Monte Sereno City Council
September 19, 2023

AGENDA
City of Monte Sereno
Tuesday, September 19, 2023
Special Meeting of the City Council
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

The Mayor, or a majority of the Council by vote, may change the order of business, except for public hearings on the agenda for a set time.

ROLL CALL

UNFINISHED BUSINESS

1. Provide Direction to Staff on SB9 Ordinance Modifications Staff recommends that 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. However, the maximum building size would include a garage of up to 450 square feet and an ADU/JADU of 150 to 1,200 square feet.

2. The area of the main house shall be limited to 800 square feet when located within the zoning code setbacks.

3. For an SB9 Urban Lot Split application, require the property owner to sign an affidavit, under penalty of perjury, stating that they intend to reside in one of the dwelling units for a period of three years.

4. Revise the neighborhood noticing requirements to mail one notice at the time of application submittal to properties within 600 feet of the project site.

5. Maintain the current ministerial tree removal permit and replacement requirements.

6. Apply the Slope Density Formula to properties with an average slope of 10% or greater and prohibit buildings from being constructed on a portion of a lot sloped 30% or greater.

Staff Report - SR-23-186 - Pdf
Public Comments Received 9.14.2023
Additional Public Comments Received 9.18.2023
Additional Public Comments Received 9.19.2023
3 - 48

ADJOURN
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STAFF REPORT
Meeting: Special Meeting of the City Council - Sep 19 2023 Agenda Heading: UNFINISHED 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 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. However, the maximum building size would include a garage of up to 450 square feet and an ADU/JADU of 150 to 1,200 square feet.

2. The area of the main house shall be limited to 800 square feet when located within the zoning code setbacks.

3. For an SB9 Urban Lot Split application, require the property owner to sign an affidavit, under penalty of perjury, stating that they intend to reside in one of the dwelling units for a period of three years.

4. Revise the neighborhood noticing requirements to mail one notice at the time of application submittal to properties within 600 feet of the project site.

5. Maintain the current ministerial tree removal permit and replacement requirements.

6. Apply the Slope Density Formula to properties with an average slope of 10% or greater and prohibit buildings from being constructed on a portion of a lot sloped 30% or greater.

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) ministerial approval of up to two housing units (Residential Development), and (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
LowInco
me
Units
LowInco
me
Units
Moderat
eIncome
Units
Above
Moderat
eIncome
Units
Tot
al
Unit
s
2023–
2031
RHNA
53 30 31 79 193
Housing
Progres
s to
Date
3 2 3 2 10
Vacant
Sites 2 0 0 2 4
Accesso
ry
Dwelling
Units
48 48 48 16 160
Junior
Accesso
ry
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 1). 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 2) 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.

Direction Provided at the Special Joint Meeting on August 29, 2023 A Special Joint Meeting of the City Council and Site and Architectural Commission was held on August 29, 2023. Discussion of several potential changes to the SB9 ordinance were discussed and direction was provided to staff regarding further consideration of specific items. This staff report details the items and provides additional recommendations on changes to the SB9 ordinance.

Analysis:

Comparison with Other Local Jurisdictions
Attachment 3 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 based on the direction provided at the Special Joint meeting on August 29, 2023. The items below are the items that the City Council or Site and Architectural Commission requested additional information about, other items reviewed at the August 29, 2023 will be included in the draft ordinance.

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.

Additionally, the direction provided by HCD both in the SB9 Fact Sheet (Attachment 1) and in the letters provided to other cities (Attachment 2) is that the building area allowed on a lot created by SB9 be the same as allowed for other lots in the same zoning district. Specific restrictions on building size allowed for an SB9 lot can be considered a reduction in allowed residential intensity of the zoning code, which is a violation of the Housing Crisi Act of 2019.

At the August 29, 2023 Joint Special meeting, several comments and much discussion was had regarding possibility of proportionally dividing the existing allowed building area between the two newly created lots or considering the size of the existing house when determining the building size allowed for lots created through an Urban Lot Split. These items were discussed with the intention of not allowing a significant increase to the building area currently allowed.

