CITY COUNCIL STAFF REPORT
Meeting: November 1, 2022
Subject
Consider an ordinance to implement state legislation (Senate Bill 9), that provides for ministerial approval of up to two units and/or a lot split in a residential single‐family zone (Application No.:
MCA‐2022‐001; Applicant: City of Cupertino; Location: Citywide in all residential single‐family zones)
Recommended Action
That the City Council:
1. Find the proposed actions exempt from CEQA; and
2. Conduct the first reading of Ordinance No. 22‐2246: ʺAn Ordinance of the City Council of the City of Cupertino amending chapters 18.20.170, 19.08.030, 19.12.030, 19.12.110,
19.28.040, 19.28.050, 19.28.110, 19.28.150, 19.28.170, 19.40.050, 19.40.060, 19.40.090, and
19.112.060 to adopt standards for ministerial approval of duplexes and lot splits in Single‐ Family Residential zoning districts.ʺ
Discussion
As a matter of urgency and pursuant to Government Code § 65858, Council adopted an Interim Ordinance (Attachment C) including objective standards on December 21, 20211 for ministerial approval of up to two dwelling units on a parcel and two lot subdivisions pursuant to SB 9. The Interim Ordinance was extended on February 1, 20222 and will expire on December 19, 2022.
Additional background on the State’s requirements and the City’s interim ordinance are provided on Page 15 of this report.
At the September 20th study session3, Council considered the potential modifications to the interim ordinance standards that would be adopted in the regular ordinance for lot configuration,
1 Staff report and attachments available online at:
https://cupertino.legistar.com/LegislationDetail.aspx?ID=5362273&GUID=CB9F500E‐8E12‐41FA‐ 8E97‐2B33CCED758F&Options=&Search=
2 Staff report and attachments available online at:
https://cupertino.legistar.com/MeetingDetail.aspx?ID=916228&GUID=2DF752C6‐C534‐4A29‐ 9F8E‐FDC0DCA10815&Options=info|&Search=
3 Staff report and attachments available online at:
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second‐story decks and balconies, grade elevation change limitations, zero‐foot setbacks, and second story building envelopes. Councilmembers directed staff to proceed with modifications based on staff recommendations to grade change, zero‐foot setback, and second‐story building envelope standards and requested additional feedback from Planning Commission on standards related to lot configuration and second‐story decks.
On October 11, 20224. The Planning Commission recommended the Council to adopt the proposed ordinance with the following revisions that were different from prior Council’s direction:
a. Disallow balconies, in perpetuity, on any units developed pursuant to the provisions of Senate Bill 9; and
b. Limit change in grade elevation from natural grade to 12 inches, regardless of existing lot slope.
Staff recommends that the Council adopt the proposed ordinance (Attachment A) including Planning Commission’s recommendation, except the grade change limitation, as further discussed below, based on following analysis:
a. Grade Change Limitations Based on Lot Slope
A limitation to change in grade of not more than six inches for improvements related to an Urban Lot Split was adopted through the Interim Ordinance 21‐2235. This standard was established to mitigate:
Potential privacy impacts from smaller lots;
Aesthetic impacts resulting from varying cuts and heights of development of ministerially subdivided lots, and
Potential environmental impacts resulting from a ministerially reviewed Parcel Map.
By way of background, per the Municipal Code, the height of a proposed development is measured from the natural grade, defined as the contour of the land prior to improvements or development, unless otherwise established by a City‐approved grading plan that is part of a subdivision map approval. As Urban Lot Splits would be accompanied by a City‐approved grading plan, a significant change in grade elevation approved as part of an Urban Lot Split may result in increases to building height and finished floor elevations, unless specific objective standards are adopted.
With regards to privacy protection, this limitation to grade change ensures that the grade elevation will not be increased to an extent which would lead to additional potential for privacy impacts. As previously noted, projects proposed under the provisions of SB 9 must
https://cupertino.legistar.com/MeetingDetail.aspx?ID=916885&GUID=D781CA4C‐BAB1‐4CFE‐B642‐ E8A14BC1CBE9&Search=
4 Staff report and attachments available online at:
https://cupertino.legistar.com/MeetingDetail.aspx?ID=917564&GUID=227838F0‐AE5E‐4E60‐8D90‐ 19283D520AA3&Search=
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be reviewed ministerially and, therefore, additional considerations for privacy impacts may not be made on a case‐by‐case basis. Additionally, this standard limits the potential for proposals to significantly alter natural contours on the site to accommodate an Urban Lot Split or development proposed pursuant to SB 9.
It should be noted that this grade change limitation, when adopted through the interim ordinance, was applied exclusively to the grading associated with subdivision improvements with Urban Lot Splits and was not applicable to requests for development of homes under the provisions of SB 9. Additionally, the objective grading standards which limit total grading through a maximum allowance of grading measured through cubic yards also apply to projects with slopes exceeding 20% in R1 zones and to all projects in RHS zones.
