DATE: September 19, 2024
TO: Housing Policy and Resource Committee
FROM: Jeremy Lochirco, Planning Manager
SUBJECT: Universal Residential Design Ordinance: Work Session to Review and Discuss Various Policies Tied to the Adoption of a Universal Residential Design Ordinance for the City of Hayward
RECOMMENDATION
That the Committee review the proposed policy recommendations and provide feedback and guidance, as necessary, for the development and adoption of a new Universal Design Ordinance for the City of Hayward.
SUMMARY
As part of the 6th Cycle Housing Element (2023-2031) and consistent with adopted implementation strategies of the Hayward 2040 General Plan, the City has committed to develop and implement Universal Design Guidelines that promote accessibility for everyone regardless of age or ability. To satisfy this commitment, staff is proposing to adopt a new Universal Design Ordinance and related Checklist which would apply to all new single-family, duplex and townhome development in the City, consistent with similar approaches adopted by other jurisdictions in California and tiering off the Model Ordinance that was previously adopted and promoted by the State.
Based on the requirements of California Building Code (CBC), which details the accessibility requirements for new residential construction, the City is somewhat limited in adopting any accessibility requirements which are more stringent than the CBC. However, the City does have the opportunity to strengthen accessibility requirements as part of building design for residential development, which would be incorporated as an amendment to the City’s Municipal Code. Staff has reviewed Universal Design Ordinances from several other jurisdictions in California and is requesting feedback from the Committee on several policy options prior to drafting the Ordinance, including the following:
Should the requirement to include Universal Design features be mandatory to install or mandatory to offer as a feature a buyer can choose and pay for above the base price? Should a minimum unit threshold be established for projects subject to this Ordinance (i.e. projects proposing 5 or more units)? Should there be a minimum percentage of units in each development (i.e. 20% of the total number of units) would be required to provide Universal Design features? Does the Committee support exceptions for custom-built homes, financial hardships, construction delays and/or extreme site topography, which makes it difficult or impossible to construct a home incorporating Universal Design features? Does the Committee support the inclusion of a Visitability requirement which includes accessible entrance, hallways and first floor bathroom as part of the Universal Design Guidelines? Should a Universal Design Checklist be required to be provided to prospective buyers to disclose universal accessibility features as standard, limited, optional, or not available for all new single-family, duplex or triplex residential construction in the City or should the Checklist only be required for projects that meet a threshold (i.e. projects proposing 4 or more units)? Should the Universal Design Ordinance apply to all single-family, duplex and triplex project types in the City or should the Ordinance be limited to special target populations (such as seniors) and/or to projects that obtain public funding assistance from the City? Following feedback from the Committee, staff will begin drafting the Universal Design Ordinance for public feedback and consideration by the City Council.
BACKGROUND
The City of Hayward is a very diverse community with people of all backgrounds, lifestyles, family types, and income levels. Many residents also have special housing needs. State law requires the City address the needs of specific special needs groups, including seniors, persons with disabilities, large families with children, female-headed households, and individuals experiencing homelessness. Meeting the needs of these residents requires a broad range of strategies for housing and other services, as was highlighted in the City’s recently completed Displacement Study and adopted as part of the 6th Cycle Housing Element, which was certified by the State in 2023, and incorporated into the Hayward 2040 General Plan.
One of the strategies identified in the Housing Element was to develop Universal Design Guidelines for the City of Hayward. In general, universal design is about making walkways, streetscapes, and environments more accessible and easier to maneuver for all ages and abilities. With advances in health care that allow people with disabilities to live longer and a growing aging population, universal design approaches that improve health, safety, and accessibility can help cities plan for more diverse groups of people and abilities, including the most marginalized members of the community. Implementing universal design can be challenging due to perceived cost, resistance to change, conflicts with regulations, and lack of awareness or expertise. However, the benefits to universal design include avoiding expensive and inefficient retrofitting, producing sustainable solutions that allow residents to age in place, and creating more inclusive living environments for everyone.
