(1) The accessory dwelling unit is located within one-half mile walking distance of public transit. For the purposes of this section “public transit” shall include any bus stop. (2) The accessory dwelling unit is located within an architecturally and historically significant historic district.
(3) The accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure.
(4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
(5) When there is a designated, fixed pick-up or drop-off location for a car share vehicle located within one block of the accessory dwelling unit. (6) When a permit application for an accessory dwelling unit is submitted with a permit application to create a new single-family dwelling or a new multi-family dwelling on the same lot, provided that the accessory dwelling unit or the parcel satisfies any other criteria listed in this subsection (c).
(d) Junior Accessory Dwelling Units. Junior accessory dwelling units constructed within the existing or proposed space of a single-family dwelling shall conform to the following objective standards:
(1) Building Permit. Prior to constructing a junior accessory dwelling unit per this subsection, the applicant must apply for a building permit. The application shall be considered and approved, without discretionary review or a hearing, notwithstanding Government Code Section 65901 or 65906 or regulation of variances or special use permits and be in compliance with all requirements imposed by this subsection (d).
(A) Plan Review. The city shall approve or deny an application to create or serve a junior accessory dwelling unit under this subsection (d) within sixty days from the date the city receives a completed building permit application if there is an existing singlefamily dwelling on the lot. If the application to create or serve a junior accessory dwelling unit is submitted in conjunction with an application to create a new singlefamily or multifamily dwelling unit on the lot, the city may delay approving or denying the application for the junior accessory dwelling unit until the city approves or denies the application to create or serve the new single-family or multi-family dwelling, but the application to create or serve the junior accessory dwelling unit shall be considered without discretionary review or hearing. If the applicant requests a delay, the sixty-day time period shall be tolled for the period of the agreed-upon delay. If the city has not approved or denied the completed application within sixty days, the application shall be deemed approved.
(B) Denial. If the permitting agency denies an application for a junior accessory dwelling submitted pursuant to subdivision (d)(1)(A), the permitting agency shall, within the time period of subdivision (d)(1)(A), return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant. The permitting agency shall not deny an application for a permit to create a junior accessory dwelling unit due to the correction
of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit.
(2) Building Code Requirements. Junior accessory dwelling units shall be constructed on a permanent foundation and shall be built in compliance with the California Building Code. Junior accessory dwelling units shall comply with local building code requirements that apply to detached dwellings, except that the construction of an accessory dwelling unit shall not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code (Title 24 of the California Code of Regulations), unless the building official makes a written finding based on substantial evidence in the record that the construction of the accessory dwelling unit could have a specific, adverse impact on public health and safety. Nothing in this clause shall be interpreted to prevent city from changing the occupancy code of a space that was unhabitable space or was only permitted for nonresidential use and was subsequently converted for residential use pursuant to this section. (3) Areas Allowed. Junior accessory dwelling units shall be permitted on a lot that is allowed to permit any proposed or existing single-family dwelling in the R1 and GH residential zones subject to compliance with this subsection (d).
(4) Number of Junior Accessory Dwelling Units Allowed. Only one junior accessory dwelling unit shall be allowed in any residential zone within one proposed or existing in addition to a single-family dwelling per lot. No junior accessory dwelling unit shall be permitted on any residential lot already containing three or more dwelling units. (5) Owner-Occupied. The main dwelling or the junior accessory dwelling unit shall be owneroccupied. Notwithstanding the foregoing, owner-occupancy shall not be required if the owner is another governmental agency, land trust, or housing organization. (6) Rental. If the junior accessory dwelling unit is available for rent, the rental of the accessory dwelling unit shall be for a term longer than thirty days. (7) Cannot Be Sold Separately. The junior accessory dwelling unit may be rented separate from the primary residence, but may not be sold or otherwise conveyed separate from the primary residence.
(8) Maximum and Minimum Size. The junior accessory dwelling unit is restricted to a maximum of five hundred square feet and a minimum size of one hundred fifty two hundred twenty square feet.
(9) Constructed Within Existing Structures. Junior accessory dwelling units must be constructed within the walls of the proposed or existing single-family residence. Enclosed uses within the residence, such as attached garages, are considered part of the proposed or existing single-family residence.
(10) Entrance. A junior accessory dwelling unit must include a separate entrance from the main entrance to the proposed or existing single-family residence. If a junior accessory dwelling unit shares a bathroom with the primary dwelling, the junior accessory dwelling unit must provide an
interior entry to the primary dwelling’s main living area independent of the exterior entrance to the junior accessory dwelling unit and primary dwelling. (11) Efficiency Kitchen. At a minimum, a junior accessory dwelling unit must include an efficiency kitchen, which shall include a cooking facility with appliances and a food preparation counter and storage cabinets that are of reasonable size in relation to the size of the junior accessory dwelling unit.
(12) Parking. No additional parking shall be required as a condition to grant the building permit. (13) Fire or Life Protection. A junior accessory dwelling unit shall not be considered a separate or new dwelling unit for the purpose of any fire or life protection. (14) Utility Connections. For the purposes of providing service for water, sewer, or power, including a connection fee, a junior accessory dwelling unit shall not be considered a separate or new dwelling unit.
(15) Nonconforming Zoning Conditions. An existing structure converted to accommodate a junior accessory dwelling unit under this section shall not require the correction of any legal nonconformity that may exist on the property as a requirement of approval. Illegal nonconformities shall be subject to Section 21.56.050 “Unlawful uses and structures.” (16) Certificate of Occupancy. The city shall not issue a certificate of occupancy for an accessory dwelling unit before a certificate of occupancy has been issued for the primary dwelling. (17) Covenant. A covenant containing restrictions below shall be recorded with the county recorder’s office and copies of the recorded covenant shall be filed with the building department.
(A) Either the main dwelling or the junior accessory dwelling unit shall be owneroccupied except if the owner is a governmental agency, land trust, or housing organization.
(B) The junior accessory dwelling unit shall not be sold separately from the main dwelling unit.
