow and the need for additional amendments will be assessed (and implemented) as part of the Housing Element update.
Table 1. City of Berkeley ADU Building Permits Issued, 2016-2020 Year 2016 2017 2018 2019 2020
# 16 74 80 96 119
ENVIRONMENTAL SUSTAINABILITY
ADUs are generally low impact infill development that have the potential to decrease vehicles miles traveled and greenhouse gas emissions and increase availability of housing near various community amenities, the university campus, transit services and employment opportunities.
RATIONALE FOR RECOMMENDATION
State ADU law restricts the City from utilizing discretionary processes that mitigate public safety concerns associated with infill development. Ordinance amendments reduce ADU footprints, which will increase the possibility of better ingress, egress and emergency access in the event of a disaster.
ALTERNATIVE ACTIONS CONSIDERED
Council could take no action and continue to utilize State ADU regulations, with no local modifications.
CONTACT PERSON
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Referral Response: Local ADU Ordinance PUBLIC HEARING
October 26, 2021
Alene Pearson, Principal Planner, Planning & Development Department, (510) 981- 7489
Katrina Lapira, Assistant Planner, Planning & Development Department, (510) 981- 7488
Attachments:
1: Ordinance
2: Table of State ADU Regulations
3: Map of Berkeley’s Fire Zones
4: HCD’s ADU Guidance Document
5: Council Referral from January 26, 2021
6: April 7, 2021 Planning Commission Meeting Final Minutes 7: Public Hearing Notice
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ORDINANCE NO. -N.S.
ACCESSORY DWELLING UNIT ORDINANCE
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That Berkeley Municipal Code Chapter 23C.24 is amended to read as follows:
Chapter 23C.24
Accessory Dwelling Units
Sections:
23C.24.010 Applicability of Regulations
23C.24.020 Purposes
23C.24.030 Permit Procedures
23C.24.040 Repealed by Ord. 7683-NS.
23C.24.050 Repealed by Ord. 7683-NS.
23C.24.060 Repealed by Ord. 7683-NS.
23C.24.070 Repealed by Ord. 7683-NS.
23C.24.010 Applicability of Regulations
The provisions of this Chapter apply to all lots that are zoned for residential use except 1) in the following zoning districts: Environmental Safety-Residential (ES-R), Manufacturing (M), Mixed Manufacturing (MM), Mixed Use-Light Industrial (MU-LI), and Unclassified (U); and 2) on a lot with frontage on a roadway with less than 26 feet in pavement width in the Hillside Overlay.
A. The provisions of this Chapter apply to all lots that have at least one existing or proposed Dwelling Unit or Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.
B. ADUs and JADUs are allowed on lots as follows:
1. One ADU and/or one JADU is allowed on a lot with one Single Family Dwelling.
2. One ADU is allowed on a lot with multiple Single Family Dwellings.
3. For lots with a Duplex or Multiple Dwelling Uses, one of the following is allowed:
a. Up to two detached ADUs; or
b. At least one ADU created from non-habitable portions of the existing dwelling structure (e.g. basement, attic, storage room). The maximum number of ADUs created from non-habitable portions of the existing dwelling structure shall not exceed 25% of the number of existing Dwelling Units on the lot.
4. One ADU is allowed on a lot with a Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.
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23C.24.020 Purposes
The purposes of this Chapter are to:
A. Implement California Government Code Section 65852.2 and 65852.22.
B. Increase overall supply and range of housing options in Berkeley.
C. Expedite small-scale infill development.
D. Support Housing Element goals of facilitating construction of Accessory Dwelling Units and increasing the number of housing units that are more affordable to Berkeley residents.
E. Encourage development of Accessory Dwelling Units in zoning districts with compatible land uses and infrastructure.
F. Reduce potential impacts of new development in high fire hazard severity areas. 23C.24.030 Permit Procedures
Zoning Certificates will be issued for Accessory Dwelling Units and Junior Accessory Dwelling Units per California Government Code Section 65852.2 and 65852.22.
A. An application for an ADU or JADU is subject to ministerial review. Review must be completed within 60 days of submission of a complete application.
B. If an application to create an ADU or JADU is submitted as part of a project that requires discretionary review, a building permit shall not be issued for the ADU or JADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired.
23C.24.040 Special Provisions Development Standards
Repealed by Ord. 7683-NS.
A. Development Standards in Paragraphs B through G, below, apply as follows:
1. Detached New Construction. A detached, new construction ADU is subject to Development Standards for ADUs. A detached, new construction ADU is defined as having a 3-foot separation from a Main Building per Section 23E.04.030.
2. Converted or Rebuilt Entirely from an Existing Building or Structure. An ADU converted or rebuilt entirely from an existing building or structure, in the same location with the same dimensions and roof height, is not subject to Development Standards for ADUs. These include:
a. An ADU created entirely within an existing Single Family Dwelling. b. An ADU created entirely within the existing non-habitable space of a Duplex or Multiple Dwelling Use.
c. An ADU created entirely within an existing detached Accessory Building or Accessory Structure.
d. An ADU created entirely within an existing Accessory Building or
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Accessory Structure that is demolished and rebuilt.
3. Addition to an Existing or Rebuilt Building or Structure. An ADU, fully or partially created by an addition of square footage to or changes in roof height is subject to Development Standards for ADUs. Paragraph B applies to the ADU’s maximum size and Paragraphs C through G apply to the added square footage and roof design. These include:
a. An ADU created by an addition or roof change to an existing Single Family Dwelling.
b. An ADU created by an addition or roof change to an existing detached Accessory Building or Accessory Structure.
c. And ADU created by an addition or roof change to an existing Accessory Building or Accessory Structure that is demolished and rebuilt.
4. Notwithstanding any other provision of this Chapter, no ADU is permitted to be built in the Hillside Overlay or Environmental Safety Residential (ES-R) districts unless it complies with the requirements of Government Code section 65852.2(e)(1).
5. A JADU is subject to applicable Development Standards in Paragraphs B and G.
B. Maximum Size
1. A detached, new construction ADU or an ADU fully or partially created by addition to an existing or proposed Single Family Dwelling is subject to the following maximum size limits:
a. 850 square feet for a studio or one-bedroom ADU.
b. 1000 square feet for an ADU with two or more bedrooms.
2. An ADU created from an existing Accessory Building or Accessory Structure that does not conform to the Development Standards in Paragraphs C and D may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing building or structure. Additions shall conform with the Development Standards in this Chapter
3. An ADU created from an existing Accessory Building or Accessory Structure that conforms to the Development Standards in Paragraphs C and D must comply with one of the following:
a. May include an expansion of not more than 150 square feet beyond the same physical dimensions of the existing building or structure; or b. 850 square feet for a studio or one-bedroom ADU; or. c. 1000 square feet for an ADU with two or more bedrooms.
4. The maximum size of a JADU is 500 square feet.
C. Maximum Height is applied to ADUs as follows. See Chapter 23F.04 for definition.
1. Maximum Height of a detached, new construction ADU is 18 feet.
2. Maximum Height of new square footage added to a Single Family Dwelling, Accessory Building or Accessory Structure to create an ADU is 18 feet.
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D. Rear and Side Setbacks. The required rear and side setbacks for a detached, new construction ADU or addition to an existing building or structure are 4 feet, unless a lesser setback is allowed for a comparable Accessory Building or Accessory Structure in the underlying zoning district.
E. Front Yard Setback. The required front yard setback is the same as is established in the underlying zoning district.
F. Projections. Architectural features (Chimneys, Water Heater Enclosures, Flues, Heating and Cooling Equipment, Eaves, Cornices, Canopies, Awnings and Bay Window) may project two feet into the required setbacks, so long as there remains at least a two-foot setback from property lines.
G. Parking
1. Off-street parking is not required.
2. Replacement parking is not required, but is allowed if in compliance with Chapter 23D.12 and/or Chapter 23E.28.
H. Nothing in this Chapter shall preclude the issuance of Zoning Certificate for the construction or conversion of an ADU or JADU that complies with the requirements of Government Code section 65852.2(e)(1). The City shall not apply the Development Standards in this Chapter to the extent they are inconsistent with the requirements of Government Code sections 65852.2 and 65852.22.
I. A Zoning Certificate for the construction of an ADU or JADU may not be denied based on the failure of the applicant to correct a nonconforming zoning condition. 23C.24.050 Development Standards Special Provisions
Repealed by Ord. 7683-NS.
A. A rooftop deck may be established provided that the entire roof, deck and railing comply with Development Standards for ADUs in Section 23C.24.040 Paragraphs C through G.
B. A JADU must be owner-occupied. For purposes of this paragraph, “owner- occupied” means that a person with legal title to the property must reside in either the Single Family Dwelling or the JADU as their legal permanent residence.
C. The property owner shall file a deed restriction with the County Recorder providing that:
1. The ADU and/or JADU shall not be sold separately from the Dwelling Unit.
2. The ADU and/or JADU shall not be rented for a term that is shorter than 30 days.
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3. The JADU or the Single Family Dwelling in which the JADU is located shall be owner-occupied per the definition in Section 23F.04.010 23C.24.060 Modification of Development Standards with an Administrative Use Permit
Repealed by Ord. 7683-NS.
23C.24.070 Findings
Repealed by Ord. 7683-NS.
Section 2. That the definition for Accessory Dwelling Unit in Berkeley Municipal Code Chapter 23F.04.010 is amended to read as follows:
Accessory Dwelling Unit (ADU): A secondary Dwelling Unit that is located on a lot with a proposed or existing Single Family Dwelling, Duplex, Multiple Dwelling Use, or Group Living Accommodation, which is occupied by one legally established Single Family Dwelling that conforms to the standards of Section 23C.24. An Accessory Dwelling Unit must comply with local building, housing, safety and other code requirements unless the City is prohibited from applying such requirements by Government Code Section 65852.2 or 65852.22 and provide the following features independent of the Single Family Dwelling, Duplex, Multiple Dwelling Use, or Group Living Accomodation: 1) exterior or independent access to Accessory Dwelling Unit; 2) living and sleeping quarters; 3) a full kitchen; and 4) a full bathroom. An Accessory Dwelling Unit also includes the following:
A. An efficiency unit, as defined in Section 17958.1 of the Health and Safety Code.
B. A manufactured home, as defined in Section 18007 of the Health and Safety Code.
Section 3. That the definition for Primary Dwelling Unit in Berkeley Municipal Code Chapter 23F.04.010 is rescinded:
Primary Dwelling Unit: A legally established Single Family Dwelling that is on a lot with an Accessory Dwelling Unit.
Section 4. That the following two definitions are adopted into Berkeley Municipal Code Chapter 23F.04.010:
Efficiency Kitchen: A kitchen that includes a sink, a cooking facility with appliances (e.g. microwave, toaster, oven, hot plate), and food preparation counter space and cabinets.
Junior Accessory Dwelling Unit (JADU): A unit that is contained within the walls of a Single Family Dwelling and includes a separate exterior entrance. A JADU may not be located in an Accessory Building or an Accessory Structure. A JADU may include separate sanitation facilities, or may share sanitary facilities with a Single Family Dwelling. At a minimum, a JADU shall include an Efficiency Kitchen with a working refrigerator.
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Section 5. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
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Planning and Development Department Publication Date: May 2021 Land Use Planning Division
ACCESSORY DWELLING UNIT ORDINANCE SUMMARY
Effective December 20, 2020
1947 Center Street
, Berkeley, CA 94704 Tel: 510.981.7410 Email: [email protected] Processing + Land Use Development Standards
Ministerial land use approval for ADUs will be issued within 60-days of receiving a complete building permit application.
JADU1 ADU on LOT WITH SINGLE FAMILY DWELLING(S) ADU on LOT WITH MULTI-FAMIL Y DWELLING(S) ADU Type Conversion JADU2
[interior conversion of some portion of a
single-family dwelling]
Conversion ADU2&3
[interior conversion of existing habitable
or non-habitable area within a single-
family dwelling, or conversion of a
legally built detached accessory
structure or accessory building]
Detached ADUs
[new construction]
Attached ADU
[addition/new construction]
Conversion ADU2
[interior conversion of existing non-
habitable area of multifamily structures]
Detached ADUs
[new construction]
Lot A JADU may be established on a lot with
one single family dwelling. An ADU may be established on a lot that has an existing or proposed single-family or multi-family dwelling.
Number of Accessory Units 14 15
Interior Conversion ADU: At least one and no more than 25% of the existing unit count in multifamily building.6
OR
Detached ADU: 2
Maximum Size (Square Feet2) 500 N/A 1,200 1,200 N/A 1,200 Maximum Height (Feet) N/A N/A 16 N/A 16
Side Setbacks (Feet) N/A N/A 4 N/A 4
Rear Setbacks (Feet) N/A N/A 4 N/A 4
Entrance(s) Exterior entrance required. Exterior entrance required. Indepen dent entrance required.7 Kitchen Efficiency kitchen required.8 Full kitchen required.9 Parking Requirements
JADUs created in the attached garage
are not subject to the same parking
protections as ADUs.
No parking required for ADUs. Replacement parking for existing dwelling unit(s) not required when a garage, carport, covered parking structure, or designated uncovered parking area is physically replaced by an accessory dwelling unit.
Deed Restrictions
The owner of the property must record
a deed restriction to include the
requirements listed in Government
Sections 65852.2 and 658582.22.
The owner of the property must record a deed restriction with Alameda County that restricts the sale of the ADU from the existing dwelling unit(s) and prohibits Short Term Rentals.
Owner Occupancy Required for either single-family
dwelling or JADU. Not required for ADUs permitted between January 1, 2020 and January 1, 2025.
Natural Gas Prohibition Does not Apply May Apply 10 Applies Does not Apply Does not Apply Applies Short Term Rentals Prohibited
Impact Fees None
ADUs Less than 750 SF- None
ADUs Equal to or Greater than 750 SF- Impact fees collected must be proportional to square footage of existing dwelling unit(s).
Utility Fees and Connections No connection fee or capacity charge and no direct line required between ADU or JADU and utility unless in conjunction with a new single-family dwelling. Connection fee or capacity charge “proportionate to the burden” of the ADU and may require new or separate utility connections. 1 A Junior ADU (JADU) is a small dwelling unit created from some portion of a single family dwelling. These units can have their own bathroom facilities or share with the single family dwelling. 2 Conversions do not allow modifications to building footprint/ dimensions of legally built structures or buildings, except where sufficient egress and ingress requires modifications -- in which case, an expansion of up to 150 square feet is allowed for ADUs on lots with single family dwellings. 3 A Conversion ADU is permitted in an existing accessory structure on both single/multi-family lot. 4Lots with multiple detached single-family dwellings may only have one ADU. 5 Both a JADU and an ADU may exist on a lot zoned with one single- family dwelling. 6 When calculating, round up to the nearest integer.
7 Exterior entrance not required, but independent entrance (e.g. off hallway, stairwell or other common space) is required. 8 An efficiency kitchen includes 1) a sink; 2) a cooking facility with appliances; and 3) food preparation counter and storage cabinets. 9 A full kitchen requires habitable space used for preparation of food that contains at least a sink, a refrigerator of no less than 10 cubic feet, and either a cooktop and an oven, or a range. 10 Conversions of detached Accessory Buildings or Accessory Structures that involve Demolition are subject to the Natural Gas Prohibition.
N/A = not applicable SF = square feet
ATTACHMENT 2
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Hillside Overlay and Fire Zones 2 and 3
Updated:
November 14, 2019
[
Land Use Planning Division
Dep.t of Planning & Development
2120 Milvia Street, 2nd Floor
Berkeley, CA 94704
CITY OF BERKELEY
0 1,600 3,200800
Feet
Legend
Hillside Overlay
Berkeley Fire Zone 2
Berkeley Fire Zone 3
ATTACHMENT 3
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ATTACHMENT 4
332
1
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2 Table of Contents
Understanding Accessory Dwelling Units (ADUs) and Their Importance ........................................ 3 Summary of Recent Changes to Accessory Dwelling Unit Laws ..................................................... 5 Frequently Asked Questions: .............................................................................................................. 8
1. Legislative Intent .......................................................................................................................... 8
2. Zoning, Development and Other Standards .................................................................................. 9 A) Zoning and Development Standards ...................................................................................... 9 B) Size Requirements ............................................................................................................... 11 C) Parking Requirements ......................................................................................................... 12 D) Setbacks .............................................................................................................................. 13 E) Height Requirements ........................................................................................................... 13 F) Bedrooms ............................................................................................................................. 13 G) Impact Fees ......................................................................................................................... 14 H) Conversion of Existing Space in Single Family, Accessory and Multifamily Structures and Other Statewide Permissible ADUs (Subdivision (e)) ................................................................ 15 I) Nonconforming Zoning Standards ......................................................................................... 16 J) Renter and Owner-occupancy .............................................................................................. 17 K) Fire Sprinkler Requirements ................................................................................................. 17 L) Solar Panel Requirements .................................................................................................... 17
3. Junior Accessory Dwelling Units (JADUs) – Government Code Section 65852.22 ..................... 18
4. Manufactured Homes and ADUs ................................................................................................ 18
5. ADUs and the Housing Element ................................................................................................. 19
6. Homeowners Association ........................................................................................................... 20
7. Enforcement ............................................................................................................................... 20
8. Other .......................................................................................................................................... 20 Resources ........................................................................................................................................... 22 Attachment 1: Statutory Changes (Strikeout/Italics and Underline) ................................................. 23 Attachment 2: State Standards Checklist........................................................................................ 37 Attachment 3: Bibliography ............................................................................................................. 38
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3 Understanding Accessory Dwelling Units
(ADUs) and Their Importance
California’s housing production is not keeping pace with demand. In the last decade, less than half of the homes needed to keep up with the population growth were built.
Additionally, new homes are often constructed away from job-rich areas. This lack of housing that meets people’s needs is impacting affordability and causing average
housing costs, particularly for renters in California, to rise significantly. As affordable housing becomes less
accessible, people drive longer distances between
housing they can afford and their workplace or pack
themselves into smaller shared spaces, both of which
reduce quality of life and produce negative environmental impacts.
*******
Beyond traditional construction, widening the range of housing types can increase the housing supply and help more low-income Californians thrive. Examples of some of these housing types are Accessory Dwelling Units (ADUs - also referred to as second units, in-law units, casitas, or granny flats) and Junior Accessory Dwelling Units (JADUs).
ADUs tend to be significantly less expensive to build and offer benefits that address common development b arriers such as affordability and environmental quality. Because ADUs must be built on lots with existing or proposed housing, they do not require paying for new land, dedicated parking or other costly infrastructure required to build a new single-family home. Because they are contained inside existing single-family homes, JADUs require relatively What is an ADU?
An ADU is an accessory dwelling unit with complete independent living facilities for one or more persons and has a few variations:
• Detached: The unit is separated from the primary structure. • Attached: The unit is attached to the primary structure. • Converted Existing Space: Space (e.g., master bedroom, attached garage, storage area, or similar use, or an accessory structure) on the lot of the primary residence that is converted into an independent living unit.
• Junior Accessory Dwelling Unit (JADU): A specific type of conversion of existing space that is contained entirely within an existing or proposed single-family residence.
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4 modest renovations and are much more affordable to complete. ADUs are often built with cost-effective one or two-story wood frames, which are also cheaper than other new homes. Additionally, prefabricated ADUs can be directly purchased and save much of the time and money that comes with new construction. ADUs can provide as much living space as apartments and condominiums and work well for couples, small families, friends, young people, and seniors.
Much of California’s housing crisis comes from job-rich, high-opportunity areas where the total housing stock is insufficient to meet demand and exclusionary practices have limited housing choice and inclusion. Professionals and students often prefer living closer to jobs and amenities rather than spending hours commuting. Parents often want better access to schools and do not necessarily require single-family homes to meet their needs. There is a shortage of affordable units, and the units that are available can be out of reach for many people. To address our state’s needs, homeowners can construct an ADU on their lot or convert an underutilized part of their home into a JADU. This flexibility benefits both renters and homeowners who can receive extra monthly rent income.
ADUs also give homeowners the flexibility to share independent living areas with family members and others, allowing seniors to age in place as they require more care, thus helping extended families stay together while maintaining privacy. The space can be used for a variety of reasons, including adult children who can pay off debt and save up for living on their own.
New policies are making ADUs even more affordable to build, in part by limiting the development impact fees and relaxing zoning requirements. A 2019 study from the Terner Center on Housing Innovation noted that one unit of affordable housing in the Bay Area costs about $450,000. ADUs and JADUs can often be buil t at a fraction of that price and homeowners may use their existing lot to create additional housing, without being required to provide additional infrastructure. Often the rent generated from the ADU can pay for the entire project in a matter of years.
ADUs and JADUs are a flexible form of housing that can help Californians more easily access job-rich, high- opportunity areas. By design, ADUs are more affordable and can provide additional income to homeowners. Local governments can encourage the development of ADUs and improve access to jobs, education, and services for many Californians.
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5 Summary of Recent Changes to Accessory
Dwelling Unit Laws
In Government Code Section 65852.150, the
California Legislature found and declared that, among
other things, allowing accessory dwelling units
(ADUs) in zones that allow single-family and
multifamily uses provides additional rental housing,
and is an essential component in addressing
California’s housing needs. Over the years, ADU law
has been revised to improve its effectiveness at
creating more housing units. Changes to ADU laws
effective January 1, 2021, further reduce barriers,
better streamline approval processes, and expand
capacity to accommodate the development of ADUs
and junior accessory dwelling units (JADUs).
ADUs are a unique opportunity to address a variety of
housing needs and provide affordable housing
options for family members, friends, students, the elderly, in-home health care providers, people with disabilities, and others. Further, ADUs offer an opportunity to maximize and integrate housing choices within existing neighborhoods.
Within this context, the California Department of Housing and Community Development (HCD) has prepared this guidance to assist local governments, homeowners, architects, and the general public in encouraging the development of ADUs. The following is a summary of recent legislation that amended ADU law: AB 3182 (2020) and SB 13, AB 68, AB 881, AB 587, AB 670, and AB 671 (2019). Please see Attachment 1 for the complete statutory changes for AB 3182 (2020) and SB 13, AB 68, AB 881, AB 587, AB 670, and AB 671 (2019).
AB 3182 (Ting)
Chapter 198, Statutes of 2020 (Assembly Bill 3182) builds upon recent changes to ADU law (Gov. Code, § 65852.2 and Civil Code Sections 4740 and 4741) to further address barriers to the development and use of ADUs and JADUs.
This recent legislation, among other changes, addresses the following:
• States that an application for the creation of an ADU or JADU shall be deemed approved (not just subject to ministerial approval) if the local agency has not acted on the completed application within 60 days. • R equires ministerial approval of an application for a building permit within a residential or mixed- use zone to create one ADU and one JADU per lot (not one or the other), within the proposed or existing single- family dwelling, if certain conditions are met.
