***DRAFT***
ORDINANCE NO. XX-2023
AN ORDINANCE OF THE CITY OF FREMONT TO REPEAL AND
REPLACE FREMONT MUNICIPAL CODE (FMC) SECTION 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 HOU SING ELEMENT AND AMEND
OTHER, RELATED SECTIONS OF FMC TITLES 9 (PUBLIC PEACE,
MORALS AND WELFARE) AND 18 (P LANNING AND ZONING) FOR
INTERNAL CONSISTENCY; AND MA KING FINDINGS OF CEQA
EXEMPTION (PLN2022-00218).
THE CITY COUNCIL OF THE CITY OF FREMONT DOES ORDAIN AS FOLLOWS:
SECTION 1. FMC §9.60.050, AMENDED
FMC §9.60.050(a) is amended to read as follows:
§9.60.050 Rent review program.
(a) The provisions of this chapter sh all apply to all residential rental units in the city. This chapter shall not apply to hotels, boarding houses, transient accommodations, dormitories, mobile home space renters, junior acce ssory dwelling units as defined in Section Chapter
18.25.1525, and shared housing units.
SECTION 2. FMC §18.25.960, AMENDED
FMC §18.25.960 is amended to read as follows:
§18.25.960 Dwelling, single-family.
“Single-family dwelling” shall mean a primary dwelling designed to contain a single dwelling unit.
This definition includes manufactured and mobile homes constructed after July 1, 1976, and placed pursuant to Section 18.190.350(g).
SECTION 3. FMC §18.25.983, AMENDED
FMC §18.25.986 is amended to read as follows:
§18.25.983 Dwelling unit, accessory (ADU).
“Accessory dwelling unit (ADU)” shall mean a residential dwelling unit, which provides complete independent living facilities for one or more persons, that is either attached to, or located within, a proposed or existing primary dwelli ng, including attached garages, storage areas or similar uses, or an accessory structure, or detached from a proposed or existing primary dwelling and located on the same lot as the proposed or existing primar y dwellingan attached or detached residential
dwelling unit which provides complete independent living facilities for one or more persons. It An ADU shall include permanent provis ions for living, sleeping, eati ng, cooking, and sanitation on the same parcel as the principal residencesingle-family or multifamily dwelling is or will be situated. An ADU also includes an efficiency unit and a manufactured home, as defined in Health and Safety Code Section 18007. As provided in Cal. Gov’t Code § 65852.2, efficiency apartments and manufactured homes may be developed and occupied as accessory dwelling units consistent with this title. Only manufactur ed or mobile homes constructe d after July 1, 1976, and placed pursuant to Section 18.190.350(g) are permitted. ADUs are subject to development standards that are specified in Section 18.190.005. See also “junior accessory dwelling unit.” SECTION 4. FMC §18.25.986, AMENDED
FMC §18.25.986 is amended to read as follows:
§18.25.986 Dwelling unit, junior accessory (JADU).
“Junior accessory dwelling unit (JADU)” shall mean an ADU unit that is no more than 500 square feet in size and is contained entirely within a single-family dwelling residence, including an attached garageor primary dwelling unit. A JADU may include separate sanitation facilities, or it may share sanitation facilities with the existing structure. A JADUs shall include an efficiency kitchen, which shall include a cooking facility with appliances and a food preparation counter and storage cabinets that are of r easonable size in relation to the size of the JADU. A JADU is are subject to the development standards that areregulations specified in Section s 18.190.005(b) and (d) and shall comply with the requirements of Cal ifornia. Gov ernmen’t Code Section§ 65852.22(a), as may be amended.
