AGENDA ITEM #14
TO: Town Council
FROM: Janet Coleson, Town Attorney
Kylee Otto, Assistant Town Attorney
Linda Neal, Principal Planner
SUBJECT: Introduce Ordinance Establishing Regulations for the Land Division and Development of Qualified Senate Bill 9 Properties
RECOMMENDATION
Waive first reading, read by title only, and introduce the attached “Ordinance of the Town Council of the Town of Fairfax Adding Chapter 16.22 Urban Lot Splits and Chapter 17.049 Two-Unit Projects to the Town of Fairfax Town Code” establishing regulations for the land division and development of qualified Senate Bill 9 properties within the Town of Fairfax and determining the ordinance to be exempt from CEQA.
BACKGROUND
On September 16, 2021, Governor Newsom signed Senate Bill 9 (SB 9) into law, altering low-density, single-family zoning throughout the state. The most significant component of this bill is that it requires ministerial approval of a one-time, two-lot land division and/or development projects for up to two (2) units per lot. The proposed land division or development project is required to meet certain qualifying location and development criteria. Although the new law supersedes varying Town regulations regarding subdivision and development standards, SB 9 preserves some authority for local agencies to enact regulations through the adoption of new objective subdivision and zoning regulations. The law became effective on January 1, 2022.
On December 1, 2021, the Town Council adopted an urgency ordinance establishing regulations for the land division and development of qualified Senate Bill 9 properties within the Town of Fairfax.
On February 24, 2022, the Planning Commission considered the ordinance and at that time continued the matter to April 28, 2022 to allow for further discussion.
On April 28, 2022 the Planning Commission continued the hearing to May 26, 2022.
On May 26, 2022 the Planning Commission voted by a vote of 5:1 (Jansen absent) to recommend to the Town Council to adopt the “Ordinance of the Town Council of the Town of Fairfax Adding Chapter 16.22 Urban Lot Splits and Chapter 17.049 Two-Unit
TOWN OF FAIRFAX
STAFF REPORT
March 1, 2023
2 Projects to the Town of Fairfax Town Code” establishing regulations for the land division and development of qualified Senate Bill 9 properties within the Town of Fairfax and determining the ordinance to be exempt from CEQA. The Planning Commission requested the Town Council consider the following changes to the Ordinance:
1. All exterior lighting fixtures shall be Dark Sky compliant, shall be downward directed, fully shielded to prevent direct offsite illumination, the minimum number of fixtures necessary to provide pathway, stair/step, and entry illumination and emit no light above the horizontal plane with no sag or drop lenses, side light panels or uplight panels and with a color temperature of no more than 3,000 Kelvin, and a maximum of 2 foot candles lighting intensity. No landscape lighting is allowed. (additions shown in underline, deletions shown in strikeout)
2. Cite Town tree ordinance to retain Fire Safe Marin Fire Safe Tree/vegetation list
3. General Plan policies that are consistent the proposed SB 9 Ordinance should be called out in the ordinance.
DISCUSSION
SB 9 allows any single-family lot to be split, roughly into halves, with resulting lots as small as 1,200 square feet. In addition, SB 9 allows up to two single-family dwellings to be developed on each created lot. An SB 9 lot split followed by an SB 9 two-unit project on each of the two new lots would result in four total dwellings on what was formally one single-family residential lot, all without any discretionary review. SB 9 requires said lot splits and resulting two-unit projects to be approved ministerially with no public hearing. SB 9 allows local governments to impose limited restrictions on lot splits and two-unit projects, but any such restrictions must be objective and necessary to protect public health and safety.
The proposed ordinance is consistent with the following General Plan Policies and Program:
Land Use Element Policy LU-5.1.1: New and renewed development shall occur primarily as infill development.
Land Use Element Policy LU-8.1: Maintain an economically diverse population by providing a variety of choices in the type, size, cost and location of new housing.
Conservation Element Program CON-1.1.2.2: Adopt planning policies that promote infill rather than sprawl, including incorporation of second units to existing Fairfax Housing.
3 CEQA
Under California Government Code sections 65852.21 (j) and 66411.7 (n), the adoption of an ordinance by a town implementing the provisions of Government Code sections 66411.7, and 65852.21, regulating urban lot splits and two-unit projects is statutorily exempt from the requirements of the California Environmental Quality Act (“CEQA”). Therefore, the proposed ordinance is statutorily exempt from CEQA in that the proposed ordinance implements these new laws enacted by SB 9.
CONCLUSION/RECOMMENDATION
Staff recommends that the Town Council hold a public hearing, and after deliberation adopt the ordinance as written.
ATTACHMENTS
A. Ordinance
B. Town Code text amendments
C. Planning Commission Resolution 2022-03 recommending the SB 9 Ordinance to the Town Council
D. Overview SB 9
ATTACHMENT A
ORDINANCE NO. ________
AN ORDINANCE OF THE TOWN COUNCIL OF THE
TOWN OF FAIRFAX ADDING CHAPTER 16.22 URBAN
LOT SPLITS AND CHAPTER 17.049 TWO-UNIT PROJECTS
TO THE TOWN OF FAIRFAX TOWN CODE (SB 9)
WHEREAS, the Town of Fairfax, California (“Town”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, in 2021, the California Legislature approved, and the Governor signed into law Senate Bill 9 (“SB 9”), which among other things, adds Government Code section 65852.21 and 66411.7 to impose new limits on local authority to regulate urban lot splits and two-unit projects; and
WHEREAS, SB 9 allows local agencies to adopt objective design, development, and subdivision standards for urban lot splits and two-unit projects; and WHEREAS, SB 9 became effective January 1, 2022, and preempts any conflicting Town ordinance; and
WHEREAS, on December 1, 2021, the Town adopted an Urgency Ordinance the adding Chapter 16.22 Urban Lot Splits and Chapter 17.049 Two-Unit Projects to the town of Fairfax Town Code; and
WHEREAS, Town desires to further amend its local regulatory scheme to comply with Government Code sections 66411.7 and 65852.21 and to appropriately regulate projects under SB 9; and
WHEREAS, the approval of urban lot splits and two-unit projects based solely on the Town’s default standards, without appropriate regulations governing lot configuration, unit size, height, setback, landscape, architectural review, among other things, would negatively impact property values, personal privacy, and fire safety; and WHEREAS, under California Government Code sections 65852.21 (j) and 66411.7 (n), the adoption of an ordinance by a town implementing the provisions of Government Code sections 66411.7, and 65852.21, regulating urban lot splits and two-unit projects is statutorily exempt from the requirements of the California Environmental Quality Act (“CEQA”); and WHEREAS, on February 24, 2022 the Planning Commission determined that this Ordinance is consistent with the Town’s General Plan and recommended that the Town Council adopt this ordinance; and
2 WHEREAS, on _________ the Town Council held a duly noticed public hearing and at that time considered all testimony, written and oral.
