FAIRFAX TOWN COUNCIL MEETING
STAFF REPORT
MEETING DATE December 3, 2025
PREPARED FOR Mayor and Town Council
PREPARED BY Jeffrey Beiswenger, AICP, Planning & Building Services Director SUBJECT Consideration of an Urgency Ordinance of the Town Council of the Town of Fairfax Amending Chapter 17.048 (Residential Accessory Dwelling Units and Junior Accessory Dwelling Units) of the Fairfax Town Code Relating to Accessory Dwelling Units and Junior Accessory Dwelling Units to Comply with Recent Changes in State Law, and Finding the Action to be Statutorily Exempt from CEQA under Public Resources Code § 21080.17
RECOMMENDATION
1) Find that the adoption of the proposed urgency ordinance is statutorily exempt from review under the California Environmental Quality Act (CEQA) under Public Resources Code § 21080.17. 2) Waive full reading and adopt by title only an urgency ordinance entitled: “An Urgency Ordinance of the Town Council of the Town of Fairfax Amending Chapter 17.048 (Residential Accessory Dwelling Units and Junior Accessory Dwelling Units) of the Fairfax Town Code Relating to Accessory Dwelling Units and Junior Accessory Dwelling Units to Comply with Recent Changes in State Law, and Finding the Action to be Statutorily Exempt from CEQA under Public Resources Code § 21080.17.
BACKGROUND
The proposed urgency ordinance will amend Chapter 17.048 (Residential Accessory Dwelling Units and Junior Accessory Dwelling Units) of the Fairfax Town Code to comply with recent changes to state law that impose new limits on local authority to regulate Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs). Except as otherwise noted, these new laws take effect on January 1, 2026.
The bills take effect on January 1, 2026, and for the Town’s ADU ordinance to remain valid and enforceable, it must comply with requirements of these bills by January 1, 2026, or the Town’s entire existing ADU ordinance becomes null and void as a matter of law, and the Town will have to allow ADUs with no regulation except for the few requirements imposed in the state ADU law itself. The approval of ADUs and JADUs based solely on these default statutory standards, without local regulations governing height, setback, landscape, and architectural review, among other things, would threaten the aesthetic of existing neighborhoods and negatively impact property values, personal privacy, and fire safety.
Therefore, the proposed ordinance is an urgency measure, which means it will take immediate effect upon adoption. Typically, an ordinance affecting planning and zoning is approved by the Council after a Planning Commission recommendation, a first reading and introduction before the Council and then a second reading at a regular Council meeting — with the ordinance taking effect 30 days following adoption. But here it is necessary for the Town Council to adopt this ordinance as an urgency measure because the new ADU laws will take effect on January 1, 2026, before a non-urgency adoption would take
effect. The urgency ordinance will be followed at the earliest possible time by a non-urgency ordinance subject to all normal procedures.
DISCUSSION
In recent years, the California Legislature has approved, and the Governor has signed into law, a number of bills that to impose new limits on local authority to regulate ADUs and JADUs. In late 2025, four new bills were enacted that further amend state ADU law as summarized below.
AB 462 – Coastal Development Permits; Disaster-Affected Areas AB 462 modifies several permitting requirements associated with processing Coastal Development Permits for ADUs located in the Coastal Zone. This portion of AB 462 is not applicable to Fairfax.
Beyond changes to CDP processing, AB 462 modifies the rules governing the issuance of a certificate of occupancy (CofO) for an ADU. Historically, state law has prohibited a local agency from issuing a CofO for an ADU before one is issued for the primary dwelling (i.e., the primary dwelling must have a CofO before the ADU can receive one). AB 462 creates a narrow exception to this prohibition for detached ADUs when all of the following conditions are satisfied: (1) the Governor has declared a state of emergency for the county on or after February 1, 2025; (2) the primary dwelling was substantially damaged or destroyed by an event referenced in the state of emergency proclamation; and (3) the ADU has been issued construction permits and passed all required inspections. (Gov. Code, § 66328(b).) If these conditions are satisfied, the detached ADU can receive a CofO before the primary dwelling. In all other scenarios, the primary dwelling still needs a CofO before one can be issued for an ADU.
AB 462 was enacted as an urgency measure that took effect immediately when signed by the Governor (on October 10, 2025). No changes are required to the Fairfax Town Code to implement AB 462.
The following three bills take effect on January 1, 2026, apply to Fairfax and require amendments to the Town Code.
AB 1154 – JADU Owner-Occupancy; Short-Term Rental
When a JADU is developed, existing state law requires a property owner to reside in the JADU or remaining portion of the single-family dwelling. AB 1154 narrows this requirement to now only apply when a JADU shares sanitation facilities (bathroom) with the single-family dwelling. If the JADU has its own bathroom, then the property owner does not have to reside on the property at all. (See amended Gov.