• Provides for the rental or leasing of a separate interest ADU or JADU in a common interest development, notwithstanding governing documents that otherwise appear to prohibit renting or leasing of a unit, and without regard to the date of the governing documents.
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6 • P rovides for not less than 25 percent of the separate interest units within a common interest development be allowed as rental or leasable units.
AB 68 (Ting), AB 881 (Bloom), and SB 13 (Wieckowski)
Chapter 653, Statutes of 2019 (Senate Bill 13, Section 3), Chapter 655, Statutes of 2019 (Assembly Bill 68, Section 2) and Chapter 659 (Assembly Bill 881, Section 1.5 and 2.5) build upon recent changes to ADU and JADU law (Gov. Code § 65852.2, 65852.22) and further address barriers to the development of ADUs and JADUs.
This legislation, among other changes, addresses the following:
• Prohibits local agencies from including in development standards for ADUs requirements on minimum lot size (Gov. Code, § 65852.2, subd. (a)(1)(B)(i)).
• Clarifies areas designated by local agencies for ADUs may be based on the adequacy of water and sewer services as well as impacts on traffic flow and public safety (Gov. Code, § 65852.2, subd. (a)(1)(A)). • Eliminates all owner-occupancy requirements by local agencies for ADUs approved between January 1, 2020, and January 1, 2025 (Gov. Code, § 65852.2, subd. (a)(6)). • Prohibits a local agency from establishing a maximum size of an ADU of less than 850 square feet, or 1,000 square feet if the ADU contains more than one bedroom and requires approval of a permit to build an ADU of up to 800 square feet (Gov. Code, § 65852.2, subds. (c)(2)(B) & (C)). • Clarifies that when ADUs are created through the conversion of a garage, carport or covered parking structure, replacement of offstreet parking spaces cannot be required by the local agency (Gov. Code, § 65852.2, subd. (a)(1)(D)(xi)).
• Reduces the maximum ADU and JADU application review time from 120 days to 60 days ( Gov. Code, § 65852.2, subd. (a)(3) and (b)).
• Clarifies that “public transit” includes various means of transportation that charge set fees, run on fixed routes and are available to the public (Gov. Code, § 65852.2, subd. (j)(10)). • Establishes impact fee exemptions and limitations based on the size of the ADU. ADUs up to 750 square feet are exempt from impact fees (Gov. Code § 65852.2, subd. (f)(3)); ADUs that are 750 square feet or larger may be charged impact fees but only such fees that are proportional in size (by square foot) to those for the primary dwelling unit (Gov. Code, § 65852.2, subd. (f)(3)). • Defines an “accessory structure” to mean a structure that is accessory or incidental to a dwelling on the same lot as the ADU (Gov. Code, § 65852.2, subd. (j)(2)). • Authorizes HCD to notify the local agency if HCD finds that their ADU ordinance is not in compliance with state law (Gov. Code, § 65852.2, subd. (h)(2)).
• Clarifies that a local agency may identify an ADU or JADU as an adequate site to satisfy Regional Housing Needs Allocation (RHNA) housing needs (Gov. Code, §§ 65583.1, subd. (a), and 65852.2, subd. (m)). • Permits JADUs even where a local agency has not adopted an ordinance expressly authorizing them (Gov. Code, § 65852.2, subds. (a)(3), (b), and (e)).
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7 • Allows a permitted JADU to be constructed within the walls of the proposed or existing single- family residence and eliminates the required inclusion of an existing bedroom or an interior entry into the single- family residence (Gov. Code § 65852.22, subd. (a)(4); former Gov. Code § 65852.22, subd. (a)(5)). • Requires, upon application and approval, a local agency to delay enforcement against a qualifying substandard ADU for five (5) years to allow the owner to correct the violation, so long as the violation is not a health and safety issue, as determined by the enforcement agency (Gov. Code, § 65852.2, subd. (n); Health & Safety Code, § 17980.12).
AB 587 (Friedman), AB 670 (Friedman), and AB 671 (Friedman) In addition to the legislation listed above, AB 587 (Chapter 657, Statutes of 2019), AB 670 (Chapter 178, Statutes of 2019), and AB 671 (Chapter 658, Statutes of 2019) also have an impact on state ADU law, particularly through Health and Safety Code Section 17980.12. These pieces of legislation, among other changes, address the following:
• AB 587 creates a narrow exemption to the prohibition for ADUs to be sold or otherwise conveyed separately from the primary dwelling by allowing deed-restricted sales to occur if the local agency adopts an ordinance. To qualify, the primary dwelling and the ADU are to be built by a qualified nonprofit corporation whose mission is to provide units to low-income households (Gov. Code, § 65852.26). • AB 670 provides that covenants, conditions and restrictions (CC&Rs) that either effectively prohibit or unreasonably restrict the construction or use of an ADU or JADU on a lot zoned for single- family residential use are void and unenforceable (Civ, Code, § 4751). • AB 671 requires local agencies’ housing elements to include a plan that incentivizes and promotes the creation of ADUs that can offer affordable rents for very low, low-, or moderate-income households and requires HCD to develop a list of state grants and financial incentives in connection with the planning, construction and operation of affordable ADUs (Gov. Code, § 65583; Health & Safety Code, § 50504.5). .
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8 .
Frequently Asked Questions:
Accessory
Dwelling Units1
1. Legislative Intent
a. Should a local ordinance
encourage the
development of
accessory dwelling units?
Yes. Pursuant to Government Code
Section 65852.150, the California
Legislature found and declared that,
among other things, California is facing
a severe housing crisis and ADUs are
a valuable form of housing that meets
the needs of family members,
students, the elderly, in-home health
care providers, people with disabilities
and others. Therefore, ADUs are an
essential component of California’s
housing supply.
ADU law and recent changes intend to
address barriers, streamline approval,
1 Note: Unless otherwise noted, the Government Code section referenced is 65852.2.
Government Code 65852.150:
(a) The Legislature finds and declares all of the following:
(1) Accessory dwelling units are a valuable form of housing in California.
(2) Accessory dwelling units provide housing for family members, students, the elderly, in-home health care providers, the disabled, and others, at below market prices within existing neighborhoods. (3) Homeowners who create accessory dwelling units benefit from added income, and an increased sense of security.
(4) Allowing accessory dwelling units in single-family or multifamily residential zones provides additional rental housing stock in California.
(5) California faces a severe housing crisis.
(6) The state is falling far short of meeting current and future housing demand with serious consequences for the state’s economy, our ability to build green infill consistent with state greenhouse gas reduction goals, and the well-being of our citizens, particularly lower and middle-income earners. (7) Accessory dwelling units offer lower cost housing to meet the needs of existing and future residents within existing
neighborhoods, while respecting architectural character. (8) Accessory dwelling units are, therefore, an essential component of California’s housing supply.
(b) It is the intent of the Legislature that an accessory dwelling unit ordinance adopted by a local agency has the effect of providing for the creation of accessory dwelling units and that provisions in this ordinance relating to matters including unit size, parking, fees, and other requirements, are not so arbitrary, excessive, or burdensome so as to unreasonably restrict the ability of homeowners to create accessory dwelling units in zones in which they are authorized by local ordinance.
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9 and expand potential capacity for ADUs, recognizing their unique importance in addressing California’s housing needs. The preparation, adoption, amendment, and implementation of local ADU ordinances must be carried out consistent with Government Code, Section 65852.150 and must not unduly constrain the creation of ADUs. Local governments adopting ADU ordinances should carefully weigh the adoption of zoning, development standards, and other provisions for impacts on the development of ADUs.
In addition, ADU law is the statutory minimum requirement. Local governments may elect to go beyond this statutory minimum and further the creation of ADUs. Many local governments have embraced the importance of ADUs as an important part of their overall housing policies and have pursued innovative strategies. (Gov. Code, § 65852.2, subd. (g)).
2. Zoning, Development and Other Standards
A) Zoning and Development Standards
• Are ADUs allowed jurisdiction wide?
No. ADUs proposed pursuant to subdivision (e) must be considered in any residential or mixed- use zone.
For other ADUs, local governments may, by ordinance, designate areas in zones where residential uses are permitted that will also permit ADUs. However, any limits on where ADUs are permitted may only be based on the adequacy of water and sewer service, and the impacts on traffic flow and public safety.
Further, local governments may not preclude the creation of ADUs altogether, and any limitation should be accompanied by detailed findings of fact explaining why ADU limitations are required and consistent with these factors.
Examples of public safety include severe fire hazard areas and inadequate water and sewer service and includes cease and desist orders. Impacts on traffic flow should consider factors like lesser car ownership rates for ADUs and the potential for ADUs to be proposed pursuant to Government Code section 65852.2, subdivision (e). Finally, local governments may develop alternative procedures, standards, or special conditions with mitigations for allowing ADUs in areas with potential health and safety concerns. (Gov.
Code, § 65852.2, subd. (e))
Residential or mixed-use zone should be construed broadly to mean any zone where residential uses are permitted by-right or by conditional use.
• Can a local government apply design and development standards?
Yes. A local government may apply development and design standards that include, but are not limited to, parking, height, setback, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Resources.
However, these standards shall be sufficiently objective to allow ministerial review of an ADU. (Gov. Code, § 65852.2, subd. (a)(1)(B)(i))
ADUs created under subdivision (e) of Government Code 65852.2 shall not be subject to design and development standards except for those that are noted in the subdivision.
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10 What does objective mean?
“objective zoning standards” and “objective design review standards” mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. Gov Code § 65913.4, subd. (a)(5) ADUs that do not meet objective and ministerial development and design standards may still be permitted through an ancillary discretionary process if the applicant chooses to do so. Some jurisdictions with compliant ADU ordinances apply additional processes to further the creation of ADUs that do not otherwise comply with the minimum standards necessary for ministerial review. Importantly, these processes are intended to provide additional opportunities to create ADUs that would not otherwise be permitted, and a discretionary process may not be used to review ADUs that are fully compliant with ADU law. Examples of these processes include areas where additional health and safety concerns must be considered, such as fire risk.
• Can ADUs exceed general plan and zoning densities?
Yes. An ADU is an accessory use for the purposes of calculating allowable density under the general plan and zoning that does not count toward the allowable density. For example, if a zoning district allows one unit per 7,500 square feet, then an ADU would not be counted as an additional unit. Further, local governments could elect to allow more than one ADU on a lot, and ADUs are automatically a residential use deemed consistent with the general plan and zoning. (Gov. Code, § 65852.2, subd. (a)(1)(C).) • Are ADUs permitted ministerially?
Yes. ADUs must be considered, approved, and permitted ministerially, without discretionary action.
Development and other decision-making standards must be sufficiently objective to allow for ministerial review. Examples include numeric and fixed standards such as heights or setbacks, or design standards such as colors or materials. Subjective standards require judgement and can be interpreted in multiple ways such as privacy, compatibility with neighboring properties or promoting harmony and balance in the community; subjective standards shall not be imposed for ADU development. Further, ADUs must not be subject to a hearing or any ordinance regulating the issuance of variances or special use permits and must be considered ministerially. (Gov. Code, § 65852.2, subd. (a)(3).) • Can I create an ADU if I have multiple detached dwellings on a lot?
Yes. A lot where there are currently multiple detached single-family dwellings is eligible for creation of one ADU per lot by converting space within the proposed or existing space of a single-family dwelling or existing structure or a new construction detached ADU subject to certain development standards. • Can I build an ADU in a historic district, or if the primary residence is subject to historic preservation?
Yes. ADUs are allowed within a historic district, and on lots where the primary residence is subject to historic preservation. State ADU law allows for a local agency to impose standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Resources. However, these standards do not apply to ADUs proposed pursuant to Government Code section 65852.2, subdivision (e).
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11 As with non-historic resources, a jurisdiction may impose objective and ministerial standards that are sufficiently objective to be reviewed ministerially and do not unduly burden the creation of ADUs.
Jurisdictions are encouraged to incorporate these standards into their ordinance and submit these standards along with their ordinance to HCD. (Gov. Code, § 65852.2, subds. (a)(1)(B)(i) & (a)(5).) B) Size Requirements
• Is there a minimum lot size requirement?
No. While local governments may impose standards on ADUs, these standards shall not include minimum lot size requirements. Further, lot coverage requirements cannot preclude the creation of a statewide exemption ADU (800 square feet ADU with a height limitation of 16 feet and 4 feet side and rear yard setbacks). If lot coverage requirements do not allow such an ADU, an automatic exception or waiver should be given to appropriate development standards such as lot coverage, floor area or open space requirements. Local governments may continue to enforce building and health and safety standards and may consider design, landscape, and other standards to facilitate compatibility.
What is a statewide exemption ADU?
A statewide exemption ADU is an ADU of up to 800 square feet, 16 feet in height, as potentially limited by a local agency, and with 4 feet side and rear yard setbacks. ADU law requires that no lot coverage, floor area ratio, open space, or minimum lot size will preclude the construction of a statewide exemption ADU.
Further, ADU law allows the construction of a detached new construction statewide exemption ADU to be combined on the same lot with a JADU in a single-family residential zone. In addition, ADUs are allowed in any residential or mixed uses regardless of zoning and development standards imposed in an ordinance.
See more discussion below.
• Can minimum and maximum unit sizes be established for ADUs?
Yes. A local government may, by ordinance, establish minimum and maximum unit size requirements for both attached and detached ADUs. However, maximum unit size requirements must be at least 850 square feet and 1,000 square feet for ADUs with more than one bedroom. For local agencies without an ordinance, maximum unit sizes are 1,200 square feet for a new detached ADU and up to 50 percent of the floor area of the existing primary dwelling for an attached ADU (at least 800 square feet). Finally, the local agency must not establish by ordinance a minimum square footage requirement that prohibits an efficiency unit, as defined in Health and Safety Code section 17958.1.
The conversion of an existing accessory structure or a portion of the existing primary residence to an ADU is not subject to size requirements. For example, an existing 3,000 square foot barn converted to an ADU would not be subject to the size requirements, regardless if a local government has an adopted ordinance.
Should an applicant want to expand an accessory structure to create an ADU beyond 150 square feet, this ADU would be subject to the size maximums outlined in state ADU law, or the local agency’s adopted ordinance.
•
Can a percentage of the primary dwelling be used for a maximum unit size?
Yes. Local agencies may utilize a percentage (e.g., 50 percent) of the primary dwelling as a maximum unit size for attached or detached ADUs but only if it does not restrict an ADU’s size to less than the standard of at least 850 square feet (or at least 1000 square feet for ADUs with more than one bedroom). Local agencies must not, by ordinance, establish any other minimum or maximum unit sizes , including based on
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12 a percentage of the primary dwelling, that precludes a statewide exemption ADU. Local agencies utilizing percentages of the primary dwelling as maximum unit sizes could consider multi-pronged standards to help navigate these requirements (e.g., shall not exceed 50 percent of the dwelling or 1,000 square feet, whichever is greater).
• Can maximum unit sizes exceed 1,200 square feet for ADUs?
Yes. Maximum unit sizes, by ordinance, can exceed 1,200 square feet for ADUs. ADU law does not limit the authority of local agencies to adopt less restrictive requirements for the creation of ADUs ( Gov. Code, § 65852.2, subd. (g)).
Larger unit sizes can be appropriate in a rural context or jurisdictions with larger lot sizes and is an important approach to creating a full spectrum of ADU housing choices.
C) Parking Requirements
• Can parking requirements exceed one space per unit or bedroom?
No. Parking requirements for ADUs shall not exceed one parking space per unit or bedroom, whichever is less. These spaces may be provided as tandem parking on a driveway. Guest parking spaces shall not be required for ADUs under any circumstances.
What is Tandem Parking?
Tandem parking means two or more automobiles that are parked on a driveway or in any other location on a lot, lined up behind one another. (Gov. Code, § 65852.2, subds. (a)(1)(D)(x)(I) and (j)(11).)
Local agencies may choose to eliminate or reduce parking requirements for ADUs such as requiring zero or half a parking space per each ADU.
• Is flexibility for siting parking required?
Yes. Local agencies should consider flexibility when siting parking for ADUs. Offstreet parking spaces for the ADU shall be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made. Specific findings must be based on specific site or regional topographical or fire and life safety conditions.
When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an ADU, or converted to an ADU, the local agency shall not require that those offstreet parking spaces for the primary unit be replaced. (Gov. Code, § 65852.2, subd. (a)(D)(xi).)
• Can ADUs be exempt from parking?
Yes. A local agency shall not impose ADU parking standards for any of the following, pursuant to Government Code section 65852.2, subdivisions (d)(1-5) and (j)(10). (1) Accessory dwelling unit is located within one-half mile walking distance of public transit.
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13 (2) Accessory dwelling unit is located within an architecturally and historically significant historic district . (3) Accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure.
(4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
(5) When there is a car share vehicle located within one block of the accessory dwelling unit .
Note: For the purposes of state ADU law, a jurisdiction may use the designated areas where a car share vehicle may be accessed. Public transit is any location where an individual may access buses, trains, subways and other forms of transportation that charge set fares, run on fixed routes and are available to the general public. Walking distance is defined as the pedestrian shed to reach public transit. Additional parking requirements to avoid impacts to public access may be required in the coastal zone.
D) Setbacks
• Can setbacks be required for ADUs?
Yes. A local agency may impose development standards, such as setbacks, for the creation of ADUs.
Setbacks may include front, corner, street, and alley setbacks. Additional setback requirements may be
required in the coastal zone if required by a local coastal program. Setbacks may also account for utility easements or recorded setbacks. However, setbacks must not unduly constrain the creation of ADUs and cannot be required for ADUs proposed pursuant to subdivision (e). Further, a setback of no more than four feet from the side and rear lot lines shall be required for an attached or detached ADU. (Gov. Code, § 65852.2, subd. (a)(1)(D)(vii).)
A local agency may also allow the expansion of a detached structure being converted into an ADU when the existing structure does not have four-foot rear and side setbacks. A local agency may also allow the expansion area of a detached structure being converted into an ADU to have no setbacks, or setbacks of less than four feet, if the existing structure has no setbacks, or has setbacks of less than four feet. A local agency shall not require setbacks of more than four feet for the expanded area of a detached structure being converted into an ADU.
A local agency may still apply front yard setbacks for ADUs, but front yard setbacks cannot preclude a statewide exemption ADU and must not unduly constrain the creation of all types of ADUs. (Gov. Code, § 65852.2, subd. (c).)
E) Height Requirements
• Is there a limit on the height of an ADU or number of stories?
Not in state ADU law, but local agencies may impose height limits provided that the limit is no less than 16 feet. (Gov. Code, § 65852.2, subd. (a)(1)(B)(i).)
F) Bedrooms
• Is there a limit on the number of bedrooms?
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14 State ADU law does not allow for the limitation on the number of bedrooms of an ADU. A limit on the number of bedrooms could be construed as a discriminatory practice towards protected classes, such as familial status, and would be considered a constraint on the development of ADUs .
G) Impact Fees
• Can impact fees be charged for an ADU less than 750 square feet?
No. An ADU is exempt from incurring impact fees from local agencies, special districts , and water corporations if less than 750 square feet. Should an ADU be 750 square feet or larger, impact fees shall be charged proportionately in relation to the square footage of the ADU to the square footage of the primary dwelling unit.
What is “Proportionately”?
“Proportionately” is some amount that corresponds to a total amount, in this case, an impact fee for a single-family dwelling. For example, a 2,000 square foot primary dwelling with a proposed 1,000 square foot ADU could result in 50 percent of the impact fee that would be charged for a new primary dwelling on the same site. In all cases, the impact fee for the ADU must be less than the primary dwelling. Otherwise, the fee is not calculated proportionately. When utilizing proportions, careful consideration should be given to the impacts on costs, feasibility, and ultimately, the creation of ADUs. In the case of the example above, anything greater than 50 percent of the primary dwelling could be considered a constraint on the development of ADUs.
For purposes of calculating the fees for an ADU on a lot with a multifamily dwelling, the proportionality shall be based on the average square footage of the units within that multifamily dwelling structure. For ADUs converting existing space with a 150 square foot expansion, a total ADU square footage over 750 square feet could trigger the proportionate fee requirement. (Gov. Code, § 65852.2, subd. (f)(3)(A).) • Can local agencies, special districts or water corporations waive impact fees?
Yes. Agencies can waive impact and any other fees for ADUs. Also, local agencies may also use fee deferrals for applicants.
• Can school districts charge impact fees?
Yes. School districts are authorized but do not have to levy impact fees for ADUs greater than 500 square feet pursuant to Section 17620 of the Education Code. ADUs less than 500 square feet are not subject to school impact fees. Local agencies are encouraged to coordinate with school districts to carefully weigh the importance of promoting ADUs, ensuring appropriate nexus studies and appropriate fees to facilitate construction or reconstruction of adequate school facilities.
• What types of fees are considered impact fees?
Impact fees charged for the construction of ADUs must be determined in accordance with the Mitigation Fee Act and generally include any monetary exaction that is charged by a local agency in connection with the approval of an ADU, including impact fees, for the purpose of defraying all or a portion of the cost of public facilities relating to the ADU. A local agency, special district or water corporation shall not consider ADUs as a new residential use for the purposes of calculating connection fees or capacity charges for
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15 utilities, including water and sewer services. However, these provisions do not apply to ADUs that are constructed concurrently with a new single-family home. (Gov. Code, §§ 65852.2, subd. (f), and 66000)
• Can I still be charged water and sewer connection fees?
ADUs converted from existing space and JADUs shall not be considered by a local agency, special district or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, unless constructed with a new single-family dwelling. The connection fee or capacity charge shall be proportionate to the burden of the proposed ADU, based on its square footage or plumbing fixtures as compared to the primary dwelling. State ADU law does not cover monthly charge fees. (Gov.
Code, § 65852.2, subd. (f)(2)(A).)
H) Conversion of Existing Space in Single Family, Accessory and Multifamily Structures and Other Statewide Permissible ADUs (Subdivision (e)) • Are local agencies required to comply with subdivision (e)?