NOW, THEREFORE, the Town Council of the Town of Fairfax does ordain as follows:
Section 1. The recitals above are each incorporated by reference and adopted as findings by the Town Council.
Section 2. Under California Government Code sections 65852.21, subd. (j), and 66411.7, subd. (n), the adoption of an ordinance by a town implementing the provisions of Government Code sections 66411.7, and 65852.21, regulating urban lot splits, two-unit projects is statutorily exempt from the requirements of the California Environmental Quality Act (“CEQA”). Therefore, the proposed ordinance is statutorily exempt from CEQA in that the proposed ordinance implements these new laws enacted by SB 9.
Section 3. Chapter 16.22 Urban Lot Splits And Chapter 17.049 Two-Unit Projects are hereby added to the Town Code as provided in Attachment B, attached hereto and incorporated herein by reference.
Section 4. The Town Council finds that the Code amendments contained in this ordinance are also necessary to prevent significant, quantifiable, direct, and unavoidable impacts, based on objective, identified written public health or safety standards, policies, or conditions, as set forth in the record of proceedings before the Town Council and as otherwise available or publicly known. The failure to comply with any provisions of the Code Amendments set forth herein shall also be a basis to deny an application due to its specific adverse impacts.
Section 5. Effective Date and Posting. This Ordinance shall be effective 30 days following its adoption by the Town Council. Copies of this Ordinance shall, within fifteen days after its passage and adoption, be posted in three public places in the Town of Fairfax, to wit: 1.
Bulletin Board, Town Hall Offices; 2. Bulletin Board, Fairfax Post Office; and 3. Bulletin Board, Fairfax Women’s Club.
Section 6. Severability. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The Town Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.
3 Section 7. The Town Council hereby directs staff to prepare, execute, and file with the Marin County Clerk a notice of exemption within five (5) working days of the adoption of this Ordinance.
Section 8. The Custodian of Records for this Ordinance is Town Clerk and the records comprising the administrative record for this Ordinance are located at 142 Bolinas Road, Fairfax, CA 94930.
The foregoing Ordinance was introduced at a meeting of the Town Council on the 1st day of March, 2023, and duly adopted at the next regular meeting of the Town Council on the _____ day of _________, 2023 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Chance Cutrano, Mayor
Attest: _________________________
Michele Gardner, Town Clerk
ATTACHMENT B
TOWN OF FAIRFAX MUNICIPAL CODE TITLE 16: SUBDIVISIONS:
Chapter 16.22 Urban Lot Splits
Section 16.22.010 Urban Lot Splits
(a) Purpose. The purpose of this section is to allow and appropriately regulate urban lot splits in accordance with Government Code section 66411.7. (b) Definition. An “urban lot split” means the subdivision of an existing, legally subdivided lot into two lots in accordance with the requirements of this section. (c) Application.
(1) Only individual property owners may apply for an urban lot split. “Individual property owner” means a natural person holding fee title individually or jointly in the person’s own name or a beneficiary of a trust that holds fee title. “Individual property owner” does not include any corporation or corporate person of any kind (partnership, LP, LLC, C corp, S corp, etc.) except for a community land trust (as defined by Rev. & Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by § 214.15).
(2) An application for an urban lot split shall be submitted on the town’s approved form. Only a complete application will be considered. The town will inform the applicant in writing of any incompleteness within 30 days after the application is submitted.
(3) The town may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the code, in accordance with applicable law. The Town Council may establish and change the fee by resolution. The fee shall be paid with the application.
(d) Approval.
(1) An application for a parcel map for an urban lot split is approved or denied ministerially, by the Director of Planning and Building Services, without discretionary review.
(2) A parcel map for an urban lot split shall be ministerially approved if it complies with all the requirements of Chapter 16.20 (Parcel Maps) of this Title with the exception of Subsection 16.20.080(D) “Approval by Town Council”, which is herein waived for applications processed under this Chapter. (3) The approval shall require the owner and applicant to hold the town harmless from all claims and damages related to the approval and its subject matter.
(4) The approval shall require the owner and applicant to reimburse the town for all costs of enforcement, including attorneys’ fees and costs associated with enforcing the requirements of this code.
(e) Requirements. An urban lot split shall satisfy each of the following requirements:
(1) Map Act Compliance.
(A) The urban lot split shall conform to all applicable objective requirements of the Subdivision Map Act (Government Code § 66410 et. seq.), including implementing requirements as set forth in Title 16, except as otherwise expressly provided in this section.
(B) If an urban lot split violates any part of the Subdivision Map Act, the town’s subdivision regulations, including this section, or any other legal requirement:
(i) The buyer or grantee of a lot that is created by the urban lot split has all the remedies available under the Subdivision Map Act, including but not limited to an action for damages or to void the deed, sale, or contract.
(ii) The town has all the remedies available to it under the Subdivision Map Act, including but not limited to the following:
(I) An action to enjoin any attempt to sell, lease, or finance the property.
(II) An action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief.
(III) Criminal prosecution, punishable by imprisonment in county jail or state prison for up to one year, by a fine of up to $10,000, or both; or a misdemeanor.
(IV) Record a notice of violation.
(V) Withhold any or all future permits and approvals.
(C) Notwithstanding section 66411.1 of the Subdivision Map Act, no dedication of rights-of-way or construction of offsite improvements is required for an urban lot split.
(2) Zone. The lot to be split is in a single-family residential zone. For purposes of this section, a single-family residential zone is a zone where the only residential use that is allowed as a primary use is a single residential dwelling on a lot.
(3) Lot Location.
(A) The lot to be split is not located on a site that is any of the following:
(i) Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters.