However, these options will significantly reduce the allowed building area for SB9 lots when compared with other lots in the City and likely constrain potential SB9 projects. In order to

meet the RHNA requirements over the Housing Element Planning Period of 2023-2031, new residential units will need to be created through the SB9 standards. Any impediment to SB9 projects could result in not complying with RHNA requirements without any rezoning for multifamily uses (likely at a density of 20 dwelling units per acre).

As noted in the HCD SB9 Fact Sheet (Attachment 1) a local SB9 ordinance should not reduce the intensity of land use on lots created through the SB9 Urban Lot Split when compared with other lots in the city in the same zoning district. Proportionally dividing the existing allowed square footage between the new lots or reducing the allowed building size of one lot based on the actual construction on the other lot will both result in a significant reduction in the intensity of the building area when compared with a lot created through the traditional subdivision process.

In order to not significantly reduce the development intensity on lots created through an SB9 Urban Lot Split (as compared with other lots in the City) while also addressing the concerns raised regarding increased building area, staff recommends modifying the current building size limit for SB9 projects to match the building size allowed within the zoning district for a onestory house, with the following requirements:
• If a two-car attached, enclosed garage is not provided, the allowed building size will be reduced by 450 square feet.
• The required ADU/JADU shall be 150 square feet to 1,200 square feet and such area shall be included in the total allowed square footage.

Following is a comparison of the building size allowed in each zoning district under the current zoning standards and the staff recommended building size for SB9 projects on lots created through and Urban Lot Split:

Square Footage Allowed for the Existing Zoning Code and Recommended for SB9 Projects
Zoning District Current Zoning
District
Maximum Building
Size (including
garage)/
Maximum ADU
Size/
Maximum SB9 Unit
Staff Recommended
SB9 Standards
(including garage and ADU/JADU)
R-1-8 3,300/
1,000/
800
3,300
R-1-20 4,950/
1,000/
800
4,950

R-1-44 6,600/
1,200/
800
6,600
While this recommendation does not prohibit a property owner from constructing a new house at the maximum floor area on an existing lot and then proceeding with an Urban Lot Split and constructing a second house at the maximum floor area for the new lot, staff believes that this scenario may only apply to a few lots throughout the city based on the recommended setback requirements and other Urban Lot Split requirements. Additionally, as staff is recommending that SB9 projects be limited to one story in height, the impact of the additional floor area on neighboring properties is significantly minimized.

2. SB9 Project with Building Located in the Zoning Code Setbacks 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.

In order to minimize impacts on adjacent properties and maintain the development patterns in existing neighborhoods, staff recommends modifying the current ordinance to limit the size of a main house located within the zoning code setback to 800 square feet in area. This would align with the current zoning code standards of having the main house meet the zoning code setback requirements and allowing the ADU sized unit to have four foot side and rear yard setbacks.

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.

3. Three-Year Residency Requirement
The State SB9 regulations include the following requirement for Urban Lot Splits:

Government Code Section 66411.7(g)(1) A local agency shall require an applicant for an urban lot split to sign an affidavit stating that the applicant intends to occupy one of the housing units as their principal residence for a minimum of three years from the date of the approval of the urban lot split.

The current submittal requirements for an Urban Lot Split include a standardized affidavit that the current property owner is required to sign under penalty of perjury. At the August 29, 2023 meeting, there was discussion about whether this form should be recorded against the property.

As noted in the Government Code section above, this does not prohibit a property owner from selling either or both of the two new lots within three years of the Urban Lot Split approval.

Rather, it is an intention to occupy one of the units. The occupancy requirement can be met without ownership of the property. Additionally, this requirement is an intention on the part of the applicant and not a mandate.

Documents that are recorded against a real property are typically those that affect the title such as grant deeds, deeds of trust, and liens. A document that affects an intended resident of the property is typically not something that is recorded. Additionally, the signed affidavit has the same legal enforcement authority as a recorded document.

Staff recommends maintaining the current affidavit requirement.

4. 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 4 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.

There was discussion at the August 29, 2023 meeting to keep the expanded noticing for SB9 projects to ensure adequate neighborhood notification.

Staff recommends that the SB9 regulations be modified to require one notice be mailed to property owners within 600 feet of the project site when an SB9 application is received.