Yes. All local agencies must comply with subdivision (e). This subdivision requires the ministerial approval of ADUs within a residential or mixed-use zone. The subdivision creates four categories of ADUs that should not be subject to other specified areas of ADU law, most notably zoning and development standards. For example, ADUs under this subdivision should not have to comply with lot coverage, setbacks, heights, and unit sizes. However, ADUs under this subdivision must meet the building code and health and safety requirements. The four categories of ADUs under subdivision (e) are:
b. One ADU and one JADU are permitted per lot within the existing or proposed space of a single-family dwelling, or a JADU within the walls of the single family residence, or an ADU within an existing accessory structure, that meets specified requirements such as exterior access and setbacks for fire and safety. c. One detached new construction ADU that does not exceed four-foot side and rear yard setbacks. This ADU may be combined on the same lot with a JADU and may be required to meet a maximum unit size requirement of 800 square feet and a height limitation of 16 feet.
d. Multiple ADUs within the portions of multifamily structures that are not used as livable space. Local agencies must allow at least one of these types of ADUs and up to 25 percent of the existing multifamily structures. e. Up to two detached ADUs on a lot that has existing multifamily dwellings that are subject to height limits of 16 feet and 4-foot rear and side yard setbacks.
The above four categories are not required to be combined. For example, local governments are not required to allow (a) and (b) together or (c) and (d) together. However, local agencies may elect to allow these ADU types together.
Local agencies shall allow at least one ADU to be created within the non-livable space within multifamily dwelling structures, or up to 25 percent of the existing multifamily dwelling units within a structure and may also allow not more than two ADUs on the lot detached from the multifamily dwelling structure. New detached units are subject to height limits of 16 feet and shall not be required to have side and rear setbacks of more than four feet.
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16 The most common ADU that can be created under subdivision (e) is a conversion of proposed or existing space of a single-family dwelling or accessory structure into an ADU, without any prescribed size limitations, height, setback, lot coverage, architectural review, landscape, or other development standards.
This would enable the conversion of an accessory structure, such as a 2,000 square foot garage, to an ADU without any additional requirements other than compliance with building standards for dwellings.
These types of ADUs are also eligible for a 150 square foot expansion (see discussion below).
ADUs created under subdivision (e) shall not be required to provide replacement or additional parking.
Moreover, these units shall not, as a condition for ministerial approval, be required to correct any existing or created nonconformity. Subdivision (e) ADUs shall be required to be rented for terms longer than 30 days, and only require fire sprinklers if fire sprinklers are required for the primary residence. These ADUs shall not be counted as units when calculating density for the general plan and are not subject to owner- occupancy.
• Can I convert my accessory structure into an ADU?
Yes. The conversion of garages, sheds, barns, and other existing accessory structures, either attached or detached from the primary dwelling, into ADUs is permitted and promoted through the state ADU law.
These conversions of accessory structures are not subject to any additional development standard, such as unit size, height, and lot coverage requirements, and shall be from existing space that can be made safe under building and safety codes. A local agency should not set limits on when the structure was created, and the structure must meet standards for health and safety. Finally, local governments may also consider the conversion of illegal existing space and could consider alternative building standards to facilitate the conversion of existing illegal space to minimum life and safety standards.
• Can an ADU converting existing space be expanded?
Yes. An ADU created within the existing or proposed space of a single-family dwelling or accessory structure can be expanded beyond the physical dimensions of the structure. In addition, an ADU created within an existing accessory structure may be expanded up to 150 square feet without application of local development standards, but this expansion shall be limited to accommodating ingress and egress. An example of where this expansion could be applicable is for the creation of a staircase to reach a second story ADU. These types of ADUs shall conform to setbacks sufficient for fire and safet y.
A local agency may allow for an expansion beyond 150 square feet, though the ADU would have to comply with the size maximums as per state ADU law, or a local agency’s adopted ordinance.
As a JADU is limited to being created within the walls of a primary residence, this expansion of up to 150 square feet does not pertain to JADUs.
I) Nonconforming Zoning Standards
• Does the creation of an ADU require the applicant to carry out public improvements?
No physical improvements shall be required for the creation or conversion of an ADU. Any requirement to carry out public improvements is beyond what is required for the creation of an ADU, as per state law. For example, an applicant shall not be required to improve sidewalks, carry out street improvements, or access improvements to create an ADU. Additionally, as a condition for ministerial approval of an ADU, an applicant shall not be required to correct nonconforming zoning conditions. (Gov. Code, § 65852.2, subd. (e)(2).)
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17 J) Renter and Owner-occupancy
• Are rental terms required?
Yes. Local agencies may require that the property be used for rentals of terms longer than 30 days. ADUs permitted ministerially, under subdivision (e), shall be rented for terms longer than 30 days. (Gov. Code, § 65852.2, subds. (a)(6) & (e)(4).)
• Are there any owner-occupancy requirements for ADUs?
No. Prior to recent legislation, ADU laws allowed local agencies to elect whether the primary dwelling or ADU was required to be occupied by an owner. The updates to state ADU law removed the owner- occupancy allowance for newly created ADUs effective January 1, 2020. The new owner-occupancy exclusion is set to expire on December 31, 2024. Local agencies may not retroactively require owner occupancy for ADUs permitted between January 1, 2020, and December 31, 2024.
However, should a property have both an ADU and JADU, JADU law requires owner -occupancy of either the newly created JADU, or the single-family residence. Under this specific circumstance, a lot with an ADU would be subject to owner-occupancy requirements. (Gov. Code, § 65852.2, subd. (a)(2).) K) Fire Sprinkler Requirements
• Are fire sprinklers required for ADUs?
No. Installation of fire sprinklers may not be required in an ADU if sprinklers are not required for the primary residence. For example, a residence built decades ago would not have been required to have fire sprinklers installed under the applicable building code at the time. Therefore, an ADU created on this lot cannot be required to install fire sprinklers. However, if the same primary dwelling recently undergoes significant remodeling and is now required to have fire sprinklers, any ADU created after that remodel must likewise install fire sprinklers. (Gov. Code, § 65852.2, subds. (a)(1)(D)(xii) and (e)(3).)
Please note, for ADUs created on lots with multifamily residential structures, the entire residential structure shall serve as the “primary residence” for the purposes of this analysis. Therefore, if the multifamily structure is served by fire sprinklers, the ADU can be required to install fire sprinklers.
L) Solar Panel Requirements
• Are solar panels required for new construction ADUs?
Yes, newly constructed ADUs are subject to the Energy Code requirement to provide solar panels if the unit(s) is a newly constructed, non-manufactured, detached ADU. Per the California Energy Commission (CEC), the panels can be installed on the ADU or on the primary dwelling unit. ADUs that are constructed within existing space, or as an addition to existing homes, including detached additions where an existing detached building is converted from non-residential to residential space, are not subject to the Energy Code requirement to provide solar panels.
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18 Please refer to the CEC on this matter. For more information, see the CEC’s website www.energy.ca.gov.
You may email your questions to: [email protected], or contact the Energy Standards Hotline at 800- 772-3300. CEC memos can also be found on HCD’s website at https://www.hcd.ca.gov/policy- research/AccessoryDwellingUnits.shtml.
3. Junior Accessory Dwelling Units (JADUs) – Government Code Section 65852.22 • Are two JADUs allowed on a lot?
No. A JADU may be created on a lot zoned for single-family residences with one primary dwelling. The JADU may be created within the walls of the proposed or existing single-family residence, including attached garages, as attached garages are considered within the walls of the existing single- family residence. Please note that JADUs created in the attached garage are not subject to the same parking protections as ADUs and could be required by the local agency to provide replacement parking.
JADUs are limited to one per residential lot with a single-family residence. Lots with multiple detached single-family dwellings are not eligible to have JADUs. (Gov. Code, § 65852.22, subd. (a)(1).) • Are JADUs allowed in detached accessory structures?
No, JADUs are not allowed in accessory structures. The creation of a JADU must be within the single- family residence. As noted above, attached garages are eligible for JADU creation. The maximum size for a JADU is 500 square feet. (Gov. Code, § 65852.22, subds. (a)(1), (a)(4), and (h)(1).) • Are JADUs allowed to be increased up to 150 square feet when created within an existing structure?
No. Only ADUs are allowed to add up to 150 square feet “beyond the physical dimensions of the existing accessory structure” to provide for ingress. (Gov. Code, § 65852.2, subd. (e)(1)(A)(i).) This provision extends only to ADUs and excludes JADUs. A JADU is required to be created within the single-family residence.
• Are there any owner-occupancy requirements for JADUs?
Yes. There are owner-occupancy requirements for JADUs. The owner must reside in either the remaining portion of the primary residence, or in the newly created JADU. (Gov. Code, § 65852.22, subd. (a)(2).)
4. Manufactured Homes and ADUs
• Are manufactured homes considered to be an ADU?
Yes. An ADU is any residential dwelling unit with independent facilities and permanent provisions for living, sleeping, eating, cooking and sanitation. An ADU includes a manufactured home (Health & Saf. Code, § 18007).
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19 5. ADUs and the Housing Element
• Do ADUs and JADUs count toward a local agency’s Regional Housing Needs Allocation?
Yes. Pursuant to Government Code section 65852.2 subdivision (m), and section 65583.1, ADUs and JADUs may be utilized towards the Regional Housing Need Allocation (RHNA) and Annual Progress Report (APR) pursuant to Government Code section 65400. To credit a unit toward the RHNA, HCD and the Department of Finance (DOF) utilize the census definition of a housing unit. Generally, an ADU, and a JADU with shared sanitation facilities, and any other unit that meets the census definition, and is reported to DOF as part of the DOF annual City and County Housing Unit Change Survey, can be credited toward the RHNA based on the appropriate income level. The housing element or APR must include a reasonable methodology to demonstrate the level of affordability. Local governments can track actual or anticipated affordability to assure ADUs and JADUs are counted towards the appropriate income category. For example, some local governments request and track information such as anticipated affordability as part of the building permit or other applications.
• Is analysis required to count ADUs toward the RHNA in the housing element?
Yes. To calculate ADUs in the housing element, local agencies must generally use a three-part approach:
(1) development trends, (2) anticipated affordability and (3) resources and incentives. Development trends must consider ADUs permitted in the prior planning period and may also consider more recent trends.
Anticipated affordability can use a variety of methods to estimate the affordability by income group.
Common approaches include rent surveys of ADUs, using rent surveys and square footage assumptions and data available through the APR pursuant to Government Code section 65400. Resources and incentives include policies and programs to encourage ADUs, such as prototype plans, fee waivers, expedited procedures and affordability monitoring programs. • Are ADUs required to be addressed in the housing element?
Yes. The housing element must include a description of zoning available to permit ADUs, including development standards and analysis of potential constraints on the development of ADUs. The element must include programs as appropriate to address identified constraints. In addition, housing element s must Health and Safety Code section 18007, subdivision (a): “Manufactured home,” for the purposes of this part, means a structure that was constructed on or after June 15, 1976, is transportable in one or more sections, is eight body feet or more in width, or 40 body feet or more in length, in the traveling mode, or, when erected on site, is 320 or more square feet, is built on a permanent chassis and designed to be used as a single-family dwelling with or without a foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning, and electrical systems contained therein. “Manufactured home” includes any structure that meets all the requirements of this paragraph except the size requirements and with respect to which the manufacturer voluntarily files a certification and complies with the standards established under the National Manufactured Housing Construction and Safety Act of 1974 (42 U.S.C., Sec. 5401, and following).
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20 include a plan that incentivizes and promotes the creation of ADUs that can offer affordable rents for very low, low-, or moderate-income households and requires HCD to develop a list of state grants and financial incentives in connection with the planning, construction and operation of affordable ADUs . (Gov. Code, § 65583 and Health & Saf. Code, § 50504.5.)
6. Homeowners Association
• Can my local Homeowners Association (HOA) prohibit the construction of an ADU or JADU?
No. Assembly Bill 670 (2019) and AB 3182 (2020) amended Section 4751, 4740, and 4741 of the Civil Code to preclude common interest developments from prohibiting or unreasonably restricting the construction or use, including the renting or leasing of, an ADU on a lot zoned for single-family residential use. Covenants, conditions and restrictions (CC&Rs) that either effectively prohibit or unreasonably restrict the construction or use of an ADU or JADU on such lots are void and unenforceable or may be liable for actual damages and payment of a civil penalty. Applicants who encounter issues with creating ADUs or JADUs within CC&Rs are encouraged to reach out to HCD for additional guidance.
7. Enforcement
• Does HCD have enforcement authority over ADU ordinances?
Yes. After adoption of the ordinance, HCD may review and submit written findings to the local agency as to whether the ordinance complies with state ADU law. If the local agency’s ordinance does not comply, HCD must provide a reasonable time, no longer than 30 days, for the local agency to respond, and the local agency shall consider HCD’s findings to amend the ordinance to become compliant. If a local agency does not make changes and implements an ordinance that is not compliant with state law, HCD may ref er the matter to the Attorney General.
In addition, HCD may review, adopt, amend, or repeal guidelines to implement uniform standards or criteria that supplement or clarify ADU law.
8. Other
• Are ADU ordinances existing prior to new 2020 laws null and void?
No. Ordinances existing prior to the new 2020 laws are only null and void to the extent that existing ADU ordinances conflict with state law. Subdivision (a)(4) of Government Code Section 65852.2 states an ordinance that fails to meet the requirements of subdivision (a) shall be null and void and shall apply the state standards (see Attachment 3) until a compliant ordinance is adopted. However, ordinances that substantially comply with ADU law may continue to enforce the existing ordinance to the extent it complies with state law. For example, local governments may continue the compliant provisions of an ordinance and apply the state standards where pertinent until the ordinance is amended or replaced to fully comply with ADU law. At the same time, ordinances that are fundamentally incapable of being enforced because key provisions are invalid -- meaning there is not a reasonable way to sever conflicting provisions and apply the remainder of an ordinance in a way that is consistent with state law -- would be fully null and void and must follow all state standards until a compliant ordinance is adopted.
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21 • Do local agencies have to adopt an ADU ordinance?
No. Local governments may choose not to adopt an ADU ordinance. Should a local government choose to not adopt an ADU ordinance, any proposed ADU development would be only subject to standards set in state ADU law. If a local agency adopts an ADU ordinance, it may impose zoning, development, design, and other standards in compliance with state ADU law. (See Attachment 4 for a state standards checklist.) • Is a local government required to send an ADU ordinance to the California Department of Housing and Community Development (HCD)?
Yes. A local government, upon adoption of an ADU ordinance, must submit a copy of the adopted ordinance to HCD within 60 days after adoption. After the adoption of an ordinance, the Department may review and submit written findings to the local agency as to whether the ordinance complies with this section. (Gov. Code, § 65852.2, subd. (h)(1).)
Local governments may also submit a draft ADU ordinance for preliminary review by HCD. This provides local agencies the opportunity to receive feedback on their ordinance and helps to ensure compliance with the new state ADU law.
• Are charter cities and counties subject to the new ADU laws?
Yes. ADU law applies to a local agency which is defined as a city, county, or city and county, whether general law or chartered. (Gov. Code, § 65852.2, subd. (j)(5)).
Further, pursuant to Chapter 659, Statutes of 2019 (AB 881), the Legislature found and declared ADU law as “…a matter of statewide concern rather than a municipal affair, as that term is used in Section 5 of Article XI of the California Constitution” and concluded that ADU law applies to all cities, including charter cities.
• Do the new ADU laws apply to jurisdictions located in the Coastal Zone?
Yes. ADU laws apply to jurisdictions in the Coastal Zone, but do not necessarily alter or lessen the effect or application of Coastal Act resource protection policies. (Gov. Code, § 65852.22, subd. (l)).
Coastal localities should seek to harmonize the goals of protecting coastal resources and addressing housing needs of Californians. For example, where appropriate, localities should amend Local Coastal Programs for California Coastal Commission review to comply with the California Coastal Act and new ADU laws. For more information, see the California Coastal Commission 2020 Memo and reach out to the locality’s local Coastal Commission district office.
• What is considered a multifamily dwelling?
For the purposes of state ADU law, a structure with two or more attached dwellings on a single lot is considered a multifamily dwelling structure. Multiple detached single-unit dwellings on the same lot are not considered multifamily dwellings for the purposes of state ADU law.
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22 Resources
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23 Attachment 1: Statutory Changes (Strikeout/Italics and Underline)
GOV. CODE: TITLE 7, DIVISION 1, CHAPTER 4, ARTICLE 2
Combined changes from (AB 3182 Accessory Dwelling Units) and (AB 881, AB 68 and SB 13 Accessory Dwelling Units)
(Changes noted in strikeout, underline/italics)
Effective January 1, 2021, Section 65852.2 of the Government Code is amended to read:
65852.2.
(a) (1) A local agency may, by ordinance, provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily dwelling residential use. The ordinance shall do all of the following:
(A) Designate areas within the jurisdiction of the local agency where accessory dwelling units may be permitted.
The designation of areas may be based on the adequacy of water and sewer services and the impact of accessory dwelling units on traffic flow and public safety. A local agency that does not provide water or sewer services shall consult with the local water or sewer service provider regarding the adequacy of water and sewer services before designating an area where accessory dwelling units may be permitted. (B) (i) Impose standards on accessory dwelling units that include, but are not limited to, parking, height, setback, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Resources. These standards shall not include requirements on minimum lot size.
(ii) Notwithstanding clause (i), a local agency may reduce or eliminate parking requirements for any accessory dwelling unit located within its jurisdiction.
(C) Provide that acce ssory dwelling units do not exceed the allowable density for the lot upon which the accessory dwelling unit is located, and that accessory dwelling units are a residential use that is consistent with the existing general plan and zoning designation for the lot.
(D) Require the accessory dwelling units to comply with all of the following:
(i) The accessory dwelling unit may be rented separate from the primary residence, but may not be sold or otherwise conveyed separate from the primary residence. (ii) The lot is zoned to allow single-family or multifamily dwelling residential use and includes a proposed or existing dwelling.
(iii) The accessory dwelling unit is either attached to, or located within, the proposed or existing primary dwelling, including attached garages, storage areas or similar uses, or an accessory structure or detached from the proposed or existing primary dwelling and located on the same lot as the proposed or existing primary dwelling. (iv) If there is an existing primary dwelling, the total floor area of an attached accessory dwelling unit shall not exceed 50 percent of the existing primary dwelling.
(v) The total floor area for a detached accessory dwelling unit shall not exceed 1,200 square feet. (vi) No passageway shall be r equired in conjunction with the construction of an accessory dwelling unit. (vii) No setback shall be required for an existing living area or accessory structure or a structure constructed in the same location and to the same dimensions as an existing structure that is converted to an accessory dwelling unit or to a portion of an accessory dwelling unit, and a setback of no more than four feet from the side and rear lot lines shall be required for an accessory dwelling unit that is not converted from an existing structure or a new structure constructed in the same location and to the same dimensions as an existing structure. (viii) Local building code requirements that apply to detached dwellings, as appropriate. (ix) Approval by the local health officer where a private sewage disposal system is being used, if required. (x) (I) Parking requirements for accessory dwelling units shall not exceed one parking space per accessory dwelling unit or per bedroom, whichever is less. These spaces may be provided as tandem parking on a driveway. (II) Offstreet parking shall be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made that parking in setback areas or tandem parking is not feasible based upon specific site or regional topographical or fire and life safety conditions. (III) This clause sha ll not apply to an accessory dwelling unit that is described in subdivision (d). (xi) When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, the local agency shall not require that those offstreet parking spaces be replaced.
(xii) Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence.
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24 (2) The ordinance shall not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(3) A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits. The permitting agency shall act on the application to create an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot.
If the permit application to create an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the accessory dwelling unit or junior accessory dwelling unit shall be considered without discretionary review or hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not acted upon the completed application within 60 days, the application shall be deemed approved. A local agency may charge a fee to reimburse it for costs incurred to implement this paragraph, including the costs of adopting or amending any ordinance that provides for the creation of an accessory dwelling unit. (4) An existing ordinance governing the creation of an accessory dwelling unit by a local agency or an accessory dwelling ordinance adopted by a local agency shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes, provisions, or requirements for those units, except as otherwise provided in this subdivision. If a local agency has an existing accessory dwelling unit ordinance that fails to meet the requirements of this subdivision, that ordinance shall be null and void and that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section.
(5) No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or a use permit under this subdivision.
(6) This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be used or imposed, including any owner-occupant requirement, except that a local agency may require that the property be used for rentals of terms longer than 30 days.
(7) A local agency may am end its zoning ordinance or general plan to incorporate the policies, procedures, or other provisions applicable to the creation of an accessory dwelling unit if these provisions are consistent with the limitations of this subdivision.
(8) An accessory dwelling unit that conforms to this subdivision shall be deemed to be an accessory use or an accessory building and shall not be considered to exceed the allowable density for the lot upon which it is located, and shall be deemed to be a residential use that is consistent with the existing general plan and zoning designations for the lot. The accessory dwelling unit shall not be considered in the application of any local ordinance, policy, or program to limit residential growth. (b) When a loca l agency that has not adopted an ordinance governing accessory dwelling units in accordance with subdivision (a) receives an application for a permit to create an accessory dwelling unit pursuant to this subdivision, the local agency shall approve or disapprove the application ministerially without discretionary review pursuant to subdivision (a). The permitting agency shall act on the application to create an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot. If the permit application to create an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the accessory dwelling unit or junior accessory dwelling unit shall still be considered ministerially without discretionary review or a hearing. If the applicant requests a delay, the 60-day time per
iod shall be tolled for the period of the delay. If the local agency has not acted upon the completed application within 60 days, the application shall be deemed approved. (c) (1) Subject to paragr aph (2), a local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units.
(2) Notwithstanding paragraph (1), a local agency shall not establish by ordinance any of the following:
(A) A minimum square footage requirement for either an attached or detached accessory dwelling unit that prohibits an efficiency unit.
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25 (B) A maximum square footage requirement for either an attached or detached accessory dwelling unit that is less than either of the following:
(i) 850 square feet.
(ii) 1,000 square feet for an accessory dwelling unit that provides more than one bedroom. (C) Any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.
(d) Notwithstanding any other law, a local agency, whether or not it has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), shall not impose parking standards for an accessory dwelling unit in any of the following instances:
(1) The accessory dwelling unit is located within one-half mile walking distance of public transit. (2) The accessory dwelling unit is located within an architecturally and historically significant historic district. (3) The accessory dwell ing unit is part of the proposed or existing primary residence or an accessory structure. (4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit. (5) When there is a car share vehicle located within one block of the accessory dwelling unit. (e) (1) Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create any of the following:
(A) One accessory dwelling unit or and one junior accessory dwelling unit per lot with a proposed or existing single-family dwelling if all of the following apply:
(i) The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress.
(ii) The space has exterior access from the proposed or existing single-family dwelling. (iii) The side and rear setbacks are sufficient for fire and safety. (iv) The junior accessory dwelling unit complies with the requirements of Section 65852.22. (B) One detached, new construction, accessory dwelling unit that does not exceed four-foot side and rear yard setbacks for a lot with a proposed or existing single-family dwelling. The accessory dwelling unit may be combined with a junior accessory dwelling unit described in subparagraph (A). A local agency may impose the following conditions on the accessory dwelling unit:
(i) A total floor area limitation of not more than 800 square feet. (ii) A height limitation of 16 feet.