(ii) A wetland.
(iii) Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards.
(iv) A hazardous waste site that has not been cleared for residential use. (v) Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards.
(vi) Within a 100-year flood hazard area, unless the site has either:
(I) been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the
local jurisdiction, or
(II) meets Federal Emergency Management Agency
requirements necessary to meet minimum flood plain
management criteria of the National Flood Insurance
Program.
(vii) Within a regulatory floodway, unless all development on the site has received a no-rise certification.
(viii) Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan.
(ix) Habitat for protected species.
(x) Land under conservation easement.
(B) The purpose of subpart (e)(3)(A) above is merely to summarize the requirements of Government Code section 65913.4(a)(6)(B)–(K). (See Gov. Code § 66411.7(a)(3)(C).)
(4) Not Historic. The lot to be split shall not be a historic property or within a historic district that is included on the State Historic Resources Inventory. Nor
may the lot be or be within a site that is designated by ordinance as a town or county landmark or as a historic property or district.
(5) No Prior Urban Lot Split.
(A) The lot to be split was not established through a prior urban lot split. (B) The lot to be split is not adjacent to any lot that was established through a prior urban lot split by the owner of the lot to be split or by any person acting in concert with the owner.
(6) No Impact on Protected Housing.
(A) The urban lot split shall not require or include the demolition or alteration of any of the following types of housing (“Protected Housing”):
(i) Housing that is income-restricted for households of moderate, low, or very low income.
(ii) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its policy power.
(iii) Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Gov. Code §§ 7060–7060.7) at any time in the 15 years prior to submission of the urban lot split application.
(iv) Housing that has been occupied by a tenant in the last three years. (B) The Application for the Urban Lot Split shall include a sworn affidavit from the applicant and the owner of the property that the urban lot split will not demolish or alter Protected Housing as set forth in Subsection 6(A)(i)-(iv) above. The town may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement.
(7) Lot Size.
(A) The lot to be split shall be at least 2,400 square feet. (B) The resulting lots shall each be at least 1,200 square feet. (C) Each of the resulting lots shall be between 60 percent and 40 percent of the original lot area.
(8) Easements.
(A) The owner shall enter into an easement agreement with each publicservice provider to establish easements that are sufficient for the provision of public services and facilities to each of the resulting lots. (B) Each easement shall be shown on the parcel map.
(C) Copies of unrecorded and recorded easement agreements shall be submitted with the application. All easement agreements shall be recorded against the property prior to approval of the parcel map. (D) If an easement is recorded and the project is not completed, making the easement moot, the property owner may request termination of the parcel map, and the city will provide, a notice of termination of the easement and the parcel map, which the owner may record.
(9) Lot Access.
(A) Each resulting lot shall adjoin the public right of way. (B) Each resulting lot shall have frontage on the public right of way of at least 20 feet.
(10) Unit Standards.
(A) Quantity. No more than two dwelling units of any kind may be built on a lot that results from an urban lot split. For purposes of this paragraph, “unit” means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under this Chapter (Chapter 17.049), an Accessory Dwelling Unit, or a Junior Accessory Dwelling Unit Chapter
17.048.
(B) Unit Size.
(i) The total floor area of each primary dwelling that is developed on a resulting lot shall be
(I) less than or equal to 800 and
(II) more than 500 square feet.
(ii) A primary dwelling that was legally established prior to the urban lot split and that is larger than 800 square feet is limited to the lawful floor area at the time of the urban lot split. It may not be expanded.
(iii) A primary dwelling that was legally established prior to the urban lot split and that is smaller than 800 square feet may be expanded to 800 square feet after the urban lot split.
(C) Height Restrictions.
(i) On a resulting lot that is larger than 2,000 square feet, no new primary dwelling unit may exceed a single story or 16 feet in height, measured from grade to peak of the structure.
(ii) On a resulting lot that is smaller than 2,000 square feet, no new primary dwelling unit may exceed two stories or 22 feet in height.
Any portion of a new primary dwelling that exceeds one story shall be stepped back by an additional five feet from the ground floor; no balcony, deck, eave, or other portion of the second story may project into the stepback.
(iii) No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot resulting from an urban lot split.
(D) Lot Coverage. No resulting lot subject to this division may result in the total lot coverage of the resulting lot to exceed 35 percent. This lot coverage standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each. (E) Open Space. No dwelling unit on a resulting lot subject to subsection (10)(D) may cause the open space area to fall below 300 square feet per unit. “Open space area” shall not include any required yard or setback, required building separation, access area, or area with dimensions of less than ten feet or slope of greater than ten percent, subject to subsection (10)(D) above. This open space standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each.
(F) Setbacks.
(i) Generally. All setbacks shall conform to those objective setbacks that are imposed through the underlying zone.
(ii) Exceptions. Notwithstanding subsection (e)(10)(F) above:
(I) Existing Structures. No setback is required for an existing legally established structure or for a new structure that is constructed in the same location and to the same
dimensions as an existing legally established structure. (II) The setbacks imposed by the underlying zone shall yield to the degree necessary to avoid physically precluding the
construction of up to two units on the lot or either of the two units from being at least 800 square feet in floor area; but in no event may any structure be less than four feet from a side or rear property line.
(iii) Front Setback Area. Notwithstanding any other part of this code, dwellings that are constructed after an urban lot split shall be at least 10 feet from the front property lines. The front setback area shall:
(I) be kept free from all structures greater than three feet high; (II) be at least 50 percent landscaped with landscaping on the FireSafe Marin Fire-Smart Plant list, drought-tolerant
landscaping is encouraged, with vegetation and irrigation plans approved by a licensed landscape architect;
(III) allow for vehicular and fire-safety access to the front structure.
(G) Parking. Each new primary dwelling unit that is built on a lot after an urban lot split shall have at least one off-street parking space per unit unless one of the following applies:
(i) The lot is located within one-half mile walking distance of either (I) a corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours or
(II) a site that contains the intersection of two or more major bus routes with a frequency of service interval of 15
minutes or less during the morning and afternoon peak
commute periods.
(ii) The site is located within one block of a permanently designated car-share vehicle location.
(H) Architecture.
(i) If there is a legal primary dwelling on the lot that was established before the urban lot split, any new primary dwelling unit shall match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.
