Business Agenda Item 5c
STAFF REPORT
City Council Business Agenda Item
DATE: January 18, 2022
TO: Honorable Mayor and Council Members
FROM: Liz Shorey, Deputy Director of Community Development THROUGH: Merritt Perry, City Manager
SUBJECT: A Public Hearing to Consider an Urgency Ordinance Implementing StateMandated Procedures for Urban Lot Splits and Two-Unit Projects and Determining the Ordinance to Be Exempt From California the Environmental Quality Act, Amending Title 17 – Zoning Regulations of the Fortuna Municipal Code by adding Chapter 17.09 – State Mandated Procedures, and Amending Title 16 – Subdivisions by adding Section 16.04.070, Ordinance 2022-751
STAFF RECOMMENDATION:
Waive further reading and find that Urgency Ordinance 2022-751 is necessary for the immediate preservation of the public peace, health, or safety for the reasons stated therein, and find that Urgency Ordinance 2022-751 is exempt from the California Environmental Quality Act (CEQA), and approve and adopt Urgency Ordinance 2022-751 to take immediate effect.
BACKGROUND:
The California Legislature recently passed and Governor Newsom signed Senate Bill 9 (“SB 9”).
SB 9 will require the City to both: (1) allow any single-family lot to be split, roughly into halves, with resulting lots as small as 1,200 sf and (2) allow up to two single-family dwellings to be developed on each single-family residential lot. SB 9 requires the City to approve eligible lot splits and two-unit projects ministerially (i.e., without discretionary review or hearing). Property owners can also utilize both SB 9 provisions. Thus, an SB 9 lot split followed by an SB 9 twounit project on each of the two new lots would result in four total dwellings on what was formerly a single-family residential lot – all with only ministerial approval except in limited circumstances.
SB 9 specifically allows cities to adopt ordinances to implement the provisions of SB 9, and such ordinances are not subject to CEQA. The bill also allows cities to impose and enforce objective zoning standards, objective subdivision standards, and objective design review standards that do not conflict with the provisions of SB 9.
The proposed urgency ordinance will address both “urban lot splits” – the term SB 9 uses for ministerial lot splits – and “two-unit projects” – the term staff incorporated into the ordinance to apply to ministerially approved projects to either construct two primary residential dwelling units Business Agenda Item 5c
or to add an additional primary dwelling unit to a lot that already contains a primary residential dwelling unit. The ordinance will add Chapter 17.09 to the City’s Zoning Regulations and add Section 16.04.070 to Title 16, which governs subdivisions.
The ordinance will only apply to the extent that SB 9 remains in force and effect and compels the City to approve urban lot splits and/or two unit projects. Except where SB 9 specifically prohibits it, the City’s general development and subdivision standards will continue to apply. While the intent is that this ordinance, together with the City’s existing objective standards, will be a comprehensive approach to the new SB 9 procedures, the City may continue to refine its approach to regulating these new state-mandated approvals.
The proposed ordinance is an urgency measure that will take immediate effect. In general, ordinances affecting planning and zoning must first be presented to Planning Commission for a recommendation and then approved following a second reading at a regular meeting of the City Council. Ordinances generally take effect 30 days following adoption. It will be necessary for the City Council to adopt this ordinance as an urgency measure because SB 9 was signed in October 2021, and will became effective on January 1, 2022, giving the City insufficient time to fully prepare and process a standard ordinance. As further set forth in this report, the ordinance itself and during staff’s presentation at the meeting, the proposed ordinance addresses matters that are imminently necessary for the health, safety, and welfare of the community and that are critical to have in place prior to SB 9 taking effect. Staff will concurrently process an ordinance following the City’s standard procedures as well. A hearing will be scheduled for an upcoming Planning Commission meeting and then a hearing will be noticed for a future City Council meeting.
DISCUSSION:
The proposed ordinance is a comprehensive approach to implementation of SB 9, which addresses the following:
Application Process
Because SB 9 requires ministerial approval, neither the Planning Commission nor the City Council will have review or approval authority of urban lot splits or two-unit projects. The Community Development Director will be the ministerial approval authority, and in order to correct any errors and avoid unnecessary litigation, the ordinance contains an administrative appeal to the Planning Commission to review any denials. This review, however, will also be ministerial and will be limited to a determination of whether the application was wrongfully denied.
Property Ownership
SB 9 requires the applicant to submit an affidavit indicating that the applicant intends to live in one of the units for at least three years, but the City cannot impose any additional owner occupancy requirements. The proposed ordinance therefore only allows individuals, as opposed to corporate owners to apply for urban lot splits and two-unit projects and requires the affidavit as part of the application. There are mandatory exceptions built in for certain housing-related nonprofit corporations.
Limitations on Lot Splits
SB 9 indicates that an urban lot split must result in each lot containing no more than 60% and no less than 40% of the original lot. Additionally, SB 9 prohibits an urban lot split on any lot that has already been created by an urban lot split. There cannot be multiple subdivisions of the same Business Agenda Item 5c
property; it only allows for a single ministerial split. The proposed ordinance incorporates both of these rules into the Zoning Regulations.
Residential Use
Lots that are split under SB 9 must be used for residential uses. Therefore, the proposed ordinance requires the Community Development Director to reject any application for an urban lot split if a resulting lot is not suitable for development of a home. A property owner would not be able to split off a property that is not developable. (And as noted above, the smaller parcel must be at least 40% of the original’s square footage.)