(C) The junior accessory dwelling unit shall be as approved. No changes to the junior accessory dwelling unit shall occur without approval of a new building permit. (D) The rental term of the accessory dwelling unit shall not be less than thirty days. (E) This covenant shall run with the land and shall be binding upon any future owners, heirs, or assigns.
(F) The restrictions shall be binding upon any successor in ownership of the property and lack of compliance with this provision may result in legal action against the property owner including revocation of any right to maintain a junior accessory dwelling unit on the property.
(18) Garage Conversion. If an applicant for a Junior Accessory Dwelling Unit garage conversion chooses to remove the vehicular access door of a garage that is proposed to be converted to an
accessory dwelling unit and replace it with a new solid wall, the new wall shall be built in compliance with the California Building Code and California Energy Code and should match the rest of the existing dwelling unit in terms of exterior color and material and types of windows and doors.
(e) Special Regulations for Multi-Family and Mixed-Use Accessory Dwelling Units. In addition to the requirements under subsections (a) through (c), accessory dwelling units attached to, or located within existing multi-family dwelling structures, or new construction accessory dwelling units in a multi-family residential or mixed-use zones shall conform to the following:
(1) At least one accessory dwelling unit shall be allowed within an existing multi-family dwelling and up to twenty-five percent of the existing multi-family dwelling units. Multiple accessory dwelling units shall be allowed within the portions of existing multi-family 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 unit complies with state building standards for dwellings.
(2) Not more than two accessory dwelling units that are located on a lot that has an existing multi-family dwelling, but are detached from that multi-family dwelling and are subject to a height limit of eighteen feet and four-foot rear yard and side setbacks shall be allowed. An additional two feet in height shall be allowed to accommodate a roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the primary dwelling unit. (f) Accessory Dwelling Units Constructed Before January 1, 2018. This section shall not apply to a building that is deemed substandard pursuant to Section 17920.3 of the Health and Safety Code. (1) Except as provided in subdivision (f)(2), the permitting agency shall not deny a permit for an unpermitted accessory dwelling unit that was constructed before January 1, 2018, due to either of the following:
(A) The accessory dwelling unit is in violation of building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code.
(B) The accessory dwelling unit does not comply with Section 65852.2 or any local ordinance regulating accessory dwelling units.
(2) Notwithstanding subdivision (f)(1), the permitting agency may deny a permit for an accessory dwelling unit subject to subdivision (f)(1) if the permitting agency makes a finding that correcting the violation is necessary to protect the health and safety of the public or occupants of the structure.
(g) Definitions. As used in this section, the following terms mean:
(1) “Accessory dwelling unit” 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. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multi-family dwelling is or will be situated. An accessory dwelling unit also includes the following:
(A) An efficiency unit.
(B) A manufactured home, as defined in Section 18007 of the Health and Safety Code. (2) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot.
(3) “Efficiency unit” has the same meaning as defined in Section 17958.1 of the Health and Safety Code.
(4) “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. (5) “Local agency” means a city, county, or city and county, whether general law or chartered. (6) “Neighborhood” has the same meaning as set forth in Section 65589.5. (7) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards.
(8) “Objective standards” means standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal.
(9) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit.
(10) “Permitting agency” means any entity that is involved in the review of a permit for an accessory dwelling unit or junior accessory dwelling unit and for which there is no substitute, including, but not limited to, applicable planning departments, building departments, utilities, and special districts.
(11) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
(12) “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. (13) “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.
…
SECTION 5
If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the ordinance. The City Council declares that it would have passed this ordinance and each and every section,
subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would subsequently be declared invalid or unconstitutional.
SECTION 6
The City Clerk shall certify to the adoption of this ordinance and cause it to be published as required by law. This ordinance shall become effective thirty (30) days after the date of its adoption. When this ordinance becomes effective, Urgency Ordinance No. 1596 shall be null and void.
PASSED, APPROVED AND ADOPTED THIS 3RD DAY OF OCTOBER, 2023.
ATTEST:
________________________ ________________________
Rick Miller, City Clerk Kim Constantine, Mayor
APPROVED AS TO FORM
HARPER & BURNS LLP
___________________________
Attorneys for the City
City of Fountain Valley
CITY OF FOUNTAIN VALLEY
CITY COUNCIL
COUNCIL ACTION REQUEST
To: Honorable Mayor and Agenda Date: September 19, 2023 Members of the City Council
SUBJECT: Public Hearing and Introduction: Code Amendment No. 23-02 – An Amendment To Fountain Valley Municipal Code Section 21.08.055 For Accessory Dwelling Units (ADU’s)
Three-Year Strategic Goals
☒ Enhance the culture and environment of “A Nice Place to Live” ☐ Attract and retain revenue producing businesses
☐ Achieve fiscal stability in accordance with the 20-Year Financial Plan ☐ Attract and retain quality staff
☐ Not applicable
EXECUTIVE SUMMARY
On April 27, 2023, the city received a letter from the California Department of Housing and Community Development (HCD) noting the city’s ADU Ordinance, which was approved on February 7, 2023 through Ordinance No. 1597, was non-compliant with sections 65852.2, 65852.22, and 65852.26 of the California Government Code (Attachment #1). The six areas requiring changes to the City’s ADU Ordinance include regulations on zoning, height allowance, separate sale, visibility, accessory structures, and minimum size.
On June 7 2023, staff met with HCD to discuss their findings on Fountain Valley’s ADU Ordinance. The discussion also revealed other areas of concern from HCD that must be changed to comply with state law including regulations on building separation, garage doors for garage conversions, and Junior ADU’s.
The attached Ordinance incorporates changes noted by HCD in the letter dated April 27, 2023 as well as the changes discussed with HCD on June 7, 2023 (Attachment #2).
At the Planning Commission meeting of August 9, 2023, the Planning Commission voted 5-0 approving Resolution No. 23-18 recommending the City Council approve Code Amendment No. 23-02. Staff recommends the City Council conduct a public hearing and introduce the attached Ordinance approving Code Amendment No. 23-02 to amend Fountain Valley Municipal Code (FVMC) 21.08.055 for ADU’s.
