Monte Sereno City Council
August 29, 2023

AGENDA
City of Monte Sereno
Tuesday, August 29, 2023
Joint Special Meeting
of the City Council
and
Site & Architectural
Commission
6:00 PM
Monte Sereno City Council Chambers -
18041 Saratoga - Los Gatos Road,
Monte Sereno, CA 95030

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Page

CALL TO ORDER

ROLL CALL

NEW BUSINESS

1. Provide Direction to Staff on SB9 Ordinance Modifications Staff recommends that the Site and Architectural Commission and the City Council provide direction regarding preparation of an ordinance to revise the Municipal Code standards for SB9 two-unit residential development projects and urban lot split projects as follows:

1. Revise the maximum building size allowed for an SB9 project to equal the allowable size of a one-story building under the applicable zoning district regulations.

2. Revise height limits to specify that SB9 projects are limited in height to that allowed for a one-story building under the applicable zoning district regulations when the setbacks of the applicable zoning district are met. When the zoning district setbacks are not met, the building height is limited to 14 feet.

3. Require two units be constructed on lots created through an Urban Lot Split.

4. Remove the size limit of coverage porches.

5. Remove the impervious coverage restrictions specific to SB9 projects and use the limitations provided in the applicable zoning district regulations.

6. Revise the required distance between buildings to be 6 feet, which is the standard requirement in the zoning code, rather than 10 feet.

7. Where the existing/original parcel’s street frontage is less than 80 contiguous feet in length, only one driveway curb cut would be allowed to provide access to both lots created under an Urban Lot Split.

8. Allow property owners to have the option of ministerial review (SB9) or discretionary review (Site Development Permit
considered at a public hearing) for development on lots created through an urban lot split.

9. Revise the neighborhood noticing requirements to match that of other public hearing items by requiring one notice be mailed to property owners and residents within 300 feet of the project site.

Staff Report - SR-23-177 - Pdf
Public Comments Received as of 8.29.23
3 - 87

ADJOURN

STAFF REPORT
Meeting: Joint Special Meeting of the City Council and Site and Architectural Commission - Aug 29 2023
Agenda Heading: NEW BUSINESS
Staff Contact: Diana Perkins, City Planner
Department: City Planner
Title: Provide Direction to Staff on SB9 Ordinance Modifications Recommendation(s):

Staff recommends that the Site and Architectural Commission and the City Council provide direction regarding preparation of an ordinance to revise the Municipal Code standards for SB9 two-unit residential development projects and urban lot split projects as follows:

1. Revise the maximum building size allowed for an SB9 project to equal the allowable size of a one-story building under the applicable zoning district regulations.

2. Revise height limits to specify that SB9 projects are limited in height to that allowed for a one-story building under the applicable zoning district regulations when the setbacks of the applicable zoning district are met. When the zoning district setbacks are not met, the building height is limited to 14 feet.

3. Require two units be constructed on lots created through an Urban Lot Split.

4. Remove the size limit of coverage porches.

5. Remove the impervious coverage restrictions specific to SB9 projects and use the limitations provided in the applicable zoning district regulations.

6. Revise the required distance between buildings to be 6 feet, which is the standard requirement in the zoning code, rather than 10 feet.

7. Where the existing/original parcel’s street frontage is less than 80 contiguous feet in length, only one driveway curb cut would be allowed to provide access to both lots created under an Urban Lot Split.

8. Allow property owners to have the option of ministerial review (SB9) or discretionary review (Site Development Permit considered at a public hearing) for development on lots created through an urban lot split.

9. Revise the neighborhood noticing requirements to match that of other public hearing items by requiring one notice be mailed to property owners and residents within 300 feet of the project site.

Background Information:

SB9 Background
Senate Bill (SB) 9 was signed into law by Governor Newsom on September 16, 2021 and was effective on January 1, 2022. The most significant component of this bill is that it requires the

City to allow for the following on all single-family zoned lots meeting specific eligibility requirements:

1. (1) ministerial approval of up to two housing units (Residential Development), and

2. (2) ministerial approval of a one-time, two-lot subdivision (Urban Lot Split).

Although the new law supersedes varying local regulations regarding subdivision and development standards, SB9 preserves some authority for local agencies to enact regulations for these projects through the adoption of objective standards, provided that they do not prohibit the construction of at least two dwelling units of at least 800 square feet.

On January 4, 2022 the City Council adopted Ordinance NS-229 that incorporated the state SB9 regulations with additional local objective standards for these projects. The ordinance is included as Attachment 1 to this report. Attachments 2 and 3 include the City’s informational brochures for the SB9 Urban Lot Split and Residential Development, which summarize the main requirements of the current ordinance.

On March 22, 2022, the City Council received a letter from Berliner Cohen LLP (Attachment 4) on behalf of several Monte Sereno property owners regarding the city’s SB9 ordinance. The letter raises questions regarding several aspects of the city’s SB9 ordinance and urged the City Council to revisit certain aspects of the current ordinance.

Staff met with the property owners who are represented by Berliner Cohen LLP and their designer to hear their concerns regarding the current standards and suggestions for revisions.

The main issues raised by these property owners were as follows:
• The 800 square foot limit for new dwelling units;
• The 150 square foot limit for covered porches/patios; • Requirement that Impervious Coverage to limited to the underlying zoning district rather than the effective zoning district; and
• The inability to use the standard discretionary permit process (i.e. Site Development Permit heard by the Site and Architectural Commission) for lots created with an Urban Lot Split
On May 24, 2022 a joint special meeting of the City Council and Site and Architectural Commission was held to discuss possible revisions to the SB9 ordinance and local requirements. After hearing public comments and discussion, the City Council and Site and Architectural Commission did not move forward with revisions to the ordinance.

Housing Element
As part of the Housing Element update that is currently in process, the City is required to plan for an additional 193 housing units over the planning period from 2023-2031 as part of the City’s assigned Regional Housing Needs Allocation (RHNA). In addition to the 193 new housing units required to be planned for, the Housing Element site inventory includes a 12% buffer above the RHNA requirement to avoid triggering requirements under California’s No Net

Loss law (Government Code Section 65863) to zone for additional adequate sites if the actual development of a parcel is approved at a lower density than what was originally anticipated in the Housing Element. Additionally, including a buffer is more likely to result in the actual construction of the number of units called for by the RHNA.

The current draft Housing Element that was submitted to the California Department of Housing and Community Development (HCD) for review on July 25, 2023 includes the following projections to meet the RHNA requirements:

Very LowIncome UnitsLow-Income
Units
ModerateIncome UnitsAbove
ModerateIncome Units
Total Units
2023–2031
RHNA
53 30 31 79 193
Housing
Progress to
Date
3 2 3 2 10
Vacant Sites 2 0 0 2 4
Accessory
Dwelling Units
48 48 48 16 160
Junior
Accessory
Dwelling Units
2 3 2 1 8
SB9 3 2 0 5 10
ADU Amnesty 7 7 8 2 24
Total 65 62 61 28 216
Buffer 23% 107% 97% -64% 12%
In order to include the SB9 units in the RHNA site inventory above, the City Council committed to increasing the maximum building size allowed for SB9 projects, which is currently 800 square feet. Staff has consistently received feedback from properties owners interested in SB9 projects that the building size limit is a constraint to moving forward with this type of project.

California Department of Housing and Community Development In March 2022, HCD published an SB9 Fact Sheet (Attachment 5). This Fact Sheet was published by HCD for informational purposes and is not intended to provide interpretation of the state law, and HCD is not responsible for enforcement of SB9. However, it does provide HCD’s position on SB9 in relation to other state housing laws, such as Housing Element law, which are enforced by HCD.

The HCD SB9 Fact Sheet cautions local jurisdictions from implementing unique development standards for SB9 projects that do not apply to other developments as this could be a violation of the Housing Crisis Act of 2019. The Housing Crisis Act of 2019 limits a local jurisdiction’s ability to amend its zoning code to reduce the intensity of residential uses.

Additionally, staff was provided two letters that HCD (Attachment 6) sent to jurisdictions in Southern California regarding their local SB9 ordinances. Both of these jurisdictions also adopted local SB9 requirements that limited the size of dwelling unit to 800 square feet in size.

HCD has informed those communities that such a building size limit is a violation of the Housing Crisis Act as this is a significant reduction is allowable size as compared with the zoning district standards.

Analysis:

Comparison with Other Local Jurisdictions
Attachment 7 includes a comparison between the requirements for the Town of Los Gatos, City of Saratoga, and the current and staff recommended changes for Monte Sereno.

Staff Recommendation
Based on the information above, staff recommends that the revisions described below be made to the current SB9 regulations.

1. Maximum Building Size
The City’s current SB9 requirements limit the building size of a new dwelling unit to 800 square feet. This limitation was created based on SB9 law which expressly allows local jurisdictions to adopt objective standards for SB9 projects as long as those standards allow for development of up to two units that are a minimum of 800 square feet. Based on feedback staff has received, this has been the main item that deters property owners from submitting an application under the City’s current SB9 regulation.

Staff recommends modifying the current building size limit for SB9 projects to match the building size allowed within the zoning district for a one-story house. Following is a comparison of the building size allowed:

Square Footage Allowed for a One-Story Building
Zoning District Current Zoning
District Standards
Current
SB9 Standards
Staff
Recommended
SB9 Standards
R-1-8 3,300 800 3,300
R-1-20 4,950 800 4,950
R-1-44 6,600 800 6,600

2. Building Height
The State SB9 regulations require that local jurisdictions allow a side and rear yard setback of four feet. The zoning code requires a side setback of between six and 20 feet (depending on the zoning district) and a rear yard setback of 30 feet. The City’s current SB9 regulations limit the size of a building to 16 feet if constructed within the zoning code setback area.

Staff recommends that the maximum height of a building constructed under the SB9 regulations be revised to allow a maximum of 14 feet in height if the building is located within

the required side and rear yard setbacks of the zoning district. And, for SB9 projects that meet the side and rear yard setbacks of the zoning district, the building height allowed would be the same as for the allowed in the zoning district for a one-story building.

Following is a summary of the current and recommended building heights:

Building Heights Allowed
Zoning District Current Zoning
District Standards
Current
SB9 Standards
Staff
Recommended
SB9 Standards
R-1-44
R-1-20
R-1-8
14’ at the required
and setback
30’ overall
16’ if located in the
zoning setback area.
14’ at the required
and setback
30’ overall
14’ if located within
the zoning setback
area.
14’ at the setback
with a maximum of
21’ overall

3. Require two units be constructed on lots created through an Urban Lot Split In order to meet the City’s RHNA requirements, but still maintain the character of Monte Sereno, staff recommends that two residential units be required on vacant lots that were either created through an SB9 Urban Lot Split or an existing vacant lot that proposes an SB9 Residential Development. The first dwelling unit allowed for construction would be equal to the size and height allowed for an ADU or a JADU in the applicable zoning district. The second dwelling unit would have a maximum building area and height and noted above, which is the same as allowed for the main house in the applicable zoning district.

Requiring two units to be constructed on lots created through an SB9 Urban Lot Split or other lots that propose an SB9 Residential Development as described above will assist in city in meeting the RHNA of 193 new housing units that are required to be constructed by 2031. This will also assist in meeting the affordability requirements of the new housing units as the first dwelling unit is a smaller unit, which would provide affordable rental housing opportunities.