The six‐inch limitation was put in place to avoid substantial changes in grade that may affect allowable heights and/or result in exorbitant cuts and/or fill that lead to significant environmental impacts. However, staff observed that the interim standard could be too restrictive to development of lots even
with minor slopes. For example, a
proposed 20‐foot in length cut to
accommodate a building pad on a lot
with a consistent upward slope of about
five percent (5%) would result in an
elevation change of approximately one
foot (1 foot) and would not meet this
standard (see Figure 1).
At the September 20, 2022 study session, staff brought the issue before Council for direction as to whether the standard adopted through Interim Ordinance 21‐2235 should be included in the regular ordinance or whether the ordinance should be modified to (1) allow for additional flexibility on modestly sloped properties and (2) apply the standard to grading associated with residences developed under SB 9 provisions in addition to Urban Lot Splits.
Councilmembers generally advised that staff modify the language to make the standard reasonable based on the expected development under SB 9.
As such a revision was proposed in the draft ordinance by staff in which this standard would be applicable to both Urban Lot Splits and residential development proposed pursuant to SB
9. The proposal was to allow grading on a sliding scale based on the overall slope of the lot to thoughtfully implement on lots with outlying conditions while meeting the requirements for objective standards. The standard would have allowed a 12” grade change on lots with slopes between 0 – 5%, 24” grade change on lots with slopes between 6 – 10%, and requires a peer reviewed grading and drainage plan to confirm that grading on all slopes exceeding 10% is limited to the minimum extent necessary to accommodate on‐site parking and living space.
The Commission did not agree with the staff recommendation and recommended a modified standard which limits the allowable change in grade to 12 inches for all Urban Lot Splits and SB 9 development projects regardless of slope, as indicated in Attachment A. Their discussion Figure 1: Grading on ~5% Slope
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generally indicated that the intent of the 12‐inch limitation was to avoid significant grading on sloped lots without adequate oversight and discretion.
Following the Commission’s recommendation, a comment was submitted to the Planning Commission and City Council by one member of the public, reiterating his concern about the grade change limitation, indicating that the standard would limit the ability to complete an Urban Lot Split on lots with even modest slopes (see Attachment E). Staff continues to recommend addition of the following language, indicated in italics below, to replace language outlined in Municipal Code Sections 19.28.060 (E) (2) (i) and 19.40.050 E (1) (d).
Unless required by the City Engineer or to meet Fire Code requirements, grading activity on lots with an average slope of:
1. Less than five percent shall not result in a change in grade elevation by more than 12‐ inches from existing natural grade.
2. Between five and ten percent shall not result in a change in grade elevation by more than 24‐inches from existing natural grade.
3. Ten percent or more shall result in a change in elevation that is limited to the minimum extent necessary to accommodate on‐site parking and living space, as demonstrated by a grading and drainage plan prepared by a registered civil engineer, subject to third‐party peer review, at the applicant’s cost.
As previously noted, this proposed standard allows less grading on flatter lots and allows additional grading, in modest amounts on steeper lots.
b. Disallowing Second‐Story Decks and Balconies
At its December 21, 2021 meeting, Council discussed and opted to disallow second‐story decks and balconies from developments proposed pursuant to SB 9. This standard was incorporated into the interim ordinance. However, under interim regulations, subsequent to ministerial approval of a development project under SB 9, an addition of a second story deck or balcony could be pursued through a discretionary Minor Residential Permit in R1 zones or through a non‐discretionary Building Permit approval for properties in the RHS zoning district.
Following discussions at the September 20th study session, a majority of Councilmembers agreed that second story decks should be permitted in R1 zoning districts with the processing of a discretionary Minor Residential Permit (but not through the ministerial SB 9 process) and were supportive of creating a new process to permit decks and balconies subsequent to development of SB 9 units in the RHS zone. Some Councilmembers also indicated that they were interested in exploring options that would create additional flexibility in the objective standards by allowing second story decks and balconies where a larger setback for these features is provided. In addition, at the September 28th community meeting, approximately 64% of respondents indicated that they thought the City should allow balconies on development proposed pursuant to SB 9 with the majority of indicating that these features should be allowed without further restriction.
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The Planning Commission considered the prior Council direction, survey data and language proposed by staff, and ultimately recommended to disallow balconies, in perpetuity, on any units developed pursuant to the provisions of Senate Bill 9 in both R1 and RHS zones. This limitation does not apply to residences that meet standard, discretionary development requirements (i.e., not SB 9 development) on lots resulting from an Urban Lot Split. The current draft ordinance reflects the Planning Commission’s recommendation.
Development of Objective Standards
A summary of significant provisions of the proposed ordinance is provided below. Please note that the discussion of provisions below does
not reflect the full scope of regulations proposed
through the regular ordinance (Attachment A). The differences between the Interim Ordinance adopted in December 2021 and the proposed regular ordinance are indicated in Attachment D in redlines. Standards modified by Planning Commission at their October meeting are reflected in Attachment A.
Urban Lot Splits Pursuant to SB 9
a. R1 Zoned Lots
SB 9 does not speak to existing or proposed lot configuration requirements when considering Urban Lot Splits, but the statute allows local jurisdictions to develop objective standards to implement its ministerial lot split provisions.
