DATE:
July 16, 2024
TO:
Paul Buddenhagen, City Manager
FROM:
Chadrick Smalley, Community Development Director
SUBJECT:
Introduction And First Reading Of An Ordinance Of The City Council Of The City Of Emeryville Amending Article 14 Of Chapter 5 Of Title 9 (Planning Regulations) Regarding Accessory Dwelling Units And Junior Accessory Dwelling Units (CEQA Status: Exempt Pursuant To Public Resources Code Section 21080.17, Which Provides That CEQA Does Not Apply To The Adoption Of An Ordinance To Implement The Provisions Of Article 2 [Commencing With Section 66314] Of Chapter 13 Of Division 1 Of Title 7 Of The California Government Code Pertaining To Accessory Dwelling Units)
RECOMMENDATION
Staff and the Planning Commission recommend that the City Council introduce and waive first reading of the attached ordinance amending Article 14 of Chapter 5 of Title 9, Planning Regulations to make state-mandated changes related to Accessory Dwelling Units and Junior Accessory Dwelling Units.
BACKGROUND
An Accessory Dwelling Units (ADU) is a dwelling unit located on a lot with an existing residential use and is developed as an accessory use to the primary residential use.
The State first required cities to allow ADUs (then called “secondary dwelling units”) in 1988; Emeryville was exempt from this provision because it already permitted two units by-right in its lowest-density residential zone, RM Medium Density Residential. In 2003, the State made ADU permits ministerial i.e., an ADU permit needed to be issued by staff, and not require Planning Commission or City Council review, if the project met code requirements.
In 2013, as part of the General Plan and Zoning Ordinance update process, the City adopted new Planning Regulations that included Article 14, Secondary Residential Units, formally codifying use and development requirements for the design and approval of ADUs.
In 2017, the City adopted code amendments to Article 14 in response to State legislation passed in 2016. Most recently, the City Council adopted Ordinance No. 20-027 on December 15, 2020, which implemented a series of ADU streamlining bills passed in 2019.
Among notable changes, the 2019 bills required cities to allow for Junior ADUs (or JADUs – an accessory unit of up to 500 square feet, located entirely within a single-family residence), removed parking requirements, and allowed for ADUs with single-family and multifamily uses. The 2019 bills also established a minimum size threshold for an ADU, waiving any Planning provisions that might prohibit it, and established different development requirements depending on the location and type of ADU proposed.
In compliance with Government Code §65852.2(h) [later recodified as §66326(a)], the City submitted Ordinance No. 20-027 to the State Housing and Community Development Department (HCD) for their review on February 1, 2021. On January 22, 2024, HCD responded with a letter of review finding that Ordinance No. 20-027 does not comply with State law, including bills made effective after adoption of the ordinance (Attachment 1). The letter instructs the City to amend the Planning Regulations to comply with State law.
Planning Division staff met with Nicholas Green, HCD Housing Policy Analyst, on February 5, 2024, to discuss HCD’s findings and identify a timeline for compliance. On February 21, 2024, the City provided HCD with a letter of response that addressed each finding and outlined the proposed changes to the Planning Regulations (Attachment 2).
Applicable Government Codes
The Planning Regulations must comply with Article 2 (commencing with §66314) of Chapter 13 of Division 1 of Title 7 of the Government Code. Since adoption of Ordinance No. 20-027 in 2020, several additional State bills related to ADU streamlining and development have passed, including:
AB 3182 (2020): streamlines approval and rental of ADUs AB 345 (2021): allows separate conveyance of ADUs under certain conditions SB 897 (2021): reduced parking requirements and increased height limit AB 2221 (2022): increased height limit and clarifying previous legislation AB 1033 (2023): allows jurisdictions to adopt an ordinance for ADU condominiums AB 976 (2023): extends AB 881, prohibiting owner-occupancy requirements AB 1332 (2023): requires establishment of preapproved ADU plans In addition, Government Code §66325(b) provides that jurisdictions may adopt less restrictive requirements for the creation of an ADU.
DISCUSSION
Proposed Changes to the Planning Regulations
The proposed changes would amend Article 14 of Chapter 5 of Title 9, Planning Regulations to make State-mandated changes related to ADUs and JADUs, in alignment with HCD’s letter of review issued January 22, 2024.
In their letter of review, HCD found 11 instances in which Article 14 does not comply with State law. The following table describes each inconsistency and staff’s recommended change to address these inconsistencies. The full text of the proposed amendments may be referenced in the Draft Ordinance (Attachment 3).