Limitations on Unit Size
In accordance with SB 9, the ordinance prohibits new units that are less than 500 square feet or more than 800 square feet. The ordinance also allows existing units that are smaller than 800 square feet to expand up to 800 square feet. Existing units that are larger than 800 square feet are restricted to their size and footprint and may not be expanded.
Non-Displacement
To prevent development from being utilized as a tool for displacing tenants, SB 9 prohibits urban lot splits and two-unit projects involving demolition or alteration of any housing that has been occupied by a tenant in the last three years. The proposed ordinance places the onus on the applicant to show that the project has not been occupied by a tenant in the past three years.
Enforcement of Setbacks
The City cannot impose any objective standards that prevent construction of two 800 square foot units, but the City is otherwise entitled to apply its standard setbacks. In the event that a lot cannot accommodate two 800 square foot units with normal setbacks, the City will only allow the minimal encroachment that is physically necessary. In no event will a unit be allowed to encroach to less than four (4) feet for a side or rear setback.
Parking Limitations
SB 9 prohibits cities from requiring more than one on-site parking space per unit for any urban lot split or two-unit project. Nothing prevents applicants from voluntarily constructing parking that meets or exceeds standard City Code requirements.
Utility Connections
The proposed ordinance requires applicants to submit “will serve” letters from all utility providers and a percolation test as part of the lot split process. The proposed ordinance requires a separate sanitary sewer connection or on-site waste treatment system for each unit created. The Municipal Code requires all new residential units to underground all utility connections for newly created units.
Number of Units per Lot
SB 9 has been advertised as the “end of single-family zoning” in California, but in reality the Legislature impacted single family lots several years ago by adopting a series of bills that required cities to allow accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs) by-right in single family zones.
Business Agenda Item 5c
SB 9 specifically allows cities to restrict ADUs on properties created through an urban lot split.
While such properties may have two units, SB 9 specifically indicates that these properties may be restricted to two total units, inclusive of any ADUs or JADUs. Thus, a property that utilizes an urban lot split could result in four total units from the single property, but no more than that.
SB 9 is less clear in relation to ADUs on properties that contain two-unit projects. In general, SB 9 specifically defines two-unit projects as adding a second unit where there is one existing unit or developing a property with two units. It does not specifically state whether “units” in this instance also includes ADUs or JADUs and is essentially silent on this matter. However, given the definition of two-unit projects, the proposed ordinance is structured to only allow a maximum of two total units.
Additional Statutory Exceptions
There are several other statutory exceptions to SB 9 based on certain property characteristics. For example, prime farmland and some other farmland properties, wetlands, hazardous waste sites, certain flood zones, and conservation properties are exempt. These exemptions are incorporated into the proposed ordinance by reference to Government Code section 65913.4, where they are contained. Additionally, SB 9 exempts properties that are designated as historical or within a historical district.
Notice to Future Buyers
Because SB 9 creates state law rights that differ from local standards and will have different impacts on property that may not be apparent to future residents, the proposed ordinance imposes an objective standard on SB 9 applicants to record a covenant on the property’s title that gives notice and restricts future buyers to limitations resulting from an urban lot split or a two-unit project. For example, future buyers are likely to be unaware that SB 9 properties are limited to only two dwellings at a maximum of 800 square feet. The notice on title will inform potential future buyers so that potential future residents are fully informed of the limitations on the use of their properties. Additionally, the proposed ordinance requires consent from any lienholders, such as a mortgage company, so that the required covenant is still effective in the event of foreclosure.
Specific Adverse Impacts
SB 9 has a “catch-all” exemption that allows cities to deny proposed urban lot splits or two-unit projects if the building official makes a written finding, based upon a preponderance of the evidence, that the urban lot split or two-unit project would have a “specific, adverse impact” upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. The term “specific adverse impact” is defined to mean “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 [is] deemed complete.” The definition specifically excludes inconsistency with a zoning or general plan designation.
SB 9 is, unfortunately, a poorly drafted statute that fails to provide clear direction to cities as to how to implement its provisions. In this case, SB 9 specifically states that the “building official” must make this written finding. A building official is generally a professional that is responsible for interpretation, application and enforcement of the City’s building codes. The building official is not typically engaged in assessing health, safety or environmental impacts that do not relate to the building code and would not be the City official that is most appropriate or qualified to make Business Agenda Item 5c
these findings in many cases.
The only logical interpretation of SB 9 is that the Legislature used the term “building official” to identify the city official that would be in charge of ministerially approving urban lot splits and two-unit projects. For the City, the most appropriate official to approve or deny such projects, and to make findings of specific adverse impacts is the Community Development Director. To the extent that the specific adverse impact is based on a building code provision, the building official, who serves under the Community Development Director, would provide the opinion.
But in any particular case, it may be necessary to have collaboration from the city engineer, the fire chief or inspector, or an outside consultant, among others. Thus, as the best way to implement SB 9 and this specific provision, the proposed ordinance indicates that the Community Development Director will be responsible for this determination. The determination would be subject to the appeal to the Planning Commission, who would also rely on input from the appropriate City professionals.
Dedication of Right-of-Way and Construction of Public Improvements SB 9 prohibits the City from requiring an applicant to dedicate right-of-way or construct offsite improvements as a condition of approval of an urban lot split. This is another way in which the law seems to misunderstand common and necessary planning practices. Features such as sidewalks, which are critical to provide a safe and ADA accessible pedestrian path may require a dedication of right-of-way or may be an offsite improvement if the right-of-way has already been dedicated. The ordinance therefore clarifies that an application would be subject to denial if dedications or offsite improvements are necessary.