As background, typical lot shapes in the city include the following:
Interior Lots ‐ A rectangular or close to rectangular shaped lot with street frontage on one street;
Corner Lots ‐ A lot that fronts two different streets; Cul‐de‐Sac or Pie‐Shaped Lots ‐ Lots that have a significantly smaller front lot line than its rear lot line or lots with more than four lot lines where the front lot line is smaller than the other lot lines; and
Flag Lots ‐ A lot that has a quadrilateral shaped (mostly rectilinear) buildable lot but with access either through another lot or a portion of its lot that is designed solely for access.
Since Urban Lot Splits cannot be reviewed under typical discretionary standards, the Interim Ordinance 21‐2335 included objective standards for lot configuration to better ensure neighborhood compatibility and orderly subdivision, minimize conflicts with pedestrians and bicyclists, and minimize hardscape associated with proposed Urban Lot Splits. These Objective subdivision standards, which are proposed to be carried forward into the proposed ordinance with some minor modifications discussed below, reflect design strategies and General Plan policies while taking into account these different lot shapes. In all cases, Urban Lot Splits will be subject to the State’s requirements that the two resulting lots be roughly equal in size (no more than 60% or less than 40% of the original lot size) and that the resulting lots be no less than 1,200 square feet.
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The proposed ordinance incorporates the objective standards from the Interim Ordinance with a proposed change to existing interior, non‐flag lots. Following the Council discussing potential modifications to the current subdivision standards that would allow greater flexibility in allowing for flag lots while noting a general concern for privacy protection of adjacent neighbors at the September 20, 2022 study session, about 77% of respondents at the September 28, 2022 community meeting indicated that they think that the City should allow for the creation of flag lots from existing lots that are larger than a typical lot. Since it appeared that there might be an appetite to allow the creation of flag lots within the City, modified regulations in some situations where there are wider but deeper lots are proposed in the draft ordinance.
Based on this, lots of up to 30 feet in width may be developed consistent with the proposed regulations related to garage façade, etc.5 Subdivision is allowed as follows:
i. No more than two new property lines may be added to create a new lot. ii. Existing interior lots or pie shaped lots with 60 feet to 75 feet street frontage but with lot depths less than 145 feet: resulting lots shall have a street frontage that is between 40‐ 60% of the lot width of the lot being subdivided.
iii. Existing interior lots or pie shaped lots with 75 feet or more street frontage and with lot depth greater than 145 feet: option to either subdivide side by side or as flag lot6 iv. Existing interior lots or pie shaped lots with less than 60 feet of street frontage: one of the resulting lots shall be a flag lot with access to the street. v. Existing flag lot subdivision: resulting lots must be subdivided in the same orientation as the existing lot (i.e., the existing front lot line must be the front lot line of the future lots and the existing rear lot line shall be the rear lot line of the future lots) and shall be between 40‐60% of the lot width of the lot being subdivided. vi. Corner lots: Shall be subdivided in a manner that the existing street side property line shall be split to create at least one front lot line on that frontage.
Note that no. (iii) above is a change to the standards in the interim ordinance and was supported by the Planning Commission. The added standard for a minimum lot depth of 145 feet ensures that building pads of reasonable size may be obtained through the subdivision process and encourage the development of units in a manner which would allow properties to have rear yard space larger than four feet to reduce impacts to neighbors. This allows more than one quarter of the lots zoned for R1 uses eligible for SB 9 subdivision as flag lots.
5 Lots with a 30‐foot frontage, would allow the development of a home façade of 22 feet, which allows for a one car garage space and living space adjacent to it; no more than 50% of the frontage would be occupied by a garage façade. This could be further enhanced by utilizing the zero‐setback provisions. 6 This is a change from the regular ordinance and was discussed at the September 20, 2022 City Council study session. Planning Commission recommended the modified standard.
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b. RHS Zoned Lots
Hillside properties zoned for single‐family residential are also subject to SB 9. Of particular concern on these properties are building sites that are accessible only via long driveways and are not close to a public street. On these sites, shared common access is required to minimize points of conflict with pedestrians due to the lack of pedestrian amenities in the hillside zoning district and to minimize grading in the hills.
With that in mind, the proposed ordinance rolls over the following objective design standards for Urban Lot Splits and development proposed pursuant to SB 9 that requires each resulting lot of an Urban Lot Split in the RHS zoning district, from the Interim Ordinance 21‐2235, to:
Share one common driveway
Where an existing driveway or curb cut exists, a new driveway or curb cut location will not be approved under this standard
Limit graded areas to within 50 feet of the building pad area.
Additionally, the existing objective design standard in Interim Ordinance 21‐2235 that required that, in the RHS zone, building pads must be identified on the flattest portion of the resulting lots closest to an existing or proposed new driveway has been further clarified in the regular ordinance, to ensure that on lots where no Urban Lot Split has been approved, siting of structures and driveways would result in the minimum amount of grading required to establish the minimum allowable use.