4. Covered Porch Limitation
The current SB9 standards limit the size of covered to porches 150 square feet in total with at least one third of the area at the front of the dwelling unit. The requirement was designed to keep the covered porch area in scale with an 800 square foot dwelling unit (which is the current maximum building size allowed).

Staff recommends removing this limitation on the allowable square footage for covered porches in SB9 projects. The reason for the current limitation was based on a maximum building size of 800 square feet and the concern about keeping the covered porches in proportion to the size of the house. As Council has committed to increasing the maximum building size allowed, the limit on the covered porch area may no longer be applicable.

Covered porch area is included in the total overall structural coverage and may also be

included in the building size (when enclosed by the dwelling unit on three sides). Therefore, the current standard zoning regulations or building size, structural coverage, and impervious coverage will factor into the allowed covered porch areas.

5. Impervious Coverage Requirements
The Municipal Code includes a provision that if the lot size of a particular parcel is closer the minimum lot area required by a different zoning district than the property is designated, the development standards of that other zoning district are applicable. For example, if a property is located within the R-1-44 zoning district (minimum 43,560 square foot lot size) but has an actual lot size of 30,000 square feet, the development standards of the R-1-20 zoning district (minimum 21,780 square foot lot size) will apply as the actual lot size is closer to that allowed for the R-1-20 zoning district.

In the discussion below, the term ‘actual zoning district’ refers the designated zoning district of the property. And the term ‘effective zoning district’ means the development standards used based on the size of the parcel.

Following are the impervious coverage limits allowed for each zoning district:

Zoning District Impervious Coverage Limit
(percent of total lot area)
R-1-8 60%
R-1-20 40%
R-1-44 30%
New lots created through an Urban Lot split may have a different effective zoning district from the actual zoning district. For example, if an existing one acre lot were split through an Urban Lot Split, one of the newly created lots could be 26,136 square feet and the other could be 17,424 square feet. Since each of these new lots would be closer in size to the lot size of the R-1-20 zoning district lot size, the allowed impervious coverage of the two new lots would be 40% each (rather than 30% for the single lot). The overall impervious coverage could be increased when an Urban Lot Split is completed.

This potential increase in the impervious coverage was a concern discussed when the current SB9 ordinance was developed. To address this concern, the ordinance currently requires that lots created through the Urban Lot Split maintain the impervious coverage limit of the actual zoning district rather than the effective zoning district applicable to the new lots. In the example above, each of the two new lots would have an impervious coverage limit of 30% rather than 40%.

Staff recommends removing this requirement for two reasons. The first reason is that it is difficult to administratively implement different development standards for parcels located within the same zoning district, particularly over time. Tracking unique development standards for specific lots is cumbersome and can result in customers obtaining inaccurate information, particularly when general information is provided online.

The second reason that staff recommends removing this requirement is that the current storm water regulations are sufficient to ensure adequate impervious area exists on a site to retain storm water on the site and allow it to infiltrate in the ground. Following is a summary of the storm water regulations.

Storm Water Retention and Infiltration
Projects that create or replace 2,500 square feet of impervious area are regulated by the City’s Municipal Regional Stormwater Permit, which requires one of the following site design measures to be included in the project design to retain storm water on-site to allow infiltration into the ground:
• Direct roof runoff into cisterns or rain barrels for reuse. • Direct roof runoff into vegetated areas.
• Direct runoff from sidewalks, walkways, and/or patios onto vegetated areas. • Direct runoff from driveways and/or uncovered parking lots into vegetated areas. • Construct sidewalks, walkways and/or patios with permeable surfaces. • Construct driveways and/or uncovered parking lots with permeable surfaces.

The City’s practice has been to require projects to incorporate additional site design measures to retain and allow infiltration of storm water on the project site. When construction plans are submitted for building permit review, grading and drainage plans (prepared by a registered civil engineer or licensed landscape architect) are required in order to demonstrate storm water is retained onsite and designed to infiltrate into the ground. The City Engineer reviews these plans to verify the design complies with these requirements before the building permit is issued. Prior to the final inspection, a conformance review letter is required to be provided by the designer to verify the construction conditions are in compliance with the approved plans.

The City’s Building Inspector and/or Civil Engineer also inspect the grading and drainage before the final building inspection.

Effective July 1, 2023, changes to the City’s Municipal Regional Stormwater Permit now require projects that create or replace 10,000 square feet of impervious area to comply with more stringent storm water retention and infiltration regulations. These standards will require additional design calculations be provided by the Civil Engineer/Landscape Architect to justify the storm water design retains and allows infiltration of storm water during an average rain event/season.

6. Distance Between Buildings
Currently, the Municipal Code requires a distance of 10 feet between buildings on the same lot for SB9 projects. All other projects require a minimum of 6 feet between buildings, as measured from edge of the roof eaves. In order to provide consistency with existing zoning code standards, staff recommends that the distance between buildings for SB9 projects be revised to match the requirements of the existing zoning code.

7. Driveway Curb Cuts

The Municipal Code does not currently have requirements for the maximum number of driveway curb cuts allowed for parcels. The number and distance between curb cuts are currently reviewed by the City Engineer as part of the discretionary review process when a Site Development Permit application is received. However, the SB9 standards are required to be ministerial and do not allow discretionary review.

In order to maintain the streetscape character of Monte Sereno, staff recommends that only one driveway curb cut from the street be allowed for SB9 projects where the original parcel frontage is less than 80 contiguous feet. In these cases the two lots created and/or two houses constructed under SB9 would be required to share a single driveway from the street. Existing parcels with a street frontage of 80 continuous feet or more would be able to have two driveways from the street.

8. Urban Lot Split Restrictions and Use of Discretionary Review Under the current requirements, if a property owner were to complete an Urban Lot Split, the lots are restricted so that development of any new dwelling units be subject to the SB9 residential development requirements (i.e. ministerial review requirements noted above).

Currently, lots created through an Urban Lot Split are not able to submit for a Site Development Permit that would be heard at a public hearing and follow the zoning district regulations of the applicable zoning district.

Staff recommends revising this requirement to allow property owners the choice of building a new house under the SB9 regulations or through the standard discretionary review process including a Site Development Permit and public hearing. This would treat lots created through an Urban Lot Split the same as other existing lots within the city. And provide public notification and allow for public comments for proposed projects that exceed the SB9 residential development standards.

9. Neighborhood Noticing Requirements
The current SB9 regulations require that staff provide a written notification to property owners and residents within 600 feet when an SB9 application is received and again when an SB9 application is approved. Standard noticing for projects requiring a public hearing is to property owners and residents within 300 feet of project site. The expanded noticing was added for SB9 projects due to a concern that a 300 foot radius around a project is not sufficient noticing for large lots.

Although a 300 foot radius may not seem as if it would provide sufficient notice for surrounding properties, it is important to note that the 300 feet is measured around the perimeter of the subject property. And, that if any portion of a property is within the 300 radius of the subject site, the property owner is notified. In reviewing the noticing that was completed for projects within the R-1-44 zoning district over the past year, a range of 15-30 surrounding properties were included in the noticing.

Attachment 8 includes a few sample noticing maps from recent projects. On these maps, the blue shaded area represents the 300 foot radius from the perimeter of the subject property and the green outline identifies the parcels that were included in the notice.

The notice that is mailed for an SB9 project is different than notices provided for public hearing items. For projects that require discretionary review through a public hearing the notice invites the public to review the project and provide comments. The hearing body has the authority to take into account the public comments received when rendering a decision on these types of projects. SB9 projects are limited to ministerial review, therefore, the notice informs the neighboring properties of the application, but any comments received cannot be used to require changes to the proposed project.

Staff recommends that the SB9 regulations be modified to require one notice be mailed to property owners within 300 feet of the project site when an SB9 application is received. Staff believes this is a sufficient distance to provide affected properties notice of an application.

Alternatives:

1. Staff recommend revisions of the municipal code to modify the City’s SB9 regulations as follows:

1. Revise the maximum building size allowed for an SB9 project to equal the allowable size of a one-story building under the applicable zoning district regulations.

2. Revise height limits to specify that SB9 projects are limited in height to that allowed for a one-story building under the applicable zoning district regulations when the setbacks of the applicable zoning district are met. When the zoning district setbacks are not met, the building height is limited to 14 feet.

3. Require two units be constructed on lots created through an Urban Lot Split.

4. Remove the size limit of coverage porches.

5. Remove the impervious coverage restrictions specific to SB9 projects and use the limitations provided in the applicable zoning district regulations.

6. Revise the required distance between buildings to be 6 feet, which is the standard requirement in the zoning code, rather than 10 feet.

7. Where the existing/original parcel’s street frontage is less than 80 contiguous feet in length, only one driveway curb cut would be allowed to provide access to both lots created under an Urban Lot Split.

8. Allow property owners to have the option of ministerial review (SB9) or discretionary review (Site Development Permit considered at a public hearing) for development on lots created through an urban lot split.

9. Revise the neighborhood noticing requirements to match that of other public hearing items by requiring one notice be mailed to property owners and residents within 300 feet of the project site.

Such draft ordinance would be presented to the Site and Architectural Commission at their October 4, 2023 meeting for their review and recommendation and to the City Council on October 17, 2023 for action on the first reading.

2. Direct staff to prepare a draft ordinance to revise the Municipal Code to modify the SB9 Residential Development standards as deemed necessary. Such draft ordinance would be presented to the Site and Architectural Commission for their review and recommendation to the City Council before being presented to the City Council for final action.

3. Take no action.

Public Noticing:

The City of Monte Sereno's council meeting agenda was posted on the bulletin board outside of Monte Sereno City Hall and the agenda with this staff report was published on the City of Monte Sereno's website located at www.montesereno.org on August 22, 2023. Additionally, notification of this meeting was sent through email to a list of interested community members.

Attachments:

1. Current SB9 Ordinance NS-229

2. SB9 Urban Lot Split Brochure with Current Requirements

3. SB9 Residential Development Brochure with Current Requirements

4. Letter Received from Berliner Cohen LLP dated March 22, 2022

5. California Department of Housing and Community Development SB9 Fact Sheet

6. HCD Letters Regarding Local SB9 Regulations

7. Comparison of SB9 Regulations with other Local Communities

8. Sample 300-Foot Noticing in the R-1-44 Zoning District

Atachment 1
Current SB9 Ordinance NS-229

Atachment 2
SB9 Urban Lot Split Brochure with Current
Requirements

CITY OF MONTE SERENO
18041 SARATOGA-LOS GATOS ROAD, MONTE SERENO, CA 95030
(408) 354-7635 • FAX (408) 395-7653 • WWW.CITYOFMONTESERENO.ORG P:\Front Counter\Urban Lot Split SB9 Information.docx Page 1 of 3 Revised 12/2021
URBAN LOTS SPLITS (SB-9)
IN ACCORDANCE WITH GOVERNMENT CODE SECTION 66411.7
Senate Bill (SB) 9 was signed into law by Governor Newsom on September 16, 2021 and was effective on January 1, 2022. The most significant component of this bill is that it requires (1) ministerial approval of up to two housing units per lot (Residential Development) and (2) ministerial approval of a one-time, two-lot subdivision of any single-family zoned lot meeting specific requirements (Urban Lot Split). This handout summarizes the requirements for Urban Lots Splits based on the Monte Sereno Municipal Code section 13.06.

This brochure is intended to provide general information, contact the Planning Division or Engineering Division for any questions or additional information.