By adopting Urgency Ordinance, the Municipal Code amendments will be effective immediately, ensuring that allowable objective standards will be in place to address local health and safety issues. Following adoption of this urgency ordinance, City staff will bring the zoning amendments to the Planning Commission through the regular public hearing process and return to the City Council for adoption of a non-urgent ordinance.
ENVIRONMENTAL ASSESSMENT:
Pursuant to Government Code sections 66411.7(n) and 65852.21(j) an ordinance adopted to implement SB 9 is not considered a project under the California Environmental Quality Act.
Approval of the Urgency Ordinance is therefore not a project.
FISCAL IMPACT:
There is no fiscal impact to the City as a result of adopting the SB 9 zoning standards.
RECOMMENDED COUNCIL ACTION:
1. Receive staff presentation and review questions with staff
2. Open public comment
3. Close public comment
4. Motion to adopt Ordinance 2022-751, read by title only. Roll Call vote.
Business Agenda Item 5c
ATTACHMENTS:
Urgency Ordinance 2022-751, An Urgency Ordinance of the City Council of the City of Fortuna, California amending Title 17 – Zoning Regulations of the Fortuna municipal code by adding Chapter 17.09 – State Mandated Procedures and by amending Title 16 – Subdivisions by adding Section 16.04.070 – Urban Lot Splits and Determining the Ordinance to be Exempt from CEQA
Urgency Ordinance 2022-751 - Exhibit "A"
Business Agenda Item 5c
ORDINANCE NO. 2022-751
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FORTUNA, CALIFORNIA AMENDING TITLE 17 – ZONING REGULATIONS OF THE FORTUNA MUNICIPAL CODE BY ADDING CHAPTER 17.09 – STATE MANDATED PROCEDURES AND BY AMENDING TITLE 16 – SUBDIVISIONS BY ADDING SECTION 16.04.070 – URBAN LOT SPLITS AND DETERMINING THE ORDINANCE
TO BE EXEMPT FROM CEQA
WHEREAS, the City of Fortuna, California (“City”) 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 sections 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 on January 1, 2022, and preempts any conflicting City ordinance; and
WHEREAS, the City desires to amend its local regulatory scheme to implement Government Code sections 66411.7 and 65852.21 in a manner that appropriately regulates projects under SB 9 in accordance with existing City standards and land use policies; and WHEREAS, there is a current and immediate threat to the public health, safety, or welfare based on the passage of SB 9 because if the City does not imminently adopt appropriate objective standards for urban lot splits and two-unit projects, the City would thereafter be limited to applying only the objective standards that are already in its code, which did not anticipate and were not enacted with urban lot splits and ministerial two-unit projects in mind; and WHEREAS, approval of urban lot splits and two-unit projects based solely on the City’s default standards, without appropriate regulations governing unit quantity and size, setbacks, parking, utilities, among other things, would threaten the character of existing neighborhoods, and negatively impact property values, personal privacy, life safety and endanger the physical environment. 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 City Council; and
WHEREAS, to protect the public safety, health, and welfare, the City Council may adopt this Ordinance as an urgency measure in accordance with Government Code section 36937(b); and WHEREAS, the City Council has considered the staff report, supporting documents, public testimony, and all appropriate information that has been submitted with this Ordinance; and WHEREAS, all legal prerequisites to the adoption of the Ordinance have occurred.
Business Agenda Item 5c
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FORTUNA DOES ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The above recitals are each incorporated by reference and adopted as findings by the City Council.
SECTION 2. CEQA. Under California Government Code sections 65852.21(j) and 66411.7(n), the adoption of an ordinance by a city or county implementing the provisions of Government Code sections 66411.7 and 65852.21 and regulating urban lot splits and two-unit projects is statutorily exempt from the requirements of the California Environmental Quality Act (“CEQA”). Therefore, adoption of this Ordinance is statutorily exempt from CEQA because it implements these new laws enacted by SB 9. The City Council hereby directs staff to prepare, execute, and file with the Humboldt County Clerk a notice of exemption within five working days of the adoption of this Ordinance.
SECTION 3. General Plan. Based on the entire record before the City Council, and all written and oral evidence presented, the City Council hereby finds that this Ordinance’s amendments to the Fortuna Municipal Code are consistent with the City’s adopted General Plan, except to the extent SB 9 precludes consistency, for the reasons set forth below:
1. Land Use Element Goals LU-1 and LU-4, and Policies LU-4.4 and LU-4.6, LU-5.1, provide that new development should be complementary to the existing character of the City. To an extent permitted under SB 9, this Ordinance imposes objective development standards on urban lot splits and two-unit projects. Such standards include regulations governing lot size, unit size, setbacks, parking, and utilities. Collectively, such standards are intended to align SB 9 projects with the City’s existing development standards—which will lessen the impact of SB 9 projects on the community’s existing character, surrounding neighborhoods, and natural features. For these reasons, this Ordinance is consistent with Goals LU-1 and LU-4, and Policies LU-4.4 and LU-4.6, LU5.1,.
2. Community Development Element Policies CD-1.1 and CD-5.5 provide that new development should, among other things, be compatible with the physical characteristics of the site and surrounding land uses. This Ordinance subjects SB 9 urban lot splits and two-unit projects to generally applicable and SB 9-specific objective development standards. Such standards will promote compatibility with the physical characteristics of the site and surrounding land uses by regulating, among other things, lot access, earthquake and fire safety, setbacks, unit quantity, unit size, and parking. For these reasons, this Ordinance is consistent with General Plan Community Development Policies CD-1.1 and CD-5.5.