(C) (i) Multiple accesso ry dwelling units within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with state building standards for dwellings. (ii) A local agency shall allow at least one accessory dwelling unit within an existing multifamily dwelling and shall allow up to 25 percent of the existing multifamily dwelling units. (D) Not more than two accessory dwelling units that are located on a lot that has an existing multifamily dwelling, but are detached from that multifamily dwelling and are subject to a height limit of 16 feet and four-foot rear yard and side setbacks.
(2) A local agency shall not require, as a condition for ministerial approval of a permit application for the creation of an accessory dwelling unit or a junior accessory dwelling unit, the correction of nonconforming zoning conditions. (3) The installation of fire sprinklers shall not be required in an accessory dwelling unit if sprinklers are not required for the primary residence.
(4) A local agency shall require that a rental of the accessory dwelling unit created pursuant to this subdivision be for a term longer than 30 days.
(5) A local agency may req uire, as part of the application for a permit to create an accessory dwelling unit connected to an onsite wastewater treatment system, a percolation test completed within the last five years, or, if the percolation test has been recertified, within the last 10 years. (6) Notwithstanding subdivision (c) and paragraph (1) a local agency that has adopted an ordinance by July 1, 2018, providing for the approval of accessory dwelling units in multifamily dwelling structures shall ministerially consider a permit application to construct an accessory dwelling unit that is described in paragraph (1), and may impose standards including, but not limited to, design, development, and historic standards on said accessory dwelling units. These standards shall not include requirements on minimum lot size.
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26 (f) (1) Fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012). (2) An accessory dwelling unit shall not be considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, unless the accessory dwelling unit was constructed with a new single-family dwelling. (3) (A) A local agency, special district, or water corporation shall not impose any impact fee upon the development of an accessory dwelling unit less than 750 square feet. Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.
(B) For purposes of this paragraph, “impact fee” has the same meaning as the term “fee” is defined in subdivision (b) of Section 66000, except that it also includes fees specified in Section 66477. “Impact fee” does not include any connection fee or capacity charge charged by a local agency, special district, or water corporation. (4) For an acce ssory dwelling unit described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation shall not require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge, unless the accessory dwelling unit was constructed with a new single-family home. (5) For an accessory dwelling unit that is not described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation may require a new or separate utility connection directly between the accessory dwelling unit and the utility. Consistent with Section 66013, the connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.
(g) This section does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an accessory dwelling unit.
(h) (1) A local agenc y shall submit a copy of the ordinance adopted pursuant to subdivision (a) to the Department of Housing and Community Development within 60 days after adoption. After adoption of an ordinance, the department may submit written findings to the local agency as to whether the ordinance complies with this section. (2) (A) If the department finds that the local agency’s ordinance does not comply with this section, the department shall notify the local agency and shall provide the local agency with a reasonable time, no longer than 30 days, to respond to the findings before taking any other action authorized by this section. (B) The local agency shall consider the findings made by the department pursuant to subparagraph (A) and shall do one of the following:
(i) Amend the ordinance to comply with this section.
(ii) Adopt the ordinance without changes. The local agency shall include findings in its resolution adopting the ordinance that explain the reasons the local agency believes that the ordinance complies with this section despite the findings of the department.
(3) (A) If the local agency does not amend its ordinance in response to the department’s findings or does not adopt a resolution with findings explaining the reason the ordinance complies with this section and addressing the department’s findings, the department shall notify the local agency and may notify the Attorney General that the local agency is in violation of state law.
(B) Before notifying the Att orney General that the local agency is in violation of state law, the department may consider whether a local agency adopted an ordinance in compliance with this section between January 1, 2017, and January 1, 2020.
(i) The department may review, adopt, amend, or repeal guidelines to implement uniform standards or criteria that supplement or clarify the terms, references, and standards set forth in this section. The guidelines adopted pursuant to this subdivision are not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2.
(j) As used in this section, the following terms mean:
(1) “Accessory dwelling unit” means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated. An accessory dwelling unit also includes the following:
(A) An efficiency unit.
(B) A manufactured home, as defined in Section 18007 of the Health and Safety Code.
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27 (2) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot. (3) “Efficiency unit” has the same meaning as defined in Section 17958.1 of the Health and Safety Code. (4) “Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.
(5) “Local agency” means a city, county, or city and county, whether general law or chartered. (6) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards.
(7) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit.
(8) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
(9) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
(10) “Tandem parking” means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.
(k) A local agency shal l not issue a certificate of occupancy for an accessory dwelling unit before the local agency issues a certificate of occupancy for the primary dwelling. (l) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local government shall not be required to hold public hearings for coastal development permit applications for accessory dwelling units.
(m) A local agency may count an accessory dwelling unit for purposes of identifying adequate sites for housing, as specified in subdivision (a) of Section 65583.1, subject to authorization by the department and compliance with this division.
(n) In enforcing building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code for an accessory dwelling unit described in paragraph (1) or (2) below, a local agency, upon request of an owner of an accessory dwelling unit for a delay in enforcement, shall delay enforcement of a building standard, subject to compliance with Section 17980.12 of the Health and Safety Code:
(1) The accessory dwell ing unit was built before January 1, 2020. (2) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is compliant at the time the request is made.
(o) This section shall remain in effect only until January 1, 2025, and as of that date is repealed. (Becomes operative on January 1, 2025)
Section 65852.2 of the Government Code is amended to read (changes from January 1, 2021 statute noted in underline/italic):
65852.2.
(a) (1) A local agency may, by ordinance, provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily dwelling residential use. The ordinance shall do all of the following:
(A) Designate areas within the jurisdiction of the local agency where accessory dwelling units may be permitted.
The designation of areas may be based on the adequacy of water and sewer services and the impact of accessory dwelling units on traffic flow and public safety. A local agency that does not provide water or sewer services shall consult with the local water or sewer service provider regarding the adequacy of water and sewer services before designating an area where accessory dwelling units may be permitted. (B) (i) Impose standards on a ccessory dwelling units that include, but are not limited to, parking, height, setback, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Resources. These standards shall not include requirements on minimum lot size.
(ii) Notwithstanding clause (i), a local agency may reduce or eliminate parking requirements for any accessory dwelling unit located within its jurisdiction.
(C) Provide that accessory dwelling units do not exceed the allowable density for the lot upon which the accessory dwelling unit is located, and that accessory dwelling units are a residential use that is consistent with the existing general plan and zoning designation for the lot.
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28 (D) Require the accessory dwelling units to comply with all of the following:
(i) The accessory dwelling unit may be rented separate from the primary residence, but may not be sold or otherwise conveyed separate from the primary residence. (ii) The lot is zoned to allow single-family or multifamily dwelling residential use and includes a proposed or existing dwelling.
(iii) The accessory dwelling unit is either attached to, or located within, the proposed or existing primary dwelling, including attached garages, storage areas or similar uses, or an accessory structure or detached from the proposed or existing primary dwelling and located on the same lot as the proposed or existing primary dwelling. (iv) If there is an existing primary dwelling, the total floor area of an attached accessory dwelling unit shall not exceed 50 percent of the existing primary dwelling.
(v) The total floor area for a detached accessory dwelling unit shall not exceed 1,200 square feet. (vi) No passageway shall be required in conjunction with the construction of an accessory dwelling unit. (vii) No setback shall be required for an existing living area or accessory structure or a structure constructed in the same location and to the same dimensions as an existing structure that is converted to an accessory dwelling unit or to a portion of an accessory dwelling unit, and a setback of no more than four feet from the side and rear lot lines shall be required for an accessory dwelling unit that is not converted from an existing structure or a new structure constructed in the same location and to the same dimensions as an existing structure. (viii) Local build ing code requirements that apply to detached dwellings, as appropriate. (ix) Approval by the local health officer where a private sewage disposal system is being used, if required. (x) (I) Parking requirements for accessory dwelling units shall not exceed one parking space per accessory dwelling unit or per bedroom, whichever is less. These spaces may be provided as tandem parking on a driveway. (II) Offstreet parking shall be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made that parking in setback areas or tandem parking is not feasible based upon specific site or regional topographical or fire and life safety conditions. (III) This clause shall not apply to an accessory dwelling unit that is described in subdivision (d). (xi) When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, the local agency shall not require that those offstreet parking spaces be replaced.
(xii) Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence.
(2) The ordinance shall not be c onsidered in the application of any local ordinance, policy, or program to limit residential growth.
(3) A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits. The permitting agency shall act on the application to create an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot.
If the permit application to create an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the accessory dwelling unit or junior accessory dwelling unit shall be considered without discretionary review or hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the l ocal agency has not acted upon the completed application within 60 days, the application shall be deemed approved. A local agency may charge a fee to reimburse it for costs incurred to implement this paragraph, including the costs of adopting or amending any ordinance that provides for the creation of an accessory dwelling unit. (4) An existing ordinance governing the creation of an accessory dwelling unit by a local agency or an accessory dwelling ordinance adopted by a local agency shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes, provisions, or requirements for those units, except as otherwise provided in this subdivision. If a local agency has an existing accessory dwelling unit ordinance that fails to meet the requirements of this subdivision, that ordinance shall be null and void and that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section.
(5) No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or a use permit under this subdivision.
(6) (A) This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed
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29 accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be used or imposed, including any owner-occupant requirement, except that imposed except that, subject to subparagraph (B), a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant or that the property be used for rentals of terms longer than 30 days.
(B) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit permitted between January 1, 2020, to January 1, 2025, during which time the local agency was prohibited from imposing an owner-occupant requirement. (7) A local agency may amend its zoning ordinance or general plan to incorporate the policies, procedures, or other provisions applicable to the creation of an accessory dwelling unit if these provisions are consistent with the limitations of this subdivision.
(8) An accessory dwelling unit that conforms to this subdivision shall be deemed to be an accessory use or an accessory building and shall not be considered to exceed the allowable density for the lot upon which it is located, and shall be deemed to be a residential use that is consistent with the existing general plan and zoning designations for the lot. The accessory dwelling unit shall not be considered in the application of any local ordinance, policy, or program to limit residential growth. (b) When a loca l agency that has not adopted an ordinance governing accessory dwelling units in accordance with subdivision (a) receives an application for a permit to create an accessory dwelling unit pursuant to this subdivision, the local agency shall approve or disapprove the application ministerially without discretionary review pursuant to subdivision (a). The permitting agency shall act on the application to create an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the local agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot. If the permit application to create an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the accessory dwelling unit or junior accessory dwelling unit shall still be considered ministerially without discretionary review or a hearing. If the applicant requests a delay, the 60-day time peri
od shall be tolled for the period of the delay. If the local agency has not acted upon the completed application within 60 days, the application shall be deemed approved. (c) (1) Subject to paragr aph (2), a local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units.
(2) Notwithstanding paragraph (1), a local agency shall not establish by ordinance any of the following:
(A) A minimum square footage requirement for either an attached or detached accessory dwelling unit that prohibits an efficiency unit.
(B) A maximum square footage requirement for either an attached or detached accessory dwelling unit that is less than either of the following:
(i) 850 square feet.
(ii) 1,000 square feet for an accessory dwelling unit that provides more than one bedroom. (C) Any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.
(d) Notwithstanding any other law, a local agency, whether or not it has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), shall not impose parking standards for an accessory dwelling unit in any of the following instances:
(1) The accessory dwell ing unit is located within one-half mile walking distance of public transit. (2) The accessory dwelling unit is located within an architecturally and historically significant historic district. (3) The accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure. (4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit. (5) When there is a car share vehicle located within one block of the accessory dwelling unit. (e) (1) Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create any of the following:
(A) One accessory dwelling unit or and one junior accessory dwelling unit per lot with a proposed or existing single-family dwelling if all of the following apply:
(i) The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not
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30 more than 150 square feet beyond the same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress.
(ii) The space has exterior access from the proposed or existing single-family dwelling. (iii) The side and rear setbacks are sufficient for fire and safety. (iv) The junior accessory dwelling unit complies with the requirements of Section 65852.22. (B) One detached, new construction, accessory dwelling unit that does not exceed four-foot side and rear yard setbacks for a lot with a proposed or existing single-family dwelling. The accessory dwelling unit may be combined with a junior accessory dwelling unit described in subparagraph (A). A local agency may impose the following conditions on the accessory dwelling unit:
(i) A total floor area limitation of not more than 800 square feet. (ii) A height limitation of 16 feet.
(C) (i) Multiple accessory dwelling units within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with state building standards for dwellings. (ii) A local agency sh all allow at least one accessory dwelling unit within an existing multifamily dwelling and shall allow up to 25 percent of the existing multifamily dwelling units. (D) Not more than two accessory dwelling units that are located on a lot that has an existing multifamily dwelling, but are detached from that multifamily dwelling and are subject to a height limit of 16 feet and four-foot rear yard and side setbacks.
(2) A local agency shall not require, as a condition for ministerial approval of a permit application for the creation of an accessory dwelling unit or a junior accessory dwelling unit, the correction of nonconforming zoning conditions. (3) The installation of fire sprinklers shall not be required in an accessory dwelling unit if sprinklers are not required for the primary residence.
(4) A local agency may require owner occupancy for either the primary dwelling or the accessory dwelling unit on a single-family lot, subject to the requirements of paragraph (6) of subdivision (a). (4) (5) A local agency shall require that a rental of the accessory dwelling unit created pursuant to this subdivision be for a term longer than 30 days.
(5) (6) A local agency may require, as part of the application for a permit to create an accessory dwelling unit connected to an onsite wastewater treatment system, a percolation test completed within the last five years, or, if the percolation test has been recertified, within the last 10 years. (6) (7) Notwithstanding subdivision (c) and paragraph (1) a local agency that has adopted an ordinance by July 1, 2018, providing for the approval of accessory dwelling units in multifamily dwelling structures shall ministerially consider a permit application to construct an accessory dwelling unit that is described in paragraph (1), and may impose standards including, but not limited to, design, development, and historic standards on said accessory dwelling units. These standards shall not include requirements on minimum lot size. (f) (1) Fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012). (2) An accessory dwelling unit shall not be considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, unless the accessory dwelling unit was constructed with a new single-family dwelling. (3) (A) A local agency, special district, or water corporation shall not impose any impact fee upon the development of an accessory dwelling unit less than 750 square feet. Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.
(B) For purposes of this paragraph, “impact fee” has the same meaning as the term “fee” is defined in subdivision (b) of Section 66000, except that it also includes fees specified in Section 66477. “Impact fee” does not include any connection fee or capacity charge charged by a local agency, special district, or water corporation. (4) For an accessory dwelling unit described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation shall not require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge, unless the accessory dwelling unit was constructed with a new single-family home. dwelling. (5) For an accessory dwelling unit that is not described in subparagraph (A) of paragraph (1) of subdivision (e), a local agency, special district, or water corporation may require a new or separate utility connection directly between the accessory dwelling unit and the utility. Consistent with Section 66013, the connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its square feet or the number of its drainage fixture unit (DFU) values, as defined in the
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31 Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.
(g) This section does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an accessory dwelling unit.
(h) (1) A local agency shall submit a copy of the ordinance adopted pursuant to subdivision (a) to the Department of Housing and Community Development within 60 days after adoption. After adoption of an ordinance, the department may submit written findings to the local agency as to whether the ordinance complies with this section. (2) (A) If the department finds that the local agency’s ordinance does not comply with this section, the department shall notify the local agency and shall provide the local agency with a reasonable time, no longer than 30 days, to respond to the findings before taking any other action authorized by this section. (B) The local agency shall consider the findings made by the department pursuant to subparagraph (A) and shall do one of the following:
(i) Amend the ordinance to comply with this section.
(ii) Adopt the ordi nance without changes. The local agency shall include findings in its resolution adopting the ordinance that explain the reasons the local agency believes that the ordinance complies with this section despite the findings of the department.
(3) (A) If the local agency does not amend its ordinance in response to the department’s findings or does not adopt a resolution with findings explaining the reason the ordinance complies with this section and addressing the department’s findings, the department shall notify the local agency and may notify the Attorney General that the local agency is in violation of state law.
(B) Before notifying the Attorney General that the local agency is in violation of state law, the department may consider whether a local agency adopted an ordinance in compliance with this section between January 1, 2017, and January 1, 2020.
(i) The department may review, adopt, amend, or repeal guidelines to implement uniform standards or criteria that supplement or clarify the terms, references, and standards set forth in this section. The guidelines adopted pursuant to this subdivision are not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2.
(j) As used in this sec tion, the following terms mean:
(1) “Accessory dwelling unit” means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated. An accessory dwelling unit also includes the following:
(A) An efficiency unit.
(B) A manufactured home, as defined in Section 18007 of the Health and Safety Code. (2) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot. (3) “Efficiency unit” has the same meaning as defined in Section 17958.1 of the Health and Safety Code. (4) “Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.
(5) “Local agency” means a city, county, or city and county, whether general law or chartered. (6) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards.
(7) “Passageway” means a pat hway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit.
(8) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
(9) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
(10) “Tandem parking” means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.
(k) A local agency shall not issue a certificate of occupancy for an accessory dwelling unit before the local agency issues a certificate of occupancy for the primary dwelling. (l) Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local government shall not be required to hold public hearings for coastal development permit
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32 applications for accessory dwelling units.
(m) A local agency may count an accessory dwelling unit for purposes of identifying adequate sites for housing, as specified in subdivision (a) of Section 65583.1, subject to authorization by the department and compliance with this division.
(n) In enforcing building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code for an accessory dwelling unit described in paragraph (1) or (2) below, a local agency, upon request of an owner of an accessory dwelling unit for a delay in enforcement, shall delay enforcement of a building standard, subject to compliance with Section 17980.12 of the Health and Safety Code:
(1) The accessory dwelling unit was built before January 1, 2020. (2) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is compliant at the time the request is made.
(o) This section shall remain in effect only until January 1, 2025, and as of that date is repealed. become operative on January 1, 2025.
Effective January 1, 2021, Section 4740 of the Civil Code is amended to read (changes noted in strikeout, underline/italics) (AB 3182 (Ting)):
4740.
(a) An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in that common interest development to a renter, lessee, or tenant unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to his or her their separate interest.
(b) Notwithstanding the provisions of this section, an owner of a separate interest in a common interest development may expressly consent to be subject to a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in the common interest development to a renter, lessee, or tenant.
(c) (b) For purposes of this section, the right to rent or lease the separate interest of an owner shall not be deemed to have terminated if the transfer by the owner of all or part of the separate interest meets at least one of the following conditions:
(1) Pursuant to Section 62 or 480.3 of the Revenue and Taxation Code, the transfer is exempt, for purposes of reassessment by the county tax assessor.
(2) Pursuant to subdivision (b) of, solely with respect to probate transfers, or subdivision (e), (f), or (g) of, Section 1102.2, the transfer is exempt from the requirements to prepare and deliver a Real Estate Transfer Disclosure Statement, as set forth in Section 1102.6.
(d) (c) Prior to renting or leasing his or her their separate interest as provided by this section, an owner shall provide the association verification of the date the owner acquired title to the separate interest and the name and contact information of the prospective tenant or lessee or the prospective tenant’s or lessee’s representative. (e) (d) Nothing in this section shall be deemed to revise, alter, or otherwise affect the voting process by which a common interest development adopts or amends its governing documents. (f) This section shall apply only to a provision in a governing document or a provision in an amendment to a governing document that becomes effective on or after January 1, 2012.
Effective January 1, 2021 of the Section 4741 is added to the Civil Code, to read (AB 3182 (Ting)):
4741.
(a) An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits, has the effect of prohibiting, or unreasonably restricts the rental or leasing of any of the separate interests, accessory dwelling units, or junior accessory dwelling units in that common interest development to a renter, lessee, or tenant. (b) A common interest development shall not adopt or enforce a provision in a governing document or amendment to a governing document that restricts the rental or lease of separate interests within a common interest to less than 25 percent of the separate interests. Nothing in this subdivision prohibits a common interest development from adopting or enforcing a provision authorizing a higher percentage of separate interests to be rented or leased. (c) This section does not prohibit a common interest development from adopting and enforcing a provision in a
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33 governing document that prohibits transient or short-term rental of a separate property interest for a period of 30 days or less.
(d) For purposes of this section, an accessory dwelling unit or junior accessory dwelling unit shall not be construed as a separate interest.
(e) For purposes of this section, a separate interest shall not be counted as occupied by a renter if the separate interest, or the accessory dwelling unit or junior accessory dwelling unit of the separate interest, is occupied by the owner.
(f) A common interest development shall comply with the prohibition on rental restrictions specified in this section on and after January 1, 2021, regardless of whether the common interest development has revised their governing documents to comply with this section. However, a common interest development shall amend their governing documents to conform to the requirements of this section no later than December 31, 2021. (g) A common interest development that willfully violates this section shall be liable to the applicant or other party for actual damages, and shall pay a civil penalty to the applicant or other party in an amount not to exceed one thousand dollars ($1,000).
(h) In accordance with Section 4740, this section does not change the right of an owner of a separate interest who acquired title to their separate interest before the effective date of this section to rent or lease their property.
Effective January 1, 2020, Section 65852.22 of the Government Code is was amended to read (AB 68 (Ting)):
65852.22.
(a) Notwithstanding Section 65852.2, a local agency may, by ordinance, provide for the creation of junior accessory dwelling units in single-family residential zones. The ordinance may require a permit to be obtained for the creation of a junior accessory dwelling unit, and shall do all of the following:
(1) Limit the number of junior accessory dwelling units to one per residential lot zoned for single-family residences with a single-family residence built, or proposed to be built, on the lot. (2) Require owner-occupancy in the single-family residence in which the junior accessory dwelling unit will be permitted. The owner may reside in either the remaining portion of the structure or the newly created junior accessory dwelling unit. Owner-occupancy shall not be required if the owner is another governmental agency, land trust, or housing organization.
(3) Require the recordation of a deed restriction, which shall run with the land, shall be filed with the permitting agency, and shall include both of the following:
(A) A prohibition on the sale of the junior accessory dwelling unit separate from the sale of the single-family residence, including a statement that the deed restriction may be enforced against future purchasers. (B) A restriction on the size and attributes of the junior accessory dwelling unit that conforms with this section. (4) Require a permitted junior accessory dwelling unit to be constructed within the walls of proposed or existing single-family residence.
(5) Require a permitted junior accessory dwelling to include a separate entrance from the main entrance to the proposed or existing single-family residence.
(6) Require the permitted junior accessory dwelling unit to include an efficiency kitchen, which shall include all of the following:
(A) A cooking facility with appliances.