(ii) If there is no legal primary dwelling on the lot before the urban lot split, and if two primary dwellings are developed on the lot, the
dwellings shall match each other in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.
(iii) All exterior lighting shall be downward directed, shielded to prevent direct offsite illumination, the minimum number of fixtures necessary to provide pathway, stair/step, and entry illumination, and a maximum of 2 foot candles lighting intensity.
No landscape lighting is allowed.
(iv) No window or door of a dwelling that is constructed on the lot after the urban lot split may have a direct line of sight to an adjoining residential property. Fencing, landscaping, or privacy glass may be used to provide screening and prevent a direct line of sight.
(v) If a dwelling is constructed on a lot after an urban lot split and any portion of the dwelling is less than 30 feet from a property line that is not a public right-of-way line, then all windows and doors in that portion shall either be (for windows) with the bottom of the glass at least six feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.
(I) Landscaping.
(i) Evergreen landscape screening shall be planted and maintained between each dwelling and adjacent lots (but not rights of way) as follows:
(I) At least one 15-gallon size plant shall be provided for every five linear feet of exterior wall.
(II) Plant specimens must be at least six feet tall when installed.
As an alternative, a solid fence of at least six feet in height may be installed.
(III) All landscaping shall be on FireSafe Marin Fire-Smart Plant list and is encouraged to be drought-tolerant.
(IV) No Undesirable Tree Species as defined by section
8.36.020 shall be planted.
(V) Any Heritage Tree, as defined by section 8.36.020,
removed shall require two 36” box trees FireSafe Marin
Fire-Smart Plant list to be planted on the lot prior to final inspection.
(J) Nonconforming Conditions. An existing legal nonconformity shall not require any correction prior to approval of an urban lot split. (K) Utilities.
(i) Each primary dwelling unit on the resulting lots shall have its own direct utility connection to the utility service provider. (ii) Each primary dwelling unit on the resulting lots that is or that is proposed to be connected to an onsite wastewater treatment system shall comply with current County wastewater treatment system requirements for new parcels.
(L) Building & Safety. All structures built on the lot shall comply with all current local building standards. An urban lot split is a change of use. (11) Fire-Hazard Mitigation Measures.
(A) A lot shall comply with each of the following fire-hazard mitigation measures:
(i) All enclosed structures on the site shall have fire sprinklers. (ii) Windows in any portion of a dwelling with less than a five-foot setback to a property line shall be equipped with heat activated self-closing shutters.
(iii) All sides of all dwellings on the site shall be within a 150-foot hose-pull distance from either the public right of way or of an onsite fire hydrant or standpipe.
(iv) A lot shall have direct access to a public right of way with a paved street with a minimum width consisting of a net horizontal unobstructed clearance of not less than 20 feet exclusive of gutters, curbs, and shoulders, that connects to a designated evacuation route.
(B) Prior to submitting an application for an urban lot split, the applicant shall obtain a certificate of compliance with all applicable fire-hazard mitigation measures in accordance with this subpart (e)(11). The town or its authorized agent shall inspect the site, including all structures on the site, and certify as to its compliance. The certificate shall be included with the application. The applicant shall pay the town’s costs for inspection.
Failure to pay is grounds for denying the application.
(12) Separate Conveyance.
(A) Within a resulting lot.
(i) Primary dwelling units on a lot that is created by an urban lot split may not be owned or conveyed separately from each other. (ii) Common interest developments, as defined by Civil Code section 4100, are not permitted on a lot that is created by an urban lot split. (iii) All fee interest in a lot and all dwellings on the lot shall be held equally and undivided by all individual property owners. (B) Between resulting lots. Separate conveyance of the resulting lots is permitted. If dwellings or other structures (such as garages) on different lots are adjacent or attached to each other, the urban lot split boundary may separate them for conveyance purposes if the structures meet building code safety standards, including but not limited to Chapter 8.04 and Chapter 15.04, and are sufficient to allow separate conveyance. If any attached structures span or will span the new lot line, the owner shall record appropriate Covenants, Conditions, and Restrictions (CC&R’s), easements, or other documentation that is necessary to allocate rights and responsibility between the owners of the two lots.
(13) Regulation of Uses.
(A) Residential-only. No non-residential use is permitted on any lot created by urban lot split.
(B) No Short Term Rentals. No dwelling unit on a lot that is created by an urban lot split may be rented for a period of less than 30 days. (C) Owner Occupancy. The applicant for an urban lot split shall sign an affidavit stating that the applicant intends to occupy one of the dwelling units on one of the resulting lots as the applicant's principal residence for a minimum of three years after the urban lot split is approved. (14) Notice of Construction.
(A) At least 30 business days before starting any construction of a structure on a lot created by an urban lot split, the property owner shall give written notice to all the owners of record of each of the adjacent residential parcels, which notice shall include the following information:
(i) Notice that construction has been authorized,
(ii) The anticipated start and end dates for construction, (iii) The hours of construction,
(iv) Contact information for the project manager (for constructionrelated complaints), and
(v) Contact information for the Department of Planning and Building Services.
(B) This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued.
Approval is ministerial. Under state law, the Town has no discretion in approving or denying a particular project under this section. This notice requirement is purely to promote neighborhood awareness and expectation.
(15) Deed Restriction. The owner shall record a deed restriction, acceptable to the town, that does each of the following:
(A) Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days.
(B) Expressly prohibits any non-residential use of the lots created by the urban lot split.
(C) Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.
(D) States that the property is formed by an urban lot split and is therefore subject to the town’s urban lot split regulations, including all applicable limits on dwelling size and development.
(f) Specific Adverse Impacts.
(1) Notwithstanding anything else in this section, the town may deny an application for an urban lot split if the Building Official makes a written finding, based on a preponderance of the evidence, that the project would have a “specific, adverse impact” on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.
(2) “Specific adverse impact” has the same meaning as in Gov. Code § 65589.5(d)(2): “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete” and does not include (1) inconsistency with the zoning ordinance or general plan land use designation or (2) the eligibility to claim a welfare exemption under Revenue and Taxation Code section 214(g).
(3) The Building Official may consult with and be assisted by planning staff and others as necessary in making a finding of specific, adverse impact.
