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 9
5833
(916)
263
-
2911
/
FAX
(916)
263
-
7453
www.hcd.ca.gov
January 29, 2024
Ricky Caperton
,
Planning Manager
Planning Department
City
of Napa
1600 First St
Napa, CA 94559
Dear
Ricky
Caperton
:
RE: Review of
Napa’s
Accessory Dwelling Unit (ADU) Ordinance under
State
ADU
Law (Gov. Code, § 65852.2)
Thank you for submitting the
City
of
Napa
(
City
) accessory dwelling unit (ADU)
Ordinance No.
2020
-
004
(Ordinance), adopted
April 21, 2020
, to the California
Department of Housing and Community Development (HCD). HCD has reviewed the O
rdinance and submits these written findings pursuant to Government Code section 65852.2, subdivision (h). HCD finds that th
e
O
rdinance does not comply with section
65852.2 in the manner noted below. Under that statute, the City
has up to 30 days to
respond to these findings. Accordingly, the
City
must
provide a written response to
these findings no later than
February 29
,
202
4 .
State ADU Law has changed significantly in the years since the Ordinance’s adoption .
,
In the City’s response to
this letter, please indicate if the City will be adopting a new Ordinance
to comply with State ADU Law.
Until a compliant Ordinance has b
een
adopted, the City must provide for the creation of ADUs pursuan t to State ADU Law.
The
O
rdinance addresses many statutory requirements; however, HCD finds that the O
rdinance does not comply with
State
ADU
La
w in the following respects:
•
17.52.015
–
Ministerial Process and
Timing
–
The Ordinance states “
Each
Accessory Dwelling Unit (ADU) shall be subject to building permit requirements
and compliance with the standards set forth in this Section 17.52.015 .”
However, Government Code section 65852.2, subdivision (a)(3) requires that
,
“
A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing
, notwithstanding Section 65901 or 65906 or
any local ordinance regulating the issuance of variances or special use permits.
T
he permitting agency shall either approve or deny the application to create or serve an accessory dwelling unit or a junior acces
sory dwelling unit within 60
ATTACHMENT 2
Ricky Caperton, Planning Manager
Page
2 days from the date the permitting agency receives a completed application ….”
Therefore, the City must amend the Ordinance
to provide a ministerial approval
process within the 60
-
day timeline
to comply with State ADU Law.
•
17. 52.015 A
.
2 .
–
Bedroom Limitation
–
The Ordinance allows “Two bedrooms
maximum per ADU.” However,
l
imiting the number of bedrooms within an ADU
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 bu
t not limited to Government
Code section 65008, subdivisions (a)(1)(A) and (b)(1)(B)(i).
Additionally,
local design standards provided by the Ordinance pursuant to Government Code section 65852.2, subdivisions (a) through (d), may not preclude a unit bui
lt subject Government Code section 65852.2, subdivision (e).
Subdivision (e) ADUs would not be limited to two bedrooms.
The City must
note the exception or remove the section.
•
17.52.015 A
.
3 .
–
Maximum Floor Area
–
The Ordinance limits ADU size to a
maxim
um of 1,200 square feet. However,
l
ocal design standards provided by
the Ordinance pursuant to Government Code section 65852.2, subdivisions (a) through (d), may not preclude a unit built subject Government Code section 65852.2, subdivision (e), which
includes all conver
sions of existing space
single
-
family and multifamily primary dwellings
. These conversions do not have
a
maximum size limitation
.
The City must note the exceptions.
•
17.52.015 A
.
4 .
and C
.
1 .
–
Height
–
The Ordinance requires
an
“administrative
permit” for any ADU above 16 feet, subject to Chapter 17.58. However, Government Code section 65852.2, subdivision (c)(2)(D)
,
sets a height
maximum of 16, 18, 20 or 25 feet, depending on
applicable provisions
.
Furthermore, the term
“adminis
trative permit
”
is
defined in Section 17.58.070
,
which states “
The decision
-
making authority may apply reasonable conditions
of approval to bring the development into conformity with requisite performance standards as applicable and other zoning ordinance
requirements.”
Government Code section 65852.2, subdivision (a)(1)(B)(i) ,
authorizes the City
to
impos
e
“objective
standards”
towards the creation of ADUs. Objective
standards
are defined in subdivision (j)(7) as “
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 submitta
l.
” As written, the Ordinance describes
no
objective
standards
under which
such “reasonable conditions” may be applied, nor what
constitutes “reasonable” or a “performance standard”, nor if inconsistency with such conditions or standards would constitute g
rounds for a permit denial.
The
lack of objective standards creates
a discretionary
approval
process.
Government Code section 65852.2, subdivision (a)(
6 )
,
allows
“
only ministerial
ATTACHMENT 2
Ricky Caperton, Planning Manager
Page
3 provisions for the approval of accessory dwelling units and shall not includ e any
discretionary processes, provisions, or requirements for those units ”
and
subdivision (a)(7) states
,
“
No other local ordinance, policy, or regulation shall
be the basis for the delay or denial of a building permit or a use permit under this
subdivision.