5. Tree Removal Permits for SB9 Projects

As part of the initial review and discussion of SB9 requirements at the end of 2021, the Tree Removal Permit requirements were added to the Municipal Code to address this state regulation:
• For the removal of each tree, two replacement trees shall be planted. The replacement trees shall be native or drought-tolerant species and shall measure a minimum of ten inches in circumference as measure at 48 inches above grade as planted. • Removal of an oak tree species that measures at least 115 inches in circumference at 48 inches above grade shall only be approved when the denial of such tree removal request would have the effect of physically precluding two units of 800 square feet each.

The current replacement trees requirements are fairly stringent in that the two replacement trees are required for each tree removed. Additionally, the size requirement of the replacement trees will likely require a 48 inch box sized trees. For comparison, the standard condition of approval for other Tree Removal Permits is that one 24” box sized tree be planted for each tree removed.

Staff recommends maintaining the current tree removal and replacement tree requirements.

6. Sloped Properties
As discussed at the August 29, 2023 meeting, staff recommends including the existing Slope Density Formula for SB9 projects proposed on lots with an average slope of 10% or greater. The Slope Density Formula is a current Municipal Code requirement that reduces the overall building size, structural coverage, and impervious coverage in relation to the slope of a property. Properties with larger average slopes will end up with reduced building size, structural coverage, and impervious coverage limits. As the Slope Density Formula is an objective formula, it can be used for SB9 projects.

Additionally, staff recommends that SB9 projects not be allowed on portions of lots with a slope of 30% or greater. Currently, proposed construction on the sloped portion of a lot is reviewed using the discretionary standards of the Design Guidelines. As these discretionary standards do not apply to SB9 projects, staff recommends adding this objective standard.

Alternatives:

1. In addition to the recommendations made at the August 29, 2023 meeting, staff recommends revising 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. However, the maximum building size would include a garage of up to 450 square feet and an ADU/JADU of 150 to 1,200 square feet.

2. The area of the main house shall be limited to 800 square feet when located within the zoning code setbacks.

3. For an SB9 Urban Lot Split application, require the property owner to sign an affidavit, under penalty of perjury, stating that they intend to reside in one of the dwelling units for a period of three years.

4. Revise the neighborhood noticing requirements to mail one notice at the time of application submittal to properties within 600 feet of the project site.

5. Maintain the current ministerial tree removal permit and replacement requirements.

6. Apply the Slope Density Formula to properties with an average slope of 10% or greater and prohibit buildings from being constructed on a portion of a lot sloped 30% or greater.

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 September 14, 2023.

Additionally, notification of this meeting was sent through email to a list of interested community members.

Attachments:

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

2. HCD Letters Regarding Local SB9 Regulations

3. Comparison of SB9 Regulations with other Local Communities

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

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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without limitation, any implied warranties of
merchantability and/or fitness for a particular
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value, quality, validity, merchantability, suitability, and condition, of the GIS data. Users of
COUNTY's GIS data are hereby notified that
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information contained herein. Since the GIS data
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by the Office of the Assessor. Any use of
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16161 Ridgecrest Ave
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Disclaimer
The GIS data is provided "AS IS". The COUNTY
makes no warranties, express or implied, including
without limitation, any implied warranties of
merchantability and/or fitness for a particular
purpose, regarding the accuracy, completeness,
value, quality, validity, merchantability, suitability, and condition, of the GIS data. Users of
COUNTY's GIS data are hereby notified that
current public primary information sources should
be consulted for verification of the data and
information contained herein. Since the GIS data
is dynamic, it will by its nature, be inconsistent with the official COUNTY assessment roll file produced
by the Office of the Assessor. Any use of
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August 25, 2023
The Honorable Toni Atkins
President Pro Tempore
CC: Senators Dave Cortese, Gail Pellerin, & Evan Low
California State Senate
1021 O Street, Suite 8518
Sacramento, CA 95814
RE: SB 450 (ATKINS) HOUSING DEVELOPMENT: APPROVALS – SUPPORT Dear Senator Toni Atkins,
On behalf of TS/Civil Engineering, I write in support of Senate Bill 450, which will clarify the purpose and intent of SB 9 (Atkins, 2021), making it more accessible to homeowners, and enhance the Department of Housing and Community Development’s authority to enforce critical oversight provisions in bad actor cities.

