CITY OF HERCULES
COMMUNITY DEVELOPMENT DEPARTMENT
TO: Mayor Walker-Griffin and Members of the City Council VIA: Dante Hall, City Manager
SUBMITTED BY: Tim Rood, Community Development Director Larissa Alchin, Contract Planner
Christie Crowl, Assistant City Attorney
MEETING DATE: January 10, 2023
SUBJECT: Amendments to Hercules Municipal Code (Table 13-6.1, Table 13-15.1, Section 13-35.320, and Section 10-2.904) pursuant to the Department of Housing and Community Development’s review of Hercules ADU Ordinance, newly enacted ADU legislation, and SB 9 guidance.
RECOMMENDATION
That the City Council:
Request the staff report;
Open the public hearing;
Receive comments from the public;
Close the public hearing;
Request clarification from staff on any issues related to the Ordinance; Waive first reading and approve introduction of amended Ordinance.
FISCAL IMPACT OF RECOMMENDATION:
There are no direct fiscal impacts associated with this item.
BACKGROUND:
In February 2021, the City adopted an updated Accessory Dwelling Unit (ADU) ordinance to align with prior changes to state law. State legislation was passed in late 2019 that streamlined and clarified the state’s evolving ADU requirements, expanded opportunities for new ADUs, and limited the applicability of local zoning controls and requirements for certain ADUs.
State law requires local agencies to submit an adopted ADU ordinance to the California Department of Housing and Community Development (HCD) for review within 60 days of adoption.
DISCUSSION:
HCD Review of ADU Ordinance
On September 30, 2022, following review of Hercules’s ADU Ordinance No. 531, HCD found Sec. 13-35.320(5)(A)(1), (10)(A)(1), and (10)(A)(2) of Hercules Municipal Code out of compliance with Gov. Code 65852.2 (See Attachment 2). The Ordinance states in multiple places that only one ADU or one JADU within existing space is allowed per lot. Current state law requires local agencies to ministerially approve one ADU and one JADU unit per lot. Therefore, the following section of the Hercules ADU Ordinance must be changed by replacing “or” with “and” to comply with state law:
Sec. 13-35.320
5. Development Standards.
A. ADUs Within Existing Space. An ADU within existing space or and a JADU within existing space is are permitted as long as the side and rear setbacks are sufficient for fire and safety. No other development standards in this Section apply to ADUs and JADUs within existing space, except that:
1) Only 1 ADU within existing space or and 1 JADU within existing space is are allowed per lot unless a building permit or permits are obtained for multiple ADUs under subsection (10)(A) of this Section;
10. Statewide Exemption ADUs.
A. Notwithstanding the requirements of this Section, only building permits shall be required for ADUs or and JADUs in the following circumstances:
1) One ADU within existing space of an existing or proposed single-family dwelling if the ADU has exterior access separate from the primary dwelling and sufficient side and rear setbacks for fire and safety. 2) One JADU within existing space of an existing or proposed single-family dwelling that has exterior access separate from the single-family dwelling, sufficient side and rear setbacks for fire and safety, and meets all requirements of subsection (11) of this Section.
HCD SB 9 Guidance
Similarly, HCD has released additional Senate Bill 9 guidance (see Attachment 3), which clarified how many units (including ADU/JADU and SB 9 units) are 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, including any of the following three unit types; primary unit, ADU, and Junior ADU.
For example, each lot resulting from an SB 9 urban lot split may contain one of the following unit configurations:
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
In all four scenarios, no more than two units would be permitted on a lot resulting from the urban lot split. HMC Sec. 10-2.904(i) seems to preclude ADUs/JADUs on parcels resulting from an urban lot split regardless of whether it contains an SB 9 two-unit development.
Therefore, the following change to HMC Sec. 10-904(i) is proposed to comply with 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
On September 28, 2022, Governor Newsom signed a related ADU bill, Senate Bill (SB) 897, which clarified and expanded upon previously passed ADU legislation. Both bills will take effect on January 1, 2023. The conformance letter received on September 30, 2022 from HCD did not address compliance with this legislation.
SB 897 (Attachment 4) increases height limits of detached and attached ADUs with restriction. It also prevents local governments from posting unnecessary notices, clarifies objective standards, and limits correction of nonconforming zoning conditions. The new law does the following:
Clarifies that standards imposed on accessory dwelling units must be objective; 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.
Hercules’s existing ADU Ordinance complies with this change.
Requires a local agency to issue a demolition permit for a detached garage that is to be replaced by an ADU, at the same time as issuance of the ADU permit with no requirement for noticing or posting a written notice for the demolition.
HMC does not require written notice or posting of a placard for demolition, therefore no change is 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.
HMC currently allows an attached ADU’s maximum height to conform with applicable zoning district standards of the primary dwelling unit. Local agencies may adopt less restrictive requirements for the creation of an accessory dwelling unit such as building height. Therefore, no changes to the attached ADU height regulations are required.
Prohibits a local agency from denying an application for a permit to create 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.
Staff recommends the following change to address this requirement:
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 the maximum height limitation of detached ADUs to 18 feet 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. The bill requires local agencies to allow an additional two feet in height to accommodate a roof pitch on an ADU that aligns with the roof pitch of the primary dwelling.