DISCUSSION
On December 20, 2022, the Fountain Valley City Council adopted Urgency Ordinance No. 1596 compliant with legislation approved by Governor Newsom in 2022, Assembly Bill (AB)
Council Action Request
Code Amendment No. 22-06 Accessory Dwelling Units Ordinance City Council Meeting January 17, 2023
2221 and Senate Bill (SB) 897, which became effective on January 1, 2023. Shortly thereafter, on February 7, 2023, the City Council adopted Ordinance No. 1597 approving an ADU ordinance compliant with AB 2221 and SB 897, thus replacing and making Urgency Ordinance No. 1596 null and void.
On February 28, 2023, the city sent Ordinance No. 1597 to the Department of Housing and Community Development (“HCD”) through the email address [email protected] as required by Government Code Section 65852.2(h) and the city received confirmation of the receipt of Ordinance No. 1597 on the same day.
On April 27, 2023, the city received a letter from HCD stating that, in HCD’s opinion, Ordinance No. 1597 was non-compliant with sections 65852.2, 65852.22, and 65852.26 of the California Government Code (Attachment #1). The letter also states that the city must provide a written response to the letter by May 26, 2023. The letter outlines six (6) areas where Fountain Valley’s ADU Ordinance is deficient as described below and the cities response to each area.
1. Section 21.08.055 (a)(4) – Zoning – The Ordinance states, “Accessory Dwelling Unit(s) shall be permitted on a residentially zoned parcel…” However, Government Code section 65852.2, subdivision (a)(1) and (a)(1)(D)(ii), requires ADUs “within areas zoned to allow single family or multifamily use”. Referring only to “residentially zoned” parcels may inadvertently omit mixed use zones. To promote clarity, the City should rewrite this section to mirror State ADU Law.
City Response – Edits were made to (a)(4) and (b)(4) noting that ADU’s shall be permitted in areas zoned to allow for single-family or multifamily dwelling residential use on lots that include an existing or proposed dwelling.
2. Section 21.08.055 (a)(5)(B), (b)(5)(B), (b)(13) – Height Allowance – The Ordinance describes a unit subject to Government Code section 65852.2, subdivision (e)(1)(B), in several different situations. Each reference includes a height maximum of 16 feet.
However, Government Code section 65852.2, subdivision (e)(1)(B), directly refers to subdivision (c)(2)(D), which increases height maximums under certain conditions. The City must amend the language to reflect current State ADU Law.
City Response - Edits made to (a)(5)(B), (b)(5)(B), and (b)(13) to remove the height limitation from the code. Section (b)(17) was amended to reflect state law regarding maximum height allowed for an ADU.
3. Section 21.08.055 (a)(7), (b)(7) – Separate Sale – The Ordinance prohibits separate sale of an ADU. However, Government Code section 65852.26 creates a narrow exception to allow separate conveyance of an ADU to a qualified buyer if the property was built or developed by a qualified nonprofit corporation, among other things. The City must amend the Ordinance to reflect State ADU Law.
City Response - Edits made to (a)(7), (a)(14), (b)(7), and (b)(23) regarding sale/conveyance under 65852.26. This California Government Code Section allows for an ADU to be sold or conveyed separately from the primary residence to a qualified buyer if the ADU or primary dwelling was
Council Action Request
Code Amendment No. 22-06 Accessory Dwelling Units Ordinance City Council Meeting January 17, 2023
built/developed by a qualified nonprofit corporation, there is an enforceable restriction on the land that the ADU be sold to low-income families for a restricted 30 years, the property is held pursuant to a recorded tenancy in common agreement, a grant deed naming the grantor, grantee, and describing the property interests being transferred is recorded, and if requested by the utility the ADU has separate water, sewer, and electrical to the utility. The edits to the Fountain Valley ADU Ordinance were made by the City Attorney’s Office and comply with Government Code Section 65852.26.
4. Section 21.08.055 (a)(18), (b)(9), (b)(12) – Visibility – The Ordinance prohibits entry for an ADU “onto, or parallel to, a front or side yard public street…” and requires entries to be screened “as not to be visible from the public right-of-way”. It states, “Staircases for two-story attached accessory dwelling units shall be internal...” It later states that detached ADUs “must clearly subordinate by location and size.” However, State law requires that ADUs and junior accessory dwelling units (JADUs), have an independent entry into the unit (Gov. Code, § 65852.2, subd. (e)(1)(a)(ii) and Gov. Code, § 65852.22, subd. (a)(5)). A constraint on the location of an entry door, including provisions necessary to serve entry on a second-floor unit, such as external staircases, are excessively constraining. Furthermore, “clearly subordinate” is a subjective term. Government Code section 65852.2, subdivision (a)(6), states that, “a local agency shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units.” The Ordinance also indicates that a detached ADU “must be located in the rear yard.” However, local development standards, regarding location of the ADU as well as visibility, that are provided by the Ordinance pursuant to Government Code section 65852.2, subdivisions (a) through (d), may not preclude ADUs created under Government Code section 65852.2, subdivision (e). Therefore, the City must remove these sections.
City Response - Edits made to a(18), (b)(9), and (b)(12) regarding entrances/location. HCD also required that our ADU Ordinance note that these sections do not apply to ADU’s created under Section 65852.2, subdivision (e) which applies to internal units, JADU’s, and detached ADU’s that are 800 square feet or less. This means that internal units, JADU’s, and detached ADU’s that are 800 square feet or less cannot be limited to two entrances and detached ADU’s less than 800 square feet can provide a building separation from the main dwelling less than 10 feet.
5. Section 21.08.055 (b)(8)(D) – Accessory Structure – The Ordinance states “The maximum unit sizes outlined in this section… shall include an existing or proposed garage space if designated for the accessory dwelling unit.” However, Government Code section 65852.2, subdivision (j)(1), defines ADUs as “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. It shall include 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.” A garage is not included in the ADU definition. Further, in relation to provisions for living, subdivision (j)(4) defines the “living area” to mean the interior habitable space of a dwelling unit, including basements and attics but does not include garages.
