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ORDINANCE NO. 22-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN
CLEMENTE, CALIFORNIA AMENDING SECTION 17.28.270 OF THE
SAN CLEMENTE MUNICIPAL CODE GOVERNING ACCESSORY
DWELLING UNITS AND JUNIOR ACCESSORY DWELLING UNITS TO
COMPLY WITH CHANGES IN STATE LAW AND FINDING THE ACTION
TO BE EXEMPT FROM CEQA (CEQA)
WHEREAS, the City of San Clemente, California (“City”) is a municipal corporation, duly organized under the California Constitution and laws of the State of California; and
WHEREAS, the Planning and Zoning Law authorizes local agencies to act by ordinance to provide for the creation and regulation of accessory dwelling units (“ADUs”) and junior accessory dwelling units (“JADUs”); and
WHEREAS, in 2019, the California Legislature approved, and the Governor signed into law a number of bills (“2019 ADU Laws”) that, among other things, amended Government Code section 65852.2 and 65852.22 to impose new limits on local authority to regulate ADUs and JADUs; and
WHEREAS, in September 2020, the California Legislature approved, and the Governor signed into law, Assembly Bill 3182 (“AB 3182”); and WHEREAS, AB 3182, among other things, amended Government Code section 65852.2 to expand the scenarios under which the City must allow certain ADUs and JADUs with only a building permit; and
WHEREAS, in September 2021, the California Legislature approved, and the Governor signed into law, Assembly Bill 345 (“AB 345”); and WHEREAS, AB 345 requires cities to allow the separate sale or conveyance of certain ADUs that satisfy the conditions set forth in Government Code section 65852.26.
Such conditions include, among other things, that the ADU or the primary dwelling was constructed by a qualified nonprofit and the ADU is sold to a qualified low-income buyer; and
WHEREAS, in September 2022, the Legislature approved, and the Governor signed into law, Assembly Bill 2221 and Senate Bill 897 (“AB 2221” and “SB 897,” respectively); and
WHEREAS, AB 2221 and SB 897 imposed further restrictions on local authority to regulate ADUs and JADUs, including with respect to height limits, setbacks, application review and denial procedures, unpermitted structures, and JADU configurations; and ATTACHMENT 3
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Ordinance No. 22-
2 WHEREAS, the City’s regulations governing ADUs and JADUs are provided in Section 17.28.270 of the San Clemente Municipal Code (“SCMC”); and WHEREAS, the City last updated SCMC Section 17.28.270 via Ordinance No. 1707, which was adopted on February 2, 2021; and
WHEREAS, additional amendments to SCMC Section 17.28.270 are necessary to comply with the above legislation and HCD’s guidance on the same. This ordinance (“Ordinance”) so updates SCMC Section 17.28.270; and
WHEREAS, on October 21, 2022, the City gave public notice of a Planning Commission public hearing to be held to consider this Ordinance by advertisement in a newspaper of general circulation; and
WHEREAS, on November 2, 2022, the Planning Commission held a duly-noticed public hearing to consider the staff report, recommendations by staff, and public testimony concerning this Ordinance. Following the public hearing, the Planning Commission voted to forward the Ordinance to the City Council with a recommendation in favor of its adoption; and
WHEREAS, on November 23, 2022 the City gave public notice of a City Council public hearing to be held to consider this Ordinance by advertisement in a newspaper of general circulation; and
WHEREAS, on December 6, 2022, the City Council held a duly-noticed public hearing to consider the Ordinance, including: (1) the public testimony and agenda reports prepared in connection with the Ordinance, (2) the policy considerations discussed therein, and (3) the consideration and recommendation by the City’s Planning Commission; and
WHEREAS, all legal prerequisites to the adoption of the Ordinance have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. The foregoing Recitals are true and correct and are incorporated herein by this reference.
Section 2. CEQA. Under California Public Resources Code section 21080.17, the California Environmental Quality Act (“CEQA”) does not apply to the adoption of an ordinance by a city or county implementing the provisions of section 65852.2 of the Government Code, which is California’s ADU law and which also regulates JADUs, as defined by section 65852.22. Therefore, the proposed ordinance is statutorily exempt from CEQA in that the proposed ordinance implements the State’s ADU law.