Eligible Parcels
To be eligible for an Urban Lot Split, the existing parcel shall meet all the following requirements:

1. The parcel to be subdivided is located within a single-family residential zoning district.

2. The parcel is not located within a historic district.

3. The parcel has not been established through prior Urban Lot Split.

4. Neither the owner of the parcel being subdivided nor any person acting in concert with the owner has previously subdivided an adjacent parcel using an Urban Lot Split provisions.

5. The existing dwelling unit(s) has not been occupied by a tenant in the last three years.

Use and Development Requirements
Following is a summary of use and development standards specific to parcels created using an Urban Lots Splits:

1. New dwelling units constructed shall be no more than 800 square feet each.

2. A maximum of two dwellings are allowed on a lot, not Accessory Dwelling Unit or Junior Accessory Dwelling is allowed.

City Of Monte Sereno Urban Lot Split
P:\Front Counter\Urban Lot Split SB9 Information.docx Page 2 of 3 Revised 12/2021

3. New dwelling units shall comply with the requirements of the SB9 Residential Development standards. See handout titled Residential Developments (SB-9) for more information.

The maximum impervious coverage shall be that which was applicable to the original parcel prior to the approval of the Urban Lot Split as set forth in Chapter 10.05.

4. No rental of any unit(s) shall be allowed for less than 30 days.

Subdivision Requirements
Following is a summary of subdivision standards:

1. The Urban Lot Split will create no more than two new parcels and each of the newly created parcel shall meet the following requirements:
• Has at least 1,200 square feet in size,
• Has at least 40 percent of the lot area of the original parcel, • Has access to or adjoins the public right-of-way, sufficient to allow development on the parcel to comply with any property access requirements of the Santa Clara County Fire Marshal. • New parcel lines that abut a street shall maintain right angles to streets, or radial to the centerline of curved streets, or be parallel to existing parcel lines. • A minimum of one off-street parking space shall be provided on each parcel. • No setback shall be required for an existing structure. New structures shall have a minimum four-foot setback from the side and rear property lines.

3. The owner of the parcel to be subdivided signs an affidavit under penalty of perjury declaring all the following to be true:
• The housing units proposed to be demolished or altered have not been occupied by a tenant at any time within three years.
• The owner of the parcel intends to occupy one of the housing units as their principal residence for a minimum of three years.
• The owner has not previously subdivided an adjacent parcel using an Urban Lot Split nor has acted in concert with any person that has.

Filing, Processing, and Action
Following is a summary of application processing and review requirements:

1. Parcel Maps shall be prepared, filed, and recorded in accordance with the Map Act. Applications shall include a current title report.

City Of Monte Sereno Urban Lot Split
P:\Front Counter\Urban Lot Split SB9 Information.docx Page 3 of 3 Revised 12/2021

2. Right-of-way dedication, construction of off-site improvements, or correct non-conforming conditions are not required unless necessary for a parcel to have access to the right-of-way.

3. The City Engineer shall deny the tentative map if any of the following is found:
• The map fails to meet or perform one of more objective requirements imposed by the Subdivision Map Act or by this title. Any such requirement or condition shall be specified. • The building official makes a written finding, based upon a preponderance of the evidence, that the proposed subdivision would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.

5. The City Engineer shall send notices to property owners within 600 feet of a proposed Urban Lot Split upon submission of an application, and again upon completion of such application.

Atachment 3
SB9 Residen�al Development Brochure
with Current Requirements

CITY OF MONTE SERENO
18041 SARATOGA-LOS GATOS ROAD, MONTE SERENO, CA 95030
(408) 354-7635 • FAX (408) 395-7653 • WWW.CITYOFMONTESERENO.ORG P:\Front Counter\Residential Development SB9 Information.docx Page 1 of 3 Revised 12/2021
RESIDENTIAL DEVELOPMENTS (SB-9)
IN ACCORDANCE WITH GOVERNMENT CODE SECTION 65852.21
Senate Bill (SB) 9 was signed into law by Governor Newsom on September 16, 2021 and was effective on January 1, 2022. The most significant component of this bill is that it requires (1) ministerial approval of up to two housing units per lot (Residential Development) and (2) ministerial approval of a one-time, two-lot subdivision of any single-family zoned lot meeting specific requirements (Urban Lot Split). This handout summarizes the requirements for Residential Developments based on the Monte Sereno Municipal Code section 10.05.080.

This handout is intended to provide general information, contact the Planning Division for any questions or additional information.

Requirements
A Residential Development is a development that proposes no more than two new dwelling units in total on a parcel as follows:
• If a parcel includes an existing single-family dwelling, one additional unit may be developed pursuant to this section.
• If a parcel does not include an existing single-family dwelling, or if an existing single-family dwelling is proposed to be demolished in connection with the creation of a two-unit residential development, two units may be developed pursuant to this section.

Such an application, meeting all requirements of Monte Sereno Municipal Code section 10.05.080 shall be reviewed city staff without discretionary review or a public hearing.

Eligible Parcels
To be eligible for a Residential Development, the existing parcel shall meet all the following requirements:

1. The parcel is located within a single-family residential zoning district.

2. The parcel is not located within a historic district.

3. The existing dwelling unit(s) has not been occupied by a tenant in the last three years.

City Of Monte Sereno Residential Developments (SB-9)
P:\Front Counter\Residential Development SB9 Information.docx Page 2 of 3 Revised 12/2021
Use and Development Requirements
Residential Developments shall conform to all objective property development regulations of the applicable zoning district including, but not limited to, setbacks, building height, building size, structural coverage, and impervious coverage, and any objective requirements in the City’s design guidelines. However, following are modifications to these standards that specifically apply to Residential Developments:

Objective Design Standards. Residential developments shall comply with the City’s Objective Design Standards.

Setbacks. A setback of at least four feet is required from the rear and side property lines. Front yard setbacks are required based on the zoning district standards as shown below:

Zoning District Front Yard Setback
R-1-8 25 Feet - First Floor
30 Feet - Second Floor
R-1-20 30 Feet - First Floor
40 Feet - Second Floor
R-1-44 30 Feet – First Floor
45 Feet – Second Floor
No setback shall be required for an existing structure, or a structure constructed in the same location and to the same dimensions as an existing structure.

Building Height. Any portion of a new dwelling unit located in the side or rear setbacks of the zoning district as shown below, shall be no more than 16 feet in height:

Zoning District Side Yard Rear Yard
R-1-8 6 Feet 30 Feet
R-1-20 15 Feet 30 Feet
R-1-44 20 Feet 30 Feet
Building Size. Each new dwelling unit constructed shall be a maximum of 800 square feet.

Exterior Access. All dwelling units created shall have independent exterior access. Interior access between attached dwelling units shall be prohibited.

Separation Between Buildings. Each dwelling unit shall be separated by a distance of at least ten feet from any other structure on the parcel. However, units may be adjacent or connected if the structures meet building code safety standards and are sufficient to allow a separate conveyance.

City Of Monte Sereno Residential Developments (SB-9)
P:\Front Counter\Residential Development SB9 Information.docx Page 3 of 3 Revised 12/2021
Parking. A minimum of one off-street parking space shall be provided for each dwelling unit unless the parcel is within ½ mile of public transit or within one block of a car share vehicle.

Decks, Balconies, and Covered Areas. Second story exterior decks and balconies, and rooftop decks, are prohibited.

Additionally, exterior covered space that is attached to the dwelling unit (including but not limited to covered porches and patios) shall not exceed a total of 150 square feet, with at least one third of such square footage at the front of the dwelling unit.

Exterior Materials. When construction of a new dwelling unit is proposed on a parcel with an existing dwelling unit, the new dwelling unit shall utilize the same exterior materials and colors as the existing dwelling unit. Where two new units are proposed to be constructed on a parcel, each unit shall utilize the same exterior materials and colors as the other unit.

Electric Vehicle Chargers. Each new dwelling unit shall provide pre-wiring for one electrical vehicle charger as required by the California Green Building Standards Code section 4.106.4.1.

No Short-Term Rental. Dwelling units shall not be rented for a period of less than thirty days.

Utility Connections. Each dwelling unit shall have separate utility connection directly between each dwelling unit and the utility for water, sewer, and electrical services. Gas utility connections shall be prohibited for such dwelling units.

Onsite Wastewater Treatment. If a proposed dwelling unit will be connected to an onsite wastewater treatment system, the applicant shall provide a percolation test completed within the last five years, or, if the percolation test has been recertified, within the last ten years.

Filing, Processing, and Action
A Site Development Permit application shall be filed for all Residential Development projects. Such applications will be reviewed ministerially and without a public hearing by the City Planner.

The City Planner shall deny a Site Development Permit application if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed project would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.

The City Planner shall send notices to property owners within 600 feet of a proposed Residential Development upon the submission of an application, and again upon completion of such application.

Attachment 4
Letter Received from Berliner Cohen
LLP dated March 22, 2022

____________ ____________

FOUNDERS
SANFORD A. BERLINER (d. 2020)
SAMUEL J. COHEN

OF COUNSEL
STEVEN L. HALLGRIMSON
FRANK R. UBHAUS
RALPH J. SWANSON
NANCY L. BRANDT
LESLIE KALIM McHUGH

BRADLEY HEBERT
ERIC D. CAPRON
BRUCE J. HENDRICKS
STUART B. SPENCER

TEN ALMADEN BOULEVARD

ELEVENTH FLOOR
SAN JOSE, CALIFORNIA 95113-2233
TELEPHONE: (408) 286-5800
FACSIMILE: (408) 998-5388
www.berliner.com
Branch Offices
Merced, CA • Modesto, CA
March 22, 2022
VIA U.S. AND ELECTRONIC MAIL
Mayor Ellahie & Members of the City Council
City of Monte Sereno
18041 Saratoga - Los Gatos Road
Monte Sereno, CA 95030
Re: Ordinance No. NS-229, Implementing SB 9
Dear Mayor Ellahie & Members of the City Council:

The purpose of this letter is to advise the City of inconsistencies between Ordinance NS229 (the “Ordinance”) and state and federal law. This firm represents several Monte Sereno homeowners who would like to subdivide their property under SB 9, but who are being prevented from doing so by the Ordinance. These homeowners include Joy and Trevor Schwartz, Anne and Kevin Hayes, and Janet and Barry Chaffin. Each couple owns a parcel of property approximately one acre in size or more that is ideally suited for treatment under SB 9. In each case, SB 9 would facilitate the clients’ ability to foster their own personal and family aspirations without leaving the community, while also contributing to the City’s housing production goals.

Those objectives cannot be achieved, however, because of the Ordinance’s restrictions on the use of SB 9. SB 9 prohibits local agencies from applying objective design and subdivision standards that preclude the construction of two dwelling units at least 800 square feet in size. The Ordinance treats this minimum unit size as a maximum. It also limits exterior covered space ANDREW L. FABER
PEGGY L. SPRINGGAY
SAMUEL L. FARB
JAMES P. CASHMAN
STEVEN J. CASAD
NANCY J. JOHNSON
JEROLD A. REITON
JONATHAN D. WOLF
KATHLEEN K. SIPLE
KEVIN F. KELLEY

MARK MAKIEWICZ

JOLIE HOUSTON
BRIAN L. SHETLER
HARRY A. LOPEZ
CHARLES W. VOLPE
CHRISTINE H. LONG
AARON M. VALENTI
CHRISTIAN E. PICONE
SUSAN E. BISHOP
SANDRA G. SEPÚLVEDA
MICHAEL B. IJAMS
KIMBERLY G. FLORES
DAWN C. SWEATT
TYLER A. SHEWEY
JAMES F. LANDRUM, JR.