Code, § 66333(b).)
AB 1154 also expressly prohibits JADUs from being used as short-term rentals (i.e., rented for a term shorter than 30 days). (See amended Gov. Code, § 66333(g).) Most ADU ordinances already included this prohibition (as well as prohibiting ADUs from being used as short-term rentals). But now it’s required by state law.
SB 9; SB 543 – ADU Ordinance Submittal to HCD; Approval Under existing law, local agencies are required to submit a copy of their ADU ordinance to the California Department of Housing and Community Development (HCD) within 60 days of adoption.
This year’s SB 91 and SB 543 create a penalty for failing to do so by rendering null and void any local ordinance that is not submitted to HCD within 60 days of adoption. (See amended Gov. Code, § 66326(d); new Gov. Code, § 66333.5(d).) The bills further specify that a local ADU ordinance is null and void if HCD 1 Not to be confused with the SB 9 of 2021 (Stats. 2021, Ch. 162) regarding urban lot splits and second primary dwelling units.
issues findings that the ordinance does not comply with state law and the local agency fails to respond to HCD within 30 days. (Id.)
SB 543 – ADU Size; Number of ADUs; Impact Fees; Permitting Timeline SB 543 makes numerous changes and clarifications to state ADU law, the most notable of which are summarized below.
ADU & JADU Size
Existing law limits the maximum size of a JADU to 500 square feet and prohibits local ADU ordinances from imposing certain development standards that would prevent an ADU created under Government Code section 66314 through 66322 from being at least 800 square feet.
SB 543 amends state ADU law to specify that allowable square footage of an ADU or JADU refers to square footage of “interior livable space.” (See amended Gov. Code, § 66313(d), 66321(b)(2).) Impact Fees
Existing law exempts ADUS that are 750 square feet or smaller from development impacts fees (DIFs).
SB 543 clarifies that DIFs may not be imposed on an ADU that has 750 or fewer square feet of interior livable space or on a JADU with 500 or fewer square feet of interior livable space.
The bill also exempts an ADU or JADU with fewer than 500 square feet of interior livable space from school impact fees. (See amended Gov. Code, § 66311.5.) Quantity of ADUs Created Under Government Code Section 66323 Existing state law creates four categories of ADUs that must be approved if they comply with the limited standards provided in Government Code section 66323(a)(1)–(4). These are:
(1) a converted ADU and JADU created on a lot with a proposed or existing single-family dwelling (Gov. Code, § 66323(a)(1));
(2) a detached ADU created on a lot with a proposed or existing single-family dwelling (Gov. Code, § 66323(a)(2));
(3) converted ADUs created in an existing multifamily dwelling (Gov. Code, § 66323(a)(3)); and (4) detached ADUs created on a lot with a proposed or existing multifamily dwelling.
For some time, there has been uncertainty as to whether ADUs created under Government Code section 66323 could be combined. Some practitioners interpreted the statute to not require local agencies to allow combinations. Initially, HCD took the same position in its 2020 ADU Handbook. But for the last few years, HCD has taken the opposite position: that yes, combinations are permitted. (See HCD January 2025 ADU Handbook, at p. 19 [“[P]ursuant to Government Code section 66323, subdivision (a), local governments must allow units created pursuant to subparagraphs (1) and (2) together or (3) and (4) together”].)
SB 543 codifies HCD’s most recent interpretation by amending Government Code section 66323 to specifically allow combinations. Thus, a lot with a multifamily dwelling can now have a converted ADU or ADUs created under section 66323(a)(3) and detached ADUs created under section 66323(a)(4). And a lot with a single-family dwelling can now have a converted ADU and a JADU created under section 66323(a)(1) and a detached ADU created under section 66323(a)(2).
ADU Permitting Process
Existing law has long required local agencies to approve or deny an ADU application within 60 days of receiving a complete application. However, state law was silent with respect to incompleteness determinations, subsequent resubmittals, and appealing local decisions on ADU applications.
SB 543 requires local agencies to now:
(1) determine whether an ADU application is complete within 15 business days of submittal; (2) if the application is incomplete, within the same 15 days provide the applicant with a list of incomplete items and how to address them;
(3) review a resubmitted application for completeness within 15 business days; (4) provide the applicant with a written appeal process for any incompleteness determination or denial (to the Planning Commission or Town Council, or both); and (5) provide a final written determination on the appeal within 60 business days of receiving the appeal). (See amended Gov. Code, §§ 66317 [ADUs], 66335 [JADUs].)
FISCAL IMPACT
The only fiscal impact from this action is staff time preparing code updates.