Council Action Request
Code Amendment No. 22-06 Accessory Dwelling Units Ordinance City Council Meeting January 17, 2023
Therefore, garages may not be included in square footage calculation toward an ADU.
The City must remove this provision.
City Response - Edits made to (b)(8)(D) to address garage size only when designated for an ADU.
6. Section 21.08.055 (b)(8)(A) – Minimum Size – The Ordinance permits a minimum size of 220 square feet for an ADU. However, Government Code section 65852.2, subdivision (j)(1)(A), provides that ADUs may be efficiency units. Government Code section 65852.2, subdivision (j)(3), then defines “efficiency unit” as having the same definition as Section 17958.1 of the Health and Safety Code, which permits a minimum size of 150 square feet. Therefore, the City must amend the language to reflect State statute.
City Response – Edits made to (b)(8)(A) and (d)(8) to min size of 150.
On May 26, 2023, staff notified HCD that updates would be prepared for Planning Commission and City Council consideration this summer. Additionally on June 7, 2023, staff had an informal meeting with HCD to discuss their findings that Fountain Valley’s Ordinance does not comply with State ADU Law. Lastly, during the discussion with HCD, other areas of concern were discussed including building separation, garage doors for garage conversions, and Junior ADU’s (JADU’s).
Building Separation
Fountain Valley’s existing ADU Ordinance requires a building separation of 10 feet between the main dwelling unit and a detached ADU. However, per Government Code Section 65852.2 notes that no development standard shall apply that would not permit at least an 800 square foot ADU with 4 foot setbacks. Therefore, the proposed ordinance requires a 10 foot building separation between the main dwelling unit and a detached ADU, similar to any other detached structure in Fountain Valley, unless the ADU is 800 square feet or less.
Garage Doors for Garage Conversions
Fountain Valley’s existing ADU Ordinance requires that the garage doors of a garage that has been converted to an accessory dwelling unit shall be removed and replaced with a structural wall. Government Code Section 65852.2 notes that garage conversions are ministerial approvals, meaning they require only a building permit, and subjective requirements such as the architectural compatibility of requiring a garage door to be replaced with a solid wall are not allowed. Therefore, the proposed ordinance eliminates any language requiring garage door replacement for a garage conversion. In this scenario, garage doors may remain visible from the outside of the garage with a false insulated wall on the inside of the garage or, if an applicant chooses, the garage door can be replaced with a new solid wall.
Either way, the garage conversion space must meet certain Building Code and Energy Code requirements for a habitable conditioned space.
Junior ADU’s
Fountain Valley’s existing ADU Ordinance requires that JADU’s are permitted in the R1 and GH zone. Per Government Code Section 65852.22, JADU’s are permitted on a lot where a single-family residences are permitted. Per FVMC 21.08.030, single-family dwellings are permitted in the R1, GH, and R2 zone. Upon review with HCD, rather than name the zones
Council Action Request
Code Amendment No. 22-06 Accessory Dwelling Units Ordinance City Council Meeting January 17, 2023
where JADU’s are permitted, the proposed ordinance simply states that JADU’s are permitted in any residential zone with one proposed or existing single-family dwelling per lot.
State Review
State law requires that all local ADU ordinances be sent to the Department of Housing and Community Development (HCD) within 60 days after adoption. After adoption of an ordinance, HCD may submit written findings to the local agency as to whether the ordinance complies with state law. If HCD finds that the local agency’s ordinance does not comply with state law, HCD will notify the local agency and will provide the local agency with a reasonable time, no longer than 30 days, to respond to the findings before taking any other action authorized by state law, including notifying the Attorney General that the local agency is in violation of state law.
Although, HCD does not provide preapproval for ADU Ordinances prior to Planning Commission and City Council review, specific direction was provided to staff regarding compliance with state law during our informal meeting on June 7, 2023. This does not, however, preclude further comments from arising from HCD if Code Amendment 23-02 is adopted by City Council and sent to the State for another review as required by state law.
General Plan Consistency
The proposed ordinance will promote and encourage the development of a variety of housing opportunities to accommodate current and projected households by promoting the construction of additional dwelling units to accommodate Fountain Valley’s share of regional housing needs in accordance with adopted land use policies (General Plan Housing Element Goal #1/Policy 1.1). Also, the ordinance will be consistent with California Government Code 65852.2, 65852.22, and Title 21 and would not create any inconsistencies with Title 21, in the case of a title amendment.
FINANCIAL REVIEW
There is no financial impact associated with approving the proposed code amendment.
This Ordinance will simply bring the City’s ADU Ordinance into compliance with the findings from HCD to provide consistency with state law.
PUBLIC NOTIFICATION
The item was published in the Fountain Valley View and public notices were posted at City Hall, Recreation Center, and Fountain Valley Library.
ENVIRONMENTAL IMPACT REVIEW
Adoption of this Ordinance is exempt from the California Environmental Quality Act (“CEQA”) under Public Resources Code section 21080.17 [statutory exemption for second unit ordinances]; CEQA Guidelines sections 15282(h) [statutory exemption for second unit ordinances]; 15303 [new construction or small structures] and 15305 [minor alterations to land]. This ordinance is also exempt per CEQA Guidelines section 15061, because this ordinance will not have a significant effect on the environment, because
Council Action Request
Code Amendment No. 22-06 Accessory Dwelling Units Ordinance City Council Meeting January 17, 2023
ADU’s will largely constitute infill housing which is exempt from CEQA (Attachment #3).
ATTORNEY REVIEW
The Attorney for the City has reviewed the attached Ordinance.
ALTERNATIVES
Alternative No. 1: Introduce the attached Ordinance approving a categorical exemption per the California Environmental Quality Act (CEQA) and approving Code Amendment No. 23-02 to amend the Fountain Valley Municipal Code (FVMC) Section 21.08.055 for accessory dwelling units.
