STAFF REPORT TO THE CITY COUNCIL
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, 13-7.1, 13-12.1 and 13-15.1 and deletion of Sec. 13-35.260) pursuant to Senate Bill 234 the Keeping Kids Close to Home Act and amendments to Hercules Municipal Code (Table 13-6.1, 13-12.1, 13-15.1, and 13-18.1) pursuant to Assembly Bill No. 2162.
RECOMMENDATION
That the City Council:
Request 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 introduce amended Ordinance.
FISCAL IMPACT OF RECOMMENDATION:
There are no direct fiscal impacts associated with this item.
BACKGROUND:
California Senate Bill No. 234 (SB 234) the Keeping Kids Close to Home Act, effective on January 1, 2020, was passed to address the shortage of child-care options available by streamlining the regulatory process. SB 234 amends Sections 1596.72, 1596.73, 1596.78, 1597.30, 1597.45, and 1597.54 of, to add Sections 1597.41, 1597.42, and 1597.455 to, to repeal Section 1597.47 of, and to repeal and add Sections 1597.40, 1597.46, and 1597.543 of, the Health and Safety Code, relating to family daycare homes. The Act prohibits local jurisdictions from requiring small or large family daycare home licensed by the Department of Social Services, Community Care Licensing Division, from having obtain a land use/zoning permit and/or business license for operation.
The Act does the following:
Requires that family daycare home operated in accordance with state law be considered a residential use of property.
Forbids denying or restricting the leasing, renting or mortgage of family daycare homes.
Prohibits local jurisdictions from requiring a business license, fee or tax for all family daycare homes.
Requires all small and large family daycare homes be treated as residential uses. Previously, large family daycare homes, defined in Health and Safety Code 1596.78 as homes that provide care for 7 to 14 children, were excluded from this requirement.
California Assembly Bill No. 2162 (AB 2162) became effective January 1, 2019, and aims to provide people with stable, affordable places to stay with services that promote housing stability. AB 2162 applies statewide and requires that supportive housing be a use that is permitted by right in zones where multifamily and mixed-use development is permitted. “Supportive housing” means housing with no limit on length of stay, that is occupied by the target population, and that is linked to onsite or offsite services that assist the supportive housing resident in retaining the housing, improving their health status, and maximizing their ability to live and, when possible, work in the community. AB 2162 amends Government Code Section 65583 and adds Code Section 65650 requiring local entities to streamline the approval of housing projects containing a minimum amount of Supportive Housing by providing a ministerial approval process, removing the requirement for CEQA analysis and removing the requirement for Conditional Use Authorization or other similar discretionary entitlements granted by the Planning Commission.
DISCUSSION:
Following guidance from Child Care Law Center, HMC Section 13-35.260 shall be deleted in its entirety in accordance with the Keeping Kids Close to Home Act. The Act deleted language in state law that allowed cities and counties to have “reasonable requirements” for large family childcare homes in the areas of spacing & concentration, traffic control, parking, and noise control. Therefore, Hercules must treat all small and large family childcare homes as a by-right, residential use of property. Small and large family childcare homes must follow the same laws as any other residential home, pursuant to California Health and Safety Code section 1597.42, which states, The use of a home as a family daycare home, operated under the standards of state law, in a residentially zoned area shall be considered a residential use of property for the purposes of all local ordinances, regulations, and rules, and shall not fundamentally alter the nature of the underlying residential use. and section 1597.45 which states:
(a) The use of a home as a small or large family daycare home shall be considered a residential use of property and a use by right for the purposes of all local ordinances, including, but not limited to, zoning ordinances. (b) A local jurisdiction shall not impose a business license, fee, or tax for the privilege of operating a small or large family daycare home. (c) Use of a home as a small or large family daycare home shall not constitute a change of occupancy for purposes of Part 1.5 (commencing with Section 17910) of Division 13 (State Housing Law) or for purposes of local building codes. (d) A small or large family daycare home shall not be subject to the provisions of Division 13 (commencing with Section 21000) of the Public Resources Code. (e) The provisions of this chapter do not preclude a city, county, or other local public entity from placing restrictions on building heights, setback, or lot dimensions of a family daycare home, as long as those restrictions are identical to those applied to all other residences with the same zoning designation as the family daycare home. This chapter does not preclude a local ordinance that deals with health and safety, building standards, environmental impact standards, or any other matter within the jurisdiction of a local public entity, as long as the local ordinance is identical to those applied to all other residences with the same zoning designation as the family daycare home. This chapter also does not prohibit or restrict the abatement of nuisances by a city, county, or city and county. However, the ordinance or nuisance abatement shall not distinguish family daycare homes from other homes with the same zoning designation, except as otherwise provided in this chapter. (f) For purposes of this chapter, “small family daycare home or large family daycare home” includes a detached single-family dwelling, a townhouse, a dwelling unit within a dwelling, or a dwelling unit within a covered multifamily dwelling in which the underlying zoning allows for residential uses. A small family daycare home or large family daycare home is where the family daycare provider resides, and includes a dwelling or dwelling unit that is rented, leased, or owned Residential District Land Use Table
During review of Hercules Municipal Code Division II. Zone Districts Regulation, Chapter 13-5 through 13-29, staff identified areas of the land use tables as being inconsistent with state laws SB 234 and AB 2162.
To comply with the requirement that small and large family daycares homes be a by-right, residential use of property, staff has made changes to Land Use Regulation Tables 13-6.1, 13-7.1, 13-12.1 and 13-15.1 to change the requirement for an Administrative Use Permit to a Permitted Use requiring no special permit. Likewise, a distinction between large and small is no longer permitted; therefore, Family Daycare Homes shall replace Small and Large Family Daycare Homes in Land Use Tables. Family Daycare Homes shall mean “A facility that regularly provides care, protection, and supervision for 14 or fewer children, in the provider’s own home, for periods of less than 24 hours per day, while the parents or guardians are away, and is either a large family daycare home or a small family daycare home” as defined by subsection (a) of Health and Safety Code section 1596.78 (see Attachment 1).
Similarly, to comply with requirements of AB 2162 that supportive housing be a use by right in zones where multifamily and mixed uses are permitted, including nonresidential zones permitting multifamily uses, if the proposed housing development meets specified criteria, Land Use Regulation Tables 13-6.1, 13-12.1, 13-15.1, and 13-18.1 shall be changed from an Administrative or Conditional Use Permit requirement to a Permitted Use (see Attachment 1).
ENVIRONMENTAL DETERMINATION
Pursuant to Section 15001 of the California Environmental Quality Act (CEQA) Guidelines, this ordinance is exempt from CEQA in that this ordinance is not a “project” within the meaning of Section 15378 of the CEQA Guidelines, because it is an administrative activity has no potential for resulting in physical change in the environment, as the amendments address the process by how development applications are processed and reviewed and does not itself encourage physical development; and this ordinance is not subject to CEQA under the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment.
RECOMMENDATION:
Approve the proposed ordinance amendments, which, consistent with state law requirements, generally accomplish the following:
Update Hercules Municipal Code pursuant to State law, including:
Remove requirement for Small and Large Daycare Homes to obtain an Administrative Use Permit.
Delete HMC Section 13-35.260 as required by State Law.
Remove requirement for supportive housing developments to obtain an Administrative or Conditional Use Permit in zoning where multifamily and mixed use are permitted.
ATTACHMENTS:
Draft Ordinance
Senate Bill 234 – Text
Assembly Bill 2162 – Text
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