3. Community Development Element Policies CD-1.7 and CD-4 provides that the City should identify, designate, and protect buildings, districts, and sites of historic importance in the City. In accordance with SB 9, this Ordinance exempts properties that are designated as historical or within a historical district. Exempting these properties will protect the City’s historical buildings, districts, and historic sites by ensuring that SB 9 lot splits and two- unit projects do not occur in these areas. Consequently, this Ordinance is consistent with General Plan Land Use Policies CD-1.7 and CD-4.
SECTION 4. Zoning Regulations Amendment. Chapter 17.09 – State Mandated Procedures Business Agenda Item 5c
is hereby added to the Fortuna Zoning Regulations (Title 17 of the Municipal Code) as set forth in Exhibit “A,” attached hereto and incorporated herein by reference. Without modifying the substance, following approval of this Ordinance, the City Clerk shall cause the Zoning Regulations amendments to be consistent in form and style with the Zoning Regulations.
SECTION 5. Municipal Code Amendment. Title 16 - Subdivisions of the Fortuna Municipal Code is hereby amended to include a new section 16.04.070 as follows:
16.04.070 Urban Lot Splits
Urban lot splits, as authorized by Government Code section 66411.7, are subdivisions subject to this Title that shall be more specifically governed as set forth in Chapter 17.09 of Title 17 of the Fortuna Municipal Code.
SECTION 6. Effective Date. This Ordinance takes effect immediately upon its adoption and shall become operative on January 19, 2022.
SECTION 7. Severability. If any provision of this Ordinance or its application to any person or circumstance is held to be invalid, 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 resolution are severable. The City Council declares that it would have adopted this Ordinance irrespective of the invalidity of any portion thereof.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Fortuna, California, on this 18th day of January 2022 by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
ATTEST:
Sue Long, Mayor
___________________________
Siana L. Emmons, City Clerk
Business Agenda Item 5c
Exhibit “A”
Chapter 17.09
STATE MANDATED PROCEDURES
17.09.010 – SB 9--General
A. Purpose
The purpose of this Chapter is to implement the provisions of Senate Bill 9 and any other land use procedure that state law mandates on the City but that would otherwise be inconsistent with the City’s land use and development policies, procedures or regulations. The purpose of this Chapter is to implement all City land use and development policies, procedures or regulations to the maximum extent allowed under state law.
B. Applicability
This Chapter shall only apply to the extent that the City is required to ministerially approve applications for development actions under state law provisions. This Chapter shall not be construed to allow any greater rights to approval of a development application than the City is required to grant under state law. To the extent any state- mandated procedure in this Chapter is repealed, determined to be unlawful or is otherwise not mandatory upon the City, then this Chapter shall not allow for approval of any such applications.
The provisions of this Chapter shall continue to apply to any development applications previously approved hereunder.
Specifically, this Chapter shall apply to:
1. Urban lot splits under Government Code section 66411.7.
2. Two-unit projects under Government Code section 65852.21.
C. Definitions
Terms defined in Chapter 17.08 of these Zoning Regulations shall have the same meanings in this Chapter, unless otherwise expressly defined in this Chapter.
The following terms used in this Chapter shall be defined as follows:
1. “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 Business Agenda Item 5c
community land trust (as defined by Revenue and Taxation Code section 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by Revenue and Taxation Code section 214.15).
2. “Specific adverse impact” has the same meaning as in Government Code section
65589.5(d)(2), which is 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. 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.
4. “Urban lot split” means the subdivision of an existing, legally subdivided lot into two lots in accordance with the requirements of Government Code section 66411.7 and this Chapter pursuant to a ministerial approval process.
D — Approval Authority
1. Director. The Director shall have authority to approve or deny all applications that are subject to ministerial approval in accordance with this Chapter.
2. Appeal. The applicant may appeal a decision of the Director under this Chapter in accordance with Chapter 17.07. Review on appeal shall be ministerial and shall be limited to a determination as to whetherthe application meets all requirements for approval. The applicant shall have the burden of showing in all respects that the City must ministerially approve the application as presented.
a. Specific Adverse Impacts. If the applicant contends that specific adverse impacts of the proposed project can be satisfactorily mitigated or avoided, then the appeal must set forth in detail how the applicant will mitigate or avoid such specific adverse impacts.
If the applicant contends that there are no specific adverse impacts, the applicant shall submit all information to rebut the Director’s finding with the appeal.
Business Agenda Item 5c
17.09.020 – SB 9 – Urban Lot Splits
A — Applicants; Approval Authority
1. Owners/Lienholders. Only individual property owners may apply for an urban lot split. Any person with a security interest in, or other senior lien against, the lot to be split as an urban lot split must consent and subordinate to recordation of the restrictions resulting from the urban lot split against the title of the property.
