Fremont City Council Meeting: 06/20/23 07:00 PM
3300 Capitol Avenue Div/Dept: Community Development
Fremont, CA 94538 Category: Code Adoptions & Amendments
SCHEDULED
Sponsors:
COUNCIL STAFF REPORT (ID # 4930) DOC ID: 4930
Updated: 6/15/2023 11:34 AM by Alberto Quintanilla Page 1 2023 ACCESSORY DWELLING UNIT ZONING TEXT AMENDMENT – CITYWIDE (PLN2023-00218) - Public Hearing (Published Notice) to consider a Zoning Text Amendment to repeal and replace Fremont Municipal Code (FMC) §18.190.005 (Accessory Dwelling Units) to comply with new state law as well as carry out program implementation from the City’s 2023-2031 Housing Element and amend other various sections of the FMC for internal consistency; and to consider exemptions for the project from the requirements of the California Environmental Quality Act (CEQA), each on a separate and independent basis, pursuant to CEQA Guidelines §15061 (Review for Exemption), §15183 (Projects Consistent with a Community Plan, General Plan, or Zoning), §15282 (Other Statutory Exemptions), and §15378 (Project).
Contact Persons:
Name: Mayank Patel Dan Schoenholz
Title: Associate Planner Community Development Director Div/Dept: Community Development Community Development
Phone: (510) 494-4450 510-494-4438
E-Mail: [email protected] [email protected]
Executive Summary: A key component of the City’s strategy for meeting its future housing needs, as outlined in the City’s recently adopted 2023-2031 Housing Element, is to encourage the production of Accessory Dwelling Units (ADUs) in existing single-family and multi-family residential neighborhoods. Implementation Program 31 of the Housing Element calls for amending the City’s existing ADU Ordinance to eliminate unnecessary development standards and make other amendments that would facilitate production. Staff has prepared a draft ordinance that addresses Implementation Program 31, making the City’s ADU regulations simpler to understand, and easier to comply with. The draft ordinance is also driven by state law and the proposed amendments would bring the City’s ADU regulations into compliance with the most recent changes to ADU legislation. The proposed ordinance would repeal and replace the City’s current ADU Ordinance, codified in Fremont Municipal Code (FMC) §18.190.005. Additionally, the ordinance would amend various other chapters of the FMC for internal consistency.
On May 11, 2023, the Planning Commission held a public hearing to consider the proposed amendments and voted 5-0, with two commissioners absent, to recommend that the City Council adopt the proposed ordinance.
BACKGROUND: Per Government Code §65852.150, the California Legislature found and declared that, among other things, allowing ADUs in zones that allow single -family and multifamily uses provides additional rental housing and is an essential component in addressing California’s housing needs. The California Department of Housing and Community Development (HCD) also notes that ADUs and junior accessory dwelling units (JADUs) are a flexible form of housing that can help Californians more easily access job- rich, high-opportunity areas. As such, over the years, state ADU law has been revised to improve its effectiveness at creating more ADUs and JADUs.
Council Staff Report (ID # 4930) Meeting of June 20, 2023 Updated: 6/15/2023 11:34 AM by Alberto Quintanilla Page 2
Previous Update to Fremont’s ADU Ordinance
The City has amended its ADU regulations multiple times over the past several years in response to changes in state ADU law. The last set of code amendments were considered by the Planning Commission on March 11, 2021, and ultimately adopted by the City Council on April 20, 2021.1 As part of the 2021 code amendments, the City Council approved, per the Planning Commission’s recommendation, amendments to FMC §18.190.005, Accessory Dwelling Units. The 2021 amendments clarified lot coverage, rear and side yard encroachment, and first-to-second-story ratio requirements for ADUs on lots with a new or existing single-family house.
Housing Element Requirements
The City, as part of its General Plan Housing Element, must include programs to make adequate provisions for the housing needs of all economic segments of the community. The City’s sixth cycle Housing Element, which covers the eight-year planning period from 2023 to 2031 and was certified by the State on March 22, 2023, includes a handful of programs that involve ADUs. Specifically, Program 31 calls for amending the zoning ordinance to facilitate the production of ADUs. The proposed zoning text amendments would help implement this program, and other related programs, of the City’s current Housing Element.
Additional discussion on Housing Element programs related to ADUs is provided later in this Staff Report. These programs are intended to build upon the City’s recent success in encouraging ADU production. ADU production has increased dramatically from 34 ADUs permitted in 2018 to 149 ADUs permitted in 2022.