In those cases that require more significant change in grade, requirements for retaining wall design have been included to address potential aesthetic impacts of development in the hillside area. This standard requires the screening of retaining walls with landscaping in all cases and, where a retaining wall exceeds five feet in height, requires that the retaining wall not be visible from the public right of way, prominent intersections listed in Section
19.40.050(F)(1), nor face an adjacent property.
c. Driveways
The General Plan also has a policy (Policy M‐3.5) to “[m]inimize the number and width of driveway openings” in the interest of pedestrian and bicycle safety. Interim Ordinance 21‐ 2235 included measures that required shared access over the flag lot access area in R1 zones to minimize the number of conflicts with pedestrian and bicyclists and the number of curb cuts. Additionally, the interim ordinance required that, in R1 zoning designations, a one car curb cut or alternatively a shared driveway curb cut, be used in cases where at least one parallel, on‐street parking spot could not be accommodated between the proposed and existing curb cuts.
Similar to those standards adopted through the interim ordinance, in the regular ordinance, staff has proposed standards that require shared access on flag lots and limits driveways to a single‐car or shared curb cut unless space for at least one parallel, on‐street parking between the two driveways can be accommodated. Minor modifications to the language adopted through the interim ordinance have been proposed to add clarity and ensure that the MCA‐2022‐001
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standards will be consistently applied. The standards remain applicable only to R1 zoned properties. Driveway requirements for RHS zoned properties are outlined in subsection b, above.
d. Condominium, Community Apartment or Stock Cooperative Project At its December 21, 2021 meeting, Council discussed and opted to disallow condominium conversion of units developed under the allowances of SB 9. This standard was incorporated into the Interim Ordinance and has been carried over to the proposed regular ordinance.
Discussion of condominium conversion was reintroduced at the Council’s September 20th study session. Councilmembers brought forward opposing ideas with some stating that conversion should be allowed, indicating that it would allow for more development opportunities and for ownership of smaller and potentially more affordable units than previously available. Others noted that they continued to support disallowing condominium conversion with SB 9 development in neighborhoods. Additionally, at the September 28th community meeting, about 62% of respondents indicated that they think that the City should continue to not allow for condominium conversion of units created under SB 9. The proposed ordinance disallows condominium conversion to avoid potential conflicts with neighborhood and lot patterns, and shared areas and maintenance issues within these common areas. e. Process
Urban Lot Splits will continue to be processed similar to a Parcel Map. However, no public hearing will be required due to limitations of state law. Standards adopted through the interim ordinance and carried over to the proposed regular ordinance require notices to be sent to adjacent property owners as a courtesy prior to action on a project, to inform them of upcoming potential development. However, no appeals are allowed of ministerial decisions pursuant to state law.
Ministerial approval of up to two units (i.e. either one single family home or a duplex) SB 9 allows the City to impose objective standards on qualifying housing development projects so long as they do not conflict with the requirements of the statute, including minimum unit size and maximum rear and side setback requirements.
a. Unit Size and Floor Area Ratio
SB 9 allows for two units of at least 800 square feet each to be developed on a single‐family residential lot. As such, should any adopted standards conflict with a project’s ability to construct 800 square foot units, the project would be allowed to at least construct the state mandated 800 square foot units.
The proposed ordinance is structured in a manner where an applicant may either comply with state law requirements and build two 800 sq. ft. units or propose a project that would meet all the other objective standards required pursuant to the ordinance, in which case the project would be allowed a Floor Area Ratio equal to current discretionary approval standards. In both the adopted interim ordinance and the proposed regular ordinance, the Floor Area Ratio in the R1 zoning district is 45% of the net lot area and, in the Residential MCA‐2022‐001
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Hillside (“RHS”) zoning district, the Floor Area Ratio of 45% of the net lot area is reduced based on the average slope of the lot, with a maximum of Floor Area of 6,500 square feet, across the two new lots. In the event a property has maximized the Floor Area of the existing lot, the new lot would be limited to the development of two 800 square foot units.
In the R1 zoning district, most of the standards in the interim ordinance are proposed for retention in the regular ordinance, including the following:
The larger unit in a duplex development may be no more than 200 square feet larger than the smaller unit.
Second‐story floor area in units exceeding 800 square feet in size in the R1 zoning district is limited to 50% of the floor area of the first story. Alternatively, a project may have a second‐story floor area of up to a maximum of 66% of the first story if larger more conventional setbacks are provided. Separate standards for second to first‐story floor area ratio are provided for properties within the R1‐a zoning district, consistent with existing R1‐a zoning standards.
As part of the approval of Interim Ordinance 21‐2235, City Council included a standard that no units developed under the provisions of SB 9 shall exceed 2,000 square feet of living space7.