Alternative No. 2: Do not introduce the attached Ordinance approving a categorical exemption per the California Environmental Quality Act (CEQA) and approving Code Amendment No. 23-02 to amend the Fountain Valley Municipal Code (FVMC) Section 21.08.055 for accessory dwelling units.
RECOMMENDATION
Staff is requesting City Council approval of Alternative No. 1 to introduce the attached Ordinance approving a categorical exemption per the California Environmental Quality Act (CEQA) and approving Code Amendment No. 23-02 to amend the Fountain Valley Municipal Code (FVMC) Section 21.08.055 for accessory dwelling units.
Prepared by: Steven Ayers, Principal Planner
Reviewed by: Omar Dadabhoy, Community Development Director Approved by: Maggie Le, City Manager
Attachments:
1. HCD Letter dated April 27, 2023
2. Ordinance for Code Amendment No. 23-02
3. Notice of Exemption
CITY OF FOUNTAIN VALLEY
Planning Department
10200 Slater Avenue, Fountain Valley, CA 92708
714-593-4425 – fountainvalley.org
Notice of Exemption_________________________________________________ TO: Office of Planning and Research FROM: City of Fountain Valley P.O. Box 3044, Room 113 10200 Slater Avenue
Sacramento, CA 95812-3044 Fountain Valley, CA 92708
County Clerk
County of Orange
12 Civic Center Plaza
Santa Ana, CA 92701
Project Title: _________________________________________________________________________ Project Location/Address: ______________________________________________________________ Project Activity/Description: _____________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ Public Agency Approving Project: City of Fountain Valley, Orange County, California Project Applicant: _____________________________________________________________________ Project Applicant’s Address: ___________________________________Phone Number: ____________ _____________________________________________________________________________ Exempt Status: (check one):
Ministerial (Sec. 21080 (b)(1); 15268);
Declared Emergency (Sec. 21080 (b((3); 15269 (a));
Emergency Project (Sec. 21080 (b)(4); 15269 (b) (c));
Categorical Exemption. State type and section number: _________________________________ Statutory Exemptions. State code number: ___________________________________________ Reasons why project is exempt: __________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ Lead Agency Contact Person: ___________________________ Contact Phone: _____________________________ If filed by applicant:
1. Attach certified document of exemption finding.
2. Has a Notice of Exemption been filed by the public agency approving the project?: Yes No Signature: ________________________________ Date: _____________ Title: ___________________ Signed by Lead Agency Signed by Applicant
Accessory Dwelling Units - Code Amendment No. 23-02
City of Fountain Valley - Citywide
An amendment to the Fountain Valley Municipal Code
(FVMC) Section 21.08.055 for Accessory Dwelling Units (ADU's).
City of Fountain Valley
10200 Slater Ave., Fountain Valley, CA 92708 (714)593-4425 15303, 15305, 15061
Public Resources Code 21080.17, CEQA 15282(h)
This request is exempt from CEQA under Public Resources Code section 21080.17 {statutory exemption for second unit ordinances]; CEQA Guidelines sections 15282(h) [statutory exemption for second unit ordinances]; 15303 [new construction or small structures] and 15305 [minor alterations to land]. This ordinance is also exempt under CEQA Guidelines section 15061, because this ordinance will not have a significant effect on the environment, because ADUs will largely constitute infill housing which is exempt from CEQA.
Steven Ayers, Principal Planner 714-593-4431
CITY OF FOUNTAIN VALLEY
CITY COUNCIL
COUNCIL ACTION REQUEST
To: Honorable Mayor and Agenda Date: October 3, 2023
Members of the City Council
SUBJECT: Adopt a Resolution (1) Reversing the Planning Commission’s Decision to Uphold Issuance of Dish Network’s Administrative Permit, (2) REVOKING THE Administrative Permit, and (3) Affirming the Planning Commission’s Decision to Issue a Stop Work Order
Three-Year Strategic Goals
☒ Enhance the culture and environment of “A Nice Place to Live” ☐ Achieve fiscal stability by evaluating processes, and attract and retain revenue producing businesses/opportunities
☐ Attract and retain quality staff through best practices and trends ☐ Maintain, build, and modernize infrastructure to support growth and future needs of the City
☐ Not applicable
EXECUTIVE SUMMARY:
This is a Resolution confirming and providing written findings in support of the City Council’s decision following the appeals of Lyle Scheppele and Dish Networks that were heard by the City Council at its September 19, 2023 meeting.
DISCUSSION:
On June 10, 2023, Lyle Scheppele submitted an appeal of the Community Development Director’s decision to issue an Administrative Permit for Dish Network’s wireless facility. The Planning Commission considered Mr. Scheppele’s appeal and upheld the decision of the Community Development Department to issue an Administrative Permit. The Planning Commission also issued a Stop Work Order.
Mr. Scheppele appealed the Planning Commission’s decision to affirm the Administrative Permit and DISH appealed the Planning Commission’s decision to issue a Stop Work Order.
The City Council conducted a public hearing on September 19, 2023 to hear Mr. Scheppele’s and DISH’s appeals and, by a vote of 5-0, approved the appeal submitted by Mr. Scheppele challenging the Administrative Permit and denied DISH’s appeal of the Stop Work Order.
State law and the Municipal Code require such decisions to be supported by written findings that “bridge the analytical gap” between the evidence heard and decision rendered. A Statement of Decision
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October 3, 2023
containing such findings is attached to, and incorporated into, the Resolution.
The Resolution reverses the Planning Commission’s decision upholding the Community Development Director’s grant of the Administrative Permit and revokes the Administrative Permit. It also affirms the Planning Commission’s decision to issue a Stop Work Order. Because the Building Permit was not separately appealed and was not agendized for consideration, no action is taken on the Building Permit.
Note that, as proposed, the Resolution provides that DISH is not required to remove the Facility until DISH has exhausted its right to judicial review, including any appeals, or until said right expires. DISH is required to remove its Facility within 90 days of the exhaustion or expiration of its right to judicial review.