ATTACHMENTS
Proposed Urgency Ordinance
Town of Fairfax
Urgency Ordinance 902
URGENCY ORDINANCE NO. 902
AN URGENCY ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF FAIRFAX AMENDING CHAPTER 17.048 (RESIDENTIAL ACCESSORY DWELLING UNITS AND
JUNIOR ACCESSORY DWELLING UNITS) OF THE TOWN OF FAIRFAX TOWN CODE
RELATING TO ACCESSORY DWELLING UNITS AND JUNIOR ACCESSORY DWELLING
UNITS TO COMPLY WITH THE RECENT CHANGES IN STATE LAW, AND FINDING THE
ACTION TO BE STATUTORILY EXEMPT FROM CEQA UNDER PUBLIC RESOURCES CODE § 21080.17
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, state law authorizes cities to act by ordinance to provide for the creation and regulation of accessory dwelling units (“ADUs”) and junior accessory dwelling units (“JADUs”); and
WHEREAS, in recent years, the California Legislature has approved, and the Governor has signed into law, numerous bills that, among other things, amend various sections of the Government Code to impose new limits on local authority to regulate ADUs and JADUs; and WHEREAS, in 2025, the California Legislature approved, and the Governor signed into law, further amendments to state ADU law; and
WHEREAS, new updates to state ADU law take effect January 1, 2026, and for the Town’s ADU ordinance to remain valid, it must be amended to reflect the most recent changes to state law; and
WHEREAS, the Town desires to amend its local regulatory scheme for the construction of ADUs and JADUs to reflect the most recent changes to state law; and WHEREAS, there is a current and immediate threat to the public health, safety, or welfare based on the passage of bills updating state ADU law because if the Town’s ordinance does not comply with this legislation by January 1, 2026 — and the Town’s ADU ordinance becomes null and void in its entirety — the Town would be required to approve ADUs and JADUs in accordance with the few default standards that are imposed by Chapter 13 of Division 1 of Title 7 of the California Government Code, which is the state ADU law; and
WHEREAS, the approval of ADUs and JADUs based solely on the default statutory standards, without local regulations governing height, setback, landscape, and architectural review, among other things, would threaten the character of existing neighborhoods, and negatively impact property values, personal privacy, and fire safety. These threats to public safety, health, and welfare justify adoption of this Ordinance as an urgency ordinance, to be effective immediately upon adoption by a four-fifths vote of the Town Council; and WHEREAS, to protect the public safety, health, and welfare, the Town Council may adopt this Ordinance as an urgency measure in accordance with Government Code section 36937, subdivision (b).
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Urgency Ordinance 902
NOW, THEREFORE, the Town Council of the Town of Fairfax does ordain as follows:
Section 1. Incorporation. The recitals above are each incorporated by reference and adopted as findings by the Town Council.
Section 2. CEQA. Under California Public Resources Code section 21080.17, the California Environmental Quality Act (“CEQA”) does not apply to the adoption of an ordinance by a Town or county implementing the provisions of Article 2 of Chapter 13 of Division 1 of Title 7 of the California Government Code, which is California’s ADU law. Therefore, adoption of the urgency Ordinance is statutorily exempt from CEQA in that it implements state ADU law.
Section 3. General Plan. The Town Council hereby finds that the adoption of the urgency Ordinance is consistent with the General Plan as a matter of law under Government Code section 66314(c).
Section 4. Code Amendment. Chapter 17.048: Residential Accessory Dwelling Units and Junior Accessory Dwelling Units of the Fairfax Town Code is hereby amended and restated to read in its entirety as provided in Exhibit “A,” attached hereto and incorporated herein by reference.
Section 5. Effective Date. This Ordinance takes effect immediately upon its adoption.
Section 6. HCD Submittal. In accordance with Government Code sections 66326 and 66333.5, the Town Clerk is directed to submit a copy of this Ordinance to the California Department of Housing and Community Development within 60 days after adoption.
Section 7. Publication. The Town Clerk certifies that this Ordinance was adopted by the Town Council at a regular meeting on December 3, 2025.
Section 8. Custodian of Records. The custodian of records for this Ordinance is the Town Clerk and the records comprising the administrative record are located at 142 Bolinas Road (Town Offices), Fairfax, CA 94930.
Section 9. Severability. If any provision of this Ordinance or its application to any person or circumstance is held to be invalid by a court of competent jurisdiction, such invalidity has no effect on the other provisions or applications of the Ordinance that can be given effect without the invalid provision or application, and to this extent, the provisions of this Ordinance are severable.
The Town Council declares that it would have adopted this Ordinance irrespective of the invalidity of any portion thereof.