SECTION 5. FMC TABLE 18.90.80, AMENDED
FMC Table 18.90.80 is amended to update, and reorder alphabeti cally, the following row under the “Land Use” category as follows:
Table 18.90.080
Allowed Land Uses and Permit Requirements for Residential Zoning Districts Land Use 2012
NAICS2 R-1 R-2 R-3 R-G Specific Use
Regulations
Standard aAccessory dwelling units A6 A6 A3,6 A3,6 18.190.005 [All other portions of this table remain unchanged]
SECTION 6. FMC TABLE 18.183.030, AMENDED
FMC Table 18.183.030 is amended to eliminate foot note 6 and update the “Required Resident Uncovered or Covered Spaces” field in the Accessory dwelling unit row, listed under the “Residential Uses” category, as follows:
Table 18.18.030
Required Parking Spaces
Use
Required Resident Covered
Spaces
Required Resident Uncovered or
Covered Spaces
Required Guest
Spaces
Accessory dwelling unit1,6 0 None for studio units or JADUs, otherwise one per unit, except as
noted in Footnote (6) below 0
0 [All other portions of this table remain unchanged]
SECTION 7. FMC §18.183.175, AMENDED
FMC §18.183.175(a) is amended to read as follows:
§18.183.175 Tandem parking spaces for residential uses. (a) Required parking spaces for residential uses may be accommodated by tandem parking spaces in the following zoning districts: D, R-1, R-2, R-3, TOD, and WSI. Additionally, they may be authorized as part of a density bonus application or for an accessory dwelling unit; however, in R-1, R-2, and R-3 districts tandem parking spaces may only be considered through a discretionary design review permit and shall be limited to no more than 30 percent of the required park ing, subject to th e approval authority’s discretion when considering specifics of the proposed site layout and design. For single-family dwellings, no more than one-third of required parking spaces may be tandem, subject to the approval authority’s discretion when considering specifics of the proposed site layout and design.
SECTION 8. FMC §18.190.005, REPEALED AND REPLACED
FMC §18.190.005 is repealed and replaced to read as follows:
§18.190.005 Accessory dwelling units (ADUs) and j unior accessory dwelling units (JADUs). (a) Purpose. The purpose of this section is to implement Government Code Sections 65852.2 and 65852.22 by allowing the creation of accesso ry dwelling units (ADUs) and junior accessory dwelling units (JADUs) through ministerial review. (b) General Regulations.
(1) Density. An ADU and/or a JADUs shall not count toward the allowed density for the lot upon which the ADU and/or the JADU is located. An ADU and/or a JADU approved in compliance with this section shall be considered a residential use that is consistent with the existing general plan and zoning designation for the lot. (2) Fees.
(A) The city may charge a fee covering the costs associated with the issuance of the design review permit, building permits, and related inspections to
determine whether an ADU and/or a JADU complies with applicable building standards and the provisions of this section.
(B) This section shall not be construed to prohibit the city from adopting an ordinance or regulation relating to serv ices or utility connection fees that applies to a single-family or multif amily dwelling that contain an ADU and/or a JADU so long as that ordinance or regulation applies uniformly to all single-family or multifamily dwelling regardless of whether they include an ADU and/or a JADU.
(3) Nonconforming Zoning Conditions. The correction of nonconforming zoning conditions, which do not present a threat to public health and safety and are not affected by the construction of an ADU and/ or a JADU, shall not be required as a condition for ministerial appr oval of a permit applicati on for the creation of an ADU and/or a JADU.
(4) Permitting Procedure. Any application for an ADU and/or a JADU that meets the applicable location and development standa rds contained in this section shall be subject to ministerial review and approva l without discretionary review or public hearing. A permit shall be issued within 60 days of submission of a complete application for an ADU and/or a JADU conforming to the provisions of this section if there is an existing single-family or mu ltifamily dwelling on the same lot. If the permit application to create an ADU and/ or a JADU is submitted with a permit application to create or serve a new singl e-family or multifamily dwelling on the lot, the city may delay acting on the permit application for that ADU and/or JADU until the city acts on the permit application to create or serve the new single-family or multifamily dwelling, but the application to create an ADU and/or a JADU shall be considered ministerially without discretionary review or a public hearing. If the applicant provides a written request for a delay, the 60-da y time period shall be tolled for the period of the delay.