MICHAEL J. CHENG
EILEEN P. KENNEDY

JOSHUA BORGER
BENJAMIN M. JOHNSON
STEPHEN C. SCORDELIS
C. DAVID SPENCE
THOMAS P. MURPHY
ALESHIA M. WHITE

DENNIS CHIN
EDWARD C. HSU
ALEXANDRIA N. NGUYEN
ANDREW J. DIGNAN

ERIK RAMAKRISHNAN
LEILA N. SOCKOLOV
TIMOTHY K. BOONE

ANGELA SHAW
DAVID A. BELLUMORI
MARY T. NGUYEN
ELLEN M. TAYLOR
NATHAN C. BRADY
BRANDON L. REBBOAH
LINDSAY I. WALCZAK
LEA M. NEMETH
IRIS C. CHIU
MAKAYLA A. WHITNEY
MARISA J. MARTINSON
MARIA I. PALOMARES
BENJAMIN H. WOHLFORD
KEVIN S. LANDIS
CHRISTIAN D. WICK
JENNIFER N. WISE

SAM ATABAY BIDGOLI

Mayor & Council
March 22, 2022
-2-
attached to dwelling units, including porches and patios, to 150 square feet, with at least one-third of this area attached to the front of the dwelling.1
These restrictions are unreasonable, and the only conceivable purpose for them is effectively to prohibit SB 9 projects by rendering them infeasible. Under existing zoning rules, on a lot that is at least one acre in the R-1-44 zoning district, each of our clients could construct up to 8,300 square feet of living accommodation, including a residence, accessory dwelling unit, and junior accessory dwelling unit. But as soon as any property owner seeks to take advantage of SB 9, the Ordinance restricts the maximum unit size to 800 square feet, regardless of the size of the lot.2
For reasons explained below, attempting to thwart SB 9 in this way violates both SB 9 and the Housing Crisis Act of 2019 (SB 330) and is unconstitutional.

Despite these concerns, if our clients could subdivide their lots using SB 9’s procedures for ministerial Urban Lot Splits, to achieve standard sized units they would be willing to undergo the City’s discretionary process for site development approval. However, the Ordinance does not allow this,3 which, as explained below, is contrary to the plain text of SB 9.

1. The Ordinance Violates SB 9 and SB 330
A local ordinance violates SB 9 if it is intended to thwart SB 9. Such an ordinance also violates SB 330. This was made clear in a March 15, 2022 letter from the Attorney General to the City of Pasadena.4
In the letter, the Attorney General advised Pasadena that its attempt to thwart SB 9 by declaring large parts of the City “landmark districts” violates state law. At pages 4 and 5 of the letter, the Attorney General explained that by seeking to thwart the law, Pasadena had abused its discretion under SB 9. At page 4, the Attorney General also stated that Pasadena’s actions violated Government Code Section 66300(b)(1)(B)(i) (enacted as part of SB 330), which prohibits any local zoning regulation that has the effect of restricting or limiting housing development.

The Ordinance was intended primarily to discourage the use of SB 9 within the City. This was made clear when the City Council discussed the Ordinance at its January 4, 2022 meeting, at which time the following comments were made by councilmembers:
• Around 32 minutes into the meeting, one councilmember indicated that the City had proposed a “strict” ordinance “so there is not a lot of change immediately” and to “try to maintain the status quo.”
• At around 36 minutes, a councilmember indicated that the goal of the Ordinance was “not to create a financial incentive for people to go and split their lots.” • At around 38 minutes, one councilmember described the Ordinance as a “preventative measure.”
1 Muni. Code, § 10.05.080.F.8, 12. 2 Note that the smallest size lot any of our clients can create under SB 9 is approximately 16,500 square feet.

Applying the R-1-20 regulations, a house size of 4,500 square feet would apply to each of the resulting parcels. 3 Muni. Code, § 13.06.040.C, D. 4 https://oag.ca.gov/system/files/attachments/pressdocs/AG%20Letter%20to%20Pasadena%20re%20SB%209%20Urgency%20Ordinance.pdf.

Mayor & Council
March 22, 2022
-3-
• Starting around 39 minutes into the meeting, two councilmembers justified the Ordinance as an effort to retain local control.

Like with Pasadena’s ordinance, by adopting the Ordinance to thwart SB 9, the City Council abused its discretion. Also, because the purpose and effect of the Ordinance is to restrict or limit housing development that state law expressly allows, the Ordinance violates SB 330.

2. The Ordinance Is Unconstitutional
A zoning regulation is unconstitutional if it is arbitrary and capricious.5 In other words, the regulation must have a legitimate purpose rooted in the health, safety, or welfare of the general public. Here, however, the Ordinance was intended to discourage the use of SB 9. Discouraging or preventing property owners from taking advantage of rights under state law is not a legitimate purpose rooted in the health, safety, and welfare of the general public. A homeowner in the City can construct a 3,300 square foot primary dwelling unit plus accessory and junior accessory dwelling units on some of the smallest lots in the City. Given that circumstance, there is no rational basis to limit unit sizes for projects processed under SB 9 to 800 square feet regardless of lot size.

The restriction is therefore arbitrary and capricious, which in turn renders it unconstitutional.

3. Property Owners Should Be Allowed to Seek Discretionary Approvals for New Units in Connection with SB 9 Urban Lot Splits
Even though the Ordinance’s restrictions on building size are unlawful, as set forth above, our clients would be willing to undergo the City’s discretionary procedures for building site approvals if they could process Urban Lot Splits under SB 9. However, the Ordinance prohibits this. This prohibition is contrary to the plain text of SB 9.

SB 9 has two main parts. First, it adds Government Code Section 65852.21 to the Planning and Zoning Law, which provides for ministerial building site approvals of up to two primary residences per residential lot. Second, it adds Government Code Section 66411.7 to the Subdivision Map Act, which establishes procedures for ministerial approval of an Urban Lot Split.

The separate purpose of these statutes coupled with their enactment in different divisions of the Government Code makes clear that each statute rests on its own bottom.

If there were any unclarity that each statute functions independently of the other, Government Code Section 65852.21(f) resolves the ambiguity, by stating that: “Notwithstanding Section 65852.2 or 65852.22, a local agency shall not be required to permit an accessory dwelling unit or a junior accessory dwelling unit on parcels that use both the authority contained within this section and the authority contained in Section 66411.7.6 The fact that subdivision (f) describes
rules that will apply if a property owner uses the authority under both statutes shows that a property owner may choose to use only one of the statutes.
5 Hamer v. Ross (1963) 59 Cal.2d 776, 781 (determining that spot zoning was arbitrary and capricious under the circumstances, and therefore unconstitutional). 6 Emphasis added.

Mayor & Council
March 22, 2022
-4-
SB 9 is sufficiently comprehensive that it can be said to occupy the field of legislation relating to the subject matter covered by the law, except to the extent that it expressly preserves local authority. SB 9 itself does not require property owners to take advantage of both Government Code Section 65852.21 and 66411.7, and nothing in SB 9 allows a local agency to impose such a requirement. The City is therefore preempted from prohibiting property owners from using discretionary design review processes in connection with an Urban Lot Split.

I would appreciate the opportunity to discuss these concerns further with a representative of the City, and I urge you to revisit the Ordinance. Each of our clients desires to propose a welldesigned project that will enhance the character of the City. There is no basis in SB 9 to impose unreasonable impediments to achieving this goal.

Very Truly Yours,

BERLINER COHEN, LLP

ERIK RAMAKRISHNAN
[email protected]
Cc: Steve Leonardis ([email protected]); Sergio Rudin ([email protected])

Atachment 5
California Department of Housing and
Community Development SB9 Fact Sheet

California Department of Housing and Community Development SB 9 Fact Sheet
On the Implementation of Senate Bill 9 (Chapter 162, Statutes of 2021)
Housing Policy Development Division
March 2022

California Department of Housing and Community Development – SB 9 Fact Sheet 1 This Fact Sheet is for informational purposes only and is not intended to implement or interpret SB 9. HCD does not have authority to enforce SB 9, although violations of SB 9 may concurrently violate other housing laws where HCD does have enforcement authority, including but not limited to the laws addressed in this document. As local jurisdictions implement SB 9, including adopting local ordinances, it is important to keep these and other housing laws in mind. The Attorney General may also take independent action to enforce SB 9. For a full list of statutes over which HCD has enforcement authority, visit HCD’s Accountability and Enforcement webpage.

Executive Summary of SB 9
Senate Bill (SB) 9 (Chapter 162, Statutes of 2021) requires ministerial approval of a housing development with no more than two primary units in a single-family zone, the subdivision of a parcel in a single-family zone into two parcels, or both. SB 9 facilitates the creation of up to four housing units in the lot area typically used for one single-family home. SB 9 contains eligibility criteria addressing environmental site constraints (e.g., wetlands, wildfire risk, etc.), anti-displacement measures for renters and low-income households, and the protection of historic structures and districts. Key provisions of the law require a local agency to modify or eliminate objective development standards on a project-by-project basis if they would prevent an otherwise eligible lot from being split or prevent the construction of up to two units at least 800 square feet in size. For the purposes of this document, the terms “unit,” “housing unit,” “residential unit,” and “housing development” mean primary unit(s) unless specifically identified as an accessory dwelling unit (ADU) or junior ADU or otherwise defined.

Single-Family Residential Zones Only (Reference: Gov. Code, §§ 65852.21, subd. (a); 66411.7 subd. (a)(3)(A)) The parcel that will contain the proposed housing development or that will be subject to the lot split must be located in a single-family residential zone. Parcels located in multifamily residential, commercial, agricultural, mixed-use zones, etc., are not subject to SB 9 mandates even if they allow single-family residential uses as a permitted use. While some zones are readily identifiable as single-family residential zones (e.g., R-1 “SingleFamily Residential”), others may not be so obvious. Some local agencies have multiple single-family zones with subtle distinctions between them relating to minimum lot sizes or allowable uses. In communities where there may be more than one single-family residential zone, the local agency should carefully review the zone district descriptions in the zoning code and the land use designation descriptions in the Land Use Element of the General Plan. This review will enable the local agency to identify zones whose primary purpose is single-family residential uses and which are therefore subject to SB 9.

Considerations such as minimum lot sizes, natural features such as hillsides, or the permissibility of keeping horses should not factor into the determination.

California Department of Housing and Community Development – SB 9 Fact Sheet 2 Residential Uses Only
(Reference: Gov. Code, §§ 65852.21, subd. (a))
SB 9 concerns only proposed housing developments containing no more than two residential units (i.e., one or two). The law does not otherwise change the allowable land uses in the local agency’s single-family residential zone(s). For example, if the local agency’s single-family zone(s) does not currently allow commercial uses such as hotels or restaurants, SB 9 would not allow such uses.

Ministerial Review
(Reference: Gov. Code, §§ 65852.21, subd. (a); 66411.7, subds. (a), (b)(1)) An application made under SB 9 must be considered ministerially, without discretionary review or a hearing. Ministerial review means a process for development approval involving no personal judgment by the public official as to the wisdom of carrying out the project. The public official merely ensures that the proposed development meets all the applicable objective standards for the proposed action but uses no special discretion or judgment in reaching a decision. A ministerial review is nearly always a “staff-level review.” This means that a staff person at the local agency reviews the application, often using a checklist, and compares the application materials (e.g., site plan, project description, etc.) with the objective development standards, objective subdivision standards, and objective design standards.