At the September 20th study session, some Councilmembers noted that this limitation may need to be revisited and at the September 28th community meeting, approximately 61% of respondents indicated that they thought the city should either increase the maximum allowable square footage or remove the limit entirely. Research indicates that this limitation impacts approximately 100 of the close to 17,000 R1‐zoned lots in Cupertino, which is about
0.5% of the total lots, and was adopted by Council in a bid to ensure that those homes remain affordable. It should be noted that properties that may be impacted by the unit size limitation, may continue to develop homes under the City’s other development pathways (e.g. Two‐ Story Permit). This limitation has been retained in the proposed regular ordinance and would continue to be applied to development in both R1 and RHS zoning districts. b. Setbacks
Current front yard setback requirements would remain applicable to SB 9 development.
Pursuant to SB 9, the City can require a maximum setback of four feet on the side and rear.
Additionally, per State law, no setbacks are required for an existing structure or for new construction in the same location and having the same dimensions as an existing structure.
Thus, the City cannot impose setback requirements where an existing, permitted structure with a non‐conforming setback exists or where a reconstructed structure in the same location and having the same dimensions as an existing, permitted structure with non‐conforming setbacks is proposed. In addition, when an Urban Lot Split is proposed on a property with an existing residence, no setback from the proposed lot lines can be required.
7 Cupertino Municipal Code Section 19.08.030 defines living space, for the purposes of Chapter 19.112, as the same as that set forth for “living area” in California Government Code Section 65852.2(j)(4). This definition has been expanded through the proposed ordinance to apply to Municipal Code Sections
19.40.090 and 19.28.150.
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The proposed ordinance incorporates objective standards to address potential privacy impacts from the reduced required side and rear setbacks. If a four‐foot setback from the side and rear property lines is proposed for development in the R1 zoning district, windows on the second floor must be opaque, unopenable, or be located above a 5‐foot sill height.
However, as an incentive for increased second story setbacks, if a setback of at least 10 feet on the side yards and 25 feet on the rear yard is proposed, second story windows, without limitations, may be proposed with incorporation of privacy protection plantings. These privacy protection plantings are similar to the City’s existing standards for second‐story windows. Objective standards for landscaping and privacy protection are also included in the proposed ordinance.
Interim Ordinance 21‐2235 included an allowance for a zero‐foot side and rear setback from other lots developed pursuant to SB 9 (but not from surrounding properties). The purpose of this allowance is to encourage applicants to concentrate the massing of SB 9 projects close to the center of existing lots in order to limit impacts on adjacent properties and to allow a more house scale development in the center of the lot. Following additional guidance at Council’s September 20th study session8, the regular ordinance includes a similar allowance for a zero‐ foot side setback along the shared side yard lot line created through an Urban Lot Split in an R1 zoning district subject to the following additional criteria:
i. More than one primary dwelling unit is proposed and approved concurrently with the Urban Lot Split;
ii. All units along zero‐foot setback will be developed at same time; iii. All other side yard setbacks are a minimum of five feet on first floor and 10 feet on second floor;
iv. The entirety of wall faces along the shared property line are structurally attached; and v. Structures along the new shared property line shall be no more than zero feet or less than four feet.
c. Parking
SB 9 does not allow the City to require more than one parking space per unit9. The proposed ordinance requires that the parking space be in an enclosed garage space of at least 10 feet by 20 feet, unobstructed (i.e., by walls, appliances, etc.) between six inches from finished floor up to six feet from finished floor. Should the applicant propose additional parking spaces, they must meet the City’s requirements related to parking stall size and configuration. In addition, to ensure that the City continues to forward its mobility goals of the General Plan,
8 See footnote 3.
9 Under Government Code Section 65852.21, a local agency cannot impose parking requirements in either of the following instances:
(A) The parcel is located within one‐half mile walking distance of either a high‐quality transit corridor, as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop, as defined in Section 21064.3 of the Public Resources Code. (B) There is a car share vehicle located within one block of the parcel.
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driveway curb cuts are limited in size per the City’s existing Public Works standards. The proposed standards are consistent with those that were adopted through Interim Ordinance 21‐2235.
d. Basements
SB 9 was adopted by the State to encourage the development of affordable units. The construction of basements, including the removal and off‐haul of large amounts of soil to accommodate a basement, can add significantly to the cost of these units. At its December 21, 2021 meeting, Council discussed and opted to disallow basements from developments proposed pursuant to SB 9 in both R1 and RHS zones. The Council reintroduced this discussion at their September 20th study session; however, no consensus was reached as to whether or not the standard should be modified. At the September 28th community meeting, approximately 73% of respondents indicated that they thought the City should allow basements in development proposed pursuant to SB 9, with the majority of indicating that the basement should be allowed without further restriction.
The proposed draft ordinance continues to disallow basements in SB 9 development in both R1 and RHS zones per Planning Commission’s recommendation. e. Design Standards
Objective design standards would be incorporated into the R1 and RHS zoning districts for projects proposed pursuant to SB 9. In the R1 zoning district, these standards would ensure that entry features resulting from duplex developments do not overwhelm the development, while advancing the General Plan goals of ensuring porches and stoops are located close to the right of way.