2. Application. An application for an urban lot split must be submitted on a form approved by the Director and shall contain all information that the Director requires. Only a complete application will be considered. The City’s application form shall, at a minimum, require the applicant to submit the following:
a. Evidence that the applicant is an individual property owner of the lot to be split.
b. If applicable, compliance with the consent and subordination requirements provided in subsection (A above.
c. A signed 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.
d. A signed affidavit indicating that the applicant acknowledges and agrees that each lot created by the urban lot split will be used for residential purposes only and that the applicant intends to use the lots for that purpose.
e. A signed affidavit stating that there are no conditions, covenants or restrictions on the property that prohibit subdivision of the property, and if requested by city, any supporting documentation showing that there are no such conditions, covenants or restrictions on the property.
f. If the lot would result in the demolition or alteration of existing housing, proof that no housing on the lot has been occupied by a tenant within the last three years.
g. Proof that none of the circumstances set forth in sub-subsection “6” Business Agenda Item 5c
(Prior Urban Lot Split) of sub-section “C” (Grounds for Denial) of this section are present.
h. Proof that none of the circumstances set forth in sub-subsection “5” (Historic Properties and Districts) of subsection “C”(Grounds for Denial) of this section and sub-subsection “7” (Impact on Protected Housing) of subsection “C” (Grounds for Denial) of this section are present.
i. Proof of any inspections required under sub-subsection "4" (Inspection) of subsection “C” (Grounds for Denial) of this section.
j. A title report, litigation guarantee or other documentation showing evidence of any senior security interests or liens against the property.
3. Application Fee. The City may establish a fee to recover its costs for adopting, implementing, and enforcing this Chapter, in accordance with applicable law. The City Council may establish and change the fee by resolution. The fee must be paid with the application. In absence of an established fee that is specific to an urban lot split, an applicant shall pay all fees related to processing a parcel map. The fee may be in the form of a deposit for the City’s actual costs incurred.
B — Development and Subdivision Standards
1. Objective Development Standards. An urban lot split, and any development of a parcel created from an urban lot split, shall comply with all requirements of this Chapter, all objective development standards set forth in this Code or otherwise established by the City, and all other City requirements that are not in conflict with Government Code section 66411.7.
2. Subdivision Standards. Except as otherwise expressly provided in this Chapter, an urban lot split must conform to all applicable objective requirements of the Subdivision Map Act (Government Code section 66410 et. seq.) and Title 16 of the Fortuna Municipal Code. The Director shall be the approval authority for both the tentative and final map. a. Exception. No dedication of rights-of-way or construction of offsite improvements shall be required for an urban lot split. This exception shall only apply to the extent that Government Code section 66411.7 precludes the city from requiring dedications of rights-of-way or construction of offsite improvements. This Business Agenda Item 5c
section shall not preclude denial of an urban lot split if the project would have a specific adverse impact on either public health and safety or on the physical environment unless the applicant dedicates rights-of-way or constructs offsite improvements.
C — Grounds for Denial
The Director shall deny an application for an urban lot split if any of the following are true:
1. Development and Subdivision Standards. The lot to be split does not satisfy the requirements of subsection “B” (Development and Subdivision Standards) or subsection “D” (Standards Specific to Urban Lot Splits) of this section.
2. Zone. The lot to be split is not zoned for single family residential uses. If the lot is designated as a Specific Plan area, then it will be considered to be zoned for residential uses under this section if the lot is within a portion of the Specific Plan where a single family residence is a permitted use.
3. Statutory Exemptions. The lot to be split does not satisfy the requirements of
Government Code section 65913.4(a)(6)(B)–(K). (See Government Code section
66411.7(a)(3)(C).)
4. Inspection.
a. Very High Fire Hazard Severity Zone. For lots within a very high fire hazard severity zone, the application does not include proof of an inspection by the City’s building official or other City designee confirming full compliance all existing fire and building code standards.
b. Earthquake Fault Zone. For lots within a delineated earthquake fault zone, the application does not include proof of an inspection by the City’s building official or other City designee confirming full compliance with applicable seismic protection building code standards. Such inspection shall include all standard City requirements for development within an earthquake fault zone.
5. Historic Properties and Districts. The lot to be split is a historic property or within a historic district that is included on the State Historic Resources Inventory or the lot to be split is within a site that is designated by ordinance Business Agenda Item 5c
as a city landmark or as a historic property or within a historic district.
6. Prior Urban Lot Split. The lot to be split was established through a prior urban lot split, or the lot to be split is adjacent to a 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.
7. Impact on Protected Housing. The urban lot split requires or includes the demolition or alteration of any of the following types of housing:
a. Housing that is income-restricted for households of moderate, low, or very low income.
b. Housing that is subject to any form ofrent or price control through a public entity’s valid exercise of its police power.
c. Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Government Code sections 7060–7060.7) at any time in the 15 years prior to submission of the urban lot split application.
d. Housing that has been occupied by a tenant in the last three years.
8. Lot Size.
a. The lot to be split is smaller than 2,400 square feet. b. Either resulting lot is less than 1,200 square feet. c. Either resulting lot is more than 60 percent or less than 40 percent of the original lot area.
9. Unit Count. Either or both of the resulting lots will have more than two units. For purposes of this section, a “unit” is any type of dwelling, including but not limited to an ADU or JADU, except to the extent such definition is determined to be inconsistent with Government Code section 66411.7.
10. Easements. The applicant does not convey all easements required for the provision of public services and facilities.
11. Specific Adverse Impacts. If the Director makes a written finding, based on a preponderance of the evidence, that the project would have a Business Agenda Item 5c
“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.
a. A specific adverse impact includes, but is not limited to, the following:
i. The subdivision or development within the MSHCP Area, which is based on the specific and defined environmental impacts on protected species and habitat, as well as
established procedures for mitigating and avoiding such impacts as set forth in the MSHCP.
ii. Any lot split which results in a driveway or other
vehicular access that does not provide safe access into traffic or onto the lot from traffic.
b. Because Government Code section 66411.7 precludes the City from requiring any dedication of rights-of-way or
construction of offsite improvements, the Director shall deny any application where either dedication of rights-of-way and/or construction of offsite improvements is necessary to satisfactorily mitigate a specific adverse impact, including but not limited to where a subdivision or development of property would
otherwise require a dedication for sidewalk, parkways, curbs, gutters, street and road improvements or other traffic
improvements.
c. The City Council may establish additional guidelines that set forth circumstances where a project will have a specific adverse impact on either the public health and safety or on the physical environment. Nothing herein shall hinder or constrain the Director’s discretion to make written findings, based on a preponderance of the evidence, that a project would have a specific adverse impact on either public health andsafety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.
