This memo addresses many of the questions that have arisen since the adoption of Senate Bill 9 (SB 9).
Q: What is the impact of SB 9 on the Housing Element?
A: At this time SB 9 is not expected to have an impact on the housing element, especially for jurisdictions in the SCAG region whose elements are due October 15, 2021. For sites to count towards affordable housing, they must meet minimum density and size requirements that would not be met with developments allowed under SB 9. For subsequent cycles, and for cities in COG areas that have later housing element revision dates, the city may be able to show a historical pattern to account for moderate and above -moderate sites.
Q: What is the impact of SB 9 on the ADU ordinance?
A: To the extent that SB 9 prohibits ADUs/JADUs on developments allowed under SB 9, it would override the ADU ordinance.
Q: Can someone split a lot that has a home with a JADU/ADU on it or build a second unit if there is an ADU/JADU on the lot?
A: The language of SB 9 is only clear as to situations in which a person uses both the authority contained in section 65852.21 allowing two units on a lot and section 66411.7 allowing a subdivision of a single-family lot. In this case, no more than two units can be provided per lot, including an ADU and JADU. This language is contained in both section 65852.21(f) and section 66411.7(j).
However, no similar provisions are contained in section 65852.21 authorizing the development of two units on a lot. While the Legislative Counsel's Digest states that SB 9 would require a proposed housing development containing no more than two residential units to be considered ministerially, the argument for allowing ADUs and JADUs would be that the Legislature clearly knew how to draft the statute to prohibit these units if that was the intent. Additionally, HCD's Guidebook on ADUs provides that where there are two detached single-family dwellings on a lot, one ADU per lot is allowed. The HCD's Guidebook does not carry the same weight as legislation and is not necessarily binding.
As the language of sections 65852.21(f) and 66411.7(j) provide that "a local agency shall not be required to permit" an ADU and JADU on parcels using both procedures, the city would have the discretion to specifically allow ADUs and JADUs.
Q: What is the impact of SB 9 on a small lot ordinance? A: SB 9 would supersede a small lot ordinance to the extent that it is more restrictive.
The city must allow lots as small as 1,200 square feet with the setbacks provided in SB 9. Additionally, other objective standards could not be applied if it prohibited development of units that were at least 800 square feet in size.
Q: How does the building code impact living units on property lines? A: As with ADUs, a development would still have to meet building code requirements.
Q: Can the city prohibit lot splits and units in the very high fire hazard severity zone?
A: SB 9 provides that a lot split must meet the requirements of Government Code section 65913.4(a)(6)(B) to (K). Subsection (D) provides "Within a very high fire hazard severity zone (VHFHSZ), as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code. This subparagraph does not apply to sites excluded from the specified hazard zones by a local agency, pursuant to subdivision (b) of Section 51179, or sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development." This language basically seems to mean that if the city has adopted the California Building Code, including Chapter 7A, and is following the law regarding requiring 100 feet of defensible space, then SB 9 would apply to a VHFHSZ.
Q: What is the impact of the requirement that an applicant for an urban lot split sign an affidavit stating an "intent" to live in one of the homes? A: Unfortunately, this requirement is not really enforceable. While someone can be required to sign such an affidavit, they are only stating that it is their intent to reside in one of housing units for a minimum of three years. There is no penalty if a person does not actually so reside. Additionally, this requirement does not make sense as it states that the occupancy will be for a minimum of three years from the date of the approval of the urban lot split (emphasis added). After a lot split, a person may still need to submit building plans and then construct the home, which could take a significant portion of those three years. Nevertheless, we suggest have a form affidavit prepared that will require a person to sign under penalty of perjury.
Q: Can the city deny an urban lot split if it knows that regardless of the affidavit, the applicant has no intent to actually live one the property? A: We think that it would be very difficult to deny as the city cannot really know what someone's intent is.
Q: Can someone continually divide a lot until the lots are down to 1,200 square feet?
A: No. Section 66411.7(a)(3)(F) specifically provides that the ministerial lot split cannot be used for any parcel that has been established through prior exercise of an urban lot split.
Q: What does it mean to be "working in concert" with someone as far as adjacent properties being divided?
A: This language is not clear. Presumably the intent is to prevent speculators from coming in and buying up and developing a number of lots. Possible scenarios could be:
• A owns lots 1 and 2. A subdivides lot 1 and very close to that time frame sells lot 2 to B who then files an application to subdivide.
• Brothers A, B, and C own lots 1, 2, and 3. After brother B subdivides lot 2, Brothers A and C file applications to subdivide lots 1 and 3 on either side of lot 2 and the plans show development that is designed to look like one development. • Related entities own the adjacent lots.