FISCAL REVIEW:
There is no fiscal impact related to this item.
PUBLIC NOTIFICATION:
This appeal was a noticed public hearing. Adoption of this confirming resolution was noticed pursuant to the Ralph M. Brown Act.
ENVIRONMENTAL IMPACT REVIEW:
Not applicable.
ATTORNEY REVIEW:
The Attorney for the City prepared the Statement of Decision and this Staff Report.
ALTERNATIVES:
Alternative No. 1:
Alternative No. 2:
RECOMMENDATION:
Adopt a Resolution (1) Reversing the Planning Commission’s decision to uphold issuance of Dish Network’s Administrative Permit, (2) Revoking the Administrative Permit, and (3) Affirming the Planning Commission’s decision to Issue a Stop Work Order
Amend the attached Resolution
Staff recommends the City Council approve Alternative No. 1: Adopt a Resolution (1) Reversing the Planning Commission’s decision to uphold issuance of Dish Network’s Administrative Permit, (2) Revoking the Administrative Permit, and (3) Affirming the Planning Commission’s decision to Issue a Stop Work Order
Prepared by: Colin Burns, Attorney for the City
Fiscal review by: Ryan Smith, Finance Director
Approved by: Maggie Le, City Manager
Attachment:
1. Resolution
RESOLUTION NO._____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
FOUNTAIN VALLEY REVERSING THE PLANNING
COMMISSION’S DECISION TO UPHOLD ISSUANCE OF AN
ADMINISTRATIVE PERMIT AND AFFIRMING THE PLANNING
COMMISSION’S DECISION TO ISSUE A STOP WORK ORDER
FOR THE CONSTRUCTION OF A WIRELESS
TELECOMMUNICATIONS FACILITY LOCATED AT HARPER
PARK AT 8675 BLUE BIRD AVENUE
WHEREAS, Brian De La Ree with Core Communications, working on behalf on Dish Wireless (“DISH”), submitted an application for an Administrative Wireless Communication Facilities permit to install a wireless communication facility on an Southern California Edison Company (SCE) transmission tower ; and
WHEREAS the DISH project consisted of the installation of nine (9) wireless antennas at a height of 54 ft. above grade on the SCE electrical transmission tower, along with a 10 ft. by 10 ft. block wall enclosure to house the associated electrical equipment under the base of the electrical transmission tower; and
WHEREAS, the DISH Project is located on parcel #112-100-87 as identified by the State Board of Equalization; and
WHEREAS, staff reviewed the request for an Administrative Permit and approved the Administrative Wireless Communication Facilities Permit No. 22-09 on September 13, 2022; and
WHEREAS, an application was filed for a building permit on October 12, 2022 and Building Permit No. 2022-1705 was issued on February 8, 2023; and WHEREAS, on June 10, 2023, Lyle Scheppele submitted an appeal of the Community Development Director’s decision to issue the Administrative Permit and to not issue a stop work order for construction of the facility; and WHEREAS, the Planning Commission considered Scheppele’s appeal and upheld the decision of the Community Development Department to issue an Administrative Permit and issued a Stop Work Order; and
WHEREAS, Mr. Scheppele timely appealed the Planning Commission’s decision to affirm the issuance of an Administrative Permit and DISH timely appealed the Planning Commission’s decision to issue a Stop Work Order; and
WHEREAS, per FVMC Section 21.60.050(f), an appeal hearing shall be considered a hearing de novo and the review authority may consider any issue(s) associated with the appeal, in addition to the specific grounds for the appeal.
WHEREAS, the City Council conducted a duly noticed public hearing on September 19, 2023 to hear Mr. Scheppele’s and DISH’s respective appeals, in accordance with FVMC
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Section 21.60.050(a)(3); and
WHEREAS, on September 19, 2023, the City Council took testimony from Mr.
Scheppele, DISH, and the public; and
WHEREAS, by a vote of 5-0, the City Council approved the appeal submitted by Mr.
Scheppele challenging the Administrative Permit and denied DISH’s appeal of the Stop Work Order.
NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
SECTION 1
The City Council finds that due notice of the public hearings in the Council Chambers, City Hall, 10200 Slater Avenue, was given as required by the Fountain Valley Municipal Code (FVMC), Title 21, and the Statutes of the State of California.
SECTION 2
The City Council adopts the Statement of Decision attached as Exhibit A as its findings and conclusions on the appeal and incorporates Exhibit A into this Section 2 by this reference as if fully set forth herein.
SECTION 3
The City Council reverses the Planning Commission’s decision upholding the Community Development Director’s grant of the Administrative Permit and revokes the Administrative Permit.
SECTION 4
The City Council affirms the Planning Commission’s decision to issue a Stop Work Order.
SECTION 5
This decision of the City Council is final. The time within which judicial review must be sought is governed by California Code of Civil Procedure Section 1094.6.
SECTION 6
DISH is not required to remove the Facility until DISH has exhausted its right to judicial review, including any appeals, or until said right expires. DISH shall remove its Facility within 90 days of the exhaustion or expiration of DISH’s right to judicial review.
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October 3, 2023
PASSED, APPROVED AND ADOPTED this 3rd day of October 2023, by the following vote:
AYES:
NAYS:
ABSENT:
ABSTAIN:
__________________________________
Kim Constantine, Mayor
ATTEST:
___________________________
Rick Miller, City Clerk
APPROVED AS TO FORM
HARPER & BURNS LLP
___________________________
Attorneys for the City
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October 3, 2023
EXHIBIT A
STATEMENT OF DECISION
This is an appeal of the Planning Commission’s decision (1) upholding the Community Development Director’s decision to issue Administrative Wireless Communication Facilities Permit 22-09 (“Administrative Permit”) for the wireless communications facility located at 8675 Bluebird Avenue (“Facility”) and (2) issuing a Stop Work Order.