For more than 50 years, City and County governments have imposed endless restrictions on the development of new housing units of any type, thus manifesting the present housing crisis in California. Even with the California Legislature mandating 30-day ministerial approval of SB9- Urban Lot Splits and Duplexes, the discretionary review process is so deeply ingrained at City Hall that nothing is approved in 30 days. Permit Streamlining Act Violations for delay and invalid conditioning continue to this day. State enforcement is critical to making these policies successful at the local level.

SB 9, passed in 2021, eliminated single-unit zoning by allowing homeowners to split their lots, and build a duplex on each new lot. Although SB 9 created an important tool to produce critically needed homes in existing neighborhoods, cities have found creative ways to circumvent the law, effectively banning SB 9 projects in their jurisdictions.

Following the passage of SB 9, many bad actor cities intentionally enacted subjective standards, taking advantage of a loophole and making it impossible to actually build housing in their communities. Some of these standards, such as onerous design reviews, create prohibitive costs; others, such as unrealistic building setbacks and low height limits, make it physically impossible for homeowners to proceed with SB 9 projects.

SB 450 strengthens SB 9 by imposing an application approval “shot clock”, similar to ADU law, limits the design and zoning standards cities can impose on SB 9 projects, and gives the Department of Housing and Community Development (HCD) oversight and enforcement authority to ensure critical housing gets built where we need it most. 1776 TECHNOLOGY DRIVE, SAN JOSE, CA 95110
408-452-9300 MAIN 408-837-7550 FACSIMILE
WWW.TSCIVIL.COM

The Honorable Toni Atkins et al.

August 25, 2023
For these reasons, TS/Civil Engineering supports SB 450 (Atkins).

Sincerely,
TS/CIVIL ENGINEERING, INC.

Terence J. Szewczyk, P.E. C35527
Principal Engineer
1776 TECHNOLOGY DRIVE, SAN JOSE , CA 95110
408-452-9300 MAIN 408-452-9301 FACSIMILE
WWW.TSCIVILENG.COM

From: Tony Jeans
To: Bryan Mekechuk; Evert Wolsheimer; Burton Craig; Javed Ellahie; Rowena Turner Cc: Diana Perkins; Steve Leonardis
Subject: SB-9 Further Consideration
Date: Thursday, September 14, 2023 2:19:56 PM
Attachments: SB-9 Recommendations 9-14-23.pdf
City Council:

I have (so far) looked only briefly at the staff report and Further Recommendations for your consideration at the meeting next week.

I have attached my initial thoughts. The points warrant discussion and I am sure that there will be several people at the meeting.

It is my firm belief that SB-9 is a proposal that will be used by Monte Sereno residents and NOT developers. I think that the “3 year rule” could be used to punish any developer who might try to "make a quick buck”.

I would also like to make it ‘less desirable’ to violate standard zoning setbacks by being clever with the 10% bonus for house size. I do not see that discussed by staff, and perhaps I was not very clear at the joint session. I see no benefit in defying HCDs direction to ‘make no distinction between SB-9 and conventional lots’, but we can cleverly used this 10% bonus to encourage conformity.

Keeping the 800 sq ft limit for obeying SB-9 rules [setbacks] seems to fly in the face of HCD and will not stand for long.

I am also not sure whether the original thoughts discussed at the last meeting - [Requiring an ADUto be built with each SB-9 project, etc] is still in the plan. But hopefully this will be clarified at the meeting next Tuesday.

Thanks for listening.

Tony

T.H.I.S. DESIGN & DEVELOPMENT P.O.Box 1518, Los Gatos, CA 95031 Tel: 408.354.1863 Fax: 408.350.1823
SB-9 Recommendations - Quick Thoughts
Sept 14th, 2023
Recommendation 1
If I understand it correctly this recommendation restricts the combined sq footage of both the ADU and the main house together to the “single story zoning district maximum”. I fail to see how this complies with the HCD’s stated direction:

From the Staff Report:

The direction provided by HCD both in the SB9 Fact Sheet (Attachment 1) and in the letters provided to other cities (Attachment 2) is that the building area allowed on a lot created by SB9 be the same as allowed for other lots in the same zoning district. Specific restrictions on building size allowed for an SB9 lot can be considered a reduction in allowed residential intensity of the zoning code, which is a violation of the Housing Crisis Act of 2019.