This issue will probably have to be examined on a case-by-case basis. It is also important to note that the statute does not prohibit the subdivision of adjacent parcels at the same time.
Q: Can the city require that there be a minimum right of way frontage as opposed to providing access through a common easement or private street, or allowing a flag lot?
A: The language of SB 9 is unclear. Newly added section 66411.7(e)(2) provides that a local agency may require "that the parcels have access to, provide access to, or adjoin the public right-of-way." This could mean that the city has to allow any of these options or that the city could require that it adjoin the public right-of-way. Keep in mind that section 66411.7(c)(2) provides that even objective standards cannot be imposed on a lot split if it would have the effect of physically precluding the construction of two units on either of the resulting parcels.
Q: Can the city set a maximum size restriction on the units? A: SB 9 does not address size limitations except to state that objective standards cannot physically preclude either of the two units from being at least 800 square feet in floor area.
Q: What if the single-family residence is located in a zone other than single-family residential?
A: SB 9 only applies to single-family residential zones, regardless of whether the code allows single-family residences in multi -family residential zones (see sections 65852.21(a) and 66411.7(a)(3)(A)).
Q: Must the city allow a lot split if it reduces the lot below the city's minimum lot size?
A: Yes. Section 66411.7(a)(2)(A) provides that the newly created lots must be at least 1,200 square feet, thereby imposing that as the minimum. The city could allow smaller lots if it wanted to.
Q: Must the city allow a unit that does not meet the setback requirements of the single-family residential zone?
A: Yes. Both sections 65852.21(b)(2)(B) and 667411.7(b)(3) provide that the city is limited to requiring a four -foot side and rear yard setback. Furthermore, both of these sections provide that no setback shall be required if an existing structure is being converted or a new structure constructed in the same location and to the same dimensions as an existing structure.
Q: What can the city require for the one parking space, i.e., enclosed, covered, etc.?
A: SB 9 does not limit the type of parking space that the city may require so long as it is an objective standard. The city could therefore require an enclosed parking space of a specified dimension.
Q: Can the city use its standard parcel map fee for the ministerial lot splits? A: If the city's standard parcel map procedure includes a noticed, public hearing, then the fee would not be applicable. Fees cannot exceed the reasonable cost of providing the service.
Q: What other fees can be imposed?
A: Unlike the ADU legislation, there is no limit on imposing applicable impact fees on new residential units. Additionally, the development would be subject to all other applicable application and permit fees.
Q: Can the city require separate utility connections for new residences? A: Yes. SB 9 does not include any limitations on utility connections.
Q: Can the city require that units developed under SB 9 are affordable? A: We do not believe that SB 9 provides the city with authority to restrict the units to affordable units. Of course, the city can provide incentives to encourage the units be affordable.
Q: Are there time frames for approval?
A: Unlike the ADU legislation, there are no independent time frames in which the city must approve a housing development project or urban lot split. The time limits to process a parcel map under the Subdivision Map Act should apply to parcel maps under SB 9. As the map is exempt from CEQA, the time frame will generally be 50 days, assuming that the tentative map does not go to the City Council. The housing
development project would be subject to the Permit Streamlining Act and should be acted upon within 60 days of a complete application.
Q: Is there any way to deny a project under SB 9?
A: Both a housing development project and a lot split may be denied if the building official makes a written finding, based on a preponderance of the evidence, that the project would have a specific, adverse impact upon the public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid such specific adverse impact.
A preponderance of the evidence means more than 50 percent.
A 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 the existed on the date the application was deemed complete."
Q: When must the city have an ordinance in place?
A: SB 9 takes effect on January 1, 2022 and it is recommended that the city have an ordinance in place by that time to make sure that any objective standards it wishes to apply are clearly spelled out. There is no penalty for failing to adopt an ordinance as the city would simply have to follow state law and allow the housing developments and lot splits on the single-family residential lots in accordance with the provisions of SB 9. The city may adopt an ordinance through the urgency procedures in order to have something in place by January 1, 2022.
Q: Why would the city want to adopt an ordinance if state law would apply? A: SB 9 provides that the city may impose objective standards that do not conflict with the provisions of SB 9. The city should therefore be able to impose different development standards on SB 9 housing developments and lot splits than on other single-family residential developments and parcel maps.
Q: Will HCD provide guidance?
A: HCD intends to provide a technical assistance (TA) memo, but at this time is still gathering questions. It is unknown when the TA memo will be available, but it is very unlikely it will be prior to SB 9 taking effect.