Accessibility and Universal Design. Accessibility, as defined in the California Building Code, is "the combination of various elements in a building, facility, site, or area, or portion thereof which allows access, circulation and the full use of the building and facilities by persons with disabilities in compliance with this code." Accessibility is also used, somewhat more broadly, to mean services and facilities designed and/or modified to be able to be used by persons of all abilities. Universal Design is a design principle whereby products, components and the physical environment is made more usable by as many people as possible, including at various levels of ability, at little or no extra cost. Americans with Disabilities Act (ADA) Disabled access requirements, as they apply to the built environment, are often referred to as "ADA" (Americans with Disabilities Act) requirements. The ADA is a federal law, enacted in 1990, that prohibits discrimination against persons with disabilities in all areas of public life, including employment, transportation, and all public and private places open to the general public. The ADA specifies minimum design standards for non- residential and for public and common use areas in residential construction, in particular through the 2010 ADA Standards for Accessible Design. While the California Building Code (CBC) reflects these ADA Standards, local agencies enforce the CBC, but do not have jurisdiction over federal ADA law nor do they have discretion to modify its requirements.
California Building Code. California's Building Code is found in Title 24 of the California Code of Regulations (CCR). Title 24 encompasses 13 separate parts including the California Building Code (CBC), Electrical Code, Mechanical Code, Green Building Code, etc. CBC Chapter 11B is written in conformity with the federal ADA. Except for certain building occupancies subject to state agency enforcement, such as schools and hospitals, the CBC must be enforced by local governments for all construction.
Accessibility requirements for residential projects are reflected in CBC Chapters 11A (for private development projects) and 11B (for publicly funded housing projects). Chapter 11A requirements are applicable to apartment buildings with three or more units, and condominiums with four or more units. However, not all units within a development are considered “covered units” and as such, are not required to meet this requirement. Units not on a ground floor or accessible by an elevator or ramp are not considered “covered units”. While the CBC does cover most multi-family development, the Code does not impose accessibility requirements on most single-family, duplex or townhome developments, except for units built with public funding.
The CBC requires all covered units in a project to be designed as `adaptable,' which is defined in the Building Code as " designed with elements and spaces allowing the unit to be adapted or adjusted to accommodate the user." In other words, there is not a requirement for covered units to be fully accessible to a person with a disability, rather it must be designed in such a manner that it can be easily adapted or modified for a person with a disability requiring accessible features. Those requirements include elements such as an accessible route to and through the unit, wider doors and maneuvering clearances, special door hardware, kitchen and bathroom layout, and backing for grab bars, receptacle and switch/control heights all need to be incorporated into the design so accommodations can be easily made when needed by an occupant. These standards are generally not as stringent as commercial design standards but intended to allow for basic usability by a homeowner or tenant.
In terms of features, the CBC provides multiple options to fulfill the requirement (e.g., a bathtub with handheld shower, OR a roll- in shower); a kitchen with lower-height counters OR a pull-out breadboard-type work surface).
Limits on CBC Amendments. In Hayward, the CBC is adopted into the Hayward Municipal Code (HMC) by reference, with limited local amendments. State law prescribes the authority and basis for local amendments to Title 24, noting that local amendments can only be adopted based on a limited range of considerations to address a specific local topographic, geographic, or climatic condition, and such findings must be expressly required when adopting such amendments into a local ordinance. Since the proposed Universal Design Ordinance could not reasonably be tied to topographic, geographic or climatic conditions, the City cannot adopt a Universal Design Ordinance as part of a mandatory building code requirement. As such, staff recommends the Universal Design Ordinance be adopted separately as a design requirement with related Checklist as part of the HMC, which could be enforced outside of the Title 24 CBC.
Hayward Displacement Study. In April 2021, the City completed a Displacement Study that provides a framework for policymakers, community stakeholders, and residents to understand the type and amount of residential displacement that has occurred in Hayward as a result of the unprecedented housing pressures experienced in the Bay Area over the last decade. One of the demographic groups that were highlighted and impacted by displacement are the senior population. As the senior population in Hayward and Alameda County continues to grow, senior residents are particularly impacted by displacement who are, in many cases, unable to stay in their home due to limited accessibility and the high cost to retrofit an existing dwelling. Stable housing enables senior residents to age in place, which is connected to improved mental and physical health and staff believes adopting Universal Design guidelines will help expand accessibility options and afford seniors the ability to age in place without needing to move.