” Therefore, the City must amend height limitations to
comply
with statute
, provide objective standards
and
a
ministerial
approval process.
•
17.52.015 A
.
5 .
a
.
–
Setbacks
& Underlying Zoning
–
The Ordinance
states
“
Each attached ADU must
comply with the setback requirements in the
underlying zoning district
….” However, Government Code section 65852.2,
subdivision (c)(2)(C) prohibits
,
“
Any requirement for a zoning clearance or
separate zoning review or any other minimum or maximum size for an
accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not pe
rmit at least an 800 square foot accessory dwelling unit with four
-
foot side and rear yard setbacks to be constructed in compliance with all other local development standards.
” Front setbacks, therefore, must be waived
to the extent necessary to permit at
least an 800 square foot attached ADU.
The City must note the exception.
•
17.52.015
A.
6 .
a
.
–
Unit Allowance
–
The Ordinance
states “One ADU or JADU
is
permitted per lot developed with a single
-
family dwelling unless the ADU is a
detached ADU, in which
case a JAD
U
is also permitted.”
Government Code
section 65852.2, subdivision (e)(1) states, “Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit within a residential or mixed
-
u
se zone to create any of the
following: (A) One accessory dwelling unit and one junior accessory dwelling unit per lot with a proposed or existing single
-
family dwelling…(i) The
accessory dwelling unit or junior accessory dwelling unit is within the propos ed
space of a single family dwelling or existing space of a single -
family dwelling or
accessory structure.” Subparagraph (B) permits “[o]ne detached, new construction, accessory dwelling unit that does not exceed four -
foot side and
rear yard setbacks.” The
use of the term “any” followed by an enumeration of
by right ADU types permitted indicate that any of these ADU types can be combined on a lot zoned for single family dwellings.
This permits a homeowner, who meets specified requirements, to create one converted ADU; one detached, new construction ADU; and one junior
accessory dwelling unit (
JADU
)
. Thus, if the local agency approves an ADU
that is created from existing (or proposed
) space, and the owner subsequently
applies for a detached ADU (or vice versa) that meets the size and setbacks pursuant to the subdivision, the local agency cannot deny the application, nor deny a permit for a JADU under this section. HCD notes that the L egislature, in
creating the list, did not use “or” nor “one of” to indicate only one or another would be applicable to the exclusion of the other.
Limiting single
-
family lots to
ATTACHMENT 2
Ricky Caperton, Planning Manager
Page
4 one ADU would prevent property owners from creating ADUs by right under subdiv
ision (e)(1).
Therefore, the City must amend the Ordinance to
allow all
by
-
right ADU combinations required by State ADU Law.
•
17.52.015
A.
6 .
b
.
–
Multifamily and
Subdivision
(a)
–
The Ordinance states
“
ADUs may be constructed on lots developed with
multifamily dwellings in
accordance with California Government Code section 65852.2 , subdivision
(e).”
However, Government Code section 65852.2, subdivision (a)(1)(D)(ii) ,
permits
ADUs
subject to local development standards
on
lot
s
zoned to “…
allow single
-
family or multifamily dwelling residential use and includes a proposed or existing dwelling.
”
Such unit
s
may be attached, detached, or created within
existing space, and
the existence of or application for any
unit
created to
Government Code section 65852.2, subdivision (a)
may not preclude the
creation of any unit created subject to Government Code section 65852.2, subdivision (e). The City must amend the Ordinance to comply with statute.
•
17.52.015
A.
8.c.
–
Parki
ng Exemptions
–
The Ordinance provides five
conditions under which no parking may be required, and these conditions match those of Government Code section 65852.2, subdivision (d)(1)(A) through (d)(1)(E). However, it omits reference to the conditions of su bdivision
(d)(1)(F): “When a permit application for an accessory dwelling unit is submitted with a permit application to create a new single
-
family dwelling or a new
multifamily dwelling on the same lot, provided that the accessory dwelling unit or the par
cel satisfies any other criteria listed in this paragraph.” Therefore, the City must add this language to come into consistency with State ADU Law.
•
17.52.015 C
.2
–
Historic Resources Inventory
–
The Ordinance requires an
administrative permit
for
“
An ADU located on a lot containing a principal
dwelling unit listed on the City's Historic Resources Inventory (HRI); provided however, an administrative permit shall not be required for conversion of an
existing accessory
structure that does not involve any exterior alterations. ”
A
s
noted in the above finding on Height, th
e use of an administrative permit
creates a potentially discretionary process
that may not apply per Government
Code section 65852.2,
subdivision (a)(3
).
The City must
amend the Ordinance
to remove any reference to a nonministerial approvals process.
•
17.52.015 D
.2
–
Sprinklers
–
The Ordinance states “An ADU is not required to
be equipped with fire sprinklers unless fire
sprinkler
in
stallation is required for
the principal dwelling unit.
” Please note that current Government Code section
65852.2, su
bdivision
s
(
a)(1)(D)(xii) and (e)(3)
also provide
that
,
“
The
construction of an accessory dwelling unit shall not
trigger a requirement for fire
sprinklers to be installed in the existing primary dwelling .” Therefore, the City
must add this language to this section.