Chapter 17.049 Two-unit Projects
Section 17.049.010 Two-unit Projects
(a) Purpose. The purpose of this section is to allow and appropriately regulate two-unit projects in accordance with Government Code section 65852.21. (b) Definition. A “two-unit project” means the development of two primary dwelling units or, if there is already a primary dwelling unit on the lot, the development of a second primary dwelling unit on a legally subdivided lot in accordance with the requirements of this section.
(c) Application.
(1) Only individual property owners may apply for a two-unit project. “Individual property owner” means a natural person holding fee title individually or jointly in the person’s own name or a beneficiary of a trust that holds fee title. “Individual property owner” does not include any corporation or corporate person of any kind (partnership, LP, LLC, C corp, S corp, etc.) except for a community land trust (as defined by Rev. & Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by § 214.15).
(2) An application for a two-unit project shall be submitted on the town’s approved form.
(3) The applicant shall obtain a certificate of compliance with the Subdivision Map Act for the lot and provide the certificate with the application. (4) Only a complete application will be considered. The town will inform the applicant in writing of any incompleteness within 30 days after the application is submitted.
(5) The town may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the code, in accordance with applicable law. The Town Council may establish and change the fee by resolution. The fee shall be paid with the application.
(d) Approval.
(1) An application for a two-unit project is approved or denied ministerially, by the Director of Planning and Building Services, without discretionary review. (2) The ministerial approval of a two-unit project does not take effect until the town has confirmed that the required documents have been recorded, such as the deed restriction and easements.
(3) The approval shall require the owner and applicant to hold the town harmless from all claims and damages related to the approval and its subject matter.
(4) The approval shall require the owner and applicant to reimburse the town for all costs of enforcement, including attorneys’ fees and costs associated with enforcing the requirements of this code.
(e) Requirements. A two-unit project shall satisfy each of the following requirements:
(1) Map Act Compliance. The lot shall have been legally subdivided. (2) Zone. The lot is in a single-family residential zone. For purposes of this section, a single-family residential zone is a zone where the only residential use that is allowed as a primary use is a single residential dwelling on a lot. (3) Lot Location.
(A) The lot is not located on a site that is any of the following:
(i) Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters
(ii) A wetland.
(iii) Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards.
(iv) A hazardous waste site that has not been cleared for residential use. (v) Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards.
(vi) Within a 100-year flood hazard area, unless the site has either:
(I) been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the
local jurisdiction, or
(II) meets Federal Emergency Management Agency
requirements necessary to meet minimum flood plain
management criteria of the National Flood Insurance
Program.
(vii) Within a regulatory floodway, unless all development on the site has received a no-rise certification.
(viii) Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan.
(ix) Habitat for protected species.
(x) Land under conservation easement.
(B) The purpose of subpart (e)(3)(A) above is merely to summarize the requirements of Government Code section 65913.4(a)(6)(B)–(K). (See Gov. Code § 66411.7(a)(3)(C).)
(4) Not Historic. The lot shall not be a historic property or within a historic district that is included on the State Historic Resources Inventory. Nor may the lot be or be within a site that is designated by ordinance as a town or county landmark or as a historic property or district.
(5) No Impact on Protected Housing.
(A) The two-unit project shall not require or include the demolition or alteration of any of the following types of housing (“Protected Housing”):
(i) Housing that is income-restricted for households of moderate, low, or very low income.
(ii) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its policy power.
(iii) Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Gov. Code §§ 7060–7060.7) at any time in the 15 years prior to submission of the urban lot split application.
(iv) Housing that has been occupied by a tenant in the last three years. (B) The Application for the two-unit project shall include a sworn affidavit from the applicant and the owner of the property that the two-unit project will not demolish or alter Protected Housing as set forth in Subsection 5(A)(i)-(iv) above. The town may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement.
(6) Unit Standards.
(A) Quantity.
(i) No more than two dwelling units of any kind may be built on a lot that results from an urban lot split. For purposes of this paragraph,
“unit” means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under this Chapter (Chapter
17.049), an Accessory Dwelling Unit, or a Junior Accessory Dwelling Unit (Chapter 17.048).
(ii) A lot that is not created by an urban lot split may have a two-unit project under this section, plus any Accessory Dwelling Unit or Junior Accessory Dwelling Unit that shall be allowed under state law and the town’s Accessory Dwelling Unit ordinance.
(B) Unit Size.
(i) The total floor area of each primary dwelling built that is developed under this section shall be
(I) less than or equal to 800 and
(II) more than 500 square feet.
(ii) A primary dwelling that was legally established on the lot prior to the two-unit project and that is larger than 800 square feet is limited to the lawful floor area at the time of the two-unit project.
The unit may not be expanded.
(iii) A primary dwelling that was legally established prior to the twounit project and that is smaller than 800 square feet may be expanded to 800 square feet after or as part of the two-unit project. (C) Height Restrictions.
(i) On a lot that is larger than 2,000 square feet, no new primary dwelling unit may exceed a single story or 16 feet in height, measured from grade to peak of the structure.
(ii) On a lot that is smaller than 2,000 square feet, no new primary dwelling unit may exceed two stories or 22 feet in height, measured from grade to peak of the structure. Any portion of a new primary dwelling that exceeds one story shall be stepped back by an additional five feet from the ground floor; no balcony deck or other portion of the second story may project into the stepback. (iii) No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot with a two-unit project.
(D) Demo Cap. The two-unit project may not involve the demolition of more than 25 percent of the existing exterior walls of an existing dwelling unless the site has not been occupied by a tenant in the last three years.
(E) Lot Coverage. The total lot coverage shall not exceed 35 percent of the lot. This lot coverage standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each. (F) Open Space. No dwelling unit on a resulting lot subject to division (D) may cause the open space area to fall below 300 square feet per unit. “Open space area” shall not include any required yard or setback, required building separation, access area, or area with dimensions of less than ten feet or slope of greater than ten percent, subject to division (D) above open space standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each. (G) Setbacks.
(i) Generally. All setbacks shall conform to those objective setbacks that are imposed through the underlying zone.