Density Bonus Ordinance and Universal Design. In January 2023, the City updated the Density Bonus Ordinance to be consistent with recent State legislation and further incentivize affordable housing production. As part of this Ordinance update, a 5% increase to the baseline density was approved for new housing that accommodated certain target populations, including projects that incorporate Universal Design features in more than 20% of the units. While the City has yet to receive a Density Bonus application for a project proposing Universal Design features, staff is not recommending any additional changes to the recently adopted Density Bonus Ordinance and believes the additional 5% density bonus currently afforded to projects will help off-set the slightly increased construction costs for providing these features. Staff will continue to track the number of density bonus applications that propose universal design features and will amend the Density Bonus Ordinance to further incentivize the inclusion of universal design, if needed.
DISCUSSION
Although it is not permissible to impose more stringent accessibility requirements for covered projects beyond what is already identified as part of the California Building Code, other options are available to improve accessibility of new residential units and ensure the housing will provide suitable living arrangements for as wide a range of occupants as possible.
In reviewing opportunities to expand accessibility requirements for residential development, it is important to recognize that accessibility and disability covers a broad range of needs among individuals. For example, not every person with a disability is in a wheelchair and as such, a roll-in shower is not always the best or even a desirable feature in some units or for some occupants. It is important that the Ordinance provide flexibility and a suite of options that support universal design principles so that the new dwelling is designed for people of all ages and abilities. To help provide a regulatory framework around Universal Design and provide cities with additional guidance, the State adopted a model ordinance and related checklist, which are discussed in greater detailed below.
Universal Design Model Ordinance. In 2002, the State adopted AB 2787, which authorized the Department of Housing and Community Development (HCD) to develop guidelines and a model ordinance that local jurisdictions can use for new for-sale residential construction that incorporates universal design principles. HCD developed a Model Universal Design Ordinance, and jurisdictions have the option to adopt a local ordinance that is in substantial conformance and/ or “substantially similar” to the Model Ordinance. The Model Ordinance applies to only single-family, duplex or triplex units (or some combination thereof), except custom built homes, and would not overlap with the scope of the CBC' s accessibility requirements for multi-family developments containing more than three units.
This " substantially similar" requirement means that a locally adopted version would have to address a similar range of project types as listed in the Model Ordinance (i.e., buildings of three or fewer units) and would not include larger multi-family projects which are already required to provide accessibility features per the CBC. The Model Ordinance offers the option to mandate the installation of universal design features by the developer (i. e., built in conjunction with a project), or as a mandate to offer these features to prospective owners, who may opt to include the installed features at the purchaser’s request.
The range of features in the Model Ordinance include widely accepted recommendations for universal design such as step-free entries, minimum doorway and passageway widths, bathtubs/showers consistent with established standards for accessibility, switches and receptacles at heights that don't require standing or bending, non-slip flooring, accessible appliances, single-handle faucets, pull-out shelves, closets with adjustable height rails, and accessible workspaces. In nearby jurisdictions, the City of Dublin and the City of Fremont have adopted versions of the Model Universal Design Ordinance, and the City of Pleasanton considered doing the same but later decided to pause the adoption of their own Ordinance, citing a request for additional information from staff. Both Dublin and Fremont have taken an approach which does not “mandate to install” these features but requires a “mandate to offer” to prospective buyers for installation of these features at their own cost. This approach reflects the fact that Universal Design upgrades will likely add to the cost of construction, and some changes, such as wider hallways or step-free entries could be challenging to accomplish depending on model home floorplans and adjacent grades. In addition to the inclusion of universal design features for projects, many cities have also included a “visitability” requirement, which is discussed in greater detail below.
Universal Design Checklist. AB 1400, codified as Health and Safety Code Section 17959. 6, was adopted by the State in 2003, and required HCD develop guidelines and adopt a Universal Design Checklist. The checklist is required to be provided by the developer of any new for-sale residential housing development to the buyer but there is currently no obligation to submit that Checklist to the City to verify compliance. The checklist informs the buyer of the list of universal accessibility features that would make the home entrance, interior routes of travel, bathrooms and kitchen more usable for everyone, including persons with disabilities. The list of items is generally consistent with those features outlined in the CBC, and the developer is required to indicate if the feature is standard, limited, optional, or not available; and if available, at what point in the construction process the buyer must notify the developer they wish to purchase the feature.
