Update HMC to comply with California ADU and Senate Bill 9 Laws City of Hercules city council meeting
January 10, 2023
HCD Review of ADU Ordinance
California Department of Housing and Community Development reviewed Hercules’s ADU Ordinance No. 531and found Sec. 13-35.320(5)(A)(1), (10)(A)(1), and (10)(A)(2) of HMC out of compliance with state law.
HMC states in multiple places that only one ADU or one JADU within existing space is allowed per lot.
State law requires local agencies to ministerially approve one ADU and one JADU unit per lot.
HMC Sec. 13-35.320(5)(A)(1), (10)(A)(1), and (10)(A)(2) must be amended to replace “or” with “and” to comply with state law.
HCD SB 9 Guidance
California Department of Housing and Community Development recently released additional Senate Bill 9 to clarify number units (including ADU/JADU and SB 9 units) allowed when an urban lot split occurs under the provisions of SB 9.
Local agencies must allow up to two units on each lot resulting from an urban lot split. 1 primary dwelling unit
2 primary dwelling units (SB 9 Two-Unit Development)
1 primary dwelling unit and 1 ADU
1 primary dwelling unit and 1 JADU
Staff proposes to amend HMC Sec. 10-2.904(i) to comply with state law and HCD guidance.
Sec. 10-904
(i) Accessory Dwelling Unit. Accessory dwelling units and junior accessory dwelling units shall not be permitted on parcels resulting from an urban lot split created under the authority contained within this Section. if the project involves approval of both a two-unit development under the authority contained in Chapter 13-36 and approval of an urban lot split under the authority contained within this Section. Parcels created through an urban lot split which have the effect of separating an existing accessory dwelling unit from the primary dwelling shall submit concurrently for a new SB 9 primary dwelling unit on the parcel containing only an accessory dwelling unit. (Ord. 540 § 3, 2022)
Senate Bill 897 & AB 2211
On September 28, 2022, Governor Newsom signed two related ADU bills, Senate Bill (SB) 897 and Assembly Bill (AB) 2211 , which clarified and expanded upon previously passed ADU legislation.
AB 2211 did not require any amendments to HMC
SB 897
Increases height limits to 18’ for detached and 25’ for attached ADUs with restriction Allow additional 2’ in height to accommodate roof pitch to match primary Prevents unnecessary notice for demolition
Clarifies objective standards
Limits correction of nonconforming zoning conditions
Clarifies ADU are only subject to objective standards; including but not limited to parking, height, setback, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on historical resources. No change required Requires issue of a demolition permit for a detached garage being replaced by an ADU, with no requirement for noticing or posting a written notice for the demolition. No change required Increases the required maximum height limitation for attached ADUs to at least 25 feet or the height limitation of the primary dwelling as specified by the applicable zoning district, whichever is lower. No change required Prohibits a local agency from denying an ADU 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 ADU. Change required Sec. 13-35.320
4) ADUs are allowed in single-family and multifamily residential zoning districts where there is exactly 1 conforming single-family residence or at least 1 conforming multifamily building on the parcel or proposed for the parcel.
Increases maximum height limitation of detached ADUs to 18’ if located within 1/2-mile walking distance of a major transit stop or a high-quality transit corridor, as defined, or if the accessory dwelling unit is detached and on a lot that has an existing multifamily, multistory dwelling unit and allow an additional 2’ in height to accommodate a roof pitch on an ADU to match primary. Change required Sec.13-35.320
E. Height. An ADU shall conform to the applicable height limits of the zoning district in which it is located, except that:
1) No new detached ADU shall exceed 18 feet or 1 habitable story 16 feet, or 18 feet if the accessory dwelling unit is within 0.5 mile walking distance of either a high-quality transit corridor as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop as defined in Section 21064.3 of the Public Resources Code, or if the accessory dwelling unit is detached and on a lot that has an existing or proposed multifamily, multistory dwelling. ADUs shall be allowed two feet of additional roof height if necessary to align with the roof pitch of the existing primary dwelling. 2) Second-story ADUs are allowed on top of existing, legally approved detached structures, provided height does not exceed that of the existing primary residence.
Residential & Planned Commercial Residential Mixed-Use District Land Use Tables HMC Land Use Tables are inconsistent with the City’s existing ADU and SB 9 municipal code Pursuant to subdivision (e) of Government Code section 65852.2, Accessory Dwelling Units must be permitted in any residential or mixed-use zoning districts.
Table 13-6.1 currently lists Accessory Dwelling Units as “Use Not Allowed” in multi-family zoning districts RM-L, RM-M and PM-H, which is inconsistent with the City’s ADU Ordinance and State Law ADUs are currently listed as requiring an Administrative Use Permit, which is inconsistent with requirements that ADUs be approved ministerially.
Staff added a Permitted Use to “Key to Land Use Regulations” Permitted Use (P) - require no subjective review, hearing or noticing and are typically submitted as a building permit with Planning review for zoning compliance.
SB 9 Two-Unit Developments added to Table 13-6.1 as a Permitted Use (P) in single-family districts RS-E and RS-L.
Approve the proposed ordinance amendments, which, consistent with state law requirements, generally accomplish the following:
Remove or clarify existing Hercules requirements pursuant to State law, including:
Replacing “or” with “add” to clarify that one ADU and one JADU within existing space are permitted per lot.
Clarify that an ADU or JADU would be permitted on each parcel resulting from an SB 9 urban lot split, if the parcel does not also include a two-unit development as contained in Chapter 13-36.
Update HMC to comply with new ADU legislation effective January 1, 2023
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