(ii) Exceptions. Notwithstanding subsection (e)(6)(G) above:
(I) Existing Structures. No setback is required for an existing legally established structure or for a new structure that is constructed in the same location and to the same
dimensions as an existing legally established structure. (II) The setbacks imposed by the underlying zone shall yield to the degree necessary to avoid physically precluding the construction of up to two units on the lot or either of the two units from being at least 800 square feet in floor area; but in no event may any structure be less than four feet from a side or rear property line.
(iii) Front Setback Area. Notwithstanding any other part of this code, dwellings that are constructed under this section shall be at least 10 feet from the front property lines. The front setback area shall:
(I) be kept free from all structures greater than three feet high; (II) be at least 50 percent landscaped with landscaping on the FireSafe Marin Fire-Smart Plant list, drought-tolerant
landscaping is encouraged, with vegetation and irrigation plans approved by a licensed landscape architect;
(III) allow for vehicular and fire-safety access to the front structure.
(H) Parking. Each new primary dwelling unit shall have at least one off-street parking space per unit unless one of the following applies:
(i) The lot is located within one-half mile walking distance of either (I) a corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours or
(II) a site that contains the intersection of two or more major bus routes with a frequency of service interval of 15
minutes or less during the morning and afternoon peak
commute periods.
(ii) The site is located within one block of a permanently designated car-share vehicle location.
(I) Architecture.
(i) If there is a legal primary dwelling on the lot that was established before the two-unit project, any new primary dwelling unit shall match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.
(ii) If there is no legal primary dwelling on the lot before the two-unit project, and if two primary dwellings are developed on the lot, the dwellings shall match each other in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.
(iii) All exterior lighting shall be downward directed, shielded to prevent direct offsite illumination, the minimum number of fixtures necessary to provide pathway, stair/step, and entry illumination, and a maximum of 2 foot candles lighting intensity.
No landscape lighting is allowed.
(iv) No window or door of a dwelling that is constructed on the lot may have a direct line of sight to an adjoining residential property.
Fencing, landscaping, or privacy glass may be used to provide screening and prevent a direct line of sight.
(v) If any portion of a dwelling is less than 30 feet from a property line that is not a public right-of-way line, then all windows and doors in that portion shall either be (for windows) with the bottom of the glass at least six feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.
(J) Landscaping.
(i) Evergreen landscape screening shall be planted and maintained between each dwelling and adjacent lots (but not rights of way) as follows:
(I) At least one 15-gallon size plant shall be provided for every five linear feet of exterior wall.
(II) Plant specimens must be at least six feet tall when installed.
As an alternative, a solid fence of at least six feet in height may be installed.
(III) All landscaping shall on the FireSafe Marin Fire-Smart Plant list and is encouraged to be drought-tolerant.
(IV) No Undesirable Tree Species as defined by section
8.36.020 shall be planted.
(V) Any Heritage Tree, as defined by section 8.36.020,
removed shall require two 36” box trees FireSafe Marin
Fire-Smart Plant list to be planted prior to final approval (K) Nonconforming Conditions. Nonconforming Conditions. An existing legal nonconformity shall not require any correction prior to approval of an two-unit project.
(I) Utilities.
(i) Each primary dwelling unit on the lot shall have its own direct utility connection to the utility service provider.
(ii) Notwithstanding paragraph (e)(10)(K)(i) above, a primary dwelling unit may have a direct utility connection to an onsite wastewater treatment system in accordance with this paragraph and the town’s code. Each primary dwelling unit on the resulting lots that is or that is proposed to be connected to an onsite wastewater treatment system shall comply with current County wastewater treatment system requirements for new parcels.
(L) Building & Safety. All structures built on the lot shall comply with all current local building standards. A project under this section is a change of use and subjects the whole of the lot, and all structures, to the town’s current code.
(7) Fire-Hazard Mitigation Measures. Fire-Hazard Mitigation Measures.
(A) A lot shall comply with each of the following fire-hazard mitigation measures:
(i) All enclosed structures on the site shall have fire sprinklers. (ii) Windows in any portion of a dwelling with less than a five-foot setback to a property line shall be equipped with heat activated self-closing shutters.
(iii) All sides of all dwellings on the site shall be within a 150-foot hose-pull distance from either the public right of way or of an onsite fire hydrant or standpipe.
(iv) A lot shall have direct access to a public right of way with a paved street with a minimum width consisting of a net horizontal unobstructed clearance of not less than 20 feet exclusive of gutters, curbs, and shoulders, that connects to a designated evacuation route.
(B) Prior to submitting an application for an urban lot split, the applicant shall obtain a certificate of compliance with all applicable fire-hazard mitigation measures in accordance with this subpart (e)(11). The town or its authorized agent shall inspect the site, including all structures on the site, and certify as to its compliance. The certificate shall be included with the application. The applicant shall pay the town’s costs for inspection.
Failure to pay is grounds for denying the application.
(8) Separate Conveyance.
(A) Primary dwelling units on the lot may not be owned or conveyed separately from each other.
(B) Common interest developments, as defined by Civil Code section 4100, are not permitted within the lot.
(C) All fee interest in the lot and all the dwellings shall be held equally and undivided by all individual property owners.
(9) Regulation of Uses.
(A) Residential-only. No non-residential use is permitted on the lot. (B) No Short Term Rentals. No dwelling unit on the lot may be rented for a period of less than 30 days.
(C) Owner Occupancy. Unless the lot was formed by an urban lot split, the individual property owners of a lot with a two-unit project shall occupy
one of the dwellings on the lot as the owners’ principal residence and legal domicile.
(10) Notice of Construction.
(A) At least 30 business days before starting any construction of a two-unit project, the property owner shall give written notice to all the owners of record of each of the adjacent residential parcels, which notice shall include the following information:
(i) Notice that construction has been authorized,
(ii) The anticipated start and end dates for construction, (iii) The hours of construction,
(iv) Contact information for the project manager (for constructionrelated complaints), and (v) Contact information for the Department of Planning and Building Services.
(B) This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued.
Approval is ministerial. Under state law, the Town has no discretion in approving or denying a particular project under this section. This notice requirement is purely to promote neighborhood awareness and expectation.
(11) Deed Restriction. The owner shall record a deed restriction, on each lot that results from the urban lot split, on a form approved by the town, that does each of the following:
(A) Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days.
(B) Expressly prohibits any non-residential use of the lot. (C) Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.