For the reasons stated below, the City Council (1) reverses the Planning Commission’s decision affirming the Community Development Director’s decision to issue an Administrative Permit (stated differently, the City Council reverses the approval of the Administrative Permit and revokes the permit) and (2) affirms the Planning Commission’s decision to issue a Stop Work Order.1
Background
The Facility is attached to an existing Southern California Edison ("Edison") electrical tower. The Facility includes an equipment shelter within the perimeter of the base of the Edison tower and antennas attached to the tower. On May 12, 2022, DISH submitted the Administrative Permit application and the Community Development Department issued the Administrative Permit on September 13, 2022. (September 19, 2023 letter from Morgan Gallagher of Cox Castle & Nicholson LLP (hereafter “Gallager letter”); September 19, 2023 Staff Report from Alex Halfman (hereafter “Halfman Report”).) The Building Permit for the Facility was issued on February 8, 2023. (Gallager letter.) Construction at the site began on or about April 24, 2023, and green construction fencing was installed around the perimeter of the Edison tower in support of construction activities at that time. (Gallager letter.) City Building Permit inspections occurred on May 18, 2023, May 19, 2023, May 26, 2023, and May 31, 2023. (Gallager letter.) At the time of the Council hearing, Construction of the Facility is nearly complete. The only outstanding task is installation of steel brackets by Edison on the Edison tower and fastening the antennas to those brackets. (Gallager letter.)
On June 10, 2023, Lyle Scheppele submitted an appeal arguing that DISH should have obtained a conditional use permit instead of an Administrative Permit (“Appeal”). On August 9, 2023, the Planning Commission upheld the Community Development Director's issuance of the Administrative Permit but issued a Stop Work Order. (Gallager letter.) Scheppele appealed the Planning Commission’s decision to uphold issuance of the Administrative Permit and DISH appealed the Planning Commission’s decision to issue a Stop Work Order.
At issue in the appeal is (1) whether an Administrative Permit or Conditional Use 1 A Building Permit was also issued to DISH for the Facility. The Building Permit was not separately appealed and was not listed on the agenda. Therefore, the City Council takes no action on the Building Permit.
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Permit was the proper method of reviewing DISH’s application, (2) whether Scheppele’s appeal of the Administrative Permit was timely (§ II of Gallager letter), (3) whether DISH obtained a vested right under State law (§ III of Gallager letter), (4) whether the Spectrum Act’s 60-day “shot clock” bars City from reversing the approval of the Administrative Permit (§ IV of Gallager letter), (5) whether the Administrative Permit was properly issued (§ V of Gallager letter), and (6) whether issuance of the Stop Work Order was proper (§ V of Gallager letter).
1. Administrative Permit or Conditional Use Permit
21.28.090 of the Municipal Code provides for review and approval of facilities on private property. There are three methods. Two of those three methods are discretionary:
Administrative Permit and Conditional Use Permit. The third method or option is nondiscretionary and applies to certain eligible facilities requests. None of the parties contend at the Council appeal that this matter concerns an eligible facilities request. Further, the parties have taken the position that the application was for facilities on private property.
Therefore, Council will review the appeal for compliance with 21.28.090.
Appellant Scheppele contends a Conditional Use Permit was required for the Project.
DISH contends the Administrative Permit was proper.
Administrative Permits may be used for, “[w]ireless communications facilities that are fully assimilated to surroundings, or collocated on an existing antenna-supporting structure[.]” (FVMC 21.28.090(a).) Here, the DISH facilities are not fully assimilated. (Scheppele PPT 26-31.) They are also not “collocated” on an existing antenna-supporting structure. “Collocation” means “mounting or installation of transmission equipment on an eligible support structure … and includes the mounting or installation of additional wireless transmission equipment at an existing wireless facility.” (21.28.020.) The SCE electrical tower is not an “existing wireless facility” because, prior to DISH, no wireless infrastructure was located on the tower. It is also not an “eligible support structure” because eligible support structure requires a tower2 or base station3. The definitions of “tower” and “base 2 “Tower” means any structure built for the sole or primary purpose of supporting any FCC-licensed or - authorized antenna, including any structure constructed for wireless communications service. This term does not include a base station. (FVMC 21.28.020)
3 “Base station” means a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment located on a tower. Base station includes, without limitation:
(a) Equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(b) Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems (“DAS”) and small-cell networks).
(c) Any structure other than a tower that, at the time the relevant application is filed with the city under this section, supports or houses equipment described in subsections (a) and (b) above and has been
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October 3, 2023
station” contemplate an existing wireless facility or facilities built for the sole purpose of supporting wireless antenna or equipment.
Conditional Use Permits are issued for “new freestanding wireless communication facilities that are not collocated on existing structures (i.e., new towers), or proposed substantial changes (not meeting the definition of an eligible facilities request) to facilities that were previously approved through a conditional use permit[.]” (FVMC 21.28.090(b).) The DISH antenna and equipment are neither “freestanding wireless communications facilities … (i.e., new towers)” or a change (of any type) to a previously approved wireless facility.
Thus, the proposed Facility did not fall squarely within either 21.28.090(a) (for Administrative Permits) or 21.28.090(b) (for Conditional Use Permits). However, regardless of whether the Facility falls into subdivision (a) or (b), Planning Commission review would have been an appropriate procedure because the Administrative Permit subsection allows the Community Development Director to refer a request for an Administrative Permit to the Planning Commission when the project complexity or public interest warrant the referral. (21.28.090(a)(1)(C).) Thus, the matter should have been referred to the Planning Commission. (21.28.090(b)(1).)
2. Timeliness of Appeal
If this matter had gone to the Planning Commission, it would have proceeded as a noticed public hearing (21.28.090(b)(1)) and Scheppele would have received notice of DISH’s application. Scheppele did not receive notice; therefore, the time limit for appealing did not begin to run until Scheppele had actual or constructive notice of a decision on DISH’s application. The same would be true if the matter had properly been processed as an Administrative Permit; no notice would have been provided.