(5) Building Permit Required. All ADUs and/or JADUs, including those that are internal to an existing structure and conve rted from existing floor area, require a building permit.
(6) Rental. An ADU and/or a JADU shall not be rented for a term of less than 30 days. (c) Regulations Applicable to ADUs. The following provisions apply to all ADUs, except for the “Statewide Exemption ADUs,” which are only subject to the provisions provided in subsection (e) of this section. In the event of a conflict between th e provisions of this section and another section of the Fremont Municipal Code, the provisions of this section shall prevail. In the event of a conflict betw een the provisions of this section and the California Government Code, including without limitation California Government Code Section 65852.2, as may be amended, the provisi ons of the applicable Government Code shall prevail.
(1) ADU Types. An ADU shall be either attached to , or located within, the proposed or existing primary dwelling, including atta ched garages, storage areas or similar uses, or an accessory structure or det ached from the proposed or existing primary dwelling and located on the same lot as the proposed or existing primary dwelling, including detached garages.
(2) Number of Units.
(A) ADUs on Single-Family Lots. Except as provided under subsection (e), no more than one ADU shall be permitted to be located on the same lot that has an existing or proposed single -family dwelling. An ADU and JADU may be located in the same primary dwelling.
(B) ADUs on Multifamily Lots. See subsection (e).
(3) Permitted Location. An ADU may be constructed on th e same lot as an existing or proposed single-family or multifamily dwelling in residential or mixed-use zoning districts, as well as planned districts that allow residential uses. (4) Size. The maximum allowable square footage for an ADU shall not exceed the area limitations specified below. For the purposes of this subsection, the calculation of square footage for an ADU shall not include garages, carports, covered porches/patios, breezeways, and/or other accessory structures. (A) ADU Size – Existing Floor Area. An ADU converted from existing floor area shall not be subject to any size limitations.
(B) ADU Size – New Floor Area.
(i) Attached ADUs. The total floor area for an attached ADU (new addition) created from new floor area shall not exceed 1,000 square feet.
(ii) Detached ADUs. The total floor area fo r a detached ADU (new structure) created from new floor area shall not exceed 1,200 square feet.
(5) Building Height.
(A) ADU Building Height – Existing Floor Area. An ADU converted from existing floor area shall not be subject to building height limitations. (B) ADU Building Height – New Floor Area.
(i) Single Family – Attached. An ADU that is attached to a single- family dwelling shall be limited to a building height of 30 feet or the building height limitation of th e underlying zoning district that
applies to the single-family dwel ling, whichever is lower. This clause shall not allow an ADU to exceed two stories.
(ii) Single Family – Detached. An ADU that is detached from a single- family dwelling shall be limited to a building height of 16 feet. If the lot on which the ADU will be creat ed is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defi ned in Public Resources Code Section 21155, the ADU shall be limited to a building height of 18 feet. An additional building height of two feet shall be allowed to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the singe-family dwelling.
(iii) Multifamily. An ADU that is detached from a multifamily dwelling unit shall be limited to a building height of 16 feet , or a building height of 18 feet if either of the following conditions are met. a. The lot on which the ADU will be created is within one-half of one mile walking distance of a major transit stop or a high- quality transit corridor, as those terms are defined in Public Resources Code Section 21155. An additional building
height of two feet shall be allowed to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the singe-family dwelling.
b. The lot on which the ADU will be created cons ists of an existing or proposed multifamily, multistory dwelling.
(6) Building Setbacks.
(A) ADU Setbacks – Existing Floor Area. No setback shall be required for an ADU located within the existing living area or an existing accessory structure, or an ADU that replaces an existing structure and is in the same location and to the same dimensions as the structure being replaced. Except for an expansion of up to 150 square feet if necessary to provide ingress or egress for the ADU, further expansi on beyond what was existing shall be subject to the height and setback restri ctions applicable to a new detached ADU.