(B) A food preparation counter and storage cabinets that are of reasonable size in relation to the size of the junior accessory dwelling unit.
(b) (1) An ordinance shall not require additional parking as a condition to grant a permit. (2) This subdivision shall not be interpreted to prohibit the requirement of an inspection, including the imposition of a fee for that inspection, to determine if the junior accessory dwelling unit complies with applicable building standards.
(c) An application for a per mit pursuant to this section shall, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits, be considered ministerially, without discretionary review or a hearing. The permitting agency shall act on the application to create a junior accessory dwelling unit within 60 days from the date the local agency receives a completed application if there is an existing single-family dwelling on the lot. If the permit application to create a junior accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the junior accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the junior accessory dwelling unit shall still be considered ministerially without discretionary review or a hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. A local agency may charge a fee to reimburse the local agency for costs incurred in connection with the issuance of a permit pursuant to t his section.
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34 (d) For purposes of any fire or life protection ordinance or regulation, a junior accessory dwelling unit shall not be considered a separate or new dwelling unit. This section shall not be construed to prohibit a city, county, city and county, or other local public entity from adopting an ordinance or regulation relating to fire and life protection requirements within a single-family residence that contains a junior accessory dwelling unit so long as the ordinance or regulation applies uniformly to all single-family residences within the zone regardless of whether the single-family residence includes a junior accessory dwelling unit or not. (e) For purposes of providing service for water, sewer, or power, including a connection fee, a junior accessory dwelling unit shall not be considered a separate or new dwelling unit. (f) This section shall not be construed to prohibit a local agency from adopting an ordinance or regulation, related to parking or a service or a connection fee for water, sewer, or power, that applies to a single-family residence that contains a junior accessory dwelling unit, so long as that ordinance or regulation applies uniformly to all single- family residences regardless of whether the single-family residence includes a junior accessory dwelling unit. (g) If a local agenc y has not adopted a local ordinance pursuant to this section, the local agency shall ministerially approve a permit to construct a junior accessory dwelling unit that satisfies the requirements set forth in subparagraph (A) of paragraph (1) of subdivision (e) of Section 65852.2 and the requirements of this section. (h) For purposes of this section, the following terms have the following meanings:
(1) “Junior accessory dwelling unit” means a unit that is no more than 500 square feet in size and contained entirely within a single-family residence. A junior accessory dwelling unit may include separate sanitation facilities, or may share sanitation facilities with the existing structure. (2) “Local agency” means a city, county, or city and county, whether general law or chartered.
Effective January 1, 2020 Section 17980.12 is was added to the Health and Safety Code, immediately following Section 17980.11, to read (SB 13 (Wieckowski)):
17980.12.
(a) (1) An enforcement agency, until January 1, 2030, that issues to an owner of an accessory dwelling unit described in subparagraph (A) or (B) below, a notice to correct a violation of any provision of any building standard pursuant to this part shall include in that notice a statement that the owner of the unit has a right to request a delay in enforcement pursuant to this subdivision:
(A) The accessory dwelling unit was built before January 1, 2020. (B) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is compliant at the time the request is made.
(2) The owner of an accessory dwelling unit that receives a notice to correct violations or abate nuisances as described in paragraph (1) may, in the form and manner prescribed by the enforcement agency, submit an application to the enforcement agency requesting that enforcement of the violation be delayed for five years on the basis that correcting the violation is not necessary to protect health and safety. (3) The enforcement agency shall grant an application described in paragraph (2) if the enforcement determines that correcting the violation is not necessary to protect health and safety. In making this determination, the enforcement agency shall consult with the entity responsible for enforcement of building standards and other regulations of the State Fire Marshal pursuant to Section 13146. (4) The enforcement agency shall not approve any applications pursuant to this section on or after January 1, 2030. However, any delay that was approved by the enforcement agency before January 1, 2030, shall be valid for the full term of the delay that was approved at the time of the initial approval of the application pursuant to paragraph (3).
(b) For purposes of this section, “accessory dwelling unit” has the same meaning as defined in Section 65852.2. (c) This section shall remain in effect only until January 1, 2035, and as of that date is repealed.
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35 GOV. CODE: TITLE 7, DIVISION 1, CHAPTER 4, ARTICLE 2 AB 587 Accessory Dwelling Units
Effective January 1, 2020 Section 65852.26 is was added to the Government Code, immediately following Section 65852.25, to read (AB 587 (Friedman)):
65852.26.
(a) Notwithstanding clause (i) of subparagraph (D) of paragraph (1) of subdivision (a) of Section 65852.2, a local agency may, by ordinance, allow an accessory dwelling unit to be sold or conveyed separately from the primary residence to a qualified buyer if all of the following apply:
(1) The property was built or developed by a qualified nonprofit corporation. (2) There is an enforceable restriction on the use of the land pursuant to a recorded contract between the qualified buyer and the qualified nonprofit corporation that satisfies all of the requirements specified in paragraph (10) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code. (3) The property is held pursuant to a recorded tenancy in common agreement that includes all of the following:
(A) The agreement allocates to each qualified buyer an undivided, unequal interest in the property based on the size of the dwelling each qualified buyer occupies.
(B) A repurchase option that requires the qualified buyer to first offer the qualified nonprofit corporation to buy the property if the buyer desires to sell or convey the property. (C) A requirement that the qualified buyer occupy the property as the buyer’s principal residence. (D) Affordability rest rictions on the sale and conveyance of the property that ensure the property will be preserved for low-income housing for 45 years for owner-occupied housing units and will be sold or resold to a qualified buyer.
(4) A grant deed naming the grantor, grantee, and describing the property interests being transferred shall be recorded in the county in which the property is located. A Preliminary Change of Ownership Report shall be filed concurrently with this grant deed pursuant to Section 480.3 of the Revenue and Taxation Code. (5) Notwithstanding subparagraph (A) of paragraph (2) of subdivision (f) of Section 65852.2, if requested by a utility providing service to the primary residence, the accessory dwelling unit has a separate water, sewer, or electrical connection to that utility.
(b) For purposes of this section, the following definitions apply:
(1) “Qualified buyer” means persons and families of low or moderate income, as that term is defined in Section 50093 of the Health and Safety Code.
(2) “Qualified nonprofit corporation” means a nonprofit corporation organized pursuant to Section 501(c)(3) of the Internal Revenue Code that has received a welfare exemption under Section 214.15 of the Revenue and Taxation Code for properties intended to be sold to low-income families who participate in a special no-interest loan program.
CIVIL COD
E: DIVISION 4, PART 5, CHAPTER 5, ARTICLE 1
AB 670 Accessory Dwelling Units
Effective January 1, 2020, Section 4751 is was added to the Civil Code, to read (AB 670 (Friedman)):
4751.
(a) Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of any interest in a planned development, and any provision of a governing document, that either effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit on a lot zoned for single-family residential use that meets the requirements of Section 65852.2 or 65852.22 of the Government Code, is void and unenforceable. (b) This section does not apply to provisions that impose reasonable restrictions on accessory dwelling units or junior accessory dwelling units. For purposes of this subdivision, “reasonable restrictions” means restrictions that do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability
367
36 to otherwise construct, an accessory dwelling unit or junior accessory dwelling unit consistent with the provisions of Section 65852.2 or 65852.22 of the Government Code.
GOV. CODE: TITLE 7, DIVISION 1, CHAPTER 3, ARTICLE 10.6 AB 671 Accessory Dwelling Units
Effective January 1, 2020, Section 65583(c)(7) of the Government Code is was added to read (sections of housing element law omitted for conciseness) (AB 671 (Friedman)):
65583(c)(7).
Develop a plan that incentivizes and promotes the creation of accessory dwelling units that can be offered at affordable rent, as defined in Section 50053 of the Health and Safety Code, for very low, low-, or moderate-income households. For purposes of this paragraph, “accessory dwelling units” has the same meaning as “accessory dwelling unit” as defined in paragraph (4) of subdivision (i) of Section 65852.2.
Effective January 1, 2020, Section 50504.5 is was added to the Health and Safety Code, to read (AB 671 (Friedman)):
50504.5.
(a) The department shall develop by December 31, 2020, a list of existing state grants and financial incentives for operating, administrative, and other expenses in connection with the planning, construction, and operation of an accessory dwelling unit with affordable rent, as defined in Section 50053, for very low, low-, and moderate-income households.
(b) The list shall be posted on the department’s internet website by December 31, 2020. (c) For purposes of this section, “accessory dwelling unit” has the same meaning as defined in paragraph (4) of subdivision (i) of Section 65852.2 of the Government Code.
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37 Attachment 2: State Standards Checklist
YES/NO STATE STANDARD*
GOVERNMENT
CODE SECTION
Unit is not intended for sale separate from the primary residence and may be rented.
65852.2(a)(1)(D)(i)
Lot is zoned for single-family or multifamily use and contains a proposed, or existing, dwelling.
65852.2(a)(1)(D)(ii)
The accessory dwelling unit is either attached to, or located within, the proposed or existing primary dwelling, including attached garages, storage areas or similar uses, or an accessory structure, or detached from the proposed or existing dwelling and located on the same lot as the proposed or existing primary dwelling.
65852.2(a)(1)(D)(iii)
Increased floor area of an attached accessory dwelling unit does not exceed 50 percent of the existing primary dwelling but shall be allowed to be at least 800/850/1000 square feet.
65852.2(a)(1)(D)(iv),
(c)(2)(B) & C)
Total area of floor area for a detached accessory dwelling unit does not exceed 1,200 square feet.
65852.2(a)(1)(D)(v)
Passageways are not required in conjunction with the construction of an accessory dwelling unit.
65852.2(a)(1)(D)(vi)
Setbacks are not required for an existing living area or accessory structure or a structure constructed in the same location and to the same dimensions as an existing structure that is converted to an accessory dwelling unit or to a portion of an accessory dwelling unit, and a setback of no more than four feet from the side and rear lot lines shall be required for an accessory dwelling unit that is not converted from an existing structure or a new structure constructed in the same location and to the same dimensions as an existing structure. 65852.2(a)(1)(D)(vii)
Local building code requirements that apply to detached dwellings are met, as appropriate.
65852.2(a)(1)(D)(viii)
Local health officer approval where a private sewage disposal system is being used, if required.
65852.2(a)(1)(D)(ix)
Parking requirements do not exceed one parking space per accessory dwelling unit or per bedroom, whichever is less. These spaces may be provided as tandem parking on an existing driveway.
65852.2(a)(1)(D)(x)(I
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38 Attachment 3: Bibliography
ACCESSORY DWELLING UNITS: CASE STUDY (26 pp.)
By the United States Department of Housing and Urban Development, Office of Policy Development and Research. (2008)
Introduction: Accessory dwelling units (ADUs) — also referred to as accessory apartments, ADUs, or granny flats — are additional living quarters on single-family lots that are independent of the primary dwelling unit. The separate living spaces are equipped with kitchen and bathroom facilities and can be either attached or detached from the main residence. This case study explores how the adoption of ordinances, with reduced regulatory restrictions to encourage ADUs, can be advantageous for communities. Following an explanation of the various types of ADUs and their benefits, this case study provides examples of municipalities with successful ADU legislation and programs. Section titles include: History of ADUs; Types of Accessory Dwelling Units; Benefits of Accessory Dwelling Units; and Examples of ADU Ordinances and Programs.
THE MACRO VIEW ON MICRO UNITS (46 pp.)
By Bill Whitlow, et al. – Urban Land Institute (2014)
Library Call #: H43 4.21 M33 2014
The Urban Land Institute Multifamily Housing Councils were awarded a ULI Foundation research grant in fall 2013 to evaluate from multiple perspectives the market performance and market acceptance of micro and small units.
SECONDARY UNITS AND URBAN INFILL: A Literature Review (12 pp.) By Jake Wegmann and Alison Nemirow (2011)
UC Berkeley: IURD
Library Call # D44 4.21 S43 2011
This literature review examines the research on both infill development in general, and secondary units in particular, with an eye towards understanding the similarities and differences between infill as it is more traditionally understood – i.e., the development or redevelopment of entire parcels of land in an already urbanized area – and the incremental type of infill that secondary unit development constitutes.
RETHINKING PRIVATE ACCESSORY DWELLINGS (5 pp.)
By William P. Macht. Urbanland online. (March 6, 2015)
Library Location: Urbanland 74 (1/2) January/February 2015, pp. 87-91.
One of the large impacts of single-use, single-family detached zoning has been to severely shrink the supply of accessory dwellings, which often were created in or near primary houses. Detached single- family dwelling zones— the largest housing zoning category—typically preclude more than one dwelling per lot except under stringent regulation, and then only in some jurisdictions. Bureaucratically termed “accessory dwelling units” that are allowed by some jurisdictions may encompass market-derived names such as granny flats, granny cottages, mother-in-law suites, secondary suites, backyard cottages, casitas, carriage flats, sidekick houses, basement apartments, attic apartments, laneway houses, multigenerational homes, or home-within-a-home.
370
39 Regulating ADUs in California: Local Approaches & Outcomes (44 pp.)
By Deidra Pfeiffer
Terner Center for Housing and Innovation, UC Berkeley
Accessory dwelling units (ADU) are often mentioned as a key strategy in solving the nation’s housing problems, including housing affordability and challenges associated with aging in place. However, we know little about whether formal ADU practices—such as adopting an ordinance, establishing regulations, and permitting— contribute to these goals. This research helps to fill this gap by using data from the Terner California Residential Land Use Survey and the U.S. Census Bureau to understand the types of communities engaging in different kinds of formal ADU practices in California, and whether localities with adopted ordinances and less restrictive regulations have more frequent applications to build ADUs and increasing housing affordability and aging in place.
Findings suggest that three distinct approaches to ADUs are occurring in California: 1) a more restrictive approach in disadvantaged communities of color, 2) a moderately restrictive approach in highly advantaged, predominately White and Asian communities, and 3) a less restrictive approach in diverse and moderately advantaged communities. Communities with adopted ordinances and less restrictive regulations receive more frequent applications to build ADUs but have not yet experienced greater improvements in housing affordability and aging in place. Overall, these findings imply that 1) context-specific technical support and advocacy may be needed to help align formal ADU practices with statewide goals, and 2) ADUs should be treated as one tool among many t o manage local housing problems.
ADU Update: Early Lessons and Impacts of California's State and Local Policy Changes (8 p.)
By David Garcia (2017)
Terner Center for Housing and Innovation, UC Berkeley
As California’s housing crisis deepens, innovative strategies for creating new housing units for all income levels are needed. One such strategy is building Accessory Dwelling Units (ADUs) by private homeowners. While large scale construction of new market rate and affordable homes is needed to alleviate demand- driven rent increases and displacement pressures, ADUs present a unique opportunity for individual homeowners to create more housing as well. In particular, ADUs can increase the supply of housing in areas where there are fewer opportunities for larger-scale developments, such as neighborhoods that are predominantly zoned for and occupied by single-family homes.
In two of California’s major metropolitan areas -- Los Angeles and San Francisco -- well over three quarters of the total land area is comprised of neighborhoods where single-family homes make up at least 60 percent of the community’s housing stock. Across the state, single-family detached units make up 56.4 percent of the overall housing stock. Given their prevalence in the state’s residential land use patterns, increasing the number of single- family homes that have an ADU could contribute meaningfully to California’s housing shortage.
Jumpstarting the Market for Accessory Dwelling Units: Lessons Learned from Portland, Seattle and Vancouver (29 pp.)
By Karen Chapple et al (2017)
Terner Center for Housing and Innovation, UC Berkeley
Despite government attempts to reduce barriers, a widespread surge of ADU construction has not materialized.
The ADU market remains stalled. To find out why, this study looks at three cities in the Pacific Northwest of the United States and Canada that have seen a spike in construction in recent years: Portland, Seattle, and Vancouver. Each city has adopted a set of zoning reforms, sometimes in combination with financial incentives and outreach programs, to spur ADU construction. Due to these changes, as well as the acceleration of the housing crisis in each city, ADUs have begun blossoming.
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40 Accessory Dwelling Units as Low-Income Housing: California's Faustian Bargain (37 pp.)
By Darrel Ramsey-Musolf (2018)
University of Massachusetts Amherst, ScholarWorks@UMass Amherst
In 2003, California allowed cities to count accessory dwelling units (ADU) towards low -income housing needs.
Unless a city’s zoning code regulates the ADU’s maximum rent, occupancy income, and/or effective period, then the city may be unable to enforce low-income occupancy. After examining a stratified random sample of 57 low-, moderate-, and high-income cities, the high-income cities must proportionately accommodate more low-income needs than low-income cities. By contrast, low-income cities must quantitatively accommodate three times the low- income needs of high-income cities. The sample counted 750 potential ADUs as low-income housing. Even though 759 were constructed, no units were identified as available low-income housing. In addition, none of the cities’ zoning codes enforced low-income occupancy. Inferential tests determined that cities with colleges and high incomes were more probable to count ADUs towards overall and low-income housing needs. Furthermore, a city’s count of potential ADUs and cities with high proportions of renters maintained positive associations with ADU production, whereas a city’s density and prior compliance with state housing laws maintained negative associations. In summary, ADUs did increase local housing inventory and potential ADUs were positively associated with ADU production, but ADUs as low-income housing remained a paper calculation.
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Tuesday, January 26, 2021 ANNOTATED AGENDA Page 1
ANNOTATED AGENDA
BERKELEY CITY COUNCIL MEETING
Tuesday, January 26, 2021
6:00 PM
JESSE ARREGUIN, MAYOR
Councilmembers:
DISTRICT 1 – RASHI KESARWANI DISTRICT 5 – SOPHIE HAHN
DISTRICT 2 – TERRY TAPLIN DISTRICT 6 – SUSAN WENGRAF
DISTRICT 3 – BEN BARTLETT DISTRICT 7 – RIGEL ROBINSON
DISTRICT 4 – KATE HARRISON DISTRICT 8 – LORI DROSTE
PUBLIC ADVISORY: THIS MEETING WILL BE CONDUCTED EXCLUSIVELY THROUGH
VIDEOCONFERENCE AND TELECONFERENCE
Pursuant to Section 3 of Executive Order N -29-20, issued by Governor Newsom on March 17, 2020, this meeting of the City Council will be conducted exclusively through teleconference and Zoom videoconference. Please be advised that pursuant to the Executive Order and the Shelter -in-Place Order, and to ensure the health and safety of the public by limiting human contact that could spread the COVID -19 virus, there will not be a physical meeting location available.
Live audio i
s available on KPFB Radio 89.3. Live captioned broadcasts of Council Meetings are available on Cable B -TV (Channel 33) and via internet accessible video stream at http://www.cityofberkeley.info/CalendarEventWebcastMain.aspx.
To access
the meeting remotely: Join from a PC, Mac, iPad, iPhone, or Android device: Please use this UR L https://us02web.zoom.us/j/87354849181. If you do not wish for your name to appear on the screen, then use the drop down menu and click on "rename" to rename yourself to be anonymous. To request to speak, use the “raise hand” icon by rolling over the bottom of the screen.
To join
by phone: D ial 1-669-900-9128 or 1-877-853-5257 (Toll Free) and enter Meeting ID: 873 5484 9181. If you wish to comment during the public comment portion of the agenda, Press *9 and wait to be recognized by the Chair.
To submit an
e-mail comment during the meeting to be read aloud during public comment, email [email protected] with the Subject Line in this format: “PUBLIC COMMENT ITEM # #.” Please observe a 150 word limit. Time limits on public comments will apply. Written comments will be entered into the public record.
Please be
mindful that the teleconference will be recorded as any Council meeting is recorded, and all other rules of procedure and decorum will apply for Council meetings conducted by teleconference or videoconference.
This meeti
ng will be conducted in accordance with the Brown Act, Government Code Section 5 4953. Any member of the public may attend this meeting. Questions regarding this matter may be addressed to Mark Numainville, City Clerk, (510) 981- 6900. The City Council may take action related to any subject listed on the Agenda. Meetings will adjourn at 11:00 p.m. - any items outstanding at that time will be carried over to a dat e/time to be specified.
ATTACHMENT 5
373
Council Consent Items
Tuesday, January 26, 2021 ANNOTATED AGENDA Page 7
10. Budget Referral to Reinstate Partial Funding for the Gun Buyback Program Previously Authorized by City Council (Continued from November 10, 2020)
From: Councilmember Kesarwani (Author), Mayor Arreguin (Co-Sponsor), Councilmember Davila (Co-Sponsor)
Recommendation: Refer to the FY 2020-21 November Amendment to the Annual Appropriations Ordinance (AAO #1) $40,000 to reinstate partial funding for the Gun Buyback Program—originally proposed by Councilmember Cheryl Davila and authorized by the City Council on Nov. 27, 2018.
Financial Implications: $40,000
Contact: Rashi Kesarwani, Councilmember, District 1 (510) 981-7110 Action: Approved recommendation revised to be a referral to the FY 2022 budget process.
11. Short Term Referral to City Manager, Disaster and Fire Safety Commission and Planning Commission to Amend Local Accessory Dwelling Unit (ADU) Zoning Ordinance and Berkeley's Fire Code
From: Councilmember Wengraf (Author)
, Councilmember Hahn (Co-Sponsor)
Recommendation: Refer to the City Manager, the Disaster and Fire Safety Commission and the Planning Commission to evaluate and recommend to Council within 90 days, a set of ordinance amendments and implementation programs to address emergency access and egress, parking and objective development standards to address the constraints presented by high fire hazard conditions and narrow and curving roadways in Fire Zones 2 and 3. (Attachment 1 to the report).
Recommendations to Additional Objective Development Standards in Zones 2 and 3:
-Zone 2 and 3 - limit the base maximum size of newly constructed, detached ADUs to 850 sq. feet. -Zone 2 and 3 – require compliance with front yard, side yard and open space and coverage requirements of the applicable zoning district.
Recommendations to amend the Fire Code: -Prohibit parking on streets where egress and ingress will be adversely impacted by additional vehicles and increased population. -Require sprinklers in new construction, consistent with local Fire Code. - Explore their authority under California Health and Safety Code Sec. 13869.7 to mitigate the adverse impacts of ADU creation in requiring safe and adequate ingress and egress routes and sufficient off-street parking.
Financial Implications: Staff time
Contact: Susan Wengraf, Councilmember, District 6 (510) 981-7160 Action: Approved recommendation revised to add the underlined phrase, “…and objective development standards for ADUs in all districts with expedited consideration to address the constraints presented by high fire hazard conditions and narrow and curving roadways in Fire Zones 2 and 3.”
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Planning Commission
FINAL MINUTES OF THE REGULAR PLANNING COMMISSION MEETING APRIL 7, 2021
The meeting was called to order at 7:02 p.m.