If it is the intention to provide some restriction on SB-9 housing [which might encroach into the standard zoning setbacks] then I feel that his is best done universally for all Monte Sereno applications [SB-9 and conventional S&A] – by allowing the 10% “Bonus” to be given only to houses that are both single story AND comply with standard zoning setbacks. That hits SB-9! Recommendation 2
This remains too draconian – and falls foul of HCD directions.

Recommendation 3
I agree with Staff’s analysis - This still does not lock in a person who insists on leaving [because of a change in career or lifestyle that forces them to move]. I feel that a better solution is to bar a developer from working in the City if they fail to occupy one of the resulting properties [for 3 years] if they [as a developer] undertake an SB-9 lot split as a stated owner and then sell both the properties without remaining as an occupant in either one. Hit crafty developers and not reasonable Monte Sereno residents.

Recommendation 4
Neighborhood noticing should be whatever is typical for other projects – ADUs, additions, new homes, etc. It should not be increased above the norm.

Recommendation 5
Perhaps an applicant should be required to show that there was no reasonable alternative to the removal of any significant tree.

Recommendation 6
What does this mean [for SB-9]? I think slope density applies any way. A lot size reduced by slope will not change the ratio (50/50 or 60/40, etc) of areas for the split itself. Once split, the determination of the appropriate zoning district designation is already slope dependant. So no change?! Add the ‘not on a 30% slope limit’ by all means – that makes sense.

Other Comments:

What did you agree should be the “Front Setback” on a Flag Lot? (Same as side?) Tony Jeans

From: Tony Jeans
To: Bryan Mekechuk; Evert Wolsheimer; Burton Craig; Javed Ellahie; Rowena Turner Cc: Diana Perkins; Steve Leonardis
Subject: Re: SB-9 Further Consideration
Date: Sunday, September 17, 2023 11:07:50 AM
Attachments: SB-9 Recommendation 9-17-23.pdf
City Council & Diana:

I have looked a little more carefully at the staff report and really only want to focus on a couple of points in more detail for your consideration at the meeting next week. [Diana - could you please run the Technical comment about building a small ADU first and then enlarging it later by K.P.?]
I would first like to state that I can live quite happily with the Staff Recommendations - so if you incorporate them into an ordinance for SB-9, it will have no impact on any people I have talked to about Sb-9 AS LONG AS THE S&A PROCESS IS AVAILABLE TO THEM AS

AN ALTERNATIVE PATH AND AS LONG AS STANDARD ZONING DISTRICT RULES WOULD APPLY.

The time, energy and effort that I have put into considering the proposed changes is because I am a Monte Sereno resident and I do not want to see an opportunity go by to ‘get it right’.

Please take my thoughts and comments in this light when you consider them.

Thank you
Tony

T.H.I.S. DESIGN & DEVELOPMENT P.O.Box 1518, Los Gatos, CA 95031 Tel: 408.354.1863 Fax: 408.350.1823
SB-9 Recommendations - Further Thoughts
Sept 17th, 2023
I would like to focus on how to restrict an SB-9 “developer” from gaming the system in the City and encourage as many projects as possible to use the S&A process to get project approvals.

Recommendation 1 [This is really the key to everything] Every new SB- 9 parcel will require an ADU. This recommendation presently restricts the combined sq footage of both that ADU and the main house together to the “single story zoning district maximum”. I fail to see how this complies with the HCD’s stated direction:

From the Staff Report:

The direction provided by HCD both in the SB9 Fact Sheet (Attachment 1) and in the letters provided to other cities (Attachment 2) is that the building area allowed on a lot created by SB9 be the same as allowed for other lots in the same zoning district. Specific restrictions on building size allowed for an SB9 lot can be considered a reduction in allowed residential intensity of the zoning code, which is a violation of the Housing Crisis Act of 2019.