ATTACHMENT 2
Ricky Caperton, Planning Manager
Page
5 •
17.52.015 E
.1.
–
JADU
Basic Design Requirements
–
The Ordinance states
“Each JADU shall be constructe
d within the walls of the existing or proposed
principal dwelling unit.”
However,
Government Code section 65852.2
2 ,
subdivision (
i
)(1)
,
defines a JADU as “
a unit no more than 500 square feet
,” and
current
subdivision
(a)(4)
states
that for the purposes of creating JADUs,
“
enclosed uses within the residence, such as attached garages, are considered a part of the proposed or existing single
-
family residence
.” Therefore, the City
must amend
the Ordinance to add these provisions.
•
17.52.015 E.
3 –
JADUs and Interior Entry
–
The Ordinance requires that “Each
JADU shall include a separate entrance from the main entrance to the existing or proposed principal dwelling unit and may include an interior entry
to the main
living area.
” Howev
er, Government Code section 65852.22, subdivision
(
a)(5)(B) requires that “
If a permitted junior accessory dwelling unit does not
include a separate bathroom, the permitted junior accessory dwelling unit shall include a separate entrance from the main entr
ance to the structure, with an
interior entry to the main living area.
” Therefore, the City must amend the
Ordinance to comply with State ADU Law.
•
17.52.015 E.4.
–
Kitchenette Definition
–
The Ordinance
requires “Each JADU
shall, at a minimum,
include an efficiency kitchen as defined in Section
17.06.030.
” Section 17.60.030 defines such a
kitchen as “an area used, or
designated to be used, for the preparation of food with the following minimal requirements: (1) a sink with a maximum waste line d
iameter of 1.5 inches, (2)
a cooking facility with appliances that do not require electrical service greater than 120 volts, natural gas, or propane gas….”
However,
current Government
Code section 65852.22, subdivision
(a)(6) requires that kitchenettes hav
e “(A)
A cooking facility with appliances.
(B) A food preparation counter and storage
cabinets that are of reasonable size in relation to the size of the junior accessory dwelling unit.
” Therefore, any requirement specific to a JADU
regarding sink waste li
ne diameter
or to voltage or gas service
that does not
conform to the City’s general building code
is inconsistent with State ADU Law.
The City must amend the
definition of “efficiency kitchen” to reflect current
statute.
•
17.52.015 E.7.
–
Owner Occupancy
–
The Ordinance requ
ires that “The
property owner shall reside in either the principal dwelling unit or the
JADU.
”
However,
Government Code section 65852.22, subdivision
(a)(2)
provides an
exception
: “
Owner
-
occupancy shall
not be required if the owner is another
governmental agency, land trust, or housing organization. ” Therefore, the City
must note the exception.
•
17.52.015 E.8.c.
–
Transient Use
–
The Ordinance requires
the
deed restriction
to provide a
“A prohibition on using the JADU for transient occupancy, as defined by Section 17.06.030.” However,
this
requirement
exceeds statute
.
ATTACHMENT 2
Ricky Caperton, Planning Manager
Page
6 JADU deed restrictions
pursuant to
Gover
nment Code section 65852.22,
subdivision (
a)(3)
(A) and (B),
only
prohibit “
the sale of the junior accessory
dwelling unit separate from the sale of the single
-
family residence” and
restrict
“the size and attributes of the junior accessory dwelling unit that conforms with this section.” Any requirement in a deed restrict
ion beyond these two items is
inconsistent with State
J
ADU Law. Therefore, the City must remove this
section.
In response to the findings in
this letter,
and
pursuant to
Gov
ernment
Code
section
65852
.2
, subdivision
(h)
(2)(B), the
City
must either
amend the
O
rdinance to comply with
State ADU Law
or
adopt the
O
rdinance without changes. Should the
City
choose to
adopt
the
O
rdinance
without
the
changes
specified by HCD
,
the
City
must
include
findings in its resolution
that explain the reasons the
City
finds
that the
O
rdinance
complies with
State ADU Law
despite the findings
made by HCD.
Accordingly, the
City’s
response should provide a plan and timeline to bring the Ordinance into compliance.
Please note that
, pursuant to Government Code section 65852.2, subdivision (h)(3)(A),
if the
City
fails to
take either course
of
action and bring the
O
rdinance in
to
comp
liance
with State ADU Law,
HCD
may
notify
the
City
and
the
California Office of the
Attorney
General
that the
City
is in violation of State ADU Law
.
HCD appreciates the
City’s
efforts in the preparation and adoption of the
O
rdinance and
welcomes the opportunity to assist the
City
in
fully complying with
State
ADU
L
aw
.
Please contact Mike Van Gorder, of our staff, at (916
) 776
-
7541
or at
[email protected]
if you have any questions or would like HCD’s technical assistance in these matters.
Sincerely,
Jamie Candelaria
Senior
Housing Accountability
Unit
Manager
Housing Policy Development Division
ATTACHMENT 2