Location: Virtual meeting via Zoom
1. ROLL CALL:
Commissioners Present: Janis Ching, Barnali Ghosh, Savlan Hauser, Robb Kapla, Shane Krpata, Christine Schildt, Jeff Vincent, and Brad Wiblin.
Commissioners Absent: Benjamin Beach and Mary Kay Lacey.
Staff Present: Secretary Alene Pearson, Katrina Lapira, Steve Buckley, Chris Jensen, Paola Boylan, and Kieron Slaughter.
2. ORDER OF AGENDA: No changes.
3. PUBLIC COMMENT PERIOD: 1
4. PLANNING STAFF REPORT:
• Please refer to information items.
Information Items:
• City Council – Objective Standards Recommendations for Density, Design and Shadows • City Council – Initiation of Public Process and Zoning Concepts for 2023-2031 Housing Element
Communications:
• March 30 – CA Department of Food and Agriculture – Cannabis Appellations Program • March 31 – Business Owner – Berkeley Marina Kosher Market Late Communications: See agenda for links.
• Supplemental Packet One
• Supplemental Packet Two
• Supplemental Packet Three
5. CHAIR REPORT:
ATTACHMENT 6
375
• None.
6. COMMITTEE REPORT: Reports by Commission committees or liaisons. In addition to the items below, additional matters may be reported at the meeting.
• BART Community Advisory Group (CAG) – Held a meeting on March 22 to further the discussion about the vision and priorities document. A draft zoning document is now available for public review on the CAG website. The next meeting will be about access planning to the respective BART sites.
7. APPROVAL OF MINUTES:
Motion/Second/Carried (Wiblin/Krpata) to approve the Planning Commission Meeting Minutes from March 17, 2021, with incorporated amendments to lines 82 and 90.
Ayes: Ghosh, Hauser, Kapla, Krpata, Schildt, and Wiblin. Noes: None. Abstain: Vincent and Ching. Absent: Beach. (6-0-2-1)
8. FUTURE AGENDA ITEMS AND OTHER PLANNING:
• May 5
o Re-zone of Parcels to Commercial Adeline Corridor (C-AC) o Presentation on City-Wide Affordable Housing Requirements by Rick Jacobus
AGENDA ITEMS
9. Action: Response to Short Term Referral for Amendments to the ADU Ordinance and Related Definitions to Address Public Safety Concerns
Staff shared the proposed amendments to the local ADU Ordinance in response to the Council’s Short Term referral. The proposed amendments focused on codifying State ADU regulations and modifications to ADU size and front yard setbacks to address public safety concerns. Commission discussion focused primarily on clarification of State ADU law and options for local changes to ADU size, setbacks, height and neighbor noticing. An additional two feet of height was incorporated into the final motion for Council consideration to allow design flexibility. The rationale for a Maximum Height of 18 feet -- without an increase in Maximum Size – is that two-story ADUs reduce the ADU footprint, increasing Open Space, decreasing Lot Coverage and allowing flexible configurations on smaller lots.
Motion/Second/Carried (Barnali/Vincent) to close the public hearing on the Response to Short Term Referral for Amendments to the ADU Ordinance and Related Definitions to Address Public Safety at 8:55pm.
Ayes: Ching, Ghosh, Hauser, Kapla, Krpata, Schildt, Vincent, and Wiblin. Noes: None.
Abstain: None. Absent: Beach. (8-0-0-1)
376
Motion/Second/Carried (Kapla/Schildt) to adopt staff’s recommendation with the following edits and a request to add neighbor notification of Building Permit issuance to the administrative process of application approval:
• Amend 23C.24.010.B.1 to read: One ADU and/or one JADU is allowed on a lot with one Single Family Dwelling.
• Delete 23C.24.010.B.5: One JADU is allowed on a lot with one Single Family Dwelling. • Add 23C.24.040.A.6 to read: A JADU is subject to the Development Standards in paragraph B and G.
• Amend 23C.24.040.C to read:
1. Maximum Height of a free-standing detached, new construction ADU is 16 18 feet.
2. Maximum Height of new square footage added to a Single Family Dwelling, Accessory Building or Accessory Structure to create an ADU is 16 18 feet.
Ayes: Ching, Ghosh, Hauser, Kapla, Krpata, Schildt, Vincent, and Wiblin. Noes: None.
Abstain: None. Absent: Beach. (8-0-0-1)
Public Comments: 10
10. Action: Response to Support Small Businesses Referral: Amendments to the Sign Ordinance to Establish a Master Sign Program
Staff presented proposed modifications to the Sign Ordinance, which included establishing a Master Sign Program, clarifying ordinance language, and exempting in-kind replacement of signs. The Commission discussed minor amendments the Zoning Ordinance to maintain consistency with the Sign Ordinance. Corresponding references to the Zoning Ordinance were highlighted by staffs and commission discussion centered on clarifying ordinance language to improve readability.
Motion/Second/Carried (Wiblin/Krpata) to adopt staff’s recommendations with suggested edits to 23E.08.020.C [Applicability] as follows:
C. Permits Zoning Certificates, Administrative Use Permits, Use Permits, and Variances for projects that are subject to design review may not be issued without design review approval, except that they may be issued may be approved conditional upon final design review such approval occurring before the issuance a building permit or for a permit for a sign permit (as set forth in BMC Chapter 20.12.010 ( of the Sign Ordinance).
Ayes: Ching , Ghosh, Hauser, Kapla, Krpata, Schildt, Vincent, and Wiblin. Noes: None.
Abstain: None. Absent: Beach (8-0-0-1)
Public Comments: 1
Motion/Second/Carried (Kapla /Ghosh to adjourn the Plan ning Commission meeting at 10:10pm.
377
Ayes: Ching, Ghosh, Hauser, Kapla, Krpata, Schildt, Vincent, and Wiblin. Noes: None.
Abstain: None. Absent: Beach (8-0-0-1)
Members in the public in attendance: 23
Public Speakers: 11 speakers
Length of the meeting: 3hr 8 minutes
378
NOTICE OF PUBLIC HEARING - BERKELEY CITY COUNCIL
AMENDMENTS TO ACCESSORY DWELLING UNIT (ADU) ORDINANCE TO ADDRESS
PUBLIC SAFETY CONCERNS
The Department of Planning and Development is proposing that the City Council adopt a local Accessory Dwelling Unit (ADU) Ordinance that complies with State ADU law. The proposed Zoning Ordinance amendments are consistent with Government Code Sections 65852.2 and 65852.22 and include local regulations for the size, location, and other development standards for ADUs. The proposed Zoning Ordinance amendments also address public safety measures to the extent they are allowable by State law.
Public Hearing Information
The hearing will be held on September 28, 2021 at 6:00 p.m. The hearing will be held via videoconference pursuant to Governor’s Executive Order N-29-20.
A copy of the agenda material for this hearing will be available on the City’s website at www.CityofBerkeley.info as of September 16, 2021. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology.
Written comments should be mailed directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or emailed to [email protected] in order to ensure delivery to all Councilmembers and inclusion in the agenda packet.
For further information, please contact Alene Pearson, Principal Planner, Planning and Development Department at (510) 981-7489.
Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981-6900 or [email protected] for further information.
Published: September 3, 2021 – The Berkeley Voice
City Clerk shall publish a notice at least 10 days prior to the date of the public hearing with the date, hour, and place of the public hearing for annual levy and collection of assessments in accordance with Streets and Highway Code Sections 22625, 22626, 22552, and 22553 and Section 6061 of the Government Code. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on September 16, 2021. __________________________________
Mark Numainville, City Clerk
379
ANNOTATED AGENDA
BERKELEY CITY COUNCIL MEETING
Tuesday, October 26, 2021
6:00 PM
JESSE ARREGUIN, MAYOR
Councilmembers:
DISTRICT 1 – RASHI KESARWANI DISTRICT 5 – SOPHIE HAHN
DISTRICT 2 – TERRY TAPLIN DISTRICT 6 – SUSAN WENGRAF
DISTRICT 3 – BEN BARTLETT DISTRICT 7 – RIGEL ROBINSON
DISTRICT 4 – KATE HARRISON DISTRICT 8 – LORI DROSTE
PUBLIC ADVISORY: THIS MEETING WILL BE CONDUCTED EXCLUSIVELY THROUGH
VIDEOCONFERENCE AND TELECONFERENCE
Pursuant to Government Code Section 54953(e) and the state declared emergency, this meeting of the City Council will be conducted exclusively through teleconference and Zoom videoconference. The COVID -19 state of emergency continues to directly impact the ability of the members to meet safely in person and presents imminent risks to the health of attendees. Therefore, no physical meeting location will be available.
Live audio
is available on KPFB Radio 89.3. Live captioned broadcasts of Council Meetings are available on Cable B-TV (Channel 33) and via internet accessible video stream at http://www.cityofberkeley.info/CalendarEventWebcastMain.aspx.
To acces
s the meeting remotely: Join from a PC, Mac, iPad, iPhone, or Android device: Please use this UR L https://us02web.zoom.us/j/87152148000. If you do not wish for your name to appear on the screen, then use the drop down menu and click on "rename" to rename yourself to be anonymous. To request to speak, use the “raise hand” icon by rolling over the bottom of the screen.
To join by
phone: Dial 1-669-900-9128 or 1-877-853-5257 (Toll Free) and enter Meeting ID: 871 5214 8000. If you wish to comment during the public comment portion of the agenda, Press *9 and wait to be recognized by the Chair.
Please
be mindful that the teleconference will be recorded as any Council meeting is recorded, and all other rules of procedure and decorum will apply for Council meetings conducted by teleconference or videoconference.
To submit
a written communication for the City Council’s consideration and inclusion in the public r ecord, email [email protected].
This me
eting will be conducted in accordance with the Brown Act, Government Code Section 54953. Any member of the public may attend this meeting. Questions regarding this matter may be addressed to Mark Numainville, City Clerk, (510) 981-6900. The City Council may take action related to any subject listed on the Agenda. Meetings will adjourn at 11:00 p.m. - any items outstanding at that time will be carried over to a date/time to be specified.
ATTACHMENT 3
380
Action Calendar – Public Hearings
Tuesday, October 26, 2021 ANNOTATED AGENDA Page 13
Staff shall introduce the public hearing item and present their comments. This is followed by five -minute presentations each by the appellant and applicant. The Presiding Officer will request that persons wishing to speak use the "raise hand" function to be recognized and to determine the number of persons interested in speaking at that time.
Up to ten (10) speakers may speak for two minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the public comment for all speakers to one minute per speaker.
The Presiding Officer may with the consent of persons representing both side s of an issue allocate a block of time to each side to present their issue.
Each member of the City Council shall verbally disclose all ex parte contacts concerning the subject of the hearing. Councilmembers shall also submit a report of such contacts in writing prior to the commencement of the hearing. Written reports shall be available for public review in the office of the City Clerk.
32. Response to Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance to Address Public Safety Concerns; Amending BMC Chapters 23C.24 and 23F.04 (Continued from October 12, 2021) (Item contains Supplemental material)
From: City Manager
Recommendation: Conduct a public hearing and, upon conclusion, adopt the first reading of a local Accessory Dwelling Unit (ADU) Ordinance [Berkeley Municipal Code (BMC) Chapter 23C.24] and amendments to relevant Definitions [BMC Chapter 23F.04] in the Zoning Ordinance.
Financial Implications: None
Contact: Jordan Klein, Planning and Development, (510) 981-7400
Public Testimony: The Mayor opened the public hearing. 31 speakers.
Action: M/S/C (Hahn/Arreguin) to suspend the rules and extend the meeting to 11:30 p.m. and to continue Items 35, 36, and 38 to November 9, 2021.
Vote: All Ayes.
Action: M/S/C (Arreguin/Wengraf) to suspend the rules and extend the meeting to 11:45 p.m.
Vote: All Ayes.
Action: M/S/C (Arreguin/Kesarwani) to suspend the rules and extend the meeting to 11:50 p.m.
Vote: All Ayes.
Action: M/S/C (Wengraf/Robinson) to suspend the rules and extend the meeting to 12:00 a.m.
Vote: All Ayes.
381
Action Calendar – Public Hearings
Tuesday, October 26, 2021 ANNOTATED AGENDA Page 14
Action: M/S/Failed (Hahn/Harrison) to 1) Refer the development of a local ADU Ordinance that only covers area outside of Fire Zones 2 and 3; and Zones 2 and 3 continue to be governed by state regulations at this time; Refer to the City Attorney development of a special ordinance for Zones 2 and 3 with specific findings regarding public safety needs; 2) Include 20 foot height by right and a 4 foot setback with no protrusions into the setback; 3) Prohibit roof decks; 4) Include the 3 foot setback from the proposal by Councilmember Kesarwani; 5) Do not include language regarding design standards; 6) Request staff to propose language on the notification of existing tenants; 7) Provide links to requirements in other comparable jurisdictions; 8) Consider an AUP process for ADUs that exceed standards but may still be allowed; 9) Provide information of the oak tree replacement concept.
Vote: Ayes – Harrison, Hahn, Wengraf, Arreguin; Noes – Kesarwani, Taplin, Bartlett, Robinson, Droste.
Action: M/S/Carried (Kesarwani/Taplin) to:
1) Adopt the proposed recommendations from Councilmembers Kesarwani, Bartlett, Taplin, and Robinson contained in Supplemental Communications Packet #2 for area outside the Hillside Overlay District only.
2) Referral to the November 4 Legislative Platform Meeting, a discussion of ADU limitations in the Hillside Overlay District.
3) For the Hillside District, in light of the public hazards and life safety concerns, we refer to the City Manager and City Attorney for staff analysis and recommendations for a potential ordinance, Councilmember Wengraf’s full list of recommendations (including the number of ADUs on a parcel) as well as the issue of ADU limitations where there is one access and egress route with a goal of returning within a month or less.
4) Refer to the City Manager and the City Attorney the proposal from Councilmember Robinson to consider the following language: “As part of their application, an applicant will attest to whether the lot on which the proposed ADU or JADU is to be built is occupied by tenants.” Further, to consider creating a notification system for tenants of properties where an ADU is to be ministerially approved, including potentially by requiring in the code that property owners notify their tenants or by creating a staff-side notification process, and to explore other options to protect tenants, with special attention to elderly and disabled tenants.
Vote: All Ayes.
Action: M/S/C (Arreguin/Hahn) to suspend the rules and extend the meeting to 12:10 a.m.
Vote: Ayes – Kesarwani, Taplin, Bartlett, Hahn, Wengraf, Robinson, Droste, Arreguin; Noes – None; Abstain – None; Absent - Harrison.
Councilmember Harrison absent at 11:56 p.m.
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Tuesday, October 26, 2021 ANNOTATED AGENDA Page 15
33. Proposed Ordinance Amending Paragraph ‘NN’ of Berkeley Municipal Code Section 19.48.020
From: City Manager
Recommendation: Conduct a public hearing and, upon conclusion, adopt the second reading of Ordinance No. 7,788-N.S. which modifies the language of Paragraph ‘NN.’ of Berkeley Municipal Code Section 19.48.020 (“Amendments to the California Fire Code) by adopting a building standard which is more restrictive than that standard currently contained in the California Fire Code and which will expand the existing local code amendment that requires the installation of fire sprinklers in new structures and the retrofit fire sprinklers into existing structures that currently exists in Fire Zone 3 to include structures located in Berkeley Fire Zone 2.
First Reading Vote: All Ayes
Financial Implications: See report
Contact: Abe Roman, Fire, (510) 981-3473
Public Testimony: The Mayor opened the public hearing. 9 speakers.
M/S/C (Arreguin/Robinson) to close the public hearing.
Vote: All Ayes.
Action: M/S/C (Wengraf/Droste) to adopt the second reading of Ordinance No. 7,788-N.S.
Vote: All Ayes.
Recess 7:57 p.m. – 8:12 p.m.
Action Calendar – Old Business
34. Identifying City Council Referrals for Removal (Continued from October 12, 2021) From: City Manager
Recommendation: 1. Review the referrals marked as rescinded by the sponsoring Councilmember or District; 2. Consider the referrals identified by Councilmembers for further discussion; and 3. Approve the removal of referrals that have been marked as rescinded by the sponsoring Councilmember or District.
Financial Implications: None
Contact: Dee Williams-Ridley, City Manager, (510) 981-7000 Action: 4 speakers. M/S/C (Arreguin/Droste) to approve the removal of the referrals in the item with the following changes:
1) Remove the Fair Chance Ordinance item (Arreguin)
2) Keep the Racism as a Public Health Threat item (Taplin) 3) Keep the Referral to Prevent Displacement item (Taplin) 4) Remove the five items identified by Councilmember Robinson in Supplemental Communications Packet #1 (Robinson)
5) Keep the AC Transit MOU item (Hahn)
Vote: Ayes – Kesarwani, Taplin, Bartlett, Hahn, Wengraf, Robinson, Droste, Arreguin; Noes – None; Abstain – None; Absent - Harrison.
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Attachment 4
NOTICE OF PUBLIC HEARING - BERKELEY CITY COUNCIL
AMENDMENTS TO ACCESSORY DWELLING UNIT (ADU) ORDINANCE
The City Council will consider adopting a local ordinance regarding Accessory Dwelling Units (ADUs).
The proposed Municipal Code amendments are consistent with Government Code Sections 65852.2 and 65852.22 and include local regulations for the size, location, and other development standards for ADUs and address public safety measures in portions of the hillside area. The amendments would apply throughout the City. This action is considered exempt from the California Environmental Quality Act (CEQA) pursuant to California Code of Regulations (CEQA Guidelines) Class 3, New Construction or Conversion of Small Structures.
The hearing will be held on Tuesday, December 14, 2021 at 6:00 p.m. The hearing will be held via videoconference pursuant to Government Code Section 54953(e) and the state declared emergency.
A copy of the agenda material for this hearing will be available on the City’s website at www.CityofBerkeley.info as of December 2, 2021. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology.
Written comments should be mailed directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or emailed to [email protected] in order to ensure delivery to all Councilmembers and inclusion in the agenda packet.
For further information, please contact Alene Pearson, Principal Planner, Planning and Development Department at (510) 981-7489, or by e-mail at [email protected].
Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981-6900 or [email protected] for further information.
Published: December 3, 2021 – The Berkeley Voice
City Clerk shall publish a notice at least 10 days prior to the date of the public hearing with the date, hour, and place of the public hearing for annual levy and collection of assessments in accordance with Streets and Highway Code Sections 22625, 22626, 22552, and 22553 and Section 6061 of the Government Code. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on December 2, 2021. __________________________________
Mark Numainville, City Clerk
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Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
REVISED
AGENDA MATERIAL
for Supplemental Packet 2
Meeting Date: December 14, 2021
Item Number: 47
Item Description: Response to City Council Action on October 26, 2021 regarding Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance to Address Public Safety Concerns
Submitted by: Jordan Klein, Planning & Development Director Farimah Faiz Brown, City Attorney
This revised version of the proposed ordinance clarifies that the public safety restrictions related to wildfire evacuation risk do not apply within the following zoning districts:
R-SH (Residential High Density Subarea—Hillside Overlay), C-NSH (North Shattuck Commercial—Hillside Overlay), and C-NH (Neighborhood Commercial—Hillside Overlay)
It also removes two erroneous references to a Council referred road width threshold of 33 feet.
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Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
PUBLIC HEARING
December 14, 2021
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Abe Roman, Fire Chief, Fire and Emergency Services Department Jordan Klein, Director, Planning and Development Department
Subject: Response to City Council Action on October 26, 2021 regarding Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance to Address Public Safety Concerns
RECOMMENDATION
Conduct a public hearing and upon conclusion, adopt first reading of a local ordinance enacting Chapter 12.99 (Accessory Dwelling Units in Wildfire Hazard Areas) and amending Chapter 23.306.
FISCAL IMPACTS OF RECOMMENDATION
None
CURRENT SITUATION AND ITS EFFECTS
On October 26, 2021, City Council considered Planning Commission’s recommendations for a local ADU Ordinance and directed the City Manager to develop a set of narrowly-focused public safety regulations that apply to Accessory Dwelling Units (ADUs). These regulations are to address public safety issues that arise from new development, residents and dwelling units in fire-prone areas.
The proposed ordinance incorporates all of the recommendations referred to the City Manager and City Attorney by the Council on October 26, 2021 in a manner that is narrowly tailored to achieve the public safety goal of preventing fatalities during a wildfire evacuation. This staff report includes an array of alternatives for consideration by the Council, should it wish to narrow or expand the scope of the proposed ordinance.
BACKGROUND
As stated in California Government Code Section 51175, the Legislature has found that wildfires pose a serious threat to the preservation of the public peace, health and safety, and that the wildfire front is not the only source of risk, since embers and firebrands travel far beyond the area impacted by the fire front, and pose a risk of ignition to structures and fuels on a site for a longer time. In that same statute the legislation has determined that it is necessary that all levels of government, including local
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governments work to implement preventive measures to ensure the preservation of the public peace, health, or safety. The ability to evacuate people safely during a wildfire is a major challenge in Berkeley. The trend of increasing the density of households even in recognized Very High Fire Hazard Severity Zones as mandated by existing State ADU law demands that the City impose more restrictive fire and public safety requirements as allowed by Gov. Code 51175 and other laws in order to mitigate difficult and dangerous evacuation conditions.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Studies have shown that the total acreage of vegetation burned in California over the decades since the late 1980s has consistently increased over time. One study concluded that the estimated 7.08 million acres burned in the time period from 2009- 2018 is approximately 259% more than the acreage burned during the period from 1989-1998 (2.73 million acres) (Buechi, Cameron, Heard, Plantinga, & Weber, 2021)1.
All other variables being equal, this increase in burned acreage will also equate to a corresponding increase in carbon dioxide released to the environment due to wildfires.
Measures taken to prevent wildfires, slow the development of wildfires once they are ignited, make wildfires easier to suppress, or prevent the diversion of valuable firefighting resources from rescue missions and allow them to concentrate on suppressing the wildfire will have the effect of reducing this emission of carbon dioxide.
RATIONALE FOR RECOMMENDATION
The wildland fire problem throughout the State of California and the western region of the United States has become progressively worse over the past 30-40 years. The duration of what was once considered a ‘wildfire season’ has extended to the point that wildfire events occur throughout most of the calendar year. This tends to blur any distinct lines between adjacent fire seasons. As a result, wildfire activity has become more of a cycle and less of a ‘season’. Recent wildfire incidents since 2017 have consistently set records for fire size, intensity and rate of spread. Scientific evidence suggests that our current extreme drought conditions that make vegetation more susceptible to ignition and the fire weather conditions which lead to extreme fire behavior and make fire control difficult are due in large part to global climate change.