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Urgency Ordinance 902
PASSED, APPROVED AND ADOPTED by the Town Council of the Town of Fairfax, California, at a regular meeting of the Town Council held on the 3rd day of December 2025 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
________________________________
Mayor
ATTEST:
________________________________
CHRISTINE FOSTER
DEPUTY TOWN CLERK
APPROVED AS TO FORM:
________________________________
Town Attorney
Town of Fairfax
Urgency Ordinance 902
EXHIBIT A
Amended ADU Regulations
(follows this page)
Town of Fairfax
Urgency Ordinance 902
Section 17.048.010 Accessory Dwelling Units
(A)Purpose. The purpose of this section is to allow and regulate accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs) in compliance with Chapter 13 of Division 1 of Title 7 of the California Government Code.
(B) Effect of Conforming. An ADU or JADU that conforms to the standards in this section will not be:
(1) Deemed to be inconsistent with the town’s general plan and zoning designation for the lot on which the ADU or JADU is located.
(2) Deemed to exceed the allowable density for the lot on which the ADU or JADU is located.
(3) Considered in the application of any local ordinance, policy, or program to limit residential growth.
(4) Required to correct a nonconforming zoning condition, as defined in subsection (c)(8) below. This does not prevent the town from enforcing compliance with applicable building standards in accordance with Health and Safety Code section 17980.12.
(C) Definitions. As used in this section, terms are defined as follows:
(1) “Accessory dwelling unit” or “ADU” means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. An accessory dwelling unit also includes the following:
a) An efficiency unit, as defined by section 17958.1 of the California Health and Safety Code; and
b) A manufactured home, as defined by section 18007 of the California Health and Safety Code.
(2) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot.
(3) “Complete independent living facilities” means permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated.
(4) “Efficiency kitchen” means a kitchen that includes all of the following:
a) A cooking facility with appliances.
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b) A food preparation counter and storage cabinets that are of a reasonable size in relation to the size of the JADU.
(5) “Junior accessory dwelling unit” or “JADU” means a residential unit that satisfies all of the following:
a) It is no more than 500 square feet of interior livable space in size. b) It is contained entirely within an existing or proposed single-family structure.
An enclosed use within the residence, such as an attached garage, is considered to be a part of and contained within the single-family structure. c) It includes its own separate sanitation facilities or shares sanitation facilities with the existing or proposed single-family structure.
d) If the unit does not include its own separate bathroom, then it contains an interior entrance to the main living area of the existing or proposed singlefamily structure in addition to an exterior entrance that is separate from the main entrance to the primary dwelling.
e) It includes an efficiency kitchen, as defined in subsection (c)(4) above. (6) “Livable space” means a space in a dwelling intended for human habitation, including living, sleeping, eating, cooking, or sanitation. (7) “Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure. (8) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards.
(9) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the ADU or JADU.
(10) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
(11) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
(12) “Tandem parking” means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another. (D)Approvals. The following approvals apply to ADUs and JADUs created under this section:
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Urgency Ordinance 902
(1) Ministerial ADU and Building Permits Required. Every ADU and JADU requires an ADU permit and a building permit. The town will review and approve permit applications in accordance with subsection (d)(3) below. (2) Processing Fee. The town may charge a fee to reimburse it for costs incurred in processing ADU permits, including the costs of adopting or amending the town’s ADU ordinance. The ADU-permit processing fee is determined by the director of community development and approved by the town council by resolution. (3) Process and Timing.
a) Completeness.
(i) Determination in 15 days. The town will determine whether an application to create or serve an ADU or JADU is complete and will provide written notice of the determination to the applicant within 15 business days after the town receives the application submittal. (ii) Incomplete items. If the town’s determination under subsection (d)(3)(A)(i) above is that the application is incomplete, the town’s notice must list the incomplete items and describe how the application can be made complete.
(iii) Cure. After receiving a notice that the application is incomplete, the applicant may cure and address the items that were deemed by the town to be incomplete.
(iv) Subsequent submittals. If the applicant submits additional information to address incomplete items, within 15 business days of the subsequent submittal the town will determine in writing whether the additional information remedies all the incomplete items that the town identified in its original notice. The town may not require the application to include an item that was not included in the original notice.
(v) Deemed complete. If the town does not make a timely determination as required by this subsection (A), the application or resubmitted application is deemed complete for the purposes of subsection (d)(3)(C) below.
(vi) Appeal of incompleteness. An applicant may appeal the town’s determination that the application is incomplete by submitting a written appeal to the town clerk. The planning commission will review the written appeal and affirm or reverse the completeness determination and provide a final written determination to the applicant within 60 business days after receipt of the appeal.