(B) ADU Setbacks – New Floor Area. A side- and rear-yard setback of four feet shall be required fo r attached and detached ADUs created from new floor area. ADUs shall be subject to th e front yard setbacks applicable to the primary dwelling, unless such a requirement would preclude the construction of an ADU described in subsection (e).
(7) Fire Sprinklers. The installation of fire sprinklers shall not be required for an ADU if fire sprinklers are not required for the primary dwelling unit. The construction of
an ADU shall not trigger a requi rement for fire sprinklers to be installed in an existing multifamily dwelling.
(8) Historic Property. An ADU that involves exterior modifications to structures listed in the California Register of Hist orical Resources shall be designed and constructed in conformance with the objective standards for preservation provided in the Secretary of the Department of the Interior’s Standards for the Treatment of Historic Properties.
(9) Owner Occupancy. Owner occupancy shall not be required for either the primary dwelling unit or the ADU.
(10) Passageway. No passageway shall be required in conjunction with the construction of an ADU. Per Government Code 65858.2(j), as may be amended, “passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the ADU.
(11) Separate Entrance. An ADU shall provide at least one exterior entrance that is separate from the ma in entrance of th e primary dwelling. An ADU shall also provide a separate address from the primary dwelling.
(12) Separate Sale. Except as provided in Government Code Section 65852.26, as may be amended, an ADU may be rented separate from the primary residence; however, the ADU shall not be sold or otherwis e conveyed separate from the primary residence.
(13) Sewage. If applicable, where a private sewage disposal system is being used or an ADU, the approval by the local health officer shall be required. (14) Parking. No additional parking spaces shall be required for an ADU. Additionally, no replacement parking shall be require d when a garage, carport, or covered parking structure is demolished in conjunction with the construction of an ADU or converted into an ADU.
(15) Utility Connection. Pursuant to California Government Code Section 65852.2(f)(4), as may be amended, an ADU within the proposed space of a primary dwelling unit or existing space of a prim ary dwelling unit or accessory structure shall not be required to install a new or separate utility connection directly between the ADU and the utility nor shall a related connection fee or capacity be charged unless the ADU is proposed to be constructed with a new primary dwelling. (d) Regulations Applicable to JADUs. The following provisions apply to all JADUs. In the event of a conflict between the provisions of this section and another section of the Fremont Municipal Code, the provisions of this section shall prevail. In the event of a conflict between the provisions of this section and California Government Code Section 65852.22, as may be amended, the provisions of the respective Government Code shall prevail. (1) Number of Units. Excluding an ADU, no more than one JADU shall be allowed.
(2) Maximum Size. A JADU shall be limited to a maximum size of 500 square feet and contained entirely within a single-f amily residence, including an attached garage.
(3) Permitted Location. A JADU shall be allowed on a residential lot zoned for single- family residences within the walls of a single-family residence built, or proposed to be built, on the lot.
(4) Separate Entrance. A JADU shall provide at least one exterior entrance that is separate from the ma in entrance of the single-fa mily residence. A JADU shall provide a separate address from the single-family residence. (5) Owner Occupancy. Owner occupancy in the single-family residence in which the JADU will be permitted shall be required. The owner of the single-family residence may occupy either the remaining portion of the structure or the newly created JADU. Owner-occupancy shall not be re quired if the ow ner is another governmental agency, land trust, or housing organization. (6) Separate Sale. A JADU shall not be sold or otherwise conveyed separate from the single-family residence. A recordation of a deed restriction, which shall run with the land, shall be filed with the city, and shall include the following:
(A) A prohibition on the sale of the JADU separate from the sale of the single- family residence, including a statemen t that the deed restriction may be enforced against future purchasers; and
(B) A restriction on the size and attributes of the JADU that conforms to Government Code Section 65852.22, as may be amended.