HMC currently permits detached ADUs to be a maximum of 18 feet, however the code also limits the structure to 1 habitable story. Staff understands the intent of this change in height limit from 16 feet to 18 feet is to allow 2 story detached ADUs. Staff recommends the following change to address the detached ADU height requirement:
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 During review of the above section of HMC, staff identified two areas of the land use table as being 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, which is understood to mean any zone where residential uses are permitted by-right or by conditional use. HMC 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 not consistent with the City’s ADU Ordinance and State Law. Similarly, ADUs are currently listed as requiring an Administrative Use Permit, which is inconsistent with requirements that ADUs be approved ministerially. Staff added a new “Permitted Use” category to Table 13-6.1 and Table 13-15.1, to specify a use that is principally permitted in the district. Permitted Uses 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 were also added to Table 13-6.1 as a Permitted Use (P) in single-family districts RS-E and RS-L. [Key to Land Use Designations: P- Permitted Use; A - Administrative Use Permit Required; C - Conditional Use Permit Required; DR – Design Review Required; -- Use Not Allowed] Table 13-6.1 Land Use Regulations: Residential District RS-E
RS-L
RM-L
RM-M
RM-H
See Also
Residential
Single-Family Home
A
A
C
C
—
Duet (Single-Family Attached)
—
—
A
A
—
Duplex
—
—
A
A
—
Multifamily Dwelling
—
—
C
C
C
Townhouse/Condominium
—
—
C
C
C
Two-Unit Development
P
P
—
—
—
Section 13-36
Mobile Home
A
A
A
A
—
Accessory Uses and Structures
A(1)
A(1)
A(1)
A
A
Section 13-35.210
Rooming and Boarding Houses (4 or less people)
A
A
A
C
—
Rooming and Boarding Houses (5 or more people)
—
—
C
C
—
Small Family Daycare Homes (6 or less children)
A
A
A
A
A
Section 13-35.260
Large Family Daycare Homes (7 to 14 children)
A
A
A
A
A
Section 13-35.260
Accessory Dwelling Unit
P
P
P
P
P
Section 13-35.320
Senior Housing
C
C
C
C
C
Emergency Shelter
—
—
—
—
—
Single-Room Occupancy Units
—
—
—
—
—
Supportive Housing (Apartment Type)
—
—
C
C
C
Supportive Housing (Residential Care Facility Small Type) A
A
A
A
—
Supportive Housing (Residential Care Facility Large Type) —
—
—
C
C
Residential Care Facility (6 or fewer residents)
A
A
A
A
—
Residential Care Facility (7+ residents)
—
—
—
C
C
Transitional Housing (Apartment Type)
—
—
C
C
C
Transitional Housing (Residential Care Facility Small Type) A
A
A
A
—
Transitional Housing (Residential Care Facility Large Type) —
—
—
C
C
Commercial Uses
Home Occupation
A
A
A
A
A
Bed and Breakfast Inns
C
C
C
C
—
Public and Quasi-Public Uses
Clubs and Lodges
—
—
C
C
C
Libraries, Museums and Galleries
—
—
C
C
C
Park and Recreation Facilities
A
A
A
A
A
Public Safety Facilities
A
A
A
A
A
Religious Assembly
C
C
C
C
C
Schools, Public or Private
C
C
C
C
—
Utility Facilities
C
C
C
C
—
Key to Land Use Regulations
P
Permitted Use
A
Administrative Use Permit Required
C
Conditional Use Permit Required
DR
Design Review Required
—
Use Not Allowed
(1)Single story detached accessory structures under 120 square feet total on site are exempt from use permit requirements.
Table 13-15.1 Land Use Regulations: PC-R Planned Commercial Residential Mixed-Use District PC-R
See Also
Commercial Uses
Home Occupation
A
Recreation and Entertainment
C
Retail Sales
Outdoor Sales
C
Retail Stores
2,000 sq ft or less
A
More than 2,000 sq ft
C
Restaurants and Delicatessens
A
With Liquor Service
C
Shopping Centers
C
Services and Offices
Athletic Clubs
C
Business Services
A
Hotel
C
Offices and Banks
A
Personal Services
A
Residential Uses
Accessory Dwelling Unit
A P
Section 13-35.320
Caretaker, Manager and Employee Housing
A
Small Family Daycare Home (8 or less children)
A
Section 13-35.260
Large Family Daycare Homes (7 to 14 children)
A
Section 13-35.260
Live-Work Units
A
Multifamily Dwellings
A
Townhouse/Condominiums
A
Planned Unit Development
A
Supportive Housing (Apartment Type)
A
Transitional Housing (Apartment Type)
A
Public and Quasi-Public Uses
Daycare Facilities (for employees and visitors)
A
Government Offices
A
Libraries, Museums and Galleries
A
Public Safety Facilities
A
Urgent Medical Care
C
Utility Facilities
C
Accessory Uses and Structures
A(1)
Key to Land Use Regulations
P
Permitted Use
A
Administrative Use Permit Required
C
Conditional Use Permit Required
(1)Facility or use is directly related to the primary use of site.
ENVIRONMENTAL DETERMINATION
Under Public Resources Code Section 21080.17, the California Environmental Quality Act (CEQA) does not apply to the adoption of the proposed ordinance amendments by a city or county to implement the provisions of Section 65852.1 or 65852.2 of the Government Code (the state ADU law). Likewise, under California Government Code Sections 65852.21(j) and 66411.7(n), the adoption of an ordinance implementing the provisions of SB 9 is exempt from the requirements of the California Environmental Quality Act.
RECOMMENDATION:
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.
ATTACHMENTS:
Draft Ordinance
California Dept. of Housing and Community Development, Review of Hercules ADU Ordinance California Dept. of Housing and Community Development, SB 9 Fact Sheet Senate Bill 897 – Text
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