Objective Standards
(Reference: Gov. Code, §§ 65852.21, subd. (b); 66411.7, subd. (c)) The local agency may apply objective development standards (e.g., front setbacks and heights), objective subdivision standards (e.g., minimum lot depths), and objective design standards (e.g., roof pitch, eave projections, façade materials, etc.) as long as they would not physically preclude either of the following:

Up to Two Primary Units. The local agency must allow up to two primary units (i.e., one or two) on the subject parcel or, in the case of a lot split, up to two primary units on each of the resulting parcels.

Units at least 800 square feet in size. The local agency must allow each primary unit to be at least 800 square feet in size.

The terms “objective zoning standards,” “objective subdivision standards,” and “objective design review standards” mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. Any objective standard that would physically preclude either or both of the two objectives noted above must be modified or

California Department of Housing and Community Development – SB 9 Fact Sheet 3 waived by the local agency in order to facilitate the development of the project, with the following two exceptions:

Setbacks for Existing Structures. The local agency may not require a setback for an existing structure or for a structure constructed in the same location and to the same dimensions as an existing structure (i.e., a building reconstructed on the same footprint).

Four-Foot Side and Rear Setbacks. SB 9 establishes an across-the-board maximum four-foot side and rear setbacks. The local agency may choose to apply a lesser setback (e.g., 0-4 feet), but it cannot apply a setback greater than four feet. The local agency cannot apply existing side and rear setbacks applicable in the single-family residential zone(s). Additionally, the four-foot side and rear setback standards are not subject to modification. (Gov. Code, §§ 65852.21, subd. (b)(2)(B); 66411.7, subdivision (c)(3).)
One-Unit Development
(Reference: Gov. Code, §§ 65852.21, subd. (a); 65852.21, subd. (b)(2)(A)) SB 9 requires the ministerial approval of either one or two residential units. Government Code section 65852.21 indicates that the development of just one single-family home was indeed contemplated and expected. For example, the terms “no more than two residential units” and “up to two units” appear in the first line of the housing development-related portion of SB 9 (Gov. Code, § 65852.21, subd. (a)) and in the line obligating local agencies to modify development standards to facilitate a housing development. (Gov. Code, § 65852.21, subd. (b)(2)(A).)
Findings of Denial
(Reference: Gov. Code, §§ 65852.21, subd. (d); 66411.7, subd. (d)) SB 9 establishes a high threshold for the denial of a proposed housing development or lot split. Specifically, a local agency’s building official must make a written finding, based upon a preponderance of the evidence, that the proposed housing development would have a specific, adverse impact, as defined in Government Code section 65589.5, subdivision (d)(2), upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. “Specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. (Gov. Code, § 65589.5, subd. (d)(2).)

California Department of Housing and Community Development – SB 9 Fact Sheet 4 Environmental Site Constraints
(Reference: Gov. Code, §§ 65852.21, subd. (a)(2) and (a)(6); 66411.7, subd. (a)(3)(C) and (a)(3)(E)) A proposed housing development or lot split is not eligible under SB 9 if the parcel contains any of the site conditions listed in Government Code section 65913.4, subdivision (a)(6)(B-K). Examples of conditions that may disqualify a project from using SB 9 include the presence of farmland, wetlands, fire hazard areas, earthquake hazard areas, flood risk areas, conservation areas, wildlife habitat areas, or conservation easements. SB 9 incorporates by reference these environmental site constraint categories that were established with the passing of the Streamlined Ministerial Approval Process (SB 35, Chapter 366, Statutes of 2017). Local agencies may consult HCD’s Streamlined Ministerial Approval Process Guidelines for additional detail on how to interpret these environmental site constraints.

Additionally, a project is not eligible under SB 9 if it is located in a historic district or property included on the State Historic Resources Inventory or within a site that is designated or listed as a city or county landmark or as a historic property or district pursuant to a city or county ordinance.

California Environmental Quality Act (CEQA)
Reference: Gov. Code, §§ 65852.21, subd. (j); 66411.7, subd. (n)) Because the approval of a qualifying project under SB 9 is deemed a ministerial action, CEQA does not apply to the decision to grant an application for a housing development or a lot split, or both. (Pub. Resources Code, § 21080, subd. (b)(1) [CEQA does not apply to ministerial actions]; CEQA Guidelines, § 15268.) For this reason, a local agency must not require an applicant to perform environmental impact analysis under CEQA for applications made under SB 9. Additionally, if a local agency chooses to adopt a local ordinance to implement SB 9 (instead of implementing the law directly from statute), the preparation and adoption of the ordinance is not considered a project under CEQA. In other words, the preparation and adoption of the ordinance is statutorily exempt from CEQA.

Anti-Displacement Measures
(Reference: Gov. Code, §§ 65852.21, subd. (a)(3); 66411.7, subd. (a)(3)(D)) A site is not eligible for a proposed housing development or lot split if the project would require demolition or alteration of any of the following types of housing: (1) housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income; (2) housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power; or (3) housing that has been occupied by a tenant in the last three years.

California Department of Housing and Community Development – SB 9 Fact Sheet 5 Lot Split Requirements
(Reference: Gov. Code, § 66411.7)
SB 9 does not require a local agency to approve a parcel map that would result in the creation of more than two lots and more than two units on a lot resulting from a lot split under Government Code section 66411.7. A local agency may choose to allow more than two units, but it is not required to under the law. A parcel may only be subdivided once under Government Code section 66411.7. This provision prevents an applicant from pursuing multiple lot splits over time for the purpose of creating more than two lots. SB 9 also does not require a local agency to approve a lot split if an adjacent lot has been subject to a lot split in the past by the same property owner or a person working in concert with that same property owner.

Accessory Dwelling Units
(Reference: Gov. Code, §§ 65852.21, subd. (j); 66411.7, subd. (f)) SB 9 and ADU Law (Gov. Code, §§ 65852.2 and 65858.22) are complementary. The requirements of each can be implemented in ways that result in developments with both “SB 9 Units” and ADUs. However, specific provisions of SB 9 typically overlap with State ADU Law only to a limited extent on a relatively small number of topics. Treating the provisions of these two laws as identical or substantially similar may lead a local agency to implement the laws in an overly restrictive or otherwise inaccurate way. “Units” Defined. The three types of housing units that are described in SB 9 and related ADU Law are presented below to clarify which development scenarios are (and are not) made possible by SB 9. The definitions provided are intended to be read within the context of this document and for the narrow purpose of implementing SB 9.

Primary Unit. A primary unit (also called a residential dwelling unit or residential unit) is typically a single-family residence or a residential unit within a multi-family residential development. A primary unit is distinct from an ADU or a Junior ADU.

Examples of primary units include a single-family residence (i.e., one primary unit), a duplex (i.e., two primary units), a four-plex (i.e., four primary units), etc.

Accessory Dwelling Unit. An ADU is an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It includes permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel on which the single-family or multifamily dwelling is or will be situated.

Junior Accessory Dwelling Unit. A Junior ADU is a unit that is no more than 500 square feet in size and contained entirely within a single-family residence. A Junior ADU may include separate sanitation facilities or may share sanitation facilities with the existing structure.

California Department of Housing and Community Development – SB 9 Fact Sheet 6 The terms “unit,” “housing unit,” “residential unit,” and “housing development” mean primary unit(s) unless specifically identified as an ADU or Junior ADU or otherwise defined. This distinction is critical to successfully implementing SB 9 because state law applies different requirements (and provides certain benefits) to ADUs and Junior ADUs that do not apply to primary units.

Number of ADUs Allowed. ADUs can be combined with primary units in a variety of ways to achieve the maximum unit counts provided for under SB 9. SB 9 allows for up to four units to be built in the same lot area typically used for a single-family home. The calculation varies slightly depending on whether a lot split is involved, but the outcomes regarding total maximum unit counts are identical.

Lot Split. When a lot split occurs, the local agency must allow up to two units on each lot resulting from the lot split. In this situation, all three unit types (i.e., primary unit, ADU, and Junior ADU) count toward this two-unit limit. For example, the limit could be reached on each lot by creating two primary units, or a primary unit and an ADU, or a primary unit and a Junior ADU. By building two units on each lot, the overall maximum of four units required under SB 9 is achieved. (Gov. Code, § 66411.7, subd. (j).) Note that the local agency may choose to allow more than two units per lot if desired.

No Lot Split. When a lot split has not occurred, the lot is eligible to receive ADUs and/or Junior ADUs as it ordinarily would under ADU law. Unlike when a project is proposed following a lot split, the local agency must allow, in addition to one or two primary units under SB 9, ADUs and/or JADUs under ADU Law. It is beyond the scope of this document to identify every combination of primary units, ADUs, and Junior ADUs possible under SB 9 and ADU Law. However, in no case does SB 9 require a local agency to allow more than four units on a single lot, in any combination of primary units, ADUs, and Junior ADUs.

See HCD’s ADU and JADU webpage for more information and resources.

Relationship to Other State Housing Laws
SB 9 is one housing law among many that have been adopted to encourage the production of homes across California. The following represent some, but not necessarily all, of the housing laws that intersect with SB 9 and that may be impacted as SB 9 is implemented locally.

Housing Element Law. To utilize projections based on SB 9 toward a jurisdiction’s regional housing need allocation, the housing element must: 1) include a site-specific inventory of sites where SB 9 projections are being applied, 2) include a nonvacant sites analysis demonstrating the likelihood of redevelopment and that the existing use will not constitute an impediment for additional residential use, 3) identify any governmental constraints to the use of SB 9 in the creation of units (including land use controls, fees,

California Department of Housing and Community Development – SB 9 Fact Sheet 7 and other exactions, as well as locally adopted ordinances that impact the cost and supply of residential development), and 4) include programs and policies that establish zoning and development standards early in the planning period and implement incentives to encourage and facilitate development. The element should support this analysis with local information such as local developer or owner interest to utilize zoning and incentives established through SB 9. Learn more on HCD’s Housing Elements webpage.

Housing Crisis Act of 2019. An affected city or county is limited in its ability to amend its general plan, specific plans, or zoning code in a way that would improperly reduce the intensity of residential uses. (Gov. Code, § 66300, subd. (b)(1)(A).) This limitation applies to residential uses in all zones, including single-family residential zones. “Reducing the intensity of land use” includes, but is not limited to, reductions to height, density, or floor area ratio, new or increased open space or lot size requirements, new or increased setback requirements, minimum frontage requirements, or maximum lot coverage limitations, or any other action that would individually or cumulatively reduce the site’s residential development capacity. (Gov. Code, § 66300, subd. (b)(1)(A).) A local agency should proceed with caution when adopting a local ordinance that would impose unique development standards on units proposed under SB 9 (but that would not apply to other developments). Any proposed modification to an existing development standard applicable in the single-family residential zone must demonstrate that it would not result in a reduction in the intensity of the use. HCD recommends that local agencies rely on the existing objective development, subdivision, and design standards of its singlefamily residential zone(s) to the extent possible. Learn more about Designated Jurisdictions Prohibited from Certain Zoning-Related Actions on HCD’s website.

Housing Accountability Act. Protections contained in the Housing Accountability Act (HAA) and the Permit Streaming Act (PSA) apply to housing developments pursued under SB 9. (Gov. Code, §§ 65589.5; 65905.5; 65913.10; 65940 et seq.) The definition of “housing development project” includes projects that involve no discretionary approvals and projects that include a proposal to construct a single dwelling unit. (Gov. Code, § 65905.5, subd. (b)(3).) For additional information about the HAA and PSA, see HCD’s Housing Accountability Act Technical Assistance Advisory.