Scheppele offered evidence that June 5, 2023 was the date City responded to his records request and the first date Scheppele received the Administrative Wireless Permit Application, the Administrative Wireless Permit letter, site plan, and other information. (Scheppele testimony, Scheppele PPT at 2.) However, Scheppele’s letter to Colin Burns, dated May 29, 2023, states “I have since requested and received the Administrative Cell Facilities Application for this project, and the plans submitted.” (Agenda Docs at p. 238.) Mr.
Scheppele also testified he did not receive the Administrative Permit until June 5, 2023 and his testimony was unrebutted. A further email from Scheppele to Jenkins, dated June 5, 2023, states, “I received some records … today, related to the Harper Park Dish project including the Planning Department approval.” (Agenda Docs at 253.) Council finds that the weight of the evidence demonstrates that, prior to June 5, 2023, Scheppele had not received the Administrative Permit which constituted the Planning Department’s approval of the Project and, therefore, Mr. Scheppele could not appeal the Administrative Permit determination because he was unaware of the specifics of the Administrative Permit.
Therefore, the appeal was timely.
previously reviewed and approved by the city. (FVMC 21.28.020.)
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October 3, 2023
3. Vested Rights
Notwithstanding that the appeal was timely, DISH argues that it obtained a vested right to build its structure because it constructed an equipment structure after receiving a building permit. A property owner or developer who obtained a valid building permit, completed substantial work, and incurred substantial liabilities in good faith reliance on that permit obtains a vested right to finish the project within the scope of the permit notwithstanding changes to applicable land use regulations. Avco Community Developers, Inc. v. South Coast Reg’l Comm’n (1976) 17 Cal.3d 785, 793. “[W]hile the issuance of a permit may insulate a party against subsequent changes in the law, it cannot create a vested right to construct or use property in violation of laws in effect at the time of issuance of the permit.” Attard v. Bd. of Supervisors of Contra Costa Cty., 14 Cal. App. 5th 1066, 1077, 223 Cal. Rptr. 3d 521, 530 (2017)
Here, no vested right attached to install the antenna or the ground-based equipment because such facilities did not comply with laws in effect at the time the building permit issued. To obtain an Administrative Permit, wireless communications facilities must be “fully assimilated to surroundings, or collocated on an existing antenna-supporting structure[.]” (FVMC 21.28.090(a).) For the reasons previously discussed, DISH’s facilities were neither fully assimilated nor collocated. Further, “[a]ll wireless telecommunications facilities shall be stealth4 unless exempted by federal or state law. Stealthing shall include concealment of any component of the wireless facility. … A wireless communications facility that is not fully assimilated to its surroundings shall be prohibited.” (FVMC 21.28.040(j).) DISH’s facilities are not stealth or fully assimilated and were, therefore, prohibited under the City’s Municipal Code at the time of issuance of the Administrative Permit and at the time of issuance of the building permit. Further, as stated by Mr. Scheppele, the Facility violates the 500-foot setback for ground mounted facilities on private property (as stated above, the parties proceeded under the assumption the Facilities were located on private property). (FVMC
21.28.050(a).) Because the facilities were not permitted under the Municipal Code, no vested right was obtained.
Further, while DISH argues it obtained a vested right by completing its facilities in reliance on the Building Permit, Scheppele presented credible evidence that, at the time DISH was made aware of the challenge to its Facilities, DISH had done no more than dig a hole in the ground. Much of the work done constructing the Facilities was done by DISH with knowledge of the a challenge to its Facilities.
Further, DISH provided no evidence as to the amounts expended on construction before versus after DISH became aware of the challenge to the Facilities; or before or after approval of the Administrative or Building Permits. DISH is a large, publicly traded 4 “Stealth” means “any wireless telecommunications facility that is architecturally integrated into a building or other concealing structure, such that no portion of any antenna, antenna equipment, or any other apparatus associated with the function of the facility is visible. The concealing structure shall have an aesthetically pleasing architectural design which fits into the context of its surroundings.” (FVMC 21.28.020.)
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corporation. Council has weighed the testimony and evidence on the issue of substantial work and substantial liability and determined that the weight of the evidence shows that DISH did not perform substantial work or incur substantial liability to the extend necessary to trigger a vested right. Performing minor ground preparation is the context of this case is not substantial work or the incurrence of a substantial liability. Further, DISH did not provide satisfactory information as to the cost of this Facility, the impact that removal of the Facility would have on DISH, whether DISH could reuse the equipment at another location, the cost of labor, etc.
4. Spectrum Act’s 60-Day Shot Clock
DISH argues “Section 6409(a) of the Spectrum Act requires a city to approve new wireless equipment collocated with an existing tower, mobile or fixed base station, or wireless transmission equipment within 60 days from the date a complete application for the new wireless equipment is filed. (FCC 14-153; Federal Communications Commission Report and Order, Adopted October 17, 2014, WT Docket No. 13-238, 11-59, 13-32.)” (Gallagher letter, p.4) However, the Facilities were not “collocated with an existing tower, mobile or fixed base station, or wireless equipment.” The Facilities were attached to an SCE electrical tower which, prior to DISH’s Facility, had no wireless infrastructure. Further, if the SCE electrical tower could be considered an existing tower, the addition of the base station would constitute a substantial change. Therefore, the 60-day shot clock cited by DISH does not apply.
5. Issuance of the Administrative Wireless Permit.
Because the City Council determined that the appeal was timely and DISH does not have a vested right to complete the Facility, the Council will determine whether to reverse or uphold approval of the Administrative Permit. Because the Facility violates the Code, as discussed above, the City Council reverses the Planning Commission’s decision upholding the Community Development Director’s grant of the Administrative Permit and revokes the Administrative Permit.
6. Stop Work Order
The Municipal Code provides: “[c]onstruction in violation of this code or a condition imposed on an entitlement shall be subject to a ‘stop work order.’” (21.64.027(a).) Because the Administrative Permit was not validly issued and is reversed, construction of the Facility violates the Code. Therefore, the Planning Commission’s decision to issue a Stop Work Order is affirmed.