(7) Fire and Life Safety. For the purposes of any fire or life protection, a JADU shall not be considered a separate dwelling unit. This clause shall not be construed to prohibit the city from adopting an ordinance or regulation relating to fire and life protection requirements within a single-fam ily residence that contains a JADU so long as the ordinance or regulation applies uniformly to all single-family residences within the zone, regardless of whether the single-family residence includes a JADU or not.
(e) Statewide Exemption ADUs. Pursuant to California Government Code Section 65852.2(e)(1), as may be amended, an application for an ADU or JADU within a residential or mixed-use zone shall be ministerially approved if it creates any of the following:
(1) Single Family – ADUs within Existing or Proposed Space. One ADU and one JADU per lot with an existing or proposed single-family dwelling if all of the following apply:
(A)
The ADU or JADU unit is within th e proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not more than 150 square feet beyond the
same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress.
(B) The space has exterior access from th e proposed or existing single-family dwelling.
(C) The side and rear setbacks are sufficient for fire and safety. (D) The JADU complies with the requirements of Government Code Section 65852.22.
(2) Single Family – New Detached ADUs. One detached, new construction, ADU that does not exceed four-foot side- and rear-yard setbacks for a lot with a proposed or existing single-family dwelling. The ADU may be combined with a JADU described in subparagraph (1) above. The ADU shall:
(A) Not exceed a total floor area of 800 square feet; and (B) Comply with the building height requirements specified in subsection (c). (3) Multifamily – Conversion ADUs. A minimum of one ADU and a maximum of 25-percent of the total number of existi ng multifamily dwelling units shall be permitted to be converted from existing multifamily dwelling structures that are not used as livable space, including, but not li mited to, storage rooms, boiler rooms, passageways, attics, basements, or garage s, if each unit compli es with the state building standards for dwellings.
(4) Multifamily – Detached ADUs. No more than two detached ADUs shall be permitted on a lot that ha s an existing or proposed multifamily dwelling. The ADU(s) shall be subject to a maximum rear- and side-yard setback of four feet and the building height limitations specified in subsection (c).
SECTION 9. CEQA
The City Council finds that the proposed amendments to the Fremont Municipal Code 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 w ill 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 E nvironmental Impact Report (EIR) [SCH #2010082060] was certified, and existing zoni ng. The proposed amendments do not involve peculiar impacts that we re 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 identi fied significant effects which ar e 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 nece ssary to conform with state law. Any conceivable impact of the proposed amendmen ts would be too specu lative for reasoned analysis in the absence of specific development proposals. (3) §15282(h) (ADU Ordinance Statutory Exempti on) 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 residentia l zone by a city or county to implement the provisions of Government Code §§ 65852.1 and 65852.2 as set fo rth 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.
SECTION 10. SEVERABILITY
If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affe ct the validity of the remaining portions of this ordinance. The City Council of the City of Fremont hereby declares that it would have passed this ordinance and each sec tion or subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or more sections, s ubsections, sentences, clauses, or phrases be declared invalid.
SECTION 11. EFFECTIVE DATE
This Ordinance shall take effect and will be enforced thirty (30) days after its adoption.
SECTION 12. PUBLICATION AND POSTING
The City Clerk has prepared and published at least five days before the date of adoption a summary of this ordinance once in a newspaper of gene ral circulation printed and published in Alameda County and circulated in the City of Fremont. A certified copy of the full text of the ordinance was posted in the office of the City Cl erk since at least five days befo re this date of adoption. Within 15 days after adoption of this ordinance, the Ci ty Clerk shall cause the summary to be published again with the names of those City Council members voting for and against the ordinance and shall post in the office of the City Clerk a certified copy of the full text of this adopted ordinance with the names of those City Council members voting for and against the ordinance.
The foregoing ordinance was introd uced before the City Council of the City of Fremont at the regular meeting of the City Council, held on June 20, 2023 , and finally adopted at a regular meeting of the City Council held on Click or tap to enter a date., by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST: APPROVED AS TO FORM:
City Clerk Senior Deput y City Attorney II