(D) State that:
(i) If the lot is not created by an urban lot split: Expressly requires the individual property owners to live in one of the dwelling units on the lot as the owners’ primary residence and legal domicile; or
(ii) If the property is formed by an urban lot split it is therefore subject to the town’s urban lot split regulations, including all applicable limits on dwelling size and development.
(f) Specific Adverse Impacts.
(1) Notwithstanding anything else in this section, the town may deny an application for a two-unit project if the Building Official makes a written finding, based on a preponderance of the evidence, that the project would have a “specific, adverse impact” on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.
(2) “Specific adverse impact” has the same meaning as in Government Code § 65589.5(d)(2): “a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete” and does not include (1) inconsistency with the zoning ordinance or general plan land use designation or (2) the eligibility to claim a welfare exemption under Revenue and Taxation Code section 214(g).
(3) The Building Official may consult with and be assisted by planning staff and others as necessary in making a finding of specific, adverse impact. (g) Remedies.
If a two-unit project violates any part of this code or any other legal requirement:
(1) The buyer, grantee, or lessee of any part of the property has an action for damages or to void the deed, sale, or contract.
(2) The town may:
(A) Bring an action to enjoin any attempt to sell, lease, or finance the property. (B) Bring an action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief.
(C) Pursue criminal prosecution, punishable by imprisonment in county jail or state prison for up to one year, by a fine of up to $10,000, or both; or a misdemeanor.
(D) Record a notice of violation.
(E) Withhold any or all future permits and approvals.
(F) Pursue all other administrative, legal, or equitable remedies that are allowed by law or the town’s code.
RESOLUTION NO. 2022-03
A Resolution of The Fairfax Planning Commission
Recommending Town Council Approval of a
Ordinance Concerning Lot Splits and Duplex Development (SB 9) WHEREAS, in 2021, the California Legislature approved, and the Governor in September signed into law Senate Bill 9 ("SB 9"), which among other things, adds Government Code section 65852.21 and 66411. 7 to impose new limits on local authority to regulate urban lot splits and two-unit projects; WHEREAS, SB 9 allows local agencies to adopt objective design, development, and subdivision standards for urban lot splits and two-unit projects; WHEREAS, the Town Council adopted an urgency SB 9 Ordinance which temporarily amended its regulations to comply with Government Code sections 66411. 7 and 65852.21 and to appropriately regulate projects pursuant to SB 9; WHEREAS, the Town now desires to adopt non-urgency regulations to comply with Government Code sections 66411. 7 and 65852.21 and continue to appropriately regulate projects pursuant to SB 9 beyond the timeframe afforded by the Urgency Ordinance;
WHEREAS, the approval of urban lot splits and two-unit projects based solely on the Town's default standards, without appropriate regulations governing lot configuration, unit size, height, setback, landscape, architectural review, among other things, would threaten public health and safety;
WHEREAS, under California Government Code sections 65852.21 0) and 66411.7 (n), the adoption of an ordinance by a town implementing the provisions of Government Code sections 66411.7, and 65852.21, regulating urban lot splits and twounit projects is statutorily exempt from the requirements of the California Environmental Quality Act ("CEQA"); and
WHEREAS, the Fairfax Planning Commission has held duly noticed public hearings on February 24, 2022 and May 26, 2022 and reviewed the daft SB 9 Ordinance and finds it furthers the Town's legitimate regulatory interests in regards to the above.
NOW, THEREFORE BE IT RESOLVED, the Planning Commission of the Town of Fairfax finds that this Ordinance is consistent with the Town's General Plan and hereby recommends to the Town Council that it approve the SB 9 Ordinance attached hereto as Exhibit "A".
The foregoing resolution was adopted at a regular meeting of the Planning Commission held in said Town, on the 26th day of May, 2022 by the following vote:
AYES: Green, Kelly, Newton, Swift, Chair Fragos/ ' /
ABSENT: Jansen j buf!{ ---
Cnair Norma Fragoso
Attest: L� /l_...,
Linda Neal, Principal Planner
SENATE BILL 9 (SB 9): AN OVERVIEW
WHAT IT IS AND HOW IT IMPACTS RESIDENTIAL LAND USE
Senate Bill 9 (SB 9) is a new California State Law taking effect January 1, 2022.
Similar to previous state legislation on Accessory Dwelling Units (ADUs), SB 9 overrides existing density limits in single-family zones. SB 9 is intended to support increased supply of starter, modestly priced homes by encouraging building of smaller houses on small lots.
SB 9 WAIVES DISCRETIONARY REVIEW AND PUBLIC HEARINGS FOR:
BUILDING TWO HOMES
ON A PARCEL IN A SINGLE-FAMILY ZONE &
SUBDIVIDING A LOT INTO TWO
THAT CAN BE SMALLER THAN REQUIRED MIN. SIZE
Used together, this allows 4 HOMES where 1 was allowed before.
SB 9 CAN BE USED TO: Add new homes to existing parcel • Divide existing house into multiple units • Divide parcel and add homes
WHAT IT CAN MEAN FOR DEVELOPMENT OF NEW HOMES
Illustrations are based on a preliminary analysis of the law. Details are subject to cha nge and are for informational purposes only.
VACANT LOT
LOT WITH
SINGLE-FAMILY HOME
LOT WITH
NONCONFORMING DUPLEX*
LOT WITH SINGLE-FAMILY
HOME AND AN ADU
BEFORE
No units 1 unit Up to 2 units
(nonconforming)
1 unit
+ 1 ADU/JADU
ADD UNITS,
NO LOT SPLIT
Up to 2 units
+ 2 ADUs/JADUs
Up to 2 units
+ 2 ADUs/JADUs
No additional units Can add 1 addtl. unit
+ 1 ADU/JADU
ADD UNITS
AND LOT SPLIT
Up to 4 total units Up to 4 total units Up to 4 total units Up to 4 total units *Legally constructed but not currently permitted. Check your local ordinance for nonconforming use policies.
USING SB 9 WITHOUT A LOT SPLIT:
• Without a lot split, SB 9 does not limit the number
of ADUs or JADUs (B2, D2) – but other laws might.
• SB 9 could be interpreted to allow 2 new units
beyond an existing unit (up to 3 units/lot, plus
any allowed ADUs/JADUs).