Moreover, it is open to easy abuse, which will cause problems in the long run:

1. A “developer” purchases the vacant lot from the owner of an SB-9 lot split

2. He/She designs a project with a 150 sq ft ADU and a house to maximize the sq ft.

3. He/She subsequently requests the ADU be enlarged to 800 sq ft [per ADU rules].

Even if this situation does not arise immediately, it will over time. This will be a Planning nightmare for the City. Abuse WILL happen and NOW is the time to prevent it.

The place of S&A in the SB-9 process
Firstly, I must point out that the law does not intend it to be part of the SB-9 process. So there must be an incentive for an owner or a developer to spend the extra time and money to use it.

Secondly, it MUST be made clear in this Ordinance that the S&A Commission can waive the objective standards that are imposed by the SB-9 Ordinance. These standards should be reserved for the administrative process.

I can think of a few simple instances – but there are many more:

1. “ Only a single story building can be built after an SB-9 lot split”. This is the obvious one - Clearly S&A can allow a second story based on privacy and neighbor input.

2. “Only one curb cut is allowed if the original lot has an 80 ft frontage”. There may well be a better solution in the case of a ‘Flag Lot’ and S&A could decide this at a hearing.

3. “Lot lines must be at right angles to the street . . .”. What if there is a better solution that could save a significant tree or retain a building? Could S&A approve an alternative lot configuration if the 60/40 proportion is retained?

4. The S&A Commission should be allowed full discretion over any “objective standard” designed specifically to protect neighbors and the community from the “administrative process”. We should not allow this process to tie the hands of S&A.

So now we come to how to encourage people to use the S&A process while restricting the benefits of an SB-9 applicant and maintaining some conformity between individual properties.

1. I have already suggested that you encourage garages by “reserving” 450 sq ft of any allowable sq footage strictly for that purpose. This will pass muster with HCD, because all other houses in Monte Sereno have to have a garage – so it is not a “reduction in intensity”. Without this provision, SB-9 houses would already be 450 sq ft “larger”.

2. I have already shown that a restriction to the combined house/ADU size to that of the single story allowable (3,300, 4,950, 6600) is dangerous.

3. I strongly suggest a reduction of the main house to (3,000, 4,500, 6,000) as the standard for SB-9 lots, while allowing a regular ADU size based on the zoning district rules. This is a 1-story house (by objective standards).

4. An owner, purchasing a vacant SB-9 lot would thus be “encouraged” to talk to his/her neighbors and go to S&A for approval of a 2-story home or a larger 1-story home which abides by the setback rules for the zoning district.

If you do a comparison of what is proposed versus this suggestion on a typical 1 R1-44 lot being split into 2 x R1-20 lots, the result is interesting:

Per Staff Recommendation:

Allowed: 4,950 sq ft
Application: 4,800 sq ft main house + 150 sq ft ADU
Later ADU: 4,800 sq ft main house + 800 sq ft with ADU addition = 5,600 sq ft Total Per Suggestion Above:

Allowed 4,500 sq ft
Application 4,500 sq ft main house + 1,000 sq ft ADU = 5,500 sq ft Total Thus the Suggestion Above has several benefits to the City:

1. It is more restrictive on an SB-9 developer than Staff Recommendation

2. It does not allow abuse.

3. It discourages “stupid” ADU sizes. (I would prefer not to see 150 sq ft ADUs)

4. It encourages an applicant to go to S&A for a bigger home or a 2 story home.

5. It provides consistency across ALL parcels in Monte Sereno, whether they have been created by SB-9 or conventionally.

6. It makes life easier for Planning both now and for tracking in the future.

The new rule would thus read: Standard Monte Sereno Lot Sizes based on R1-8/20/44 Zoning Districts are 3,000, 4,500 and 6,000 sq ft respectively with slope >10% being considered. S&A may allow a 10% “Bonus” for houses that are both single story AND comply with standard zoning setbacks.

It should be noted that this change would (of necessity) eliminate Staff Recommendation 2 – “the max house size of 800 sq ft”, which in itself is too draconian and will probably fall foul of HCD in the long run. You cannot have both – because they are in conflict.