Rental Inclusionary Housing. Government Code section 65850, subdivision (g), authorizes local agencies to adopt an inclusionary housing ordinance that includes residential rental units affordable to lower- and moderate-income households. In certain circumstances, HCD may request the submittal of an economic feasibility study to ensure the ordinance does not unduly constrain housing production. For additional information, see HCD’s Rental Inclusionary Housing Memorandum.

Atachment 6
California Department of Housing and
Community Development
Leters Regarding Local SB9 Regula�ons

STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
December 15, 2022
Scott Reimers
City of Temple City
Community Development Director
9701 Las Tunas Drive
Temple City, CA 91780
Dear Scott Reimers:

RE: City of Temple City – Follow-Up Letter of Technical Assistance This letter memorializes the status of the open accountability case against the City of Temple City (City) regarding the City’s SB 9 Implementation Ordinance (Ordinance). It documents the commitments made by the City and establishes a timeline for corrective action. Beginning on December 12, 2021, when HCD received the initial complaint that the Ordinance violated the Housing Crisis Act (Gov. Code, § 66300) and portions of State Housing Element Law (Gov. Code, § 65580-65589.11) that relate to governmental constraints on the production of housing, HCD and the City have had an ongoing written and verbal dialogue regarding proper application of state housing laws.

The City’s Commitments
This dialogue has culminated in the City committing to the following actions:

1. Maximum Unit Size. The City agrees to delete TCMC 9-1T-21.A.4.c, a provision of the Ordinance that established a universal 800 square feet maximum unit size on all units built pursuant to SB 9. This will mean that all existing R-1 Zone development standards will apply (TCMC 9-1T-21.A.4.a) except as modified (TCMC 9-1T-21.A.7) to achieve units at least 800 square feet in size. In some or most instances, it will be possible to build an SB 9 unit that is larger than 800 square feet.

2. Courtyard Requirements. The City agrees to amend TCMC 9-1T-21.A.6.m such that the courtyard requirements of the R-2 Zone will apply to SB 9 units.

3. Accessory Dwelling Unit (ADU). The City agrees to amend TCMC 9-1T21.A.4.b to clarify that two SB 9 units and two ADUs/Junior ADUs can be constructed, pursuant to State ADU Law, on a site where no urban lot split is proposed.

Scott Reimers, Community Development Director

The City agrees to complete the three above-listed amendments to the ordinance no later than June 30, 2023, with the first public hearing in the amendment process occurring no later than March 31, 2022. These dates are based on a timeline proposed by the City in its letter dated May 22, 2022, and reiterated in an email dated December 12, 2022.

State Housing Element Law – Governmental Constraints
In addition, HCD reminds the City that it has committed to studying, and if necessary amending, its SB 9 implementation ordinance in the City’s 6th Cycle Draft Housing Element Implementation Program C12 (SB 9 Requirements). The program states the following: “Based on HCD’s review, the City will amend its urban lot splits and urban dwelling requirements as necessary to comply with State law.” It includes a timeframe of 2022-2023. This means that the City will have completed all parts of this program by no later than December 31, 2023.

Given the City’s self-expressed six-month zoning code amendment process, it appears the City will need to begin this process no later than June 1, 2023, with the first public hearing occurring no later than August 31, 2023, to achieve an end-of-year completion.

As described in detail in HCD’s Letter of Technical Assistance dated April 29, 2022, HCD remains concerned that the following components of the Ordinance may represent governmental constraints on housing production and/or a failure to Affirmatively Further Fair Housing (AFFH):
• Parking Requirements
o Prohibition on off-street parking spaces that would serve residents of SB 9 units o Prohibition on residents of SB 9 units purchasing on-street parking permits • 30-Year Affordable Housing Deed Restriction
o 100 percent of SB 9 units are required to be deed-restricted affordable • LEED Platinum Certification
o All SB 9 units are required to achieve LEED Platinum levels of energy efficiency • Subterranean Third Story Requirement
o In certain instances, the Ordinance requires that a portion of the floor area of a dwelling built under SB 9 be located underground
Conclusion
HCD would like to remind the City that under Government Code section 65585, subdivision (j), HCD has enforcement authority over these and other housing laws. Accordingly, HCD may review local government actions to determine consistency with these and other laws. (Gov. Code, § 65585, subd. (i).) If HCD finds that a city’s actions do not comply with state law, HCD may notify the California Office of the Attorney General. (Gov. Code, § 65585,

Scott Reimers, Community Development Director

subd. (j).) Penalties for failure to implement Housing Element implementation programs include housing element decertification.

If you have questions or need additional information, please contact Brian Heaton, of our staff, at [email protected].

Sincerely,
David Zisser
Assistant Deputy Director
Local Government Relations and Accountability
cc: Brian Cooke, City Manager
Greg Murphy, City Attorney

STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
April 17, 2023
Belinda Deines, Principal Planner
Community Development Department
City of Dana Point
33282 Golden Lantern
Dana Point, CA 92629
Dear Belinda Deines:

RE: City of Dana Point’s SB 9 Ordinance under Housing Crisis Act (Gov. Code, § 66300), ADU Law (Gov. Code, § 65852.2), etc. – Letter of Technical Assistance The purpose of this letter is to provide technical assistance to the City of Dana Point (City) regarding the relationship between its adopted Senate Bill (SB) 9 implementation ordinance (Ordinance 22-01) (“Ordinance”) and the Housing Crisis Act of 2019 (HCA) (Gov. Code, § 66300), among other relevant state housing laws. The California Department of Housing and Community Development (HCD) received several complaints raising concerns that certain provisions of the Ordinance may violate state law. HCD subsequently reviewed the adopted ordinance and other publicly available materials. This letter identifies several concerning provisions of the Ordinance and describes the ways in which these provisions likely violate the HCA.

This letter also identifies provisions of the Ordinance that raise concerns under other housing laws that HCD enforces, such as Accessory Dwelling Unit (ADU) Law (Gov.

Code, § 65852.2), Land Use Discrimination Law (Gov. Code, § 65008), and the Rental Inclusionary Housing Law (Gov. Code, § 65850.01).

Housing Crisis Act of 2019 (Gov. Code, § 66300)
The HCA limits the ability of a local agency to reduce the intensity of land use wherever housing is an allowable use without concurrently increasing the intensity of land use elsewhere to compensate for the loss of residential development capacity. The HCA defines reductions in the intensity of land use to include the addition or modification of development standards. Specifically, the law provides the following:

Changing the general plan land use designation, specific plan land use designation, or zoning of a parcel or parcels of property to a less intensive use or reducing the intensity of land use within an existing general plan land use designation, specific plan land use designation, or zoning district in effect at the

Belinda Deines, Principal Planner

time of the proposed change, below what was allowed under the land use designation or zoning ordinances of the affected county or affected city, as applicable, as in effect on January 1, 2018, except as otherwise provided in clause (ii) of subparagraph (B) or subdivision (i). For purposes of this subparagraph, “reducing the intensity of land use” includes, but is not limited to, reductions to height, density, or floor area ratio, new or increased open space or lot size requirements, new or increased setback requirements, minimum frontage requirements, or maximum lot coverage limitations, or any other action that would individually or cumulatively reduce the site’s residential development capacity.
(Gov. Code, § 66300, subd. (b)(1)(A).) In addition, per Government Code section 65589.5, subdivision (a)(2)(L), the HCA is to be broadly construed to maximize the development of housing.

ADU Law (Gov. Code, §§ 65852.2 and 65858.22)
SB 9 and ADU Law are complementary. Both laws can be implemented in ways that result in developments with both “SB 9 Units” and ADUs. For example, when a lot split has not occurred, the lot is eligible to receive a duplex on the lot under SB 9 and to receive ADUs and/or junior ADUs (JADUs) as it ordinarily would under ADU Law. Or, when a lot split occurs under SB 9, each lot is eligible for up to two units, including, for example, a primary unit and an ADU or JADU. Only in the case that a lot owner both splits a lot and builds a duplex on a resulting lot under SB 9 is ADU Law superseded (i.e., the lot is not entitled to an ADU or JADU); in all other cases, State ADU Law applies.1
Specific Findings
The following aspects of the Ordinance raise concerns:
• Sec 9.72.004 (C) and (E) – Two Unit Maximum on Duplex Lots – The Ordinance states, “No more than two residential units (whether primary, accessory, or single family residential duplex) shall be allowed per parcel.” This is later reinforced with the requirement of the same language in a deed restriction. However, this imposes a two-unit cap on all single-family residential duplexes, even in instances when a lot split has not occurred. Imposing a two-unit cap on unsplit lots with a duplex would violate State ADU Law. (Gov. Code, § 65852.2, subds. (a) and (e).) The City should amend the language to clarify that a two-unit cap applies only in the case of a duplex on a split lot.
1 For more information on the interaction between SB 9 and ADU Law, please refer to HCD’s SB9 Fact Sheet, available at https://www.hcd.ca.gov/docs/planning-and-communitydevelopment/sb9factsheet.pdf.

Belinda Deines, Principal Planner

• Sec 9.72.004 (C) – Attachment Requirement – The Ordinance states, “The Residential Units located on the property must be attached or connected via a permanent wall, ceiling or floor.” This appears to prohibit detached “Residential Units,” which include ADUs. However, Government Code section 65852.2, subdivision (a)(1)(D)(iii), permits ADUs that are “detached from the proposed or existing primary dwelling,” and subdivision (e)(1)(B) requires ministerial approval of “[o]ne detached, new construction, accessory dwelling unit….” Therefore, the City should revise the language to clarify that detached ADUs are permitted in association with SB 9 developments.
• Sec 9.72.004 (E); Sec. 9.72.004 (J)(10); Sec 7.37.004 (D) – Affordability Deed Restriction – The Ordinance requires a deed restriction wherein “the Single Family Residential Duplex shall be occupied by very-low to low-income households in perpetuity….” It is unclear if this is a reference to the first primary unit or both units. A similar requirement is later required for all split lots. In practice, these provisions make the SB 9 ordinance an inclusionary zoning ordinance as well.