Recent and Future Legislation
As part of its goal to address the state-wide housing crisis, rising housing costs, and shortage of affordable housing options in California, the State Legislature continues to pass bills aimed at facilitating local approval processes for ADUs and lifting regulations that may otherwise limit ADUs. AB 671 (Friedman), which went into effect in 2020 and is codified under Government Code §65583, requires local agencies to include plans to incentivize and promote the creation of ADUs. Several ADU-related bills were passed as part of the 2022 legislative session. The most notable are: 1) Assembly Bill (AB) 2221; and 2) Senate Bill (SB) 897. Both bills took effect on January 1, 2023, and necessitated revisions to the City’s existing ADU Ordinance.
AB 2221
AB 2221 (Quirk-Silva) contains clean-up language and clarifications to reduce permitting hurdles. For example, AB 2221:
• Expressly requires local agencies to “approve or deny” an ADU application within 60 days of completeness determination. Jurisdictions that deny an ADU application must now provide a full set of comments to the applicant with a list of items that are deficient and a description of how the application can be remedied.
1 Ordinance No. 05-2021
Council Staff Report (ID # 4930) Meeting of June 20, 2023 Updated: 6/15/2023 11:34 AM by Alberto Quintanilla Page 3 • Expands the definition of “permitting agency” to include any entity involved in the review of an ADU permit, rather than simply the agency responsible for issuing the permit. This change makes clear that other agency departments, as well as special districts (i.e., water, sanitary) are subject to the 60-day deadline following a completeness determination.
• Clarifies that the construction of an ADU (attached or detached) cannot trigger a requirement to install fire sprinklers in an existing multifamily dwelling.
• Adds front setbacks to the list of objective development standards that local agencies are precluded from imposing if the setbacks would prevent construction of an ADU that is no greater than 800 square feet.
SB 897
SB 897 (Wieckowski) includes clarifications pertaining to things such as demolition permits, parking requirements, building code occupancy requirements, and number of detached ADUs allowed on lots with a proposed multifamily dwelling. However, the key aspect of this bill is the increase in the minimum height limits that a local agency may impose on ADUs.
Specifically, SB 897 provides minimum height limits of:
• 16 feet for detached ADUs on the same lot with an existing or proposed single- family or multifamily dwelling;
• 18 feet for detached ADUs located on a lot that is within one-half of one mile of a major transit stop, or detached ADUs on lot with an existing or proposed multistory, multifamily dwelling); and
• 25 feet or the underlying zoning district height limit, whichever is lower for attached ADUs.
Although the law introduces the potential for two-story ADUs if certain conditions are met, it ensures that a local agency is not required to permit three-story ADUs.
2023 Legislative Session
Over the last few months, several ADU bills have been introduced to the 2023 legislative session. Some of the proposed legislation includes permanently removing owner-occupancy requirements, exempting ADUs from separate metering requirements, and requiring the California Housing Finance Agency, which administers the ADU Program, to develop program recommendations and report on ADU funding to the State Legislature. If any of these bills come to pass, the City may have to amend its ADU ordinance in the future to comply with the respective changes in state law. City Staff is monitoring the proposed legislation and expects there to be ongoing legislation proposed related to ADUs and other housing topics.
Council Staff Report (ID # 4930) Meeting of June 20, 2023 Updated: 6/15/2023 11:34 AM by Alberto Quintanilla Page 4 Department of Housing and Community Development (HCD) – Review Required
Per Government Code §65852.2(h), the City is required to submit a copy of its ADU Ordinance to HCD within 60 days after adoption. HCD may submit written findings to the City as to whether the adopted ordinance complies with state law. If the City’s ordinance is found to be out of compliance with state law, the City has no longer than 30 days to respond to HCD’s findings and consider HCD’s findings to amend its ordinance. If the City does not make changes and implements an ordinance that does not comply with state law, HCD may refer the matter to the Attorney General.
Staff has made a good faith effort to prepare an ordinance that is in complete compliance with state ADU law. However, ADU laws are highly complex and nuanced, and there is a possibility that HCD may interpret Government Code §§ 65852.2 and 65852.22 differently than the way said statutes are incorporated into the local ordinance. In the event that the City’s revised ADU Ordinance is found out of compliance with state law, Staff will prepare an amendment for consideration by the Planning Commission and City Council.
With the intent and spirit of meeting state law and seeking HCD’s guidance, Staff submitted a draft of the City’s ADU ordinance to HCD on April 10, 2023, and requested a courtesy review. HCD is not required to respond to a draft, and, at the time of writing this Staff Report, Staff did not receive guidance from HCD on the draft ADU ordinance.
Planning Commission Hearing
On May 11, 2023, the Planning Commission held a public hearing to consider the proposed amendments and voted 5-0, with two commissioners absent, to recommend that the City Council adopt the proposed ordinance. There were no public comments on the item. The Planning Commission asked a few clarifying questions including, but not limited to, maximum height limits, front-yard setbacks, and how, if at all, the ADUs regulations relate to developments under Senate Bill 92.