Formal studies confirm that the overall severity of the wildfire problem in the state has steadily increased over the past 30-40 years and recent wildfire incidents in California since 2017 have consistently set records for fire size, intensity and rate of spread. The difficulty of controlling recent wildfires is evidenced by the number of structures being lost in wildfires despite the record expenditure of public funds on fire control efforts and in the anecdotal reports of experienced firefighters.
1 Buechi, Hanna; Cameron, Dick; Heard, Sarah; Plantinga, Andrew J; Weber, Page “Long -Term Trends in Wildfire Damages in California”, 2020: https://emlab.ucsb.edu/sites/default/files/docments/wildfire -brief.pdf
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The October 20, 1991 Oakland-Berkeley firestorm (known officially as the Tunnel- Oakland Hills fire), resulted in 25 fatalities due to evacuation challenges posed by winding narrow roads in the Oakland Hills bordering Berkeley. In light of these risks, since 2007, Fire Zone 3, (which comprises the Panoramic Hill neighborhood zoned as the Environmental Safety-Residential District), has been subject to safety restrictions including requirements for the installation and retrofit of fire sprinklers. Today, the Berkeley Fire Department believes that based on deteriorating wildfire conditions throughout the state that the wildland fire problem in Fire Zone 2 is now very similar to the wildland fire problem in Fire Zone 3.
The geographic area designated as Fire Zone 2 shares most of the wildfire characteristics present within Fire Zone 3. Both areas are recognized by the City and the Director of the California Department of Forestry and Fire Protection as Very High Fire Hazard Severity Zones (VHFHSZ) and share similar fire weather. Both areas have narrow, winding and steeply graded roads and streets. Both areas have abundant vegetation intermixed with structures. The topography of both areas is steep which creates the potential for rapidly advancing slope-driven fires. The original parcel subdivisions created narrow but deep lots in both Fire Zones. This tends to crowd adjacent structures and greatly reduces the amount of defensible space available to provide for wildfire safety. Many of the streets average less than 26 feet in width, resulting in choke points where two vehicles are unable to pass each other in the presence of any parking lane. The main factor that the two areas do not share is the condition of a single means of evacuation and access by road that exists in Fire Zone 3.
The majority of street segments in Fire Zone 2 have access to more than one evacuation and access route. However, given the dramatic increase in the severity of the wildfire problem it is believed that even the availability of a second or additional access routes, which is typical in Fire Zone 2, cannot mitigate all of the factors previously listed that may contribute to a catastrophic wildfire.
The hazard posed by winding, narrow streets in the wildfire-prone areas is likely to increase substantially with increased density of human life, structures and vehicles and any resulting increase in evacuation traffic. Increasing the number of households living on a given parcel is highly likely to result in an increase in the number of separate vehicles evacuating from that parcel. A parcel containing a single-family home, a JADU and an ADU, occupied by three households, is more likely to generate three separate evacuation vehicles than a single-family home occupied by a single household.
In a study performed at UC Berkeley, researchers modeled a wildfire evacuation scenario in the Berkeley Hills. According to their model, if each household in the Berkeley Hills used only one vehicle to evacuate, then the estimated evacuation time would be less than 2 hours, and 245 vehicles would be exposed to immediate fire danger. However, if each household took 1.7 vehicles to evacuate, that would increase evacuation time to three hours and expose 782 vehicles to fire. If all households evacuate with three vehicles, exposed vehicles reach 2,497 (11% of the total). The
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report concluded that reducing the number of personal vehicles (and thereby reducing traffic congestion) was one of the most impactful measures that could prevent wildfire fatalities by ensuring that all households are able to evacuate safely.2
By the same reasoning, preventing an increase in the number of households living within the Very High Fire Hazard Severity Zone will have a direct impact upon the risk of exposure of evacuating vehicles to wildfire risk.
On October 26, 2021, the City Council directed the City Manager and City Attorney to take action to address these hazards as follows:
For the Hillside Overlay District (HOD), in light of the public hazards and life safety concerns, we refer to the City Manager and City Attorney for staff analysis and recommendations for a potential ordinance, Councilmember Wengraf’s full list of recommendations (including the number of ADUs on a parcel) as well as the issue of ADU limitations where there is one access and egress route with a goal of returning within a month or less.
Councilmember Wengraf’s Supplemental item listed the following recommendations:
1. Allow one accessory dwelling unit on parcels in the HOD by either:
A. conversion of existing space (garage, basement or attic) to an ADU no larger than 800 sq. feet
or
B. conversion of existing internal space for JADU no larger than 500 sq. feet or
C. one detached ADU of 800 sq. feet
2. Prohibit roof-top decks and balconies for fire safety
3. Prohibit all protrusions into the four-foot rear or side setback to maintain defensible space
4. Maintain 16-foot maximum height for ADUs
5. Allow parking in the front yard setback in coordination with ministerial ADU permit
Additionally, on page 4 of her supplemental item, Councilmember Wengraf uses a street width narrower than 33 feet as grounds for restricting the development of multiple ADUs per parcel. The proposed ordinance applies in Fire Zones 2 and 3 and incorporates all of the recommendations set forth in the Council referral. The primary effect of the
2 Zhao, Bingyu, PhD Wong, Stephen D, PhD “Developing Transportation Response Strategies for Wildfire Evacuations via an Empirically Supported Traffic Simulation of Berkeley, California” 2021:
https://escholarship.org/uc/item/70p6k4rf
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proposed ordinance would be to reduce the number of ADUs per parcel from two (one ADU and one JADU) to one (either an ADU or a JADU) and thereby limit the number of separate households likely to flee a wildfire event, which would result in fewer vehicles and a lower likelihood that escaping vehicles would be exposed to wildfire risk due to traffic congestion during the evacuation. Fire Zones 2 and 3 are the formally recognized Very High Fire Hazard Severity Zone in the City of Berkeley, for purposes of Government Code 51179. Certain portions of Fire Zone 2 near the campus of the University of California are zoned for multi-family housing and do not share the narrow, winding streets and related hazardous conditions present in the hilly portions of the VHFHSZ; those areas not zoned for single-family housing are excluded to ensure that these protections are narrowly tailored.
ALTERNATIVE ACTIONS CONSIDERED
This report includes alternative options for City Council consideration. These options, which would revise the proposed language of Chapter 12.99, are outlined below, and each option could be used to further narrow the scope of the proposed ordinance. There is also an implementation concern regarding the prohibition on “rooftop decks and balconies” which are not defined terms for purposes of ministerial approval of zoning certificates.
Replace Fire Zone 2 and 3 with State Recommended VHFHSV The proposed ordinance uses the boundary of Fire Zones 2 and 3 to designate the areas in which additional restrictions apply to the development of ADUs for wildfire safety purposes. As an alternative, the Council could narrow the applicability of the Ordinance by relying upon the State-Recommended VHFHSV boundaries, which would exclude a portion of Fire Zone 2 in the northwest corner of the locally-adopted VHFHSV.
Government Code Section 51178 requires that the state Director of Forestry and Fire Protection identify Very High Fire Hazard Severity Zones throughout the state, and submit those recommendations to the local jurisdictions where those VHFHSZs are located. Government Code Section 51179 provides that the local jurisdiction may, in turn, designate additional areas that where their inclusion within the VHFHSZ is necessary for effective fire suppression in the area. These locally-adopted VHFHSZs are then transmitted to the state and become the official VHFHSZ for the area until such time as they are modified upon review, which takes place every five years, per Government Code Section 51181.
The City lawfully exercised its authority under Government Code 51179 to modestly expand the boundary of the Very High Fire Hazard Severity Zone originally identified by the Director of Forestry and Fire Protection (adopted on January 1, 2011, repealed and re-enacted on December 3, 2019). The City’s determinations of the boundaries Fire Zones 2 and 3 were based upon substantial evidence in the record that inclusion of these areas is necessary for effective fire protection within the area.
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Relying upon the state recommended VHFHSZ rather than Fire Zones 2 and 3 (the applicable and lawfully established VHFHSZ) would have the effect of excluding certain narrow streets and streets that lack two distinct means of egress that are located outside of the state-recommended VHFHSZ but within the locally-adopted VHFHSZ. It would also pose implementation problems associated with the fact that the state- recommended VHFHSZ was not adopted by the City and therefore is not in use anywhere, parcels on the boundary may dispute whether or not the state-recommended VHFHSZ does or does not apply.
Below is alternative language for Council’s consideration:
BMC 12.99.020 A
A. A lot that meets the following criteria shall be subject to the provisions of this Chapter.
1. Lots that are located within a very high fire hazard severity zone (“Fire Zone 2” or “Fire Zone 3”) as designated in paragraph III. of Berkeley Municipal Code Section 19.48.020 as designated by the Director of Forestry and Fire Protection pursuant to California Government Code section 51178. If the California Government Code is amended such that the Director of Forestry and Fire Protection is no longer required to designate very high fire hazard severity zones, the City Manager, in consultation with the Fire Marshal, shall identify an appropriate substitute designation, which the City Manager shall cause to be published and updated on the City’s website no later than June 30 of each calendar year; and
2. Lots that are not located within the R-2H (Restricted Two-Family Residential—Hillside Overlay), R-2AH (Restricted Multiple-Family Residential—Hillside Overlay), R-3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential) , R-SH (Residential High Density Subarea—Hillside Overlay), C-NSH (North Shattuck Commercial—Hillside Overlay), or C-NH (Neighborhood Commercial— Hillside Overlay) districts.
Further Narrow Applicability based on Street Width or Egress The proposed ordinance would apply protections to parcels that are within the Fire Zone 2 or 3, which includes areas that contain narrow streets or have only one distinct means of egress. Council could further narrow the applicability of the fire safety restrictions by applying them only to parcels that are both located within Fire Zone 2 or 3 and where at least one other Applicability criterion is met, either the street width requirement or the absence of multiple distinct means of egress. This would reduce the number of parcels where ADUs are limited to one ADU or one JADU, thereby increasing the number of parcels with three separate dwelling units which could be occupied by three separate households in the area prone to wildfire risk.
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Below is alternative language for Council’s consideration:
BMC 12.99.020.A
A. A lot that meets all of the following criteria shall be subject to the provisions of this Chapter.
1. Lots that are located within a very high fire hazard severity zone (“Fire Zone 2” or “Fire Zone 3”) as designated in paragraph III. Of Berkeley Municipal Code Section 19.48.020; and
2. Lots that are not located within the R-2H (Restricted Two-Family Residential—Hillside Overlay), R-2AH (Restricted Multiple-Family Residential—Hillside Overlay), R-3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential), R-SH (Residential High Density Subarea—Hillside Overlay), C-NSH (North Shattuck Commercial—Hillside Overlay), or C-NH (Neighborhood Commercial— Hillside Overlay) districts; and
3. Either of the following:
a. Lots that lack distinct means of vehicular access as follows:
i. The two (2) distinct means of vehicular access, as measured from the lot frontage to the point of intersection with the highway, shall not overlap with each other; and
ii. Each distinct means of vehicular access shall contain a paved or unpaved road of at least twenty-four (24) feet in width, exclusive of sidewalks, landscaping, and parking lanes; or
b. Lots that are on streets less than 33 feet wide.
Further Narrow Street Width
The Council referral used 33 feet as a threshold for street width, below which protections would apply in the Hillside District Overlay. In the alternative, Council could further narrow the applicability of the fire safety restrictions by using a narrower street width criterion. City staff has mapped streets where the average width is below 26 feet, and has also mapped streets where the average width is below 24 feet. These widths were selected because they limit vehicle access when combined with a parking lane.
The ordinance could impose requirements on streets where the condition and width of the road is such that a 20-foot fire lane cannot be maintained; however implementation of a street width criterion for applicability will be greatly facilitated by the use of a width that has already been mapped and is readily accessible to staff.
The use of a narrower street width as part of the criteria for applicability of the fire safety restrictions would reduce the number of parcels where ADUs are limited to one ADU or one JADU, thereby increasing the number of parcels with three separate dwelling units which could be occupied by three separate households in the area prone to wildfire risk.
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Below is alternative language for Council’s consideration, using 26 feet as the street width criterion.
BMC 12.99.020.A
A. A lot that meets all of the following criteria shall be subject to the provisions of this Chapter.
1. Lots that are located within a very high fire hazard severity zone (“Fire Zone 2” or “Fire Zone 3”) as designated in paragraph III. Of Berkeley Municipal Code Section 19.48.020; and
2. Lots that are not located within the R-2H (Restricted Two-Family Residential—Hillside Overlay), R-2AH (Restricted Multiple-Family Residential—Hillside Overlay), R-3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential), R-SH (Residential High Density Subarea—Hillside Overlay), C-NSH (North Shattuck Commercial—Hillside Overlay), or C-NH (Neighborhood Commercial— Hillside Overlay) districts; and
3. Either of the following:
a. Lots that lack distinct means of vehicular access as follows:
i. The two (2) distinct means of vehicular access, as measured from the lot frontage to the point of intersection with the highway, shall not overlap with each other; and
ii. Each distinct means of vehicular access shall contain a paved or unpaved road of at least twenty-four (24) feet in width, exclusive of sidewalks, landscaping, and parking lanes; or
b. Lots that are on streets less than 26 feet wide.
Implementation Concerns regarding “rooftop decks and balconies” The terms “rooftop decks and balconies” as used in the list of items referred by the City Council, do not reflect defined terms that can be used by Land Use Planning staff to ministerially approve or deny applications for zoning certificates. It is not clear whether this language is intended to include all forms of exterior elevated elements, such as attached exterior decks; if the language is not intended to incorporate what is commonly referred to as a “deck,” staff will need to devise a clearer definition distinguishing a balcony from a deck.
CONTACT PERSON
Steven Buckley, Land Use Planning Manager, Planning and Development Department, 510-981-7411
Steven Riggs, Fire Marshall, Fire Department, 510-981-5584
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Attachments:
1: Ordinance
2: Public Hearing Notice
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1 ORDINANCE NO. -N.S.
AMENDMENTS TO THE ACCESSORY DWELLING UNIT (ADU) ORDINANCE (BMC
23.306) AND ADOPTION OF A WILDFIRE HAZARD EVACUATION RISK MITIGATION ORDINANCE (BMC 12.99)
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. Berkeley Municipal Code Chapter 23.306 is amended to read as follows (additions are shown in underlined text and deletions are shown in strikethrough):
23.306 Accessory Dwelling Units
Sections:
23.306.010 Purposes
23.306.020 Applicability
23.306.030 Permit Procedures
23.306.040 Development Standards
23.306.050 Deed Restrictions
23.306.060 Neighborhood Noticing
23.306.070 Rooftop Decks and Balconies
23.306.010 Purposes
The purposes of this Chapter are to:
Implement California Government Code Section 65852.2 and 65852.22.
Increase overall supply and range of housing options in Berkeley.
Expedite small-scale infill development.
Support Housing Element goals of facilitating construction of accessory dwelling units and increasing the number of housing units that are more affordable to Berkeley residents.
Encourage development of accessory dwelling units in zoning districts with compatible land uses and infrastructure.
F. Reduce potential impacts of new development in high fire severity areas and the Hillside Overlay District (HOD) due to unique conditions and hazards within these areas that require additional restrictions on ADUs and JADUs because of impacts of traffic flow and public safety consistent with Government Code 65852.2, subdivision (a)(1)(A), which allows local agencies to regulate ADUs based on "adequacy of water and sewer service, and the impacts of traffic flow and public safety."
23.306.020 Applicability
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2 A. The provisions of this chapter apply to zoning districts where residential uses are permitted, on lots that have at least one existing or proposed Dwelling Unit or Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory.
1. Exceptions. The provisions of this chapter that permit ADUs and JADUs do not apply to lots in the R-1H (Single-Family Residential—Hillside Overlay), R-2H (Restricted Two-Family Residential—Hillside Overlay), or R-2AH (Restricted Multiple-Family Residential—Hillside Overlay) districts. In such districts, ADUs and JADUs shall only be permitted to the extent required by subdivision (e)(1) of Government Code section 65852.2.
B. Number of ADUs and JADUs Permitted Per Lot. Except as expressly modified by Chapter 12.99, the following number of ADUs and JADUs shall be the maximum number of accessory units permitted on lots subject to this Chapter.
1. Lot with one Single Family Dwelling: One ADU and/or one JADU.
2. Lot with more than one Single Family Dwelling: One ADU.
3. Lot with a Duplex or Multiple-Family Dwelling, either:
a. Up to two detached ADUs; or
b. At least one ADU converted from non-habitable portions of the existing Main Building (e.g. basement, attic, storage room). The maximum number of ADUs converted from non-habitable portions of the existing Main Building shall not exceed 25% of the total number of existing Dwelling Units on the lot.
4. Lot with a Group Living Accommodation that is not a Fraternity House, Sorority House or Dormitory: One ADU.
– Permit Procedures
A. Zoning Certificate. An application for an ADU or JADU shall be allowed with a Zoning Certificate. Review must be completed within 60 days of submission of a completed application. A completed application must include evidence of compliance with this Chapter, including Development Standards, Deed Restrictions, and Neighborhood Noticing.
1. If an application to create an ADU or JADU is submitted as part of a project that requires discretionary review, a Zoning Certificate for a Building Permit shall not be issued for the ADU or JADU until the discretionary approval(s) has/have been granted and any applicable appeal periods have expired.
2. Issuance of a Zoning Certificate shall not be denied for the construction or conversion of an ADU or JADU that complies with the requirements of Government Code Section 65852.2(e)(1).
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3 3. Issuance of a Zoning Certificate for the construction or conversion of an ADU or JADU shall not be denied based on the failure of an applicant to correct a nonconforming zoning condition.
23.306.040 Development Standards
A. Basic Standards. See Table 23.306-1: ADU and JADU Development Standards.
TABLE 23.306-1 ADU AND JADU DEVELOPMENT STANDARDS
ADU1 JADU
Maximum Size Outside of
HOD2, 5 500 sf
Studio or 1 bedroom 850 sf N/A 2 + bedrooms 1000 sf
Maximum Size Within HOD 800 sf 500 sf
Maximum Height Outside of
HOD 20 ft.
N/A Maximum Height Within HOD 16 ft.
Front Yard Setback Same as underlying district
Rear Setback 4 ft3
Side Setback 4 ft3
Required Off-Street Parking
Outside of HOD None4
Required Off-Street Parking
Within HOD
The lesser of 1 space per
bedroom or ADU6. 7 None7
[1] An ADU converted from an Accessory Building or Accessory Structure legally established prior to December 1, 2021 that does not comply with the Maximum Height, Size, and/or Rear and Side Setback requirements is allowed to maintain non-conformity to the same dimensions of the existing Accessory Building or Accessory Structure, provided that the existing side and rear setbacks are sufficient for fire and safety as determined by the Building Official and the Fire Marshal. Any physical additions to the existing Accessory Building or Accessory Structure shall comply with the development standards in this table. [2] An ADU created entirely through conversion with no modifications to the existing building envelope that is non-compliant with the standards in this table is allowed a physical addition of no more than 150 square feet that complies with Maximum Height and Setback requirements in this table.
[3] If there is a lesser setback allowed for a comparable Accessory Building or Accessory Structure in the underlying zoning district, that setback shall apply. [4] Replacement of off-street parking for the Main Building is allowed and does not need to comply with Parking Maximums (BMC 23.322.070) nor Parking Layout and Design (BMC
23.322.080).
[5] For purposes of Table 23.306-1, ‘HOD” means lots that are within Fire Zones 2 or 3 (BMC
19.48.020, para. III.), but does not include lots located within the R-2H (Restricted Two-Family Residential—Hillside Overlay), R-2AH (Restricted Multiple-Family Residential—Hillside
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4 Overlay), R-3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential), R-SH (Residential High Density Subarea—Hillside Overlay), C-NSH (North Shattuck Commercial—Hillside Overlay), or C-NH (Neighborhood Commercial—Hillside Overlay) districts.
[6] No off-street parking shall be required for ADUs that satisfy the criteria defined in subdivision (d) of California Government Code section 65852.2 or any successor provision thereto.
[7] If an applicant provides off-street parking for an ADU or a JADU in the HOD, parking shall be allowed in any configuration on the lot, including within the front yard setback.
B. Projections.
1. Except as limited by Paragraph B.2 of this Section, architectural Architectural features (Chimneys, Water Heater Enclosures, Flues, Heating and Cooling Equipment, Eaves, Cornices, Canopies, Awnings) may project two feet into the required setbacks, so long as there remains at least a two-foot setback from property lines. Bay windows may not project into a setback.
2. No projections shall be allowed within the required setbacks on lots that are within Fire Zones 2 or 3 (BMC 19.48.020, para. III.) except on lots located within the R-2H (Restricted Two-Family Residential—Hillside Overlay), R-2AH (Restricted Multiple-Family Residential—Hillside Overlay), R-3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential), R-SH (Residential High Density Subarea—Hillside Overlay), C-NSH (North Shattuck Commercial—Hillside Overlay), or C-NH (Neighborhood Commercial—Hillside Overlay) districts.
23.306.050 - Deed Restrictions
A. The property owner shall file a deed restriction with the Alameda County Recorder which states:
1. The JADU shall not be sold separately from the Main Building;
2. The ADU shall not be sold separately from the Main Building unless the conditions of BMC 23.306.050 B are met;
3. The ADU and/or JADU shall not be rented for a term that is shorter than 30 days; and
4. If the property includes a JADU, the JADU, or the Single Family Dwelling in which the JADU is located, shall be owner-occupied.
B. ADUs Developed by a Qualified Nonprofit Developer. An ADU built or developed by a “qualified nonprofit corporation” may be sold or conveyed separately from the Main Building to a “qualified buyer,” as such terms are defined in subdivision (b) of Section 65852.26 of the California Government Code. The ADU must be held
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5 pursuant to a recorded tenancy in common agreement recorded on or after December 31, 2021 that includes the following elements:
1. Delineation of all areas of the property that are for the exclusive use of a cotenant;
2. Delineation of each cotenant’s responsibility for the costs of taxes, insurance, utilities, general maintenance and repair, and improvements associated w ith the property;
3. Procedures for dispute resolution among cotenants before resorting to legal action;
4. Allocates to each qualified buyer an undivided, unequal interest in the property based on the size of the dwelling each qualified buyer occupies;
5. A repurchase option that requires the qualified buyer to first offer the qualified nonprofit corporation to buy the ADU or primary dwelling if the buyer desires to sell or convey the property;
6. A requirement that the qualified buyer occupy the ADU or primary dwell ing as the buyer’s principal residence; and
7. Affordability restrictions on the sale and conveyance of the ADU or primary dwelling that ensure the ADU and primary dwelling will be preserved for low - income housing for 45 years for owner-occupied housing units and will be sold or resold to a qualified buyer.