However, while inclusionary zoning requirements are a well-used and important tool for the creation of affordable housing, this requirement is equivalent to either a 50-, 75- or 100-percent inclusionary requirement that is not imposed on any other type of residential development in Dana Point. While Government Code section 65850, subdivision (g), authorizes local agencies to adopt an inclusionary housing ordinance that includes residential rental units affordable to lower- and moderate-income households, under section 65850.01, HCD has the authority to review an inclusionary requirement that exceeds 15 percent and to request that a local jurisdiction submit an economic feasibility study providing “evidence that the ordinance does not unduly constrain the production of housing….” Absent an economic feasibility study showing otherwise, the Ordinance’s inclusionary requirement raises concerns that it may render implementation of SB 9 economically infeasible. Therefore, the City should remove the requirement. • Sec. 9.72.004 (G); Sec 7.37.004 (I) – Maximum Height – The Ordinance states, “The Single Family Residential Duplex shall be subject to a height limitation of twelve feet for a roof pitch of less and 3/12, or fourteen (14) feet for a roof pitch between 3/12 and 6/12 or sixteen (16) feet for a roof pitch of 6/12 and greater, and shall be limited to one story.” This exact text is later repeated for units on lot splits. However, this is a height restriction far below standard single-family development standards in Dana Point, which is noted in Section 9.09.030 Table Item F as being 28 feet and two stories. This limitation, to the extent it prevents development of equivalent floor area compared to that allowed under the existing Development Standards as described above, reduces the intensity of land use and represents a reduction in residential development capacity. (Gov. Code, §

Belinda Deines, Principal Planner

66300, subd. (b)(1)(A).) Therefore, the City must remove this reference or amend it to state that Single Family Residential Duplex and Split Lot primary dwelling structures may be the same height as the underlying zoning permits for singlefamily development. Be advised that in practice, preventing two-story structures means the lot coverage will necessarily increase to accommodate the units. • Sec. 9.72.004 (I); Sec 7.37.004 (K) – 800 Square Foot Maximum – The Ordinance states, “For all Single Family Residential Duplexes, the Total Floor Area shall not exceed 800 square feet…. In no event shall the two Residential Units located upon the parcel exceed 1600 square feet.” The Ordinance later states, “For all residential units constructed upon parcel(s) subject to or created by an Urban Lot Split, the Total Floor Area shall not exceed 800 square feet….” However, this represents a reduction in the intensity of land use in violation of Government Code section 66300, subdivision (b)(1)(A), as any large lot would see an extreme reduction in the developable floor area compared to existing zone development standards. Furthermore, this requirement extends the size limitations imposed on primary units constructed under SB 9 to any existing primary unit on the lot (i.e., a single-family residence). In doing so, both the 1,600 square-foot parcel maximum and the 800 square-foot unit maximum represent a dramatic reduction in development potential and, therefore, violate the HCA. The City must remove these requirements.
• Sec. 9.72.004 (I); Sec 7.37.004 (K) – Bedroom Limitation – The Ordinance states, “For all Single Family Residential Duplexes… [each unit] shall not exceed… 1 bedroom.” The Ordinance later states, “For all residential units constructed upon parcel(s) subject to or created by an Urban Lot Split, the Total Floor Area shall not exceed… one bedroom.” However, limiting the number of bedrooms may constrain housing choice and result in discriminatory effects on families with children, people with disabilities, and other protected groups in violation of state and federal fair housing laws, including but not limited to Government Code section 65008, subdivisions (a)(1)(A) and (b)(1)(B)(i). Furthermore, reducing the number of people that may reside in a dwelling unit also constitutes a reduction in the intensity of land use and thus a violation of the HCA per Government Code section 66300, subdivision (b)(1)(A). Therefore, the City must revise this section to avoid limiting the occupancy of housing units based on familial status or other protected characteristics.

The inconsistencies described above are additionally problematic because section

9.72.006 of the Ordinance makes “[a]ny person responsible for violating” the Ordinance “guilty or an infraction or a misdemeanor.” Section 7.37.005 provides for additional civil penalties. In other words, the Ordinance criminalizes conduct that may be consistent with state law.

Belinda Deines, Principal Planner

Conclusion
Separately and collectively, these development standards and other requirements reduce the intensity of land use, raising concerns under the HCA. They also raise concerns under Housing Element Law, State ADU Law, Land Use Discrimination Law, and SB 9 itself.

HCD would like to remind the City that under Government Code section 65585, subdivision (j), HCD has enforcement authority over the HCA, Housing Element Law, State ADU Law, Land Use Discrimination Law, Rental Inclusionary Housing Law, and other housing laws.

Accordingly, HCD may review local government actions to determine consistency with these and other laws. (Gov. Code, § 65585, subd. (i).) If HCD finds that a city’s actions do not comply with state law, HCD may notify the California Office of the Attorney General. (Gov. Code, § 65585, subd. (j).)
Thank you for your prompt attention to this matter. HCD recommends that the City conduct a comprehensive review of the HCA and other applicable state housing laws2 and update its SB 9 implementing ordinance accordingly. Additionally, HCD requests that the City respond in writing within 30 days of receipt of this letter. The City’s response should include a proposed timeline for corrective actions. If you have questions or need additional information, please contact Mike Van Gorder, of our staff, at [email protected].

Sincerely,
David Zisser
Assistant Deputy Director
Local Government Relations and Accountability
2 While it is beyond the scope if this letter to outline conflicts between the Ordinance and SB 9 (Gov.

Code, §§ 65852.21, 66411.7) that do not implicate other housing laws, HCD notes that the following sections of the Ordinance are in plain conflict with SB 9: 9.72.003 (C)(2); 9.72.004 (C), (E), (J)(10), (I); 7.37.004 (A)(11), (D), (I), (K), Please refer to HCD’s SB9 Fact Sheet, available at https://www.hcd.ca.gov/docs/planning-and-community-development/sb9factsheet.pdf, to bring the Ordinance into compliance with state law.

Atachment 7
Comparison of SB9 Regula�ons with other
Local Communi�es

Comparison of SB9 Regulations with Other Local Communities Item Town of Los Gatos City of Saratoga City of Monte Sereno – Current SB9 Standards
City of Monte Sereno –
Staff Recommendation
Building Size As allowed by the zoning
district; except that the
first unit shall be 1,200
square feet maximum.

Proportional to the
percentage of the lot split
of the original lot.

If new house is within the
setback area of the zoning
district, maximum of
1,000 square feet
allowed.
800 square feet maximum As allowed by the zoning
district; except that the
first unit shall be 1,200
square feet maximum.

Building Height 16 feet when located
within the side or rear
yard setback of zoning
district or within a hillside
zoning district.

Otherwise, standard
building height allowed by
zoning district.
16 feet when located
within the side or rear
yard setback of zoning
district.

Otherwise, maximum 18
feet in height.
16 feet when located
within the side or rear
yard setback of zoning
district.

Otherwise, maximum 18
feet in height.
14 feet when any portion
of the building is located
within the side or rear
yard setback of zoning
district.

Otherwise, maximum 21
feet in height.

Exterior Covered Areas If a front porch is
proposed, a minimum of 6
feet in depth and a
minimum width of 25% of
the building.

As allowed by the zoning
district.

Covered porches and
patios limited to 150
square feet with at least
1/3 in the front of the
building.

As allowed by the zoning
district.

Impervious Coverage As allowed by the zoning
district.

As allowed by the zoning
district.

Based on actual zoning
district, not effective
zoning district.

As allowed by the zoning
district.

Distance Between
Buildings
As allowed by the zoning
district.

As allowed by the zoning
district.
10 feet As allowed by the zoning
district.

Driveways If the existing parcel has a
street frontage of less
than 100 feet, only one
driveway curb cut
allowed. Lots may need to
share the driveway.

If the existing parcel has a
contiguous street
frontage of less than 80
feet, only one driveway
curb cut allowed. Lots
may need to share the
driveway.

If the existing parcel has a
contiguous street
frontage of less than 80
feet, only one driveway
curb cut allowed. Lots
may need to share the
driveway.

Decks and Balconies Rooftop and second floor
decks are prohibited.

Second balcony allowed
only on side fronting the
public street and cannot
project beyond the
building footprint.

Rooftop decks or
balconies are prohibited.

Second story/rooftop
decks/balconies and
rooftop deck are
prohibited.

Second story/rooftop
decks/balconies and
rooftop deck are
prohibited.

Atachment 8
Sample 300-Foot No�cing in the R-1-44
Zoning District

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T.H.I.S. DESIGN & DEVELOPMENT P.O.Box 1518, Los Gatos, CA 95031 Tel: 408.354.1863 Fax: 408.350.1823
City of Monte Sereno
18031 Saratoga Los Gatos Rd
Monte Sereno CA 95030
Attn: Council + S&A
August 23rd, 2023
SB9 Discussion Points
Thank you for addressing the deficiencies in the SB9 ordinance. I think that the approach suggested by Staff is excellent and in general should be adopted. I do, however have a couple of suggestions for additions/modifications.

A little bit of History: the 3 zoning districts were created allowing 3000/4500/6000 sq ft max homes [including 2 garage parking spaces]. The 10% [privacy] “bonus” was granted if the house was single story – resulting in 3300/4950/6600 allowances.

Some additional points for Consideration: I think that we should be wary of the SB9 rules as to setbacks and ‘encourage’ owners to conform to the zoning setbacks if at all possible. Also garages are not required for houses built using SB9.

Suggestion 1: Because of SB9, make the 10% bonus apply only to single story homes with zoning-compliant setbacks. If you want to ‘maximize’ your house size you must be single-story AND conform to the setbacks of the zoning district.

Suggestion 2: SB9 does not require covered parking, whereas current zoning rules require 2 garage spaces. A 2-car garage is approximately 450 sq ft. Deduct 450 sq ft from the allowable house size if no garage is provided [so 2550/4050/5550 or 2850/4500/6150, based on single-story compliance].

Suggestion 3: Modify the definition of ‘Front Setback’ for flag lots. This is not going to impact the character of the streetscape – perhaps it should be the same as the ‘side’ setback for the zoning district. In any event – it should be reduced.

Suggestion 4: Consider some limitations on house-size if an R1:8 lot is split It is my belief that, if these suggestions were implemented, some owners would be encouraged to bring projects to the Site and Architecture committee to get the additional square footage that they might need, or for the 2-story homes they might want.

Thank you
Tony Jeans

Modified Recommendation(s): August 29th, 2023
Based on Comments sent by Tony Jeans
Staff recommends that the Site and Architectural Commission and the City Council provide direction regarding preparation of an ordinance to revise the Municipal Code standards for SB9 two-unit residential development projects and urban lot split projects as follows:

1. Revise the maximum building size allowed for an SB9 project to equal the ‘baseline’ allowable size of a building under the applicable zoning district regulations – Namely 3,000/4,500/6,000 for R1: 8/20/44 respectively.
1a. Allow an additional 10% (to 3,300/4,950/6,600) if zoning setbacks are met. 1b. Building sizes shall be further reduced by 450 sq ft if no covered parking is provided.

2. Revise height limits to specify that SB9 projects are limited in height to that allowed for a one-story building under the applicable zoning district regulations when the setbacks of the applicable zoning district are met. When the zoning district setbacks are not met, the building height is limited to 14 feet.

3. Require one or two units be constructed on lots created through an Urban Lot Split.

The first unit shall have a max size based on the allowable ADU size for that zoning district, the second shall comply with sections 1, 1a &1b above.

4. Remove the size limit of coverage porches.

5. Remove the impervious coverage restrictions specific to SB9 projects and use the limitations provided in the applicable zoning district regulations.

6. Revise the required distance between buildings to be 6 feet, which is the standard requirement in the zoning code, rather than 10 feet.

7. Where the existing/original parcel’s street frontage is less than 80 contiguous feet in length, only one driveway curb cut would be allowed to provide access to both lots created under an Urban Lot Split, unless the second lot is a flag lot behind the first lot. 7a. The front setback for a flag lot shall be considered identical to the side setback for the corresponding zoning district, or 4ft if using SB9 administrative rules.

8. Allow property owners to have the option of ministerial review (SB9) or discretionary review (Site Development Permit considered at a public hearing) for development on lots created through an urban lot split, if they wish to build a second story or otherwise design a project not expressly permitted by the SB9 Ordinance.

9. Revise the neighborhood noticing requirements to match that of other public hearing items by requiring one notice be mailed to property owners and residents within 300 feet of the project site.