Although not required by the State law, many cities have created and published their own version of the Checklist. For example, the City of Dublin created a checklist in conformance with AB 1400, but only requires the checklist be applied for projects that meet a certain threshold of new units. Specifically, Dublin’s checklist applies to new projects proposing 20 units or more. Other cities (as shown in Attachment II) have adopted different thresholds for projects. Given that Hayward doesn’t see a significant number of large, infill residential single-family projects, staff recommends that a minimum threshold, if required, be lowered to projects that propose 4 or more total dwelling units. This would allow the city to capture a greater number of projects, which support aging in place and combat displacement.
Visitability Features. The concept of “visitability" in new residential construction has been a growing trend nationwide for the past three decades. The term refers to single-family housing designed in such a way that it can be lived in or visited by people with disabilities. A house is visitable when it meets three basic requirements:
one zero-step entrance;
doors with 32 inches of clear passage space; and
one bathroom on the main floor you can get into in a wheelchair.
Visitability focuses on accommodations that a guest would utilize, such as the entrance to a home and a first-floor bathroom and hallways, rather than on features used by residents of the dwelling. Many cities that have included visitability requirements as part of their Universal Design Ordinance have also added waivers or exceptions if compliance is not feasible due to topographical factors. Given the need to create more accessible dwelling units for tenants and visitors alike, staff recommends the proposed Guidelines include the three visitability requirements noted above. This would likely impact the overall design and floor plan configuration of new dwelling units, however the redesigned floor plan would allow residents and visitors with enhanced accessibility without needing an elevator.
Exceptions. While the overall goal of adopting a Universal Design Ordinance is to increase the number of housing units accessible to all ages and abilities, many cities have included exceptions towards compliance citing that in some cases, the strict requirement would negatively impact housing construction. Specifically, cities have included exceptions for custom built homes and exceptions for additional economic hardships bore by the developer, delays in construction and/or site topography, which result in construction of units difficult to achieve and/or cost prohibitive. In making this determination, cities have often relied on the Chief Building Official to evaluate the request for exception when submitting building permits.
Other exceptions that cities have adopted include the following:
Alteration or expansion of an existing dwelling unit;
Reconstruction of an existing dwelling unit destroyed due to fire or other natural disaster; Accessory Dwelling Units (ADU) and Junior Accessory Dwelling Units (JADU) as defined by the Municipal Code; and Addition or conversion of four or fewer residential units to or within an existing structure.
While staff continues to evaluate possible exceptions to the Universal Design Ordinance, staff would like feedback from the Committee whether including these exceptions are reasonable and supported.
Ordinance Considerations. In addition to the regulatory and enforcement options noted above, many cities have opted to only select certain housing types and target populations for Universal Design. For example, the City of Los Angeles requires that projects with 4 or more dwelling units which obtain public funding or program assistance from the City, such as the Notice of Funding Availability (NOFA), be required to incorporate Universal Design features and meet accessibility requirements within units. Los Angeles’ Ordinance contains mandatory accessibility requirements as well as requires mandatory project certification be provided to demonstrate compliance. In addition to publicly funded residential projects, Los Angeles requires that all senior housing projects incorporate Universal Design features, citing the need to “create living spaces that do not disadvantage any group of residents, accommodates a wide range of resident preferences and abilities, and allow residents to age in place.” If the Committee does not wish to uniformly mandate Universal Design features for all housing types, the Committee could recommend that Universal Design be limited to projects targeting special target populations, such as seniors and/or those obtaining public funding or assistance from the City, similar to Los Angeles’ approach.
Regulation and Enforcement. While some California cities have adopted their own Ordinances requiring Universal Design for new single-family, duplex, triplex and townhome development, many cities have adopted a “mandatory to offer” approach that only requires developer provide documentation to the City that the Universal Design option was provided to the homebuyer prior to purchase, consistent with AB1400. To minimize the amount of staff resources needed to administer the program and verify compliance, staff recommends the burden to demonstrate compliance fall to the applicant when applying for a building permit or certificate of occupancy for new residential construction. The developer or new homeowner would be required to provide a signed checklist that acknowledges the universal design features were offered as part of new home purchase.