In both R1 and RHS zoning designations, the intent of several existing design standards would be clarified further and incorporated into the proposed ordinance, including:
No more than 50% of the front face shall be occupied by the garage and the garage shall be setback a minimum of two feet from the face of living space. Garage doors for no more than two car spaces shall be visible from the public right of way.
Additional parking spaces must be proposed in tandem or at the rear of the property. Entry features shall be limited to 14 feet in height from the natural grade to the top of wall plate.
Require window trim or window inset to allow shading and interest to buildings Disallow exposed or uncovered staircases to the second floor to preserve privacy Ensure architectural interest and features are incorporate to add interest on facades facing streets
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It should be noted that the proposed ordinance also attempts to ensure that existing regulations in specific zoning areas – such as R1‐a – are incorporated, to the extent feasible, in ministerial developments.10
f. Second‐Story Building Envelope
At the September 20, 2022 study session, Council discussed the City’s requirement for a second story building envelope that was codified through the approval of Interim Ordinance 21‐2235 and directed staff to retain this standard. This standard requires that second story development in R1 zones proposed pursuant to SB 9 have a maximum exterior wall height and building height on two‐story sections of two‐story structures that fits into the building envelope defined by:
i. A 15‐foot‐high vertical line from natural grade measured at the property line; and ii. A 25‐degree roof line angle projected inward at the 15‐foot‐high line referenced above.
Per Council’s direction and Planning Commission recommendation, this standard would be retained and a clarification to the zero‐foot setback standards has been added to ensure that the building envelope requirement does not impede the implementation of a zero‐foot setback. Aside from minor modifications made to ensure clarity and consistency in application of the regulations, the proposed objective design standards are consistent with those that were adopted through the interim ordinance.
g. Private Open Space
In both R1 and RHS zoning districts, each unit would be required to have a minimum of 15% of the unit’s floor area as private open space on the ground floor with no dimension less than 10 feet. This requirement was adopted through the interim ordinance and remains in the proposed regular ordinance. The proposed ordinance further clarifies that private open space may not be provided within the required front setback.
h. Refuse, Outdoor Lighting, and Other
Space must be provided for all refuse and recycling containers on the site. All outdoor lighting and fencing must comply with the City’s existing standards. Yard encroachments would continue to be allowed for architectural features that do not incorporate useable floor area, including bay windows and chimneys. This requirement was adopted through the interim ordinance and remains in the proposed regular ordinance. i. Definitions
Definitions for “Bay Window” (required to determine floor area), “Gable End” (required for design standards), “Pie‐shaped lots” (required for subdivision and access standards) and “Substantially Enclosed” (required to determine floor area) in Interim Ordinance 21‐2235 remain in the proposed regular ordinance. The definition of “Bay Window” and
10 The original R1‐a zoning regulations were crafted with significant input from the residents of this zoning district during the 1990s to retain a rural feel by incorporating traditional design features into development such as requiring porch features, increased setbacks, and traditional design features.
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“Substantially Enclosed” reflects how these terms are interpreted for discretionary projects, although they are not currently defined in the Municipal Code. The definition for “Duplex” has been refined to include attached and detached units on a lot.
Following approval of Interim Ordinance 21‐2235, staff has incorporated these definitions into the proposed regular ordinance:
“Street Frontage” to further clarify added standards for Urban Lot Splits. “Living Space” to expand the definition to also apply to the ministerial approval of up to two units.
“Flag Lot” to provide further clarity regarding what is considered a flag lot. “Lot Depth” to implement the lot configuration standards proposed through this ordinance.
“Private Open Space” for the purposes of providing useable recreational space in SB 9 developments.
“Flat Yard Area” for the purpose of establishing a limit on the amount of graded area associated with private recreation on slopes steeper than 10%. j. Additional Regulations in the RHS Zoning District
There are several large lots on steep slopes in the RHS zoning districts. To ensure that the impacts from development in the hills are minimized, existing limitations on grading and size of units are proposed to be retained.
Consistent with the General Plan policies and currently permitted densities, development in the hillsides would be allowed only if driveways are shared (to minimize grading) and new building pads are either located close to existing building pads or flat areas close to existing driveway locations (to encourage clustering of development). The existing Hillside Ordinance already implements much of the intent of the General Plan related to massing, following contours, disallowing much development on a ridgeline. The objective requirements of the Hillside Ordinance would continue to apply to SB 9 projects. Some minor clarifications have been made to existing language to clarify the language in Subsection 19.40.060(E) and
19.40.060(I). Additionally, objective standards have been added related to the following:
i. Disallowing garages from being the predominant feature on units pursuant to SB 9. ii. Entry feature regulations
iii. Screening structures from prominent intersections (listed in the ordinance). Views of the hills from these intersections have historically been used to evaluate the visibility of hillside homes when Hillside Exceptions have been sought. iv. Requiring privacy protection for second story windows and requiring windows to be opaque, unopenable, with fixed louvers or a minimum sill height of 5’1” unless setback a certain distance.