10. Where the resulting lot created by an SB9 lot split is less than 6,000 sq ft, the maximum size for any new residential unit shall be 800 sq ft. (For Discussion) It is my belief that this will satisfy several important goals:

1. Neighborhood Compatibility – Properties will still have a ‘home’ and an ADU

2. Housing Element – ADUs will continue to be built as well as ‘homes’

3. Planning Consistency – The City will be able to manage this ’minor change’

4. SB9 compliance – These rules (almost) follow the state Guidelines for SB9

5. A ‘working’ SB9 will allow Monte Sereno residents to remain in Monte Sereno

From: JOAN SILBERSTEIN
To: Diana Perkins
Subject: SB9 Meeting Discussion August 29, 2023
Date: Tuesday, August 29, 2023 4:13:38 PM
Hi Diana,
I wanted to share a few quick ideas regarding the proposal for the new SB9 rules.

Per our discussion several weeks ago, my husband and I are extremely interested in participating in this program, provided we can make it work on our property with the parameters being set by the council. I did look over the new suggestions for the council to consider and the one that stands out the most is the setback issue. If the standard existing setbacks need to be adhered to, I, and probably others who will be considering doing this, will not be able to make it work based on where our home sits on our property.

Since we are not starting from scratch and therefore cannot place both main houses where they would fit perfectly on each lot, we must consider where the first house sits now and work around that. In constructing a new parcel and placing the structures on that, we must consider the impact it will have on the first, primary dwelling, being mindful not to disrupt the use or the overall appearance and feel of it. In this regard, it may not be feasible to adhere to some of the setbacks, in our case, specifically the rear setback from the new parcel to the front of the old parcel. A 30' setback from the rear lot line to the structure is a lot when we have a similar 30' setback in the front. In our case, it will result in an extremely thin, structure which won't work.

After some thought, I would suggest that the council entertain a clause in the new guidelines that would allow the lot of the second structure, if it backs up onto the first, primary lot, to reduce the back setback to 15'. This would only impact our lot and no other, since the rear would only sit in front of the first structure, which is already there and in which we reside.

Without allowing these types of adjustments, the new home and ADU will just not be feasible. I am trying to make this work, but will not even begin the process unless I know the rules will be made to work with the configuration that is now before me.

As you all know, Monte Sereno is much smaller than Los Gatos, with fewer homes and lots available to do this. Perhaps the rules set for Los Gatos need to be loosened and become a bit more pliable to fit the needs of our Monte Sereno citizens so we can participate in SB9 and achieve the numbers of ADUs required, so we do not lose state funding.

I spoke to Bryan in regard to my thoughts, and explained our dilemma. However, I am guessing other Monte Sereno residents may find themselves in a similar situation.

Building flexibility into the guidelines with consideration to challenges that may come up in this regard, will help Monte Sereno achieve its goal of increasing the number of ADUs in our city.

Unfortunately, I will be unable to attend tonight's meeting, but if any of you has questions for me, I would love to expand on these thoughts.

Thank you very much.

Respectfully submitted,
Joan Silberstein

From: Lionel Allan
To: Bryan Mekechuk; Evert Wolsheimer; Rowena Turner; Javed Ellahie; Burton Craig; Allison Zeidler; Steven White Cc: Steve Leonardis; Diana Perkins; Gloisy Gonzalez-Langarica; City Attorney Kirsten Powell Subject: SB9
Date: Monday, August 28, 2023 4:25:05 PM
Dear Council and S&A Commission
I understand that there are concerns about the 800 square foot limitation that the City is considering for SB9 lot splits.

The housing shortage in California is for moderate and low-cost housing, not for large, expensive housing. The housing shortage is primarily not for houses that will sell for $3 or $4 million or more or will rent for $10,000 or $15,000 per month, or more. 800 square foot units will both sell and rent for much more affordable prices thus truly increasing the housing supply, which is the purpose of SB9.

Lon Allan
[email protected]
www.lonallan.com

T.H.I.S. DESIGN & DEVELOPMENT P.O.Box 1518, Los Gatos, CA 95031 Tel: 408.354.1863 Fax: 408.350.1823
City of Monte Sereno
18031 Saratoga Los Gatos Rd
Monte Sereno CA 95030
Attn: Council + S&A
August 23rd, 2023
SB9 Discussion Points
Thank you for addressing the deficiencies in the SB9 ordinance. I think that the approach suggested by Staff is excellent and in general should be adopted. I do, however have a couple of suggestions for additions/modifications.

A little bit of History: the 3 zoning districts were created allowing 3000/4500/6000 sq ft max homes [including 2 garage parking spaces]. The 10% [privacy] “bonus” was granted if the house was single story – resulting in 3300/4950/6600 allowances.

Some additional points for Consideration: I think that we should be wary of the SB9 rules as to setbacks and ‘encourage’ owners to conform to the zoning setbacks if at all possible. Also garages are not required for houses built using SB9.

Suggestion 1: Because of SB9, make the 10% bonus apply only to single story homes with zoning-compliant setbacks. If you want to ‘maximize’ your house size you must be single-story AND conform to the setbacks of the zoning district.

Suggestion 2: SB9 does not require covered parking, whereas current zoning rules require 2 garage spaces. A 2-car garage is approximately 450 sq ft. Deduct 450 sq ft from the allowable house size if no garage is provided [so 2550/4050/5550 or 2850/4500/6150, based on single-story compliance].

Suggestion 3: Modify the definition of ‘Front Setback’ for flag lots. This is not going to impact the character of the streetscape – perhaps it should be the same as the ‘side’ setback for the zoning district. In any event – it should be reduced.

Suggestion 4: Consider some limitations on house-size if an R1:8 lot is split It is my belief that, if these suggestions were implemented, some owners would be encouraged to bring projects to the Site and Architecture committee to get the additional square footage that they might need, or for the 2-story homes they might want.

Thank you
Tony Jeans

From: Limin He
To: Diana Perkins
Cc: Limin He
Subject: Re: Meeting to Discuss Potential Changes to SB9 Requirements Date: Tuesday, August 22, 2023 1:29:44 PM
Dear Diana,
I am pleased to learn that the new proposal is removing the maximum limitation of 800 sq ft. I am hopeful that the following modifications can be incorporated to align Monte Sereno's SB9 regulation more closely with that of Los Gatos and Saratoga:
(1) Permit Two-Story Buildings: I kindly request the inclusion of a provision allowing for the construction of two-story buildings.
(2) Building Height Regulation: I kindly request to adopt a building height regulation similar to the one outlined in Los Gatos, as described below:
16 feet when located within the side or rear yard setback of zoning district or within a hillside zoning district. Otherwise, standard building height allowed by zoning district I genuinely appreciate your attention to these matters.

Best regards,
Limin He
Owner of 16101 Greenwood Road
On Aug 22, 2023, at 11:46 AM, Diana Perkins <[email protected]> wrote:

Hello. The agenda and staff report for the August 29, 2023 Joint Special Meeting of the City Council and Site and Architectural Commission has been posted online at:
https://montesereno.civicweb.net/Portal/MeetingInformation.aspx?Org=Cal&Id=292 Public comments can be made at the meeting and/or emailed to me before the meeting. Any comments received by email before the meeting will be distributed to the City Council members and the Site and Architectural Commissioners as well as published with the agenda online.

Please let me know of questions.

Thank you,
Diana Perkins | City Planner
City of Monte Sereno, California
18041 Saratoga-Los Gatos Road | Monte Sereno, CA 95030
Office 408.498.5283
[email protected] | www.cityofmontesereno.org From: City Planner
Sent: Tuesday, August 8, 2023 3:36 PM
To: Diana Perkins <[email protected]>
Cc: Steve Leonardis <[email protected]>
Subject: Meeting to Discuss Potential Changes to SB9 Requirements Hello. You are receiving this email as you have inquired about a potential SB9 project in the City of Monte Sereno. As many of you may know, the City Council has committed to increasing the maximum building size allowed for SB9 projects from the current 800 square foot limit. Informational brochures with the current requirements for SB9 project are available online at: https://www.montesereno.org/2343/Senate-Bill-9-SB9 The City Council and the Site and Architectural Commission will have a joint meeting on Tuesday, August 29 at 6:00pm to discuss changes to the maximum building size as well as other potential changes to the SB9 regulations. The meeting will be held in person at City Hall, 18041 Saratoga Los Gatos Road, and remote participation will also be available through Zoom. The meeting agenda, Zoom log-in information, and the staff report will be available on the following web page approximately one week before the August 29 meeting:
https://montesereno.civicweb.net/portal/
I will send another email once the meeting agenda is posted to provide a more direct link to the information.

Let me know of any questions in the meantime.

Thank you,
Diana Perkins | City Planner
City of Monte Sereno, California
18041 Saratoga-Los Gatos Road | Monte Sereno, CA 95030
Office 408.498.5283
[email protected] | www.cityofmontesereno.org

From: Terence J. Szewczyk
To: Diana Perkins
Cc: Steve Leonardis
Subject: Re: FW: Meeting to Discuss Potential Changes to SB9 Requirements Date: Tuesday, August 22, 2023 11:54:46 AM
Diana, Is this merely a false attempt to string us along? If so, then it will be time for a City Council recall. Their initial behavior with the CA mandates for SB9 was only rivaled by the idiots in Cupertino.

Best regards, Terry
Terence J. Szewczyk. P.E.

TS/Civil Engineering, Inc
1776 Technology Drive
San Jose, CA 95110
(408) 316-2696 cell (BEST NUMBER)
(408) 452-9300 ext 220 office (RINGS THRU TO CELL)
On Tue, Aug 22, 2023 at 11:46 AM Diana Perkins <[email protected]> wrote:

Hello. The agenda and staff report for the August 29, 2023 Joint Special Meeting of the City Council and Site and Architectural Commission has been posted online at:
https://montesereno.civicweb.net/Portal/MeetingInformation.aspx?Org=Cal&Id=292 Public comments can be made at the meeting and/or emailed to me before the meeting. Any comments received by email before the meeting will be distributed to the City Council members and the Site and Architectural Commissioners as well as published with the agenda online.

Please let me know of questions.

Thank you,
Diana Perkins | City Planner
City of Monte Sereno, California
18041 Saratoga-Los Gatos Road | Monte Sereno, CA 95030
Office 408.498.5283
[email protected] | www.cityofmontesereno.org

From: City Planner
Sent: Tuesday, August 8, 2023 3:36 PM
To: Diana Perkins <[email protected]>
Cc: Steve Leonardis <[email protected]>
Subject: Meeting to Discuss Potential Changes to SB9 Requirements Hello. You are receiving this email as you have inquired about a potential SB9 project in the City of Monte Sereno. As many of you may know, the City Council has committed to increasing the maximum building size allowed for SB9 projects from the current 800 square foot limit. Informational brochures with the current requirements for SB9 project are available online at: https://www.montesereno.org/2343/Senate-Bill-9-SB9 The City Council and the Site and Architectural Commission will have a joint meeting on Tuesday, August 29 at 6:00pm to discuss changes to the maximum building size as well as other potential changes to the SB9 regulations. The meeting will be held in person at City Hall, 18041 Saratoga Los Gatos Road, and remote participation will also be available through Zoom. The meeting agenda, Zoom log-in information, and the staff report will be available on the following web page approximately one week before the August 29 meeting:
https://montesereno.civicweb.net/portal/
I will send another email once the meeting agenda is posted to provide a more direct link to the information.

Let me know of any questions in the meantime.

Thank you,
Diana Perkins | City Planner
City of Monte Sereno, California
18041 Saratoga-Los Gatos Road | Monte Sereno, CA 95030
Office 408.498.5283
[email protected] | www.cityofmontesereno.org