12. Not Feasible For Residential Use. If either resulting lot is not feasible for residential use.
13. No Legal Requirement. If for any reason, including but not limited to Business Agenda Item 5c
repeal of Government Code section 66411.7, initiative or referendum, court decision or any circumstance in which section 66411.7 does not obligate the ministerial approval of an urban lot split, or if for any reason the Directoris not required to ministerially approve an urban lot split.
D — Standards Specific to Urban Lot Splits
1. Applicability. The following development standards shall apply to urban lot splits subject to approval underthis Chapter. This section shall govern in the event of a conflict between this section and any other development standard contained outside of Chapter 17.09.
2. Lot Access. Each resulting lot must have direct access to the public right-of-way, which shall be shown on the tentative and final map.
3. Unit Quantity. No more than two units of any kind are permitted on any lot created by 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 Chapter 17.09.030 (SB 9 Two-Unit Projects), an ADU or a JADU.
4. Unit Size. Notwithstanding any other provisions of the Zoning Regulation, a unit other than an ADU or JADU on any lot resulting from an urban lot split shall be limited as follows:
a. The total floor area of each residential unit developed on a lot to be split must be less than or equal to 800 square feet and more than 500 square feet.
b. A primary dwelling that was legally established prior to the urban lot split and that is larger than 800 square feet in floor area is limited to the lawful floor area and structural footprint at the time of the urban lot split. It may not be expanded.
c. A primary dwelling that was legally established prior to the urban lot split and that is smaller than 800 square feet in floor area may be expanded to 800 square feet in floor area after the urban lot split.
5. Setbacks.
a. Subject to subsections (b) and (c) below, development on either or both of the resulting lots does must comply with all standard Business Agenda Item 5c
setbacks for its location.
b. Only to the extent necessary to avoid a conflict with Government Code section 66411.7, 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.
c. A unit may encroach into the side or rear setback only if strict application of the setback standard would have the effect of physically precluding the construction of two units of up to 800 square feet on a resulting parcel, in which case the encroachment into the setback shall be only as necessary to enable construction of the unit or units at a maximum size of 800 square feet.
However, in no event may any unit be constructed without at least providing a four-foot setback from the side and rear lot lines.
6. Parking. Subject to Government Code section 66411.7(e)(3)(A)-(B), each new primary dwelling unit that is built on a lot after the urban lot split must provide at least one off-street parking space per unit. This section does not preclude an applicant from complying with the City’s standard parking requirements.
7. Utilities. Each dwelling unit on the resulting lots must have its own direct utility connection to the utility service provider.
a. For each dwelling unit on the resulting lots that is or that is proposed to be connected to an onsite wastewater treatment system, the applicant must: (1) demonstrate that each primary dwelling unit will have its own septic tank and leach line; (2) submit a percolation test completed within the last five years or, if the percolation test has been recertified, within the last 10 years.
This section shall not be interpreted to allow an onsite water treatment system where a sewer connection is available or where the property is required to connect to sewer.
E — Separate Conveyance
1. Within Resulting Lots. Within a resulting lot:
a. Dwelling units on a single lot that is created by an urban lot split may not be owned or conveyed separately from each other.
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b. Condominium airspace divisions and common interest developments are not permitted on a lot that is created by an urban lot split. c. All fee interest in a lot must be held equally and undivided by all individual property owners.
2. Between Resulting Lots. 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 and are sufficient to allow separate conveyance. If any attached structures span or will span the new lot line, the owner must record appropriate conditions, covenant, restrictions, easements or other documentation that is necessary to allocate risk and responsibility between the owners of the two lots.
F — Restriction of Uses
1. Residential-only. No non-residential use is permitted on any lot created by an urban lot split.
2. 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.
3. Owner Occupancy. The applicant for an urban lot split must 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.
G — Deed Restriction
1. Required Provisions. An urban lot split shall not become effective unless the owner records a deed restriction with senior-lien priority for the benefit of the City, in a form acceptable to the Director and the City Attorney, that provides constructive notice of the restrictions resulting from an urban lot split and does each of the following:
a. Gives notice that the parcel was created through an urban lot split. b. Gives notice of any site limitations resulting from the urban lot split, including but not limited to the size of units on the parcel and the allowable uses for the parcel.
c. Expressly prohibits any development or construction on the parcel that Business Agenda Item 5c
would be inconsistent with this Chapter.
d. Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days.
e. Expressly prohibits any non-residential use of the lots created by the urban lot split.
f. Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.
g. Identifies the City as an intended third-party beneficiary with the right, but not the obligation, to enforce its terms and provisions.
2. Mortgagee Consent and Subordination.
a. The owner shall obtain the consent of any person holding a security interest in the lot, or any other senior lienholder, to subordinate such interest to the deed restriction, and the subordination agreement shall be recorded together with the deed restriction.
b. The Director may require the owner to submit a title report, litigation guarantee or similar document in order to show proof that the deed restriction will be in senior position.