USING SB 9 WITH A LOT SPLIT:
• SB 9 does not require jurisdictions
to approve more than 4 units
total, including any ADUs/JADUs.
SINGLE-UNIT DEVELOPMENTS
SB 9 can be used to develop single
units – but projects must comply
with all SB 9 requirements.
THIS DOCUMENT DOES NOT CONSTITUTE LEGAL ADVICE OR OPINIONS REGARDING SPECIFIC FACTS. FOR MORE INFORMATION ABOUT SB 9, PLEASE CONTACT YOUR OWN LEGAL COUNSEL.
DOES THE PROJECT QUALIFY?
2-UNIT DEVELOPMENTS AND LOT SPLITS
• Single-family lot (usually R-1)
• Located in an urbanized area or urban cluster1
• Not in state/local historic district, not an historic landmark • Meets requirements of SB35 subparagraphs (a)(6)(B)-(K)2:
PROPERTY CANNOT BE:
o Prime farmland or farmland of statewide importance (B) o Wetlands (C)
o Identified for conservation or under conservation
easement (I+K)
o Habitat for protected species (J)
PROPERTY CANNOT BE (UNLESS MEETING SPECIFIED
REQUIREMENTS):
o Within a very high fire hazard safety zone (D)
o A hazardous waste size (E)
o Within a delineated earthquake fault zone (F)
o Within a 100-year floodplain or floodway (G+H)
• Project would not alter nor demolish:
o Deed-restricted affordable housing
o Rent-controlled housing
o Housing on parcels with an Ellis Act eviction in last 15 yrs o Housing occupied by a tenant currently or in last 3 yrs3 Addtl. Qualifications for
2-UNIT DEVELOPMENTS
• Project does not remove
more than 25% of exterior
walls on a building that
currently has a tenant or
has had a tenant in the last
3 yrs even if the rental unit
itself isn’t altered
Addtl. Qualifications for
LOT SPLITS
• Lot is split roughly in half
– smaller lot is at least
40% of the original lot4
• Each new lot is at least
1,200ft2 5,6
• Lot is not adjacent to
another lot split by SB 9
by the same owner or
“any person acting in
concert with the owner”
• Lot was not created by a
previous SB 9 split7
RELATIONSHIPS TO OTHER LAWS
CEQA Does not apply to 2-unit or lot split approvals
or ordinances implementing 2-unit or lot split provisions COASTAL ACT Applies, but no public hearings needed for
duplex and lot split coastal development permits
HOUSING CRISIS ACT Local ordinances cannot impose
restrictions that reduce the intensity of land use on
housing sites (including total building envelope, density, etc.) SB8 SB 9 projects are subject to Permit Streamlining Act deadlines
SB478 Does not apply to single-family zones
LIMITATIONS APPLIED
2-UNIT DEVS. AND LOT SPLITS
• Agencies MUST only impose objective8 zoning standards, subdivision standards, and design standards (they may impose a local ordinance to set these standards)
o These standards MUST not preclude 2 units of at least 800ft2 • Projects must follow local yard, height, lot coverage, and other development standards, EXCEPT:
• A local agency MAY NOT require rear or side setbacks of more than 4 feet, and cannot require any setback if utilizing an existing structure or rebuilding a same-dimensional structure in the same location as an existing structure
• Project MAY be denied if a building official makes a written finding of specific, adverse impacts on public health or safety based on inconsistency with objective standards, with no feasible method to mitigate or avoid impact
• Agency MAY require 1 parking space/unit, unless the project is:
o Within 1/2 mile of “high-quality transit corridor” or “major transit stop”9
o Within 1 block of a carshare vehicle
• Agency MUST require that units created by SB 9 are not used for short-term rental (up to 30 days)
• Agency MUST allow proposed adjacent or connected structures as long as they comply with building codes and are “sufficient to allow separate conveyance”
• HOAs MAY restrict use of SB 9
2-UNIT DEVS
• Without a lot split, agency
CANNOT use SB 9 to limit
ADUs/JADUs e.g., lot can have
2 primary units+1 ADU+1 JADU
• Agency MUST include # of SB
9 units in annual progress
report
• For properties with on-site
wastewater treatment, agency
MAY require a percolation test
w/in last 5 years or
recertification within last 10
years
LOT SPLITS
• Agency MAY approve more
than 2 units on a new parcel
including ADUs, JADUs, density
bonus units, duplex units
• Project MUST conform to all
relevant objective reqs. of
Subdivision Map Act
• Agency MAY require
easements for provision of
public services and facilities
• Agency MAY require parcels
to have access to, provide
access to, or adjoin public
right of way
• Project MUST be for residential
uses only
• Applicant MUST sign affidavit
stating they intend to live in one
of the units for 3+ years10
• Agency MUST include number of
SB 9 lot split applications in
annual progress report
• Agency CANNOT require rightof-way dedications or off-site improvements
• Agency CANNOT require
correction of nonconforming
zoning conditions
KEY DECISIONS FOR AGENCIES TO MAKE
WHETHER TO REQUIRE:
• 1 parking space per unit
• 2-UNITS Septic tank percolation
tests
• 2-UNITS Owner-occupancy
• SPLIT Public services/facilities
easement
• SPLIT Right-of-way easements
WHETHER TO ALLOW:
• Creation of lots <1,200ft2
• SPLIT >2 units/new lot
DEFINE:
• Objective zoning/subdivision/
design review standards
• “Acting in concert with owner”
• “Sufficient for separate
conveyance”
CREATE:
• Application forms and checklists
• Recording of deed restrictions
for short-term rentals and future
lot splits
• Owner-occupancy affidavit
1 Defined by the Census Bureau
2 See Section 65913.4(a)(6) Exclusions for full details and definitions 3 Lot can split, then new units added to the lot w/o the Ellis -affected building 4 Each lot can be smaller than required minimum lot size 5 This number can be lowered by local ordinance
6 If min. size is 1,200ft2, this requires a 2,400ft2lot, or 3,000ft2if a 60/40 split 7 This does not apply to previous lot splits taken under usual Map Act procedures 8 “Objective” as defined by the Housing Accountability Act 9 See Sections 21155 and 21064.3 of the Public Resources Code for definitions 10 Unless the applicant is a land trust or qualified non-profit