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Urgency Ordinance 902
b) No discretion or hearing. Ministerial permits for an ADU or JADU are considered and approved without discretionary review or a hearing. c) Deadline to approve or deny ministerial approvals. The town must approve or deny an application to create an ADU or JADU within 60 days from the date that the town receives a complete application. If the town has not approved or denied the complete application within 60 days, the application is deemed approved unless either:
(i) The applicant requests a delay, in which case the 60-day time period is tolled for the period of the requested delay, or
(ii) When an application to create an ADU or JADU is submitted with a permit application to create a new single-family or multifamily dwelling on the lot, the town may delay acting on the permit application for the ADU or JADU until the town acts on the permit application to create the new single-family or multifamily dwelling, but the application to create the ADU or JADU will still be considered ministerially without discretionary review or a hearing. d) Denial. If the town denies an application to create an ADU or JADU, the town must provide the applicant with comments that include, among other things, a list of all the defective or deficient items and a description of how the application may be remedied by the applicant. Notice of the denial and corresponding comments must be provided to the applicant within the 60-day time period established by subsection (d)(3)(C) above.
e) Appeal of denial. An applicant may appeal the town’s denial of the application by submitting a written appeal to the town clerk. The planning commission will review the written appeal and affirm or reverse the denial and provide a final written determination to the applicant within 60 business days after receipt of the appeal.
(E) Classes.
(1) Class 1: Statutorily Regulated. Class 1 ADUs and JADUs are approved under Government Code section 66323. If an ADU or JADU complies with each of the general requirements in subsection (f) below, it is allowed in each of the scenarios provided in this subsection (e)(1). An ADU and JADU approved under subsection (e)(1)(A) may be combined with an ADU approved under subsection (e)(1)(B), and ADUs approved under subsection (e)(1)(C) may be combined with ADUs approved under subsection (e)(1)(D).
a) Converted on Lot with Single-Family: One ADU as described in this subsection (e)(1)(A) and one JADU on a lot with a proposed or existing singlefamily dwelling on it, where the ADU or JADU:
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Urgency Ordinance 902
(i) Is either: within the space of a proposed single-family dwelling; within the existing space of an existing single-family dwelling; or (in the case of an ADU only) within the existing space of an accessory structure, plus up to 150 additional square feet if the expansion is limited to accommodating ingress and egress; and (ii) Has exterior access that is independent of that for the single-family dwelling; and
(iii) Has side and rear setbacks sufficient for fire and safety, as dictated by applicable building and fire codes.
(iv) The JADU complies with the requirements of Government Code sections 66333 through 66339.
b) Limited Detached on Lot with Single-Family: One or two detached, newconstruction ADU or ADUs on a lot with a proposed or existing single-family dwelling, if the detached ADU or ADUs satisfies each of the following limitations:
(i) The side- and rear-yard setbacks are at least four feet. (ii) The total floor area is 1,200 square feet of livable space or smaller. (iii) The peak height above grade does not exceed the applicable height limit in subsection (f)(2) below.
(iv) Lots larger than 10,000 square feet may have a second detached ADU.
c) Converted on Lot with Multifamily: One or more ADUs within portions of existing multifamily dwelling structures that are not used as livable space, including but not limited to storage rooms, boiler rooms, passageways, attics, basements, or garages, if each converted ADU complies with state building standards for dwellings. Under this subsection (e)(1)(C), at least one converted ADU is allowed within an existing multifamily dwelling, up to a quantity equal to 25 percent of the existing multifamily dwelling units. d) Limited Detached on Lot with Multifamily: No more than two detached ADUs on a lot with a proposed multifamily dwelling, or up to eight detached ADUs on a lot with an existing multifamily dwelling, if each detached ADU satisfies all of the following:
(i) The side- and rear-yard setbacks are at least four feet. If the existing multifamily dwelling has a rear or side yard setback of less than four feet, the town will not require any modification to the multifamily dwelling as a condition of approving the ADU.
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(ii) The peak height above grade does not exceed the applicable height limit provided in subsection (f)(2) below.
(iii) If the lot has an existing multifamily dwelling, the quantity of detached ADUs does not exceed the number of primary dwelling units on the lot.
(2) Class 2: Locally Regulated. Class 2 ADUs are approved under Government Code sections 66314–66322. Except for Class 1 ADUs approved under subsection (e)(1) above, all ADUs are subject to the standards set forth in subsections (f) and (g) below.
(F) General Requirements. The following requirements apply to all Class 1 and Class 2 ADUs and JADUs:
(1) Zoning.
a) A Class 1 ADU approved under subsection (e)(1) may be created on a lot in a residential or mixed-use zone.
b) A Class 2 ADU approved under subsection (e)(2) above may be created on a lot that is zoned to allow single-family dwelling residential use or multifamily dwelling residential use.
c) In accordance with Government Code section 66333(a), a JADU may only be created on a lot zoned for single-family residences.