3. Recordation. The deed restriction and any subordination agreement shall be recorded concurrently with the final map. Submitting a final map for approval shall be deemed to be the applicant’s consent to the City to record the deed restriction with the final map.
4. Building Permit. The Director shall not issue a building permit for development on any lot created through an urban lot split unless the applicant provides a recorded copy of a deed restriction and any applicable subordination agreement that satisfies the provisions set forth in subsections “1” – “3” above.
H — Review for Parcel Merger or Reversion to Acreage
1. Grounds. For any lot created by an urban lot split, the City Council may initiate proceedings to effectuate a reversion to acreage or a lot merger in accordance with the Subdivision Map Act and any applicable City procedures. City staff shall review whether a reversion to acreage or parcel merger is warranted if any of the following have occurred:
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a. If more than one year has elapsed since the lot was created and a building permit for residential development thereon has not been issued; b. The holder of a building permit does not commence construction within 18 months of the date the permit was issued; or
c. The lot is otherwise subject to a reversion to acreage or a lot merger.
17.09.030 – SB 9 – Two-Unit Projects
A — Applicants; Approving Authority
1. Owners/Lienholders. Only individual property owners may apply for a two-unit project. Any person with a security interest in, or other senior lien against, the lot to be developed with a two-unit project must consent and subordinate to recordation of the restrictions resulting from the two-unit project against the title of the property.
2. Application. An application for a two-unit project must be submitted on the City’s approved form. Only a complete application will be considered. The City’s application form shall, at a minimum, require the applicant to submit the following:
a. Evidence that the applicant is an individual property owner. b. If applicable, compliance with the consent and subordination requirements provided in subsection (A above.
c. Proof that none of the circumstances set forth in sub-subsection “6” (Historic Properties and Districts) of subsection “C”(Grounds for Denial) of this section and sub-subsection “7” (Impact on Protected Housing) of subsection “C” (Grounds for Denial) of this section are present. d. A signed affidavit indicating that the applicant acknowledges and agrees that the lot will be used for residential purposes only. e. Proof of any inspections required under sub-subsection “5” (Inspection) of Subsection “C” (Ground for Denial) of this section.
f. Proof that the requirements of sub-subsection 4(d) (Demolition Cap) of subsection “D” (Standards Specific to Two-Unit Projects) are satisfied. g. If the lot would result in the demolition or alteration of existing housing, proof that no housing on the lot has been occupied by a tenant within the Business Agenda Item 5c
last three years.
h. A title report, litigation guarantee or other documentation showing evidence of any senior security interests or liens against the property.
3. Application Fee. The City may establish a fee to recover its costs for adopting, implementing, and enforcing this Chapter, in accordance with applicable law. The City Council may establish and change the fee by resolution. The fee must be paid with the application. In the absence of a fee specific to two-unit projects, the applicant shall pay the fee related to site plan review. The fee may be in the form of a deposit for the City’s actual costs incurred. Nothing in this section shall limit the requirements to pay any other City fees, including building permit processing fees.
B — Objective Development Standards
A two-unit project shall comply with all requirements of this Chapter, all objective development standards set forth in this Code or otherwise established by the City, and all other requirements that are not in conflict with Government Code section 65852.21.
C — Grounds for Denial
The Director shall deny an application for a two-unit project if any of the following are true:
1. Development Standards. The two-unit project does not satisfy the requirements of subsection “B” (Objective Development Standards) or subsection “D” ( Standards Specific to Two-Unit Projects) of this section.
2. Lawful Subdivision. The lot was not legally subdivided.
3. Zone. The lot is not zoned for single-family residential uses. If the lot is designated as a Specific Plan area, then it will be considered to be zoned for residential uses under this section if the lot is within a portion of the Specific Plan where a single family residence is a permitted use.
4. Statutory Exemptions. The lot does not satisfy the requirements of Government Code section 65913.4(a)(6)(B)–(K). (See Government Code section 66411.7(a)(3)(C).)
5. Inspection.
a. Very High Fire Hazard Severity Zone. For lots within a high fire hazard severity zone, the application does not include proof of an inspection by the City’s building official or other City designee confirming full compliance with all existing fire and building code standards.
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b. Earthquake Fault Zone. For lots within a delineated earthquake fault zone, the application does not include proof of an inspection by the City’s building official or other City designee confirming full compliance with applicable seismic protection building code standards. Such inspection shall include all standard City requirements for development within an earthquake fault zone.
6. Historic Properties and Districts. The lot is a historic property or within a historic district that is included on the State Historic Resources Inventory or is within a site that is designated by ordinance as a city landmark or as a historic property or within a historic district.
7. Impact on Protected Housing. The two-unit project requires or includes the demolition or alteration of any of the following types of housing:
a. Housing that is income-restricted for households of moderate, low, or very low income.
b. Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power.
c. Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Government Code sections 7060–7060.7) at any time in the 15 years prior to submission of the urban lot split application.
d. Housing that has been occupied by a tenant in the last three years.
8. Unit Count. The applicant proposes to construct more than two units, to add a unit to a lot that already contains two or more units, to add two or more units to a lot with at least one existing unit, or the lot violates sub-section “2” (No Multifamily Dwellings) of subsection “D” ( Standards Specific to Two-Unit Projects) of this section.
9. Specific Adverse Impacts. If the Director 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. a. A specific adverse impact includes, but is not limited to, the two-unit project would result in a driveway or other vehicular access that does not provide safe access into traffic or onto the lot from traffic.
b. The City Council may adopt, by resolution or ordinance, guidelines that set forth additional circumstances that create a rebuttable presumption that a Business Agenda Item 5c
project will have a specific adverse impact on either the public health and safety or on the physical environment. Nothing herein shall hinder or constrain the Director’s discretion to make written findings, based on a preponderance of the evidence, that a 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.