Summary of Proposed Changes
Topic
Current Ordinance
State Requirement
Proposed Change
Minimum allowable ADU
(Section 9-5.1404)
ADU that is 800 sf, 16 feet tall, with 3-foot side and 4-foot rear setbacks is allowed, at minimum Subject to different height maximums, depending on ADU type (Government Code §66321(b)(4)) Remove 16-foot height requirement
JADUs
(Section 9-5.1405(a))
Allowed in residential and mixed-use with residential zones Only permitted on lots zoned for single-family residences (Government Code §66333(a)) Restrict JADUs to the RM Medium Density zoning district, as an accessory to a Single Unit use1 ADUs per lot (single unit)
(Section 9-5.1407)
On a lot with a single unit, up to one ADU and one JADU On a lot with a single unit, up to one detached/attached ADU, one ADU within the principal unit, and one JADU (Government Code §66323) Allow two ADUs and one JADU for lots with a single unit, as provided by Government Code ADUs per lot (more than one unit)
(Section 9-5.1407(b))
On a lot with more than one unit, ADUs are permitted consistent with State provisions for a “multifamily” principal use HCD expressed concerns that the language “on a lot with more than one unit” could be used to allow ADUs on a “non-conforming zoning lot with two single-family homes.” (see Attachment 1, page 2) No change required. Emeryville’s Two Unit and Multi-Unit uses allow for units to be developed in separate buildings, and would not be considered nonconforming Maximum size ADU
(Section 9-5.1408(a))
Up to 1,200 sf or the same area as the principle Single Unit, whichever is greater New, detached ADUs on multifamily lots and any converted ADU are exempt from a maximum floor area (Government Code §66323(a)) Make exemptions for new, detached ADUs on multifamily lots and any converted ADU Setbacks
(Section 9-5.1410(b))
Same setback requirements as the existing residence, except the rear setback is 4 feet HCD expressed concerns that this requirement would preclude an ADU from being built in the front setback (see Attachment 1, page 3) No change required. Section 9-5.1410(b) already clarifies that the setback requirement does not supersede the minimum ADU allowed by 9-5.1404 Maximum height (Section 9-5.1410(c))
ADUs may be up to 30 feet in height, stepping down to 16 feet at the rear lot line ADUs are subject to different height maximums, depending on the ADU type and context. As relevant to Emeryville:
Detached ADU, half- mile from high-quality transit corridor2: 20 ft Attached ADU: 25 ft
(Government Code §66321(b)(4))
Change maximum height to 20 ft for detached ADUs and 25 feet for attached ADUs Open space
(Section 9-5.1410(e))
Lots with detached or attached ADUs must provide a 200-square-foot common open space HCD expressed concerns that this requirement would conflict with the minimum ADU allowed by 9-5.1404 (Government Code §66321(b)(2)) Provide a cross-reference to Section 9-5.1404. Open space requirement does not supersede the minimum ADU allowed Sale of ADUs
(Section 9-5.1412(a))
ADUs may not be sold or conveyed separately
ADUs meeting certain criteria (e.g., developed by a qualified nonprofit) may be conveyed separately (Government Code §66341) Clarify that certain ADUs may be conveyed separately according to Government Code §66341 Short-term rentals (Section 9-5.1412(b))
ADUs and JADUs may not be used as short-term rentals
All ADU requirements must be objective. Ordinance does not define “short-term rental” (Government Code §66314(b)(1)) Provide a cross-reference to the Short-Term Rental Ordinance (Section 9-5.2101), which defines short-term rentals as “rental of all or part of a dwelling unit for fewer than thirty (30) days” Fire sprinklers (Section 9-5.1412(d))
Fire sprinklers are not required for ADUs if they are not required for the principal unit or largest unit on the site Fire sprinklers are not required for ADUs if they are not required for the primary residence. Requirement does not refer to “largest unit” (Government Code §66314(d)(12)) Remove language referencing the “largest unit on the site” 1 The City of Emeryville does not have an exclusively single-family zoning district and “Single Unit” residential uses are only permitted in the RM Density Residential zoning district. 2“High-quality transit corridor” means “a corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours” (Public Resources Code §21155). Bus routes that meet this threshold include AC Transit Route 72 (along San Pablo Avenue) and both Emery-Go-Round routes (Hollis and Shellmound-Powell) Findings
Emeryville Municipal Code Section 9-7.1305 provides that the City Council, in approving amendments to the Planning Regulations, must make the following findings:
(a) The proposed amendment is consistent with the General Plan. (b) The proposed amendment is necessary for public health, safety and welfare or will be of benefit to the public. (c) The proposed amendment has been reviewed in compliance with the requirements of the California Environmental Quality Act (CEQA).
In staff and the Planning Commission’s view, these findings can be made, as detailed in the attached Draft Ordinance.
Environmental Review
The proposed amendment is exempt from the requirements of CEQA pursuant to Public Resources Code Section 21080.17, which provides that CEQA does not apply to the adoption of an ordinance to implement the provisions of Article 2 (commencing with §66314) of Chapter 13 of Division 1 of Title 7 of the Government Code pertaining to Accessory Dwelling Units.
FISCAL IMPACT
This ordinance would not have substantial fiscal impacts on the City.
STAFF COMMUNICATION WITH THE PUBLIC
As noted above, the Planning Commission considered the proposed amendments to the Planning Regulations on June 27, 2024, and voted unanimously to recommend that the City Council adopt them.
CONCLUSION
Staff recommends that the City Council take the following actions:
Introduce the Ordinance after a motion to read by title only.
Take public testimony regarding the Ordinance.
Adopt the first reading of the Ordinance.
PREPARED BY: Alyssa Chung, Assistant Planner
REVIEWED BY: Miroo Desai, Planning Manager
APPROVED AND FORWARDED TO THE
CITY COUNCIL OF THE CITY OF EMERYVILLE:
Paul Buddenhagen, City Manager
ATTACHMENTS
1. Letter of Review from HCD, January 22, 2024
2. Letter of Response from City of Emeryville to HCD, February 21, 2024
3. Draft Ordinance
Accessory Dwelling Unit Ordinance
City Council Meeting | July 16, 2024
City of Emeryville
CALIFORNIA
MEMORANDUM