DISCUSSION/ANALYSIS:
Current ADU Ordinance
The City’s current ADU ordinance requires amendments to remain consistent with recently adopted state housing laws pertaining to ADUs. Staff is currently enforcing state law when reviewing proposed ADUs even though City zoning regulations have yet to be updated to incorporate recent changes in the state law. Key provisions of the City’s ADU ordinance that must be revised to achieve compliance include rules on the allowable height of an ADU, the number of ADU’s associated with a single-family dwelling, and front yard setbacks for ADU’s no greater than 800 square feet. Furthermore, in response to Program 31 of the City’s recently adopted Housing Element, the proposed ADU ordinance includes measures intended to streamline the production of ADUs by allowing additional floor area on many lots and simplifying the processing of ADUs, where possible under state law.
Proposed FMC Text Amendments
The proposed FMC text amendments would update sections of FMC Titles 9 (Public Peace, Morals, and Welfare) and 18 (Planning and Zoning), and rescind and replace the existing ADU ordinance, FMC §18.190.005, as summarized below.
2 Codified under Government Code §65411.7 and §65852.21.
Council Staff Report (ID # 4930) Meeting of June 20, 2023 Updated: 6/15/2023 11:34 AM by Alberto Quintanilla Page 5 Table 1. Summary of Amendments
Section Topic Description FMC Reference
1 Rent Review
Program
Eliminate incorrect reference to JADU
definition.
FMC §9.60.050
2 Single Family
Dwelling
Update definition for clarification. FMC §18.25.960
3 ADUs Update definition to better reflect
state law.
FMC §18.25.983
4 JADUs Update definition to better reflect
state law.
FMC §18.25.986
5 Permitted Uses in
Residential Zoning
Districts
Replace “Standard accessory dwelling
units” with “Accessory dwelling units”
and alphabetize Table 18.90.080
accordingly.
FMC Table 18.90.080
6 Required Parking
Spaces
Clarify ADU parking requirements. FMC Table
18.183.030
7 Tandem Parking Remove reference to ADUs. FMC §18.183.175 8 ADU Regulations Rescind and replace the existing ADU Ordinance to comply with recent state
law as well as clarify and simplify
regulations to incentivize and
promote the production of ADUs. A
few key changes/updates include:
• Clarification on the maximum
number of ADUs associated
with a single-family dwelling.
• Uniform maximum size for
detached ADUs associated with
a single-family dwelling.
• Elimination of parking
requirements per state law
(i.e., SB 897).
• Increase in maximum building
heights for certain ADUs.
FMC §18.190.005
General Plan Conformance
The proposed amendments would be consistent with the General Plan and the following goal, policy, and programs contained in the Housing Element:
Housing Element Goal 3.
Promote Production of New Affordable and Market-Rate Housing.
Council Staff Report (ID # 4930) Meeting of June 20, 2023 Updated: 6/15/2023 11:34 AM by Alberto Quintanilla Page 6 Housing Element Policy 3.03.
Promote Housing Development in Highest Resource Neighborhoods.
Housing Element Program 31. Amend Regulations to Facilitate Production of ADUs.
The City shall amend the zoning ordinance to facilitate the production of ADUs, including removal of unnecessary aesthetics-based standards for rear yard ADUs that will not be easily viewable from the public right of way, and elimination of minimum size requirements to allow for innovative and efficient ADU designs, The City shall consider amending the zoning ordinance and building code to develop standards to allow tiny homes to be permitted in residential districts.
Housing Element Program 33. Add Intensity in High Resource Single-Family Neighborhoods near Transit.
The City shall develop a program or overlay designation that allows for the development of additional ADUs within specific high-resource neighborhoods within the City. The specific areas subject to this zoning modification shall be refined as part of the implementing ordinance. The ordinance shall allow at least two (2) ADUs and one (1) JADU on each single-family zoned lot, although staff shall consider allowing additional ADUs as development of the ordinance progresses. This program shall serve the needs of low-income households sensitive to displacement in transit-oriented neighborhoods, as identified in the fair housing analysis.
Analysis
The proposed amendments would update the City’s land use regulations for consistency with applicable state laws, and facilitate production of ADUs as called for in Housing Element Program 31. The ordinance would allow production of additional ADUs on lots in accordance with state law, Housing Element Policy 3.03, and Housing Element Program 33. ADUs are inherently affordable in comparison to single family homes, and therefore, promoting additional construction of ADUs would conform to Housing Element Goal 3.