8. If requested by a utility providing service to the primary residence, the ADU shall have a separate water, sewer, or electrical connection to that utility.
23.306.060 – Neighbor Noticing
A. Scope and Timing of Notice. Notice of an ADU application shall be mailed to owners and tenants of the subject, adjacent, confronting and abutting properties within ten working days of submission to the Planning Department.
B. Content of Notice. Notice shall provide the address of the project, allowable hours of construction, and a link to the City’s ADU webpage.
C. Mailing Fees. The applicant shall be responsible for the cost of materials, postage and staff time necessary to process and mail notices.
23.306.070 Rooftop Decks and Balconies
A. Notwithstanding any provisions of this Title to the contrary, rooftop decks and balconies shall be prohibited on lots that are within Fire Zones 2 or 3 (BMC 19.48.020, para. III.) except on lots located within the R-2H (Restricted Two-Family Residential— Hillside Overlay), R-2AH (Restricted Multiple-Family Residential—Hillside Overlay), R- 3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential), R-SH (Residential High Density Subarea—Hillside Overlay), C-NSH (North Shattuck
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6 Commercial—Hillside Overlay), or C-NH (Neighborhood Commercial—Hillside Overlay) districts.
Section 2. Berkeley Municipal Code Chapter 12.99 is adopted to read as follows:
12.99 Wildfire Hazard Evacuation Risk Mitigation Ordinance
Sections
12.99.010 Title and Purposes
12.99.020 Applicability
12.99.030 Total Number of Units Permitted
12.99.010 Title and Purposes
A. This Chapter may be referred to as the “Wildfire Hazard Evacuation Risk Mitigation Ordinance.”
B. The purposes of this chapter are to permit and promote the construction of accessory dwelling units and junior accessory dwelling units while protecting human life and health, promoting the public health, safety, and general welfare, and minimizing public and private losses due to dangerous conditions in specific areas.
C. Government Code 65852.2, subdivision (a)(1)(A) allows local agencies to regulate ADUs based on "adequacy of water and sewer service, and the impacts of traffic flow and public safety."
D. The Hillside Overlay District has unique conditions and hazards that require additional restrictions on ADUs and JADUs because of impacts of traffic flow and public safety:
1. Wildfires, earthquakes and landslides put residents of the Hillside Overlay District at significant risk.
2. The Hayward fault bisects the Hillside Overlay District.
3. Due to the maze of narrow, winding streets, the Hillside Overlay District has extremely poor emergency access and egress conditions. Safety is compromised by a substandard street infrastructure that has limited accessibility for emergency responders as well as inadequate capacity for fast and reliable escape. A majority of street widths in the North Berkeley hills have substandard widths.
4. A study published by UC Berkeley researchers concluded that in the best-case scenario, if each household evacuated from the hill with one vehicle, estimated evacuation time would be two hours and 245 vehicles would be exposed to immediate fire danger. However, if each household evacuated with 1.7 vehicles,
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7 evacuation time would increase to three hours and 782 vehicles would be exposed to immediate fire danger.
E. Increasing density and intensity by permitting both one ADU and one JADU (2 total) in addition to the primary home, on every parcel zoned residential in the Hillside Overlay District or in a very high fire hazard severity zone will seriously exacerbate the already very hazardous conditions that currently exist, necessitating reasonable limitations that reduce exposure to hazardous conditions.
12.99.020 Applicability
A. A lot that meets all of the following criteria shall be subject to the provisions of this Chapter.
1. Lots that are located within the very high fire hazard severity zone (“Fire Zone 2” or “Fire Zone 3”) as designated in paragraph III. of Berkeley Municipal Code Section 19.48.020; and
2. Lots that are not located within the R-2H (Restricted Two-Family Residential—Hillside Overlay), R-2AH (Restricted Multiple-Family Residential— Hillside Overlay), R-3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential), R-SH (Residential High Density Subarea—Hillside Overlay), C-NSH (North Shattuck Commercial—Hillside Overlay), or C-NH (Neighborhood Commercial—Hillside Overlay) districts.
12.99.030 Total Number of Units Permitted
A. Notwithstanding any provisions of Chapter 23.306 to the contrary, no more than one ADU or JADU shall be permitted per lot that is subject to this Chapter.
Section 3. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building , 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch o f the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
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Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
PUBLIC HEARING
January 18, 2022
(continued from December 14, 2021)
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Abe Roman, Fire Chief, Fire and Emergency Services Department Jordan Klein, Director, Planning and Development Department Subject: Response to City Council Action on October 26, 2021 regarding Short Term Referral for Amendments to Accessory Dwelling Unit (ADU) Ordinance to Address Public Safety Concerns
RECOMMENDATION
Conduct a public hearing and upon conclusion, adopt first reading of a local ordinance enacting Chapter 12.99 (Accessory Dwelling Units in Wildfire Hazard Areas) and amending Chapter 23.306.
FISCAL IMPACTS OF RECOMMENDATION
None
CURRENT SITUATION AND ITS EFFECTS
On October 26, 2021, City Council considered Planning Commission’s recommendations for a local ADU Ordinance and directed the City Manager to develop a set of narrowly-focused public safety regulations that apply to Accessory Dwelling Units (ADUs). These regulations are to address public safety issues that arise from new development, residents and dwelling units in fire-prone areas.
The proposed ordinance incorporates all of the recommendations referred to the City Manager and City Attorney by the Council on October 26, 2021 in a manner that is narrowly tailored to achieve the public safety goal of preventing fatalities during a wildfire evacuation. This staff report includes an array of alternatives for consideration by the Council, should it wish to narrow or expand the scope of the proposed ordinance.
BACKGROUND
As stated in California Government Code Section 51175, the Legislature has found that wildfires pose a serious threat to the preservation of the public peace, health and safety, and that the wildfire front is not the only source of risk, since embers and firebrands travel far beyond the area impacted by the fire front, and pose a risk of ignition to structures and fuels on a site for a longer time. In that same statute the legislation has determined that it is necessary that all levels of government, including local
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governments work to implement preventive measures to ensure the preservation of the public peace, health, or safety. The ability to evacuate people safely during a wildfire is a major challenge in Berkeley. The trend of increasing the density of households even in recognized Very High Fire Hazard Severity Zones as mandated by existing State ADU law demands that the City impose more restrictive fire and public safety requirements as allowed by Gov. Code 51175 and other laws in order to mitigate difficult and dangerous evacuation conditions.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Studies have shown that the total acreage of vegetation burned in California over the decades since the late 1980s has consistently increased over time. One study concluded that the estimated 7.08 million acres burned in the time period from 2009- 2018 is approximately 259% more than the acreage burned during the period from 1989-1998 (2.73 million acres) (Buechi, Cameron, Heard, Plantinga, & Weber, 2021)1.
All other variables being equal, this increase in burned acreage will also equate to a corresponding increase in carbon dioxide released to the environment due to wildfires.
Measures taken to prevent wildfires, slow the development of wildfires once they are ignited, make wildfires easier to suppress, or prevent the diversion of valuable firefighting resources from rescue missions and allow them to concentrate on suppressing the wildfire will have the effect of reducing this emission of carbon dioxide.
RATIONALE FOR RECOMMENDATION
The wildland fire problem throughout the State of California and the western region of the United States has become progressively worse over the past 30-40 years. The duration of what was once considered a ‘wildfire season’ has extended to the point that wildfire events occur throughout most of the calendar year. This tends to blur any distinct lines between adjacent fire seasons. As a result, wildfire activity has become more of a cycle and less of a ‘season’. Recent wildfire incidents since 2017 have consistently set records for fire size, intensity and rate of spread. Scientific evidence suggests that our current extreme drought conditions that make vegetation more susceptible to ignition and the fire weather conditions which lead to extreme fire behavior and make fire control difficult are due in large part to global climate change.
Formal studies confirm that the overall severity of the wildfire problem in the state has steadily increased over the past 30-40 years and recent wildfire incidents in California since 2017 have consistently set records for fire size, intensity and rate of spread. The difficulty of controlling recent wildfires is evidenced by the number of structures being lost in wildfires despite the record expenditure of public funds on fire control efforts and in the anecdotal reports of experienced firefighters.
1 Buechi, Hanna; Cameron, Dick; Heard, Sarah; Plantinga, Andrew J; Weber, Page “Long-Term Trends in Wildfire Damages in California”, 2020: https://emlab.ucsb.edu/sites/default/files/docments/wildfire-brief.pdf
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The October 20, 1991 Oakland-Berkeley firestorm (known officially as the Tunnel- Oakland Hills fire), resulted in 25 fatalities due to evacuation challenges posed by winding narrow roads in the Oakland Hills bordering Berkeley. In light of these risks, since 2007, Fire Zone 3, (which comprises the Panoramic Hill neighborhood zoned as the Environmental Safety-Residential District), has been subject to safety restrictions including requirements for the installation and retrofit of fire sprinklers. Today, the Berkeley Fire Department believes that based on deteriorating wildfire conditions throughout the state that the wildland fire problem in Fire Zone 2 is now very similar to the wildland fire problem in Fire Zone 3.
The geographic area designated as Fire Zone 2 shares most of the wildfire characteristics present within Fire Zone 3. Both areas are recognized by the City and the Director of the California Department of Forestry and Fire Protection as Very High Fire Hazard Severity Zones (VHFHSZ) and share similar fire weather. Both areas have narrow, winding and steeply graded roads and streets. Both areas have abundant vegetation intermixed with structures. The topography of both areas is steep which creates the potential for rapidly advancing slope-driven fires. The original parcel subdivisions created narrow but deep lots in both Fire Zones. This tends to crowd adjacent structures and greatly reduces the amount of defensible space available to provide for wildfire safety. Many of the streets average less than 26 feet in width, resulting in choke points where two vehicles are unable to pass each other in the presence of any parking lane. The main factor that the two areas do not share is the condition of a single means of evacuation and access by road that exists in Fire Zone 3.
The majority of street segments in Fire Zone 2 have access to more than one evacuation and access route. However, given the dramatic increase in the severity of the wildfire problem it is believed that even the availability of a second or additional access routes, which is typical in Fire Zone 2, cannot mitigate all of the factors previously listed that may contribute to a catastrophic wildfire.
The hazard posed by winding, narrow streets in the wildfire-prone areas is likely to increase substantially with increased density of human life, structures and vehicles and any resulting increase in evacuation traffic. Increasing the number of households living on a given parcel is highly likely to result in an increase in the number of separate vehicles evacuating from that parcel. A parcel containing a single-family home, a JADU and an ADU, occupied by three households, is more likely to generate three separate evacuation vehicles than a single-family home occupied by a single household.
In a study performed at UC Berkeley, researchers modeled a wildfire evacuation scenario in the Berkeley Hills. According to their model, if each household in the Berkeley Hills used only one vehicle to evacuate, then the estimated evacuation time would be less than 2 hours, and 245 vehicles would be exposed to immediate fire danger. However, if each household took 1.7 vehicles to evacuate, that would increase evacuation time to three hours and expose 782 vehicles to fire. If all households evacuate with three vehicles, exposed vehicles reach 2,497 (11% of the total). The
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report concluded that reducing the number of personal vehicles (and thereby reducing traffic congestion) was one of the most impactful measures that could prevent wildfire fatalities by ensuring that all households are able to evacuate safely.2 By the same reasoning, preventing an increase in the number of households living within the Very High Fire Hazard Severity Zone will have a direct impact upon the risk of exposure of evacuating vehicles to wildfire risk.
On October 26, 2021, the City Council directed the City Manager and City Attorney to take action to address these hazards as follows:
For the Hillside Overlay District (HOD), in light of the public hazards and life safety concerns, we refer to the City Manager and City Attorney for staff analysis and recommendations for a potential ordinance, Councilmember Wengraf’s full list of recommendations (including the number of ADUs on a parcel) as well as the issue of ADU limitations where there is one access and egress route with a goal of returning within a month or less.
Councilmember Wengraf’s Supplemental item listed the following recommendations:
1. Allow one accessory dwelling unit on parcels in the HOD by either:
A. conversion of existing space (garage, basement or attic) to an ADU no larger than 800 sq. feet
or
B. conversion of existing internal space for JADU no larger than 500 sq. feet or
C. one detached ADU of 800 sq. feet
2. Prohibit roof-top decks and balconies for fire safety
3. Prohibit all protrusions into the four-foot rear or side setback to maintain defensible space
4. Maintain 16-foot maximum height for ADUs
5. Allow parking in the front yard setback in coordination with ministerial ADU permit Additionally, on page 4 of her supplemental item, Councilmember Wengraf uses a street width narrower than 33 feet as grounds for restricting the development of multiple ADUs per parcel.
2 Zhao, Bingyu, PhD Wong, Stephen D, PhD “Developing Transportation Response Strategies for Wildfire Evacuations via an Empirically Supported Traffic Simulation of Berkeley, California” 2021:
https://escholarship.org/uc/item/70p6k4rf
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The proposed ordinance applies in Fire Zones 2 and 3 and incorporates all of the recommendations set forth in the Council referral. The primary effect of the proposed ordinance would be to reduce the number of ADUs per parcel from two (one ADU and one JADU) to one (either an ADU or a JADU) and thereby limit the number of separate households likely to flee a wildfire event, which would result in fewer vehicles and a lower likelihood that escaping vehicles would be exposed to wildfire risk due to traffic congestion during the evacuation. Fire Zones 2 and 3 are the formally recognized Very High Fire Hazard Severity Zone in the City of Berkeley, for purposes of Government Code 51179. Certain portions of Fire Zone 2 near the campus of the University of California are zoned for multi-family housing and do not share the narrow, winding streets and related hazardous conditions present in the hilly portions of the VHFHSZ; those areas not zoned for single-family housing are excluded to ensure that these protections are narrowly tailored.
ALTERNATIVE ACTIONS CONSIDERED
This report includes alternative options for City Council consideration. These options, which would revise the proposed language of Chapter 12.99, are outlined below, and each option could be used to further narrow the scope of the proposed ordinance. There is also an implementation concern regarding the prohibition on “rooftop decks and balconies” which are not defined terms for purposes of ministerial approval of zoning certificates.
Replace Fire Zone 2 and 3 with State Recommended VHFHSV The proposed ordinance uses the boundary of Fire Zones 2 and 3 to designate the areas in which additional restrictions apply to the development of ADUs for wildfire safety purposes. As an alternative, the Council could narrow the applicability of the Ordinance by relying upon the State-Recommended VHFHSV boundaries, which would exclude a portion of Fire Zone 2 in the northwest corner of the locally-adopted VHFHSV.
Government Code Section 51178 requires that the state Director of Forestry and Fire Protection identify Very High Fire Hazard Severity Zones throughout the state, and submit those recommendations to the local jurisdictions where those VHFHSZs are located. Government Code Section 51179 provides that the local jurisdiction may, in turn, designate additional areas that where their inclusion within the VHFHSZ is necessary for effective fire suppression in the area. These locally-adopted VHFHSZs are then transmitted to the state and become the official VHFHSZ for the area until such time as they are modified upon review, which takes place every five years, per Government Code Section 51181.
The City lawfully exercised its authority under Government Code 51179 to modestly expand the boundary of the Very High Fire Hazard Severity Zone originally identified by the Director of Forestry and Fire Protection (adopted on January 1, 2011, repealed and re-enacted on December 3, 2019). The City’s determinations of the boundaries Fire
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Zones 2 and 3 were based upon substantial evidence in the record that inclusion of these areas is necessary for effective fire protection within the area.
Relying upon the state recommended VHFHSZ rather than Fire Zones 2 and 3 (the applicable and lawfully established VHFHSZ) would have the effect of excluding certain narrow streets and streets that lack two distinct means of egress that are located outside of the state-recommended VHFHSZ but within the locally-adopted VHFHSZ. It would also pose implementation problems associated with the fact that the state- recommended VHFHSZ was not adopted by the City and therefore is not in use anywhere, parcels on the boundary may dispute whether or not the state-recommended VHFHSZ does or does not apply.
Below is alternative language for Council’s consideration:
BMC 12.99.020 A
A. A lot that meets the following criteria shall be subject to the provisions of this Chapter.
1. Lots that are located within a very high fire hazard severity zone (“Fire Zone 2” or “Fire Zone 3”) as designated in paragraph III. of Berkeley Municipal Code Section 19.48.020 as designated by the Director of Forestry and Fire Protection pursuant to California Government Code section 51178. If the California Government Code is amended such that the Director of Forestry and Fire Protection is no longer required to designate very high fire hazard severity zones, the City Manager, in consultation with the Fire Marshal, shall identify an appropriate substitute designation, which the City Manager shall cause to be published and updated on the City’s website no later than June 30 of each calendar year; and
2. Lots that are not located within the R-2H (Restricted Two-Family Residential—Hillside Overlay), R-2AH (Restricted Multiple-Family Residential—Hillside Overlay), R-3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential) districts.
Further Narrow Applicability based on Street Width or Egress The proposed ordinance would apply protections to parcels that are within the Fire Zone 2 or 3, which includes areas that contain narrow streets or have only one distinct means of egress. Council could further narrow the applicability of the fire safety restrictions by applying them only to parcels that are both located within Fire Zone 2 or 3 and where at least one other Applicability criterion is met, either the street width requirement or the absence of multiple distinct means of egress. This would reduce the number of parcels where ADUs are limited to one ADU or one JADU, thereby increasing the number of parcels with three separate dwelling units which could be occupied by three separate households in the area prone to wildfire risk.
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Below is alternative language for Council’s consideration:
BMC 12.99.020.A
A. A lot that meets all of the following criteria shall be subject to the provisions of this Chapter.
1. Lots that are located within a very high fire hazard severity zone (“Fire Zone 2” or “Fire Zone 3”) as designated in paragraph III. Of Berkeley Municipal Code Section 19.48.020; and
2. Lots that are not located within the R-2H (Restricted Two-Family Residential—Hillside Overlay), R-2AH (Restricted Multiple-Family Residential—Hillside Overlay), R-3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential) districts; and
3. Either of the following:
a. Lots that lack distinct means of vehicular access as follows:
i. The two (2) distinct means of vehicular access, as measured from the lot frontage to the point of intersection with the highway, shall not overlap with each other; and
ii. Each distinct means of vehicular access shall contain a paved or unpaved road of at least twenty-four (24) feet in width, exclusive of sidewalks, landscaping, and parking lanes; or
b. Lots that are on streets less than 33 feet wide.
Further Narrow Street Width
The Council referral used 33 feet as a threshold for street width, below which protections would apply in the Hillside District Overlay. In the alternative, Council could further narrow the applicability of the fire safety restrictions by using a narrower street width criterion. City staff has mapped streets where the average width is below 26 feet, and has also mapped streets where the average width is below 24 feet. These widths were selected because they limit vehicle access when combined with a parking lane.
The ordinance could impose requirements on streets where the condition and width of the road is such that a 20-foot fire lane cannot be maintained; however implementation of a street width criterion for applicability will be greatly facilitated by the use of a width that has already been mapped and is readily accessible to staff.
The use of a narrower street width as part of the criteria for applicability of the fire safety restrictions would reduce the number of parcels where ADUs are limited to one ADU or one JADU, thereby increasing the number of parcels with three separate dwelling units which could be occupied by three separate households in the area prone to wildfire risk.
Below is alternative language for Council’s consideration, using 26 feet as the street width criterion.
BMC 12.99.020.A
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A. A lot that meets all of the following criteria shall be subject to the provisions of this Chapter.
1. Lots that are located within a very high fire hazard severity zone (“Fire Zone 2” or “Fire Zone 3”) as designated in paragraph III. Of Berkeley Municipal Code Section 19.48.020; and
2. Lots that are not located within the R-2H (Restricted Two-Family Residential—Hillside Overlay), R-2AH (Restricted Multiple-Family Residential—Hillside Overlay), R-3H (Multiple-Family Residential—Hillside Overlay), or R-4H (Multi-Family Residential) districts; and
3. Either of the following:
a. Lots that lack distinct means of vehicular access as follows:
i. The two (2) distinct means of vehicular access, as measured from the lot frontage to the point of intersection with the highway, shall not overlap with each other; and
ii. Each distinct means of vehicular access shall contain a paved or unpaved road of at least twenty-four (24) feet in width, exclusive of sidewalks, landscaping, and parking lanes; or
b. Lots that are on streets less than 26 feet wide.
Implementation Concerns regarding “rooftop decks and balconies” The terms “rooftop decks and balconies” as used in the list of items referred by the City Council, do not reflect defined terms that can be used by Land Use Planning staff to ministerially approve or deny applications for zoning certificates. It is not clear whether this language is intended to include all forms of exterior elevated elements, such as attached exterior decks; if the language is not intended to incorporate what is commonly referred to as a “deck,” staff will need to devise a clearer definition distinguishing a balcony from a deck.
CONTACT PERSON
Steven Buckley, Land Use Planning Manager, Planning and Development Department, 510-981-7411
Steven Riggs, Fire Marshall, Fire Department, 510-981-5584 Attachments:
1: Ordinance
2: Public Hearing Notice
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1 ORDINANCE NO. -N.S.
AMENDMENTS TO THE ACCESSORY DWELLING UNIT (ADU) ORDINANCE (BMC
23.306) AND ADOPTION OF A WILDFIRE HAZARD EVACUATION RISK MITIGATION ORDINANCE (BMC 12.99)
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. Berkeley Municipal Code Chapter 23.306 is amended to read as follows (additions are shown in underlined text and deletions are shown in strikethrough):
23.306 Accessory Dwelling Units
Sections:
23.306.010 Purposes
23.306.020 Applicability
23.306.030 Permit Procedures
23.306.040 Development Standards
23.306.050 Deed Restrictions
23.306.060 Neighborhood Noticing
23.306.070 Rooftop Decks and Balconies
23.306.010 Purposes
The purposes of this Chapter are to:
A. Implement California Government Code Section 65852.2 and 65852.22.
B. Increase overall supply and range of housing options in Berkeley.
C. Expedite small-scale infill development.
D. Support Housing Element goals of facilitating construction of accessory dwelling units and increasing the number of housing units that are more affordable to Berkeley residents.
E. Encourage development of accessory dwelling units in zoning districts with compatible land uses and infrastructure.
F. Reduce potential impacts of new development in high fire severity areas and the Hillside Overlay District (HOD) due to unique conditions and hazards within these areas that require additional restrictions on ADUs and JADUs because of impacts of traffic flow and public safety consistent with Government Code 65852.2, subdivision (a)(1)(A), which allows local agencies to regulate ADUs based on "adequacy of water and sewer service, and the impacts of traffic flow and public safety."
23.306.020 Applicability