Other Comments:

Could we also agree that the “Front Setback” on a Flag Lot should be the same as side? Thank you
Tony Jeans

From: Kelsey Stillinger
To: Diana Perkins
Cc: Steve Leonardis
Subject: Re: Housing Element Lot Split Question
Date: Tuesday, September 19, 2023 4:24:16 PM
Hi Diana
It was nice to meet you and get more information about lot splits yesterday. I’m unable to come to the meeting tonight, but would like to pass along my opinion …
I’d love to see the building restrictions eased to mirror the zoning code they would fall into, or at least close to those square footage maximums. As my family considers building and moving to Monte Sereno, the primary motivation would be to have more space. If we are restricted to 800 feet or anything significantly less than what is in the zoning codes, it would not make sense to build. And unfortunately without splitting and selling half of the land we cannot afford to build in this time of record high building costs.

Thank you for considering the opinions of residents who would be utilizing these land split rules.

Kelsey Stillinger
17771 Vineland Ave
Sent from my typo generator
> On Jul 21, 2023, at 12:16 PM, Diana Perkins <[email protected]> wrote:
>
> Hello. At the July 11, 2023 City Council meeting, the Council directed staff to resubmit the revised Housing Element to the California Department of Housing and Community Development for their review. The revised document is online at:
> https://athomeinmontesereno.com/
>
> Your property at 17771 Vineland Avenue is noted in the Housing Element as a vacant lot that, in the current configuration, could support a main house and an ADU. No zoning changes are identified for your property. >
> Based on the zoning district, the lot could only be split into two parcels using the SB9 Urban Lot Split provisions.

Currently, the Monte Sereno Municipal Code limits any new house constructed on a lot created through an SB9 Urban Lot Split to a maximum of 800 square feet. Two houses could be built on each new lot, but they would each be limited to 800 square feet. Information about the current SB9 requirements is online at:
> https://www.montesereno.org/2343/Senate-Bill-9-SB9
>
> As part of the Housing Element, the City Council has committed to increasing the building size allowed for SB9 projects and will be discussing this over the next few months. No specific building size has yet been determined. I will let you know when the meetings will be scheduled for the SB9 discussions and action. >
> Let us know of any other questions or information needed. >
> 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 >
> -----Original Message-----

> From: Kelsey Stillinger <[email protected]>
> Sent: Friday, July 21, 2023 11:05 AM
> To: Diana Perkins <[email protected]>; Steve Leonardis <[email protected]> > Subject: Housing Element Lot Split Question
>
> Hi Diana & Steve
>
> Not sure if I am contacting the correct people for this question, but if not I’m hoping you can point me in the right direction.
>
> I am the owner of the lot at 17771 Vineland, Ave and am curious if this lot has been specified in the updated housing element? And were there any updates coming out of the July 11th meeting referenced in the City “midyear update” newsletter? >
> I am interested in learning about the possibility of splitting the lot into 2 and unsure of any recently updates that would affect this possibility.
>
> Thanks,
> Kelsey Stillinger

From: David Propach
To: Gloisy Gonzalez-Langarica
Subject: Suggestion for SB-9 lot split rules...

Date: Tuesday, September 19, 2023 4:51:19 PM
Dear Gloisy,
I would like to suggest the city council consider changing the one requirement under "Subdivision Requirements" for the minimum lot size after a split to read:
"Has at least 40 percent of the lot area of the original parcel or 1/4 acre, whichever is greater."
Thank you,
David Propach
Monte Sereno resident for 15+ years
408-202-7125
[email protected]

From: Allison Zeidler
To: Diana Perkins
Subject: SB9 Revisions
Date: Tuesday, September 19, 2023 5:12:41 PM
Hi Diana,
Tonight's staff report takes an intelligent and nuanced approach to the SB9 modifications.

You did a great job considering the needs of all the stakeholders.

My comments are:
1) Regarding replacement trees make sure we exclude "unsuitable trees" from the replacement tree options. We specific native or drought tolerant and there may be drought tolerant trees we still don't want, like acacias.
2) Specify that the structure designated the "main house" shall have square footage equal to or greater than the structure designated the "ADU/JADU." We want to make sure people can't build an 800 foot "main house" respecting setbacks and then a 1200 sq ft ADU four feet from the fence. I'm not sure if the Code already prevents that but we should be sure to be clear.

Thanks,
Allison