Findings for Approval
In accordance with FMC Chapter 18.225, amendments to the Zoning Ordinance must be heard by both the Planning Commission and City Council. Pursuant to FMC §18.225.060, having received the recommendation of Planning Commission, the City Council must make the findings specified in FMC §18.225.050 and provided below:
1) The proposed amendment is consistent with the General Plan and, where the amendment is to the text of the General Plan, it is consistent with the other policies and chapters.
Analysis: The proposed amendments would be consistent with the General Plan because: 1) The proposed amendments would address zoning fundamentals by enhancing definitions, update the City’s land use regulations to achieve consistency with state law, and support compatible land uses; and 2) The proposed amendments would also help implement programs (i.e., Programs 31 and 33) from the City’s 2023-2031 Housing Element.
Council Staff Report (ID # 4930) Meeting of June 20, 2023 Updated: 6/15/2023 11:34 AM by Alberto Quintanilla Page 7 2) The proposed amendment furthers the public interest, convenience, and general welfare of the city.
Analysis: The proposed amendments would further the public interest, convenience and general welfare of the City because: 1) The proposed amendments would provide internal consistency within the Fremont Municipal Code; 2) The proposed amendments would ensure that the City’s planning and zoning regulations comply with state law; 3) The proposed amendments would provide for zoning district uses and development standards that are relevant to current development trends, easy to use, flexible and equitable, and ensure the health and safety of Fremont residents; 4) ADUs and JADUs are a flexible form of housing that can help individuals more easily access job-rich, high-opportunity areas; and 5) ADUs give homeowners the flexibility to share independent living areas with family members and others, allowing seniors to age in place, thus helping extended families stay together.
FISCAL IMPACT: Not applicable.
ENVIRONMENTAL REVIEW: The proposed amendments are exempt from the requirements of the California Environmental Quality Act (CEQA), pursuant to, without limitation, each on a separate and independent basis, CEQA Guidelines:
1. §15061 (Review for Exemption) in that it can be seen with certainty that there is no possibility that the proposed amendments will have the potential for causing a significant effect on the environment.
2. §15183 (Projects Consistent with a Community Plan, General Plan, or Zoning) in that the proposed amendments are consistent with the development densities and policies in Fremont’s General Plan, for which an Environmental Impact Report (EIR) [SCH #2010082060] was certified, and existing zoning. The proposed amendments do not involve peculiar impacts that were not previously analyzed or discussed as significant effects in prior EIR(s) on the general plan and zoning with which the project is consistent, there are no previously identified significant effects which are substantially more severe than analyzed in in the prior EIR(s) or cannot be substantially mitigated by the imposition of uniformly applied development policies or standards applied on a citywide basis, and many of the proposed amendments are necessary to conform with state law. Any conceivable impact of the proposed amendments would be too speculative for reasoned analysis in the absence of specific development proposals.
3. §15282(h) (ADU Ordinance Statutory Exemption) in that the proposed amendments involve the adoption of an ordinance regarding second units (i.e., accessory dwelling units) in a single-family or multifamily residential zone by a city or county to implement the provisions of Government Code §§ 65852.1 and 65852.2 as set forth in Public Resources Code §21080.17.
4. §15378 (Project) in that the proposed amendments are an organizational or administrative activity that will not result in direct or indirect physical changes in the environment.
Council Staff Report (ID # 4930) Meeting of June 20, 2023 Updated: 6/15/2023 11:34 AM by Alberto Quintanilla Page 8 ATTACHMENTS:
• Draft ADU Ordinance
• Draft Planning Commission Meeting Minutes (2023.05.11)
RECOMMENDATIONS:
1. Hold public hearing.
2. Find that the proposed text amendments to the Fremont Municipal Code are exempt from the requirements of the California Environmental Quality Act (CEQA), each on a separate and independent basis, pursuant to CEQA Guidelines §15061 (Review for Exemption), §15183 (Projects Consistent with a Community Plan, General Plan, or Zoning), §15282(h) (ADU Ordinance Statutory Exemption), and §15378 (Project).
3. Find that the proposed amendments are consistent with the General Plan.
4. Find that the proposed amendments further the public interest, convenience, and general welfare of the city by ensuring consistency between the FMC and the City’s General Plan and with state law, and provide for zoning district uses and development standards that are relevant to current development trends, easy to use, flexible and equitable, and ensure the health and safety of Fremont residents.
5. Introduce an ordinance approving amendments to FMC Title 9 (Public Peace, Morals and Welfare) and Title 18 (Planning and Zoning).
6. Direct Staff to document the findings and recommendation of the Planning Commission to the City Council and to prepare, and the City Clerk to publish, a summary of the ordinance.