Feedback Requested. As noted above, staff is requesting feedback from the Committee on the following policy questions:
Should the requirement to include Universal Design features be mandatory to install or mandatory to offer as a feature a buyer can choose and pay for above the base price? Should a minimum unit threshold be established for projects subject to this Ordinance (i.e. projects proposing 5 or more units)? Should there be a minimum percentage of units in each development (i.e. 20% of the total number of units) would be required to provide Universal Design features? Does the Committee support exceptions for custom-built homes, financial hardships, construction delays and/or extreme site topography, which makes it difficult or impossible to construct a home incorporating Universal Design features? Does the Committee support the inclusion of a Visitability requirement which includes accessible entrance, hallways and first floor bathroom as part of the Universal Design Guidelines? Should a Universal Design Checklist be required to be provided to prospective buyers to disclose universal accessibility features as standard, limited, optional, or not available for all new single-family, duplex or triplex residential construction in the City or should the Checklist only be required for projects that meet a threshold (i.e. projects proposing 4 or more units)? Should the Universal Design Ordinance apply to all single-family, duplex and triplex project types in the City or should the Ordinance be limited to special target populations (such as seniors) and/or to projects that obtain public funding assistance from the City?
ECONOMIC IMPACT
There is no economic impact with the Committee receiving this report and the economic implications of creating this program are not currently estimable. However, there would a minimal financial impact to developers and future homeowners who incorporate Universal Design principals as part of their new project construction. However, staff anticipates that in some situations, a reduction in living and moving expenses could be possible for some special target populations, including seniors and disabled residents, who may not need to relocate due to physical and accessibility constraints of their existing dwelling unit.
FISCAL IMPACT
No fiscal impact to the City’s General Fund is anticipated with the amendment of the Hayward Municipal Code to accommodate the development of a Universal Design Ordinance; however, additional staff resources will be needed to implement the program, which will be administered by staff in the Development Services Department.
STRATEGIC ROADMAP
This agenda item supports the Strategic Priorities to Preserve, Protect and Produce Housing for All and implementation of the following project:
Incentivize Housing Production for All. Amend the Municipal Code to address Housing Element Actions related to housing for a variety of income levels and housing types.
PUBLIC CONTACT
Between August 2021 and August 2022, the City’s Housing Team comprised of staff from the Planning Division and the Housing Division conducted extensive outreach related to the drafting and certification of the City’s 6th Cycle Housing Element, which includes the commitment to develop Universal Design Guidelines for the City. These efforts included focus group discussions with the Community Resources for Independent Living, interviews with nearly 400 Hayward residents about the housing policies they would like to see included in the Housing Element, social media campaign, various community workshops, and creation of bilingual materials that promoted community participation throughout the development update the Housing Element update. Once the proposed Ordinance has been drafted, staff will conduct additional public outreach with developers, homeowners and other stakeholders prior to finalizing the Ordinance for Council consideration.
NEXT STEPS
Following review and feedback from the Housing Policy and Resource Committee, staff will complete the draft Universal Design Ordinance and release for public review and comment. Staff expects the final Ordinance will be completed and presented to the City Council for consideration in December 2024. Following adoption, staff will create the checklist and related informational documents to aid developers and staff in reviewing and processing these projects.
Prepared by: Jeremy Lochirco, Planning Manager
Steve Osborne, Supervising Plan Checker and Expeditor
Jane Kim, Housing Development Specialist
Recommended by: Sara Buizer, AICP, Development Services Director Approved by:
_________________________________
Dustin Claussen, Interim City Manager
Hayward Displacement Study: https://www.hayward-ca.gov/documents/city-hayward-displacement-study Hayward Housing Element: https://www.hayward-ca.gov/your-government/documents/planning-documents Hayward General Plan: https://www.hayward2040generalplan.com/node/307 Density Bonus Ordinance User Guide:
https://hayward-ca.gov/sites/default/files/City%20of%20Hayward%20Density%20Bonus%20User%20Guide_Final.pdf HCD Universal Design Model Ordinance:
https://www.hcd.ca.gov/building-standards/state-housing-law-program/universal-design-model-ordinance CA HSC 17959.6: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-17959-6/ Universal Design Checklist: www.hcd.ca.gov/sites/default/files/docs/building-standards/2007-universal-design-checklist.pdf Attachment I