(2) Height.
a) Except as otherwise provided by subsections (f)(2)(B) and (f)(2)(C) below, a detached ADU created on a lot with an existing or proposed single family or multifamily dwelling unit may not exceed 16 feet in height. b) A detached ADU may be up to 18 feet in height if it is created on a lot with an existing or proposed single family or multifamily dwelling unit that is located within one-half mile walking distance of a major transit stop or high quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code, and the ADU may be up to two additional feet in height (for a maximum of 20 feet) if necessary to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit. c) A detached ADU created on a lot with an existing or proposed multifamily dwelling that has more than one story above grade may not exceed 18 feet in height.
d) An ADU that is attached to the primary dwelling may not exceed 25 feet in height or the height limitation imposed by the underlying zone that applies to Town of Fairfax
Urgency Ordinance 902
the primary dwelling, whichever is lower. Notwithstanding the foregoing, ADUs subject to this subsection (f)(2)(D) may not exceed two stories. e) For purposes of this subsection (f)(2), height is measured from existing legal grade or the level of the lowest floor, whichever is lower, to the peak of the structure.
(3) Fire Sprinklers.
a) Fire sprinklers are required in an ADU or JADU if sprinklers are required in the primary residence.
b) The construction of an ADU or JADU does not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling. (4) Rental Term. No ADU or JADU may be rented for a term that is shorter than 30 days. This prohibition applies regardless of when the ADU or JADU was created. (5) No Separate Conveyance. An ADU or JADU may be rented, but, except as otherwise provided in Government Code section 66341, no ADU or JADU may be sold or otherwise conveyed separately from the lot and the primary dwelling (in the case of a single-family lot) or from the lot and all of the dwellings (in the case of a multifamily lot).
(6) Septic System. If the ADU or JADU will connect to an onsite wastewater-treatment system, the owner must include with the application a percolation test completed within the last five years or, if the percolation test has been recertified, within the last 10 years.
(7) Owner Occupancy.
a) ADUs. ADUs are not subject to an owner-occupancy requirement. b) JADUs.
(i) Generally. As required by state law, JADUs are generally subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property, in either the primary dwelling or JADU, as the person’s legal domicile and permanent residence.
(ii) Exceptions. The owner-occupancy requirement in this subsection (f)(7)(B) does not apply in either of the following situations:
(I) The JADU has separate sanitation facilities (i.e., does not share sanitation facilities with the existing primary dwelling unit structure).
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(II) The property is entirely owned by another governmental agency, land trust, or housing organization.
(8) Deed Restriction. Prior to issuance of a certificate of occupancy for an JADU, a deed restriction must be recorded against the title of the property in the County Recorder’s office and a copy filed with the Director. The deed restriction must run with the land and bind all future owners. The form of the deed restriction will be provided by the town and must provide that:
a) The JADU may not be sold separately from the primary dwelling. b) The JADU is restricted to the approved size and to other attributes allowed by this section.
c) The deed restriction runs with the land and may be enforced against future property owners.
d) The deed restriction may be removed if the owner eliminates the JADU, as evidenced by, for example, removal of the kitchen facilities. To remove the deed restriction, an owner may make a written request of the Director, providing evidence that the JADU has in fact been eliminated. The Director may then determine whether the evidence supports the claim that the JADU has been eliminated. Appeal may be taken from the Director’s determination consistent with other provisions of this Code. If the JADU is not entirely physically removed, but is only eliminated by virtue of having a necessary component of an JADU removed, the remaining structure and improvements must otherwise comply with applicable provisions of this Code.
e) The deed restriction is enforceable by the director or his or her designee for the benefit of the town. Failure of the property owner to comply with the deed restriction may result in legal action against the property owner, and the town is authorized to obtain any remedy available to it at law or equity, including, but not limited to, obtaining an injunction enjoining the use of the JADU in violation of the recorded restrictions or abatement of the illegal unit. (9) Building & Safety.
a) Must comply with building code. Subject to subsection (f)(9)(B) below, all ADUs and JADUs must comply with all local building code requirements. b) No change of occupancy. Construction of an ADU does not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code, unless the building official or Code Enforcement Division officer makes a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety. Nothing in this subsection (f)(9)(B) prevents the town from changing the occupancy code of a space that was Town of Fairfax
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uninhabitable space or that was only permitted for nonresidential use and was subsequently converted for residential use in accordance with this section. (10) Certificate of Occupancy Timing.
a) Generally. No certificate of occupancy for an ADU or JADU may be issued before the certificate of occupancy is issued for the primary dwelling unit. b) Limited Exception for State-declared Emergencies. Notwithstanding subsection (f)(10)(A) above, a certificate of occupancy for an ADU may be issued before a certificate of occupancy for the primary dwelling if each of the following requirements are met:
(i) The county is subject to a proclamation of a state of emergency made by the California Governor on or after February 1, 2025. (ii) The primary dwelling was substantially damaged or destroyed by an event referenced in the Governor’s state of emergency
proclamation.