10. No Legal Requirement. If for any reason, including but not limited to repeal of Government Code section 65852.21, initiative or referendum, court decision or any circumstance in which section 65852.21 does not obligate the ministerial approval of a two-unit project, or if for any reason the Director is not required to ministerially approve a two-unit project.
D — Standards Specific to Two-Unit Projects
1. Applicability. The following development standards shall apply to two-unit projects approved under this Chapter. This section shall govern in the event of a conflict between this section and any other development standard contained outside of Chapter
17.09. 2. No Multifamily Dwellings. A two-unit project shall not result in the creation of a multifamily dwelling. “Multifamily dwelling” or “multifamily lot” means a property that has two (2) or more permitted attached dwellings on a single lot. Two-unit projects shall only consist of two detached dwellings on a single lot.
3. Dedications/Offsite Improvements. The applicant shall dedicate right-of-way and impose offsite improvements as would be required for any subdivision dividing the property into two lots or as otherwise would be required under any City law, regulation or policy, including but not limited to the dedication of right- of-way for, and/or improvement of, sidewalks, curb, gutter, streets, or stormwater facilities.
4. Unit Size. A unit developed under this Chapter shall be limited as follows:
a. The total floor area of each unit that is developed under this Chapter must be: (1) less than or equal to 800 square feet and (2) more than 500 square feet.
b. A unit that was legally established on the lot prior to the two-unit project and that is larger than 800 square feet in floor area is limited to the lawful floor area and structural footprint at the time of the two-unit project. The unit may not be expanded.
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c. A unit that was legally established prior to the two-unit project and that is smaller than 800 square feet in floor area may be expanded to 800 square feet in floor area after or as part of the two-unit project.
5. Demolition 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.
6. Setbacks.
a. Subject to subsections “b” and “c” below, all setbacks must comply with the standard setbacks for its location.
b. Only to the extent necessary to comply with Government Code section 65852.21, 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. c. A unit may encroach into the side or rear setback only if strict application of the setback standard would have the effect of physically precluding the construction of up to two units on the lot or that would result in a unit size of less than 800 square feet in floor area, in which case the encroachment into the setback shall be only as necessary to enable construction of the unit or units at a maximum size of 800 square feet in floor area. However, in no event may any unit be constructed without at least providing a four foot setback from the side and rear lot lines.
7. Parking. Subject to Government Code section 65852.21(c)(1)(A)-(B), each new primary dwelling unit must provide at least one off-street parking space per unit. This section does not preclude an applicant from complying with the standard parking requirements of the Development Code.
8. Nonconforming Conditions. A two-unit project may only be approved if all nonconforming zoning conditions are corrected.
9. Utilities. Each dwelling unit on the lot must have its own direct utility connection to the utility service provider.
a. Each dwelling unit on the lot that is or that is proposed to be connected to an onsite wastewatertreatment system, the applicant must: (1) demonstrate that each primary dwelling unit will have its own septic tank and leach line; (2) submit a percolation test completed within the last five years or, if the percolation test has been recertified, within the last 10 years. This section shall not be interpreted to allow an onsite water treatment system where a Business Agenda Item 5c
sewer connection is available or required.
E — Separate Conveyance
1. Separate Ownership or Conveyance. Primary dwelling units on the lot may not be owned or conveyed separately from each other.
2. Condominiums. Condominium airspace divisions and common interest developments are not permitted within the lot.
3. Fee Interests. All fee interest in the lot and all the dwellings must be held equally and undivided by all individual property owners.
F — Restriction of Uses
1. Residential-only. No non-residential use is permitted on the lot.
2. No Short-Term Rentals. No dwelling unit on the lot may be rented for a period of less than 30 days.
3. Owner Occupancy. Unless the lot was formed by an urban lot split, the individual property owners of a lot with a two-unit project must occupy one of the dwellings on the lot as the owners’ principal residence and legal domicile.
G — Deed Restriction
1. Required Provisions. The owner must record a deed restriction with senior priority for the benefit of the City, in a form acceptable to the Director and the City Attorney that provides constructive notice of the restrictions resulting from the two-unit project and does each of the following:
a. Gives notice that the two-unit project was created pursuant to this Chapter. b. Gives notice of any site limitations resulting from the two-unit project, including but not limited to restrictions on off-street parking, the size of units on the parcel and on the ability to obtain a standards modification for the parcel.
c. Expressly prohibits any development or construction on the parcel that would be inconsistent with this Chapter.
d. Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days.
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e. Expressly prohibits any non-residential use of the lot. f. Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.
g. 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.
h. Identifies the City as an intended third-party beneficiary with the right, but not the obligation, to enforce its terms and provisions.
2. Mortgagee Consent and Subordination.
a. The owner shall obtain the consent of any person holding a security interest in the lot, or any other senior lienholder, to subordinate such interest to the deed restriction, and the subordination agreement shall be recorded together with the deed restriction.
b. The Director may require the owner to submit a title report, litigation guarantee or similar document in order to show proof that the deed restriction will be in senior position.
3. Building Permit. The Director shall not issue a building permit for any two-unit project unless the applicant provides a recorded copy of a deed restriction and applicable subordination agreement that satisfies the provisions set forth in subsections 1 – 2 of this subsection “G”.