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These standards are consistent with the standards that were adopted through Interim Ordinance 21‐2235.
k. Frontage Improvements and Dedication
SB 9 does not allow the City to require dedications or frontage improvements as part of an Urban Lot Split approval. However, City may require these items when the lot is developed after subdivision. In the interests of furthering the City’s mobility and safety goals, frontage improvements and dedication would be required at time of development of the lot. This standard is consistent with Interim Ordinance 21‐2235.
l. Process
A new permit type, Miscellaneous Ministerial Permit, has been created to process projects submitted pursuant to SB 9. As a result, amendments are included in Chapter 19.12, Administration, to ensure that the permit can be processed in compliance with State law. The ordinance language authorizes the City Council to set a fee by resolution to recoup reasonable costs associated with processing such applications. Council approved a new fee for Miscellaneous Ministerial Permits through Ordinance 22‐049 at its February 1, 2022 meeting.
Additionally, the ordinance requires that notice be sent to adjacent neighbors as a courtesy, fourteen days before a decision is made on the project. It should be noted that the ministerial approval process does not involve any appeal process. It is expected that this will be made clear in the notice.
These standards are consistent with the standards that were adopted through Interim Ordinance 21‐2235.
Limitations on Construction of Accessory Dwelling Units Under SB 9, a local agency is not required to permit the construction of an accessory dwelling unit (“ADU”) or a junior accessory dwelling unit (“JADU”) on the resulting parcels of an Urban Lot Split, where one or more units have also been approved for construction under SB 9. Interim Ordinance 21‐2235 included a standard that limited the construction of ADUs and JADUs on lots resulting from an Urban Lot Split where the construction of one or more units has been ministerially approved. This restriction does not apply to lots resulting from an Urban Lot Split where a residence, not utilizing the provisions of SB 9, is proposed. In such a case, an ADU would be allowed. Additionally, this restriction does not apply to properties where no subdivision through an Urban Lot Split has occurred.
The proposed ordinance carries over the restriction on ADUs and JADUs; however, comments received from the public have indicated that a less restrictive standard may be desired. At their October 11th meeting, the Planning Commission recommended retaining the existing standard in the interim ordinance. The proposed regular ordinance reflects the Planning Commission’s recommendation.
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Background
Senate Bill 9 (“SB 9”) was signed into law on September 16, 2021 with an effective date of January 1, 2022 (Attachment B). The bill uses a two‐pronged approach to encourage increased housing density in single‐family residential zones throughout the State. First, the statute conditionally requires cities to ministerially approve up to two, attached or detached, residential units in single‐ family residential zones. Second, the statute requires cities to ministerially approve two‐lot subdivisions in single‐family residential zones, subject to similar conditions, and with no public hearing. These ministerial subdivisions are referred to as Urban Lot Splits and throughout this report, ministerial development of up to two units is referred to as SB 9 development. If the conditions are met for both approvals, the approvals can result in four units on what was formally one single‐family residential lot. The requirements for approval based on State law are discussed in detail below.
Ministerial approval of up to two residential units on properties that are zoned single‐family residential, are subject to the following criteria:
a. Meets certain requirements for streamlining in SB 35;11 b. Does not result in the demolition of Below Market Rate or rent controlled units; c. Is not on a property occupied by tenants in the past three years; d. Is not on a property that has been withdrawn from the rental market under the Ellis Act for the past 15 years;
e. Is not on a property located in a historic district or included on the State Historic Resources Inventory, or a site that is designated or listed as a city or county landmark, historic property or district pursuant to a city or county ordinance; and f. Will not be used as a short‐term rental following construction.
11 The applicable SB 35 streamlining requirements exclude any parcel located within:
(A) [Not applicable to SB 9 projects.]
(B) Prime farmland or farmland of statewide importance. (C) Wetlands.
(D) A very high fire hazard severity zone, subject to certain limitations. (E) A hazardous waste site that is listed pursuant to Section 65962.5, unless the State Department of Public Health, State Water Resources Control Board, or Department of Toxic Substances Control has cleared the site for residential use or residential mixed uses. (F) A delineated earthquake fault zone as determined by the State Geologist, unless the development complies with applicable seismic protection building code standards. (G) A 100‐year flood zone special flood hazard area, subject to certain exceptions. (H) A regulatory floodway as determined by the Federal Emergency Management Agency, subject to certain exceptions.
(I) Lands identified as part of a conservation or natural resource protection plan. (J) Habitat for species protected under state or federal law. (K) Lands under conservation easement.
(Gov. Code, § 65913.4(a)(6).)
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In addition to the eligibility criteria for ministerial approval of up to two units, Urban Lot Splits are subject to the following criteria:
a. The lot split creates two new parcels, each at least 40 percent of the area of the original parcel;
b. Each new lot is at least 1,200 square feet;
c. The parcel was not created through prior exercise of an Urban Lot Split; d. The resulting lots will be limited to residential use; e. The map complies with applicable objective requirements of the Subdivision Map Act; f. The owner must occupy one of the housing units as their principal residence for at least three years from the date of the approval of the Urban Lot Split; and g. Neither the owner of the lot being subdivided nor any person acting in concert has previously subdivided an adjacent lot through an Urban Lot Split.