(iii) The ADU has been issued construction permits and has passed all required inspections.
(iv) The ADU is not attached to the primary dwelling.
(G)Specific ADU Requirements. The following requirements apply only to Class 2 ADUs approved under subsection (e)(2) above. This subsection (g) does not apply to Class 1 ADUs or JADUs approved under subsection (e)(1) above.
(1) Maximum Size.
a) The maximum size of a detached or attached ADU subject to this subsection (g) is 850 square feet of interior livable space for a studio or one-bedroom unit and 1,200 square feet of interior livable space for a unit with two or more bedrooms.
b) An attached ADU that is created on a lot with an existing primary dwelling is further limited to 50 percent of the floor area of the existing primary dwelling. c) Application of other development standards in this subsection (g), such as FAR or lot coverage, might further limit the size of the ADU, but no application of the percent-based size limit in subsection (g)(1)(B) above or of an FAR, front setback, lot coverage limit, or open-space requirement may require the ADU have less than 800 square feet of interior livable space. (2) Floor Area Ratio (FAR). No ADU subject to this subsection (g) may cause the total FAR of the lot to exceed 40 percent, subject to subsection (g)(1)(C) above.
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(3) Setbacks.
a) ADUs that are subject to this subsection (g) must conform to 4-foot side and rear setbacks. ADUs that are subject to this subsection (g) must conform to 10 foot front setbacks, subject to subsection (g)(1)(C) above. b) No setback is required for an ADU that is subject to this subsection (g) if the ADU is constructed in the same location and to the same dimensions as an existing structure.
(4) Lot Coverage. No ADU subject to this subsection (g) may cause the total lot coverage of the lot to exceed 50 percent, subject to subsection (g)(1)(C) above. (5) Minimum Open Space (usable). No ADU on a lot subject to this division (F) 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 10%, subject to subsection (g)(1)(C) above.
(6) Passageway. No passageway, as defined by subsection (c)(9) above, is required for an ADU.
(7) Parking.
a) Generally. One off-street parking space is required for each ADU or bedroom, whichever is less. The parking space may be provided in setback areas or as tandem parking, as defined by subsection (c)(12) above. b) Exceptions. No parking under subsection (g)(7)(A) is required in the following situations:
(i) The ADU is located within one-half mile walking distance of public transit, as defined in subsection (c)(11) above.
(ii) The ADU is located within an architecturally and historically significant historic district.
(iii) The ADU is part of the proposed or existing primary residence or an accessory structure.
(iv) When on-street parking permits are required but not offered to the occupant of the ADU.
(v) When there is an established car share vehicle stop located within one block of the ADU.
(vi) When the permit application to create an ADU is submitted with an application to create a new single-family or new multifamily Town of Fairfax
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dwelling on the same lot, provided that the ADU or the lot satisfies any other criteria listed in subsections (g)(7)(B)(i) through (v) above.
c) No Replacement. When a garage, carport, covered parking structure, or uncovered parking space is demolished in conjunction with the construction of an ADU or converted to an ADU, those off-street parking spaces are not required to be replaced.
(8) Architectural Requirements.
a) The materials and colors of the exterior walls, roof, and windows and doors must be the same as those of the primary dwelling.
b) The roof slope must match that of the dominant roof slope of the primary dwelling. The dominant roof slope is the slope shared by the largest portion of the roof.
c) The exterior lighting must be limited to down-lights or as otherwise required by the building or fire code.
d) The ADU must have an independent exterior entrance, apart from that of the primary dwelling.
e) The interior horizontal dimensions of an ADU must be at least 10 feet wide in every direction, with a minimum interior wall height of seven feet. f) No window or door of the ADU may have a direct line of sight to an adjoining residential property. Each window and door must either be located where there is no direct line of sight or screened using fencing, landscaping, or privacy glass to prevent a direct line of sight.
g) All windows and doors in an ADU less than 30 feet from a property line that is not a public right-of-way line must either be (for windows) clerestory 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.
(9) Stream buffer. No ADU shall be constructed closer to the top of the stream bank of the Fairfax and San Anselmo Creeks than 20 feet or two times the average depth of the creek bank, whichever is greater.
