City of Emeryville
C A L I F O R N I A
M E M O R A N D U M
DATE: September 17, 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) In Title 9 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 the 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 Unit (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.
Attachment 2
Accessory Dwelling Unit Ordinance
City Council Meeting | September 17, 2024
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 singlefamily residence), removed parking requirements, and allowed for ADUs with singlefamily and multifamily uses. The 2019 bills also established a minimum size threshold for an ADU, waiving any Planning provisions that might prohibit it, and establish 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).
On June 27, 2024, the Planning Commission adopted a resolution recommending that the City Council adopt the proposed amendments. The Commission’s recommendation was forwarded to be heard at the July 16, 2024 City Council meeting. A public comment was received on July 15, 2024 regarding the proposed amendments; and on staff’s recommendation, the City Council opened the public hearing and continued the item to the September 17, 2024 meeting to allow staff time to review and respond to the public comment.
Upon review of the public comment, staff proposed additional, substantive revisions to the ordinance that required the Planning Commission’s review. On August 22, 2024, the Planning Commission reviewed the changes and adopted a resolution recommending approval of the amendments by the City Council.
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:
Accessory Dwelling Unit Ordinance
City Council Meeting | September 17, 2024
• 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 section §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 use
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
Accessory Dwelling Unit Ordinance
City Council Meeting | September 17, 2024
Topic Current Ordinance State Requirement Proposed Change 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 “nonconforming 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 highquality transit
corridor1: 20 ft
Attached ADU: 25 ft
(Government Code
§66321(b)(4))
Change maximum height
to 30 feet in height,
stepping down to 20 ft for
detached ADUs and 25 ft
for attached ADUs
Open space
(Section 9-
5.1410(e))
Lots with detached or
attached ADUs must
provide a 200-squarefoot 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 crossreference to Section 9-
5.1404 and allow for
either common open
space or private open
space for each unit.
Open space requirement
does not supersede the
Accessory Dwelling Unit Ordinance
City Council Meeting | September 17, 2024
Topic Current Ordinance State Requirement Proposed Change 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 crossreference to the ShortTerm 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. 2High-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.
Accessory Dwelling Unit Ordinance
City Council Meeting | September 17, 2024
Environmental Review
The proposed amendment is exempt from the requirements of CEQA pursuant to Public Resources Code §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 first considered the proposed amendments to the Planning Regulations on June 27, 2024 and recommended the City Council adopt the amendments. This item was placed on the City Council’s agenda for July 16, 2024, however, staff recommended the City Council continue the item to September 17, 2024 to allow staff time to review a public comment received July 15, 2024. The public comment prompted staff to make substantive revisions to the ordinance, and on August 22, 2024, the Planning Commission voted unanimously to recommend that the City Council adopt the revised ordinance amendments.
CONCLUSION
Staff recommends that the City Council take the following actions:
1. Introduce the Ordinance after a motion to read by title only.
2. Take public testimony regarding the Ordinance.
3. 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
Accessory Dwelling Unit Ordinance
City Council Meeting | September 17, 2024
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