If the project meets the criteria outlined above, a local agency may only deny a proposed housing development project or Urban Lot Split if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed project (1) would have a specific, adverse impact upon public health and safety or the physical environment; and (2) there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.
For projects that meet the requirements outlined above, the law also provides for certain development allowances and reduced restrictions for developers, including the following:
a. Setbacks:
i. Existing structures or replacement structures: No setbacks are required for an existing structure or for reconstruction in the same location and having the same dimensions as an existing structure.
ii. New structures: Maximum setbacks of up to four feet from the side and rear lot lines may be required.
b. The local agency may require up to one parking space per unit but may not require any spaces if the project is located within one‐half mile walking distance of either a high‐ quality transit corridor or a major transit stop, or there is a car share vehicle located within one block of the parcel.
c. A local agency may not require dedication of land or off‐site improvements such as sidewalk, curb, and gutter improvements as a condition of approval of the Urban Lot Split.
d. A local agency may not require the correction of existing, nonconforming zoning conditions as a condition of approving a lot split.
While SB 9 precludes discretionary review of qualifying projects on single‐family zoned property, the statute expressly authorizes the City to impose objective zoning, subdivision, and design review standards to the extent they do not preclude an Urban Lot Split or the development of two units that are at least 800 square feet in floor area. The State defines objective standards as:
…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 MCA‐2022‐001
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available and knowable by both the development applicant or proponent and the public official prior to submittal.
The key guiding principles in development of the Interim Urgency ordinance were to:
1. Preserve neighborhood character while accommodating increased density;
2. Maintain privacy protection for existing residents;
3. Minimize pedestrian, motor vehicle, and bicyclist conflicts from changes to sidewalk and roadway infrastructure necessary to accommodate increased density; and
4. Protect environmental resources while maintaining the ministerial level of review required by State law.
As the interim ordinance is set to expire at the end of the year, staff has prepared a regular ordinance that generally reflects the changes to the Municipal Code that were proposed and adopted through Interim Ordinance 21‐2235. Since adoption of Interim Ordinance 21‐2235, staff has received some requests for preliminary review of proposals for both Urban Lot Splits and duplex development under the provisions of SB 9, but no formal applications have been submitted. The key objectives of the regular ordinance remain consistent with the objectives of the interim ordinance and, while minor clarifying edits are proposed to make ordinance language more objective, only a few major changes are being considered to the adopted interim regulations based on feedback from the public and from City Council at the September 20, 2022 study session of the ordinance.
Community Outreach
On September 28, 2022, Planning Staff hosted a community meeting to offer general information related to SB 9 to the public and to receive feedback related to the proposed regular ordinance.
Of the 101 attendees, 86 attended via Zoom while 15 attended in person. Polls were conducted on the attendees’ thoughts on proposed standards. Staff conducted additional outreach at the City’s Diwali Festival on October 8, 2022 and collected 17 responses to the same polling questions from attendees. Community feedback consisted primarily of property specific questions and two comments from previous commenters regarding the lot configuration and grade change requirements. A summary of responses to the polling questions is provided in Attachment F.
Sustainability Impact
The adoption of standards to implement SB 9 may potentially positively impact sustainability through the allowance of additional infill opportunities and further housing opportunities, while avoiding adverse impacts arising from underregulated SB 9 development. The additional housing created under these provisions may assist in addressing the City’s current jobs‐housing imbalance which may in turn influence vehicle miles traveled, also referred to as VMT, and greenhouse gas emissions in the City.
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Fiscal Impact
No fiscal impact. Council approved a permit fee for the new Miscellaneous Ministerial Permit through adoption of Resolution 22‐049 while Urban Lot Split proposals will continue to be reviewed under the standard Parcel Map fee.
Application of these fees allow the City to recoup the costs of processing such permits.
California Environmental Quality Act (CEQA)
The project is statutorily exempt as, pursuant to Government Code §§ 65852.21(j) and 66411.7(n), the adoption of an ordinance by a city or county implementing the provisions of Government Code §§ 65852.21 and 66411.7 and regulating Urban Lot Splits and two‐unit projects is exempt from the requirements of CEQA.
Next Steps
As noted above, pursuant to Government Code § 65858, the City adopted an interim ordinance to implement objective standards for review of projects under the provisions of SB 9. Interim Ordinance 21‐2235 is set to expire on December 19, 2022, prompting the need to adopt a regular ordinance. Staff expects to bring the final ordinance to City Council to conduct a second reading of the municipal code amendments on November 15, 2022. If approved, the standards would go into effect on December 15, 2022.
Prepared by: Emi Sugiyama, Assistant Planner
Reviewed by: Piu Ghosh, Planning Manager
Approved for Submission by: Benjamin Fu, Director of Community Development
Attachments:
A – Draft Ordinance
B – Senate Bill 9 (2019, Atkins)
C – Interim Ordinance No: 21‐2235
D – Changes proposed since adoption of Interim Ordinance No 21‐2235 (redlines) E – Public Grade Change Comment
F – Polling Results