(10) Architectural requirements.
a) The materials and colors of the exterior walls, roof, windows and doors of an ADU addition to a primary dwelling must appear similar to those of the primary dwelling
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b) The materials and colors of the exterior walls, roof, windows and doors of a second detached ADU must appear similar to either those of the primary dwelling or those of the other detached ADU on the property. c) The roof slope must appear similar to that of the dominant roof slope of the primary dwelling. The dominant roof slope is the slope shared by the largest portion of the roof.
d) The exterior lighting must be dark sky compliant (fully shielded and emit no light above the horizontal plane with no sag or drop lenses, side light panels or uplight panels) as well as compliant with color temperature to minimize blue rich lighting. The lighting shall not emit direct offsite illumination and shall be the minimum necessary for safety.
e) The ADU must have an independent exterior entrance, apart from that of the primary dwelling.
f) The interior horizontal dimensions of an ADU must be at least ten feet wide in every direction, with a minimum interior wall height of seven feet. (11) Historical Protections. An ADU that is on or within 600 feet of real property that is listed in the California Register of Historic Resources must be located entirely behind the rear-most exterior wall of the primary dwelling and directly behind the primary dwelling.
(12) Allowed Stories. No ADU subject to this subsection (g) may have more than one story, except that an ADU that is attached to the primary dwelling may have the stories allowed under subparagraph (f)(2)(D) of this section. (H)Fees. The following requirements apply to all Class 1 ADUs and JADUs and Class 2 ADUs that are approved under subsections (e)(1) or (e)(2) above. (1) Impact Fees.
a) No impact fee is required for a JADU or for an ADU that has less than 750 square feet of interior livable space. For purposes of this subsection (h)(1), “impact fee” means a “fee” under the Mitigation Fee Act (Gov. Code § 66000(b)) and a fee under the Quimby Act (Gov. Code § 66477). “Impact fee” here does not include any connection fee or capacity charge for water or sewer service.
b) A JADU or ADU with less than 500 square feet of interior livable space does not increase assessable space by 500 square feet for purposes of Education Code section 17620(a)(1)(C), and is therefore not subject to school fees under Education Code section 17620.
c) Any impact fee that is required for an ADU that has 750 square feet or more of interior livable space must be charged proportionately in relation to the square Town of Fairfax
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footage of the primary dwelling unit. (E.g., the floor area of the ADU, divided by the floor area of the primary dwelling, times the typical fee amount charged for a new dwelling.)
(2) Utility Fees.
a) If an ADU or JADU is constructed with a new single-family home, a separate utility connection directly between the ADU or JADU and the utility and payment of the normal connection fee and capacity charge for a new dwelling are required.
b) Except as described in subsection (h)(2)(A), JADUs and converted ADUs on a single-family lot that are created under subsection (e)(1)(A) above are not required to have a new or separate utility connection directly between the JADU or ADU and the utility. Nor is a connection fee or capacity charge required.
Notwithstanding the rest of this paragraph, a direct utility connection is required for separate conveyance of an ADU when separate conveyance is allowed under this code.
c) Except as described in subsection (h)(2)(A), all ADUs that are not covered by subsection (h)(2)(B) require a new, separate utility connection directly between the ADU and the utility for any utility that is provided by the town. All utilities that are not provided by the town are subject to the connection and fee requirements of the utility provider.
(i) The connection is subject to a connection fee or capacity charge that is proportionate to the burden created by the ADU based on either the floor area or the number of drainage-fixture units (DFU) values, as defined by the Uniform Plumbing Code, upon the water or sewer system.
(ii) The portion of the fee or charge that is charged by the town may not exceed the reasonable cost of providing this service.
(I) Nonconforming Zoning Code Conditions, Building Code Violations, and Unpermitted Structures.
(1) Generally. The town will not deny an ADU or JADU application due to a nonconforming zoning condition, building code violation, or unpermitted structure on the lot that does not present a threat to the public health and safety and that is not affected by the construction of the ADU or JADU.
(2) Unpermitted ADUs and JADUs constructed before 2020. a) Permit to Legalize. As required by state law, the town may not deny a permit to legalize an existing but unpermitted ADU or JADU that was constructed before January 1, 2020, if denial is based on either of the following grounds:
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(i) The ADU or JADU violates applicable building standards, or (ii) The ADU or JADU does not comply with state ADU or JADU law or this ADU ordinance (section NN.NNN).
b) Exceptions:
(i) Notwithstanding subsection (i)(2)(A) above, the town may deny a permit to legalize an existing but unpermitted ADU or JADU that was constructed before January 1, 2020, if the town makes a finding that correcting a violation is necessary to comply with the standards specified in California Health and Safety Code section 17920.3. (ii) Subsection (i)(2)(A) above does not apply to a building that is deemed to be substandard in accordance with California Health and Safety Code section 17920.3.
(J) Nonconforming ADUs and Discretionary Approval. Any proposed ADU or JADU that would otherwise be allowed under this section but that does not conform to the objective design or development standards set forth in subsections (a) through (i) of this section may be allowed by the town with a conditional use permit, in accordance with the other provisions of this title.