Section 3. Required Findings. In accordance with subsection (F) of San 55452.09135\40582322.2
Ordinance No. 22-
3 Clemente Municipal Code section 17.16.040, the Planning Commission hereby makes the following findings:
1. General Plan. This Ordinance is, as a matter of law, consistent with the City’s General Plan pursuant to Government Code Section 65852.2(a)(1)(C).
2. Health, Safety, and Welfare. Adoption of the Ordinance will not adversely affect the public health, safety, and welfare as it simply updates the San Clemente Municipal Code to comply with state law requirements governing the construction of ADUs and JADUs in the City. Adoption of this Ordinance is also consistent with—and contemplated by—the City’s Sixth Cycle Housing Element, the adoption which the City Council determined will not adversely impact the public health, safety and welfare. For these reasons, adoption of this Ordinance will not adversely affect the public health, safety, and welfare.
Section 4. Code Amendments. Section 17.28.270 of the San Clemente Municipal Code is hereby amended to read as set forth in Exhibit “A,” attached hereto and incorporated herein.
Section 5. Effective Date. This Ordinance takes effect 30 days following its adoption.
Section 6. Submittal to HCD. The City Clerk shall submit a copy of this Ordinance to the Department of Housing and Community Development within 60 days after adoption.
Section 7. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk’s office located at 910 Calle Negocio, San Clemente, CA 92673. The custodian of these records is the City Clerk.
Section 8. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The City Council hereby declares that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 9. Certification. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published once within 15 days of adoption in a newspaper of general circulation printed and published within the City of San Clemente, and shall post a certified copy of this Ordinance, including the vote for and 55452.09135\40582322.2
Ordinance No. 22-
4 against the same, in the Office of the City Clerk in accordance with California Government Code section 36933.
PASSED, APPROVED, AND ADOPTED by the City Council of San Clemente, California, on the _____ day of ___________ 2022.
GENE JAMES, MAYOR
ATTEST:
JOANNE BAADE
CITY CLERK
APPROVED AS TO FORM:
SCOTT C. SMITH
CITY ATTORNEY
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF SAN CLEMENTE )
55452.09135\40582322.2
Ordinance No. 22-
5 I, Joanne Baade, City Clerk of the City of San Clemente, do hereby certify that the foregoing Ordinance No. _______ was duly introduced and placed upon its first reading at a regular meeting of the City Council on the ___ day of ________, 2022, and thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City Council on the ___ day of _____ 2022, by the following vote, to wit:
AYES: COUNCIL MEMBERS
NOES: COUNCIL MEMBERS
ABSENT: COUNCIL MEMBERS
ABSTAIN: COUNCIL MEMBERS
JOANNE BAADE
CITY CLERK
Exhibit "A"
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17.28.270 Accessory Dwelling Units
A. Purpose and Intent. The purpose and intent of this section is to allow and regulate accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs) within the City. The regulations in this section are intended to comply with California Government Code §§ 65852.2 and 65852.22, as they may be amended.
B. Effect of Conforming. An ADU or JADU that conforms to the standards in this section will not be:
1. Deemed to be inconsistent with the City’s general plan and zoning designation for the lot on which the ADU or JADU is located.
2. Deemed to exceed the allowable density for the lot on which the ADU or JADU is located.
3. Considered in the application of any local ordinance, policy, or program to limit residential growth.
4. Required to correct a nonconforming zoning condition, as defined in subsection C.7 below. This does not prevent the City from enforcing compliance with applicable building standards in accordance with Health and Safety Code section 17980.12.
C. Definitions. As used in this section, terms are defined as follows:
1. "Accessory dwelling unit" or "ADU" means 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. An accessory dwelling unit also includes the following:
a. An efficiency unit, as defined by California Health and Safety Code § 17958.1; and
b. A manufactured home, as defined by California Health and Safety Code § 18007.
2. “Accessory structure" means a structure that is accessory and incidental to a dwelling located on the same lot.
3. "Complete independent living facilities" means permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multi-family dwelling is or will be situated.
4. "Efficiency kitchen" means a kitchen that includes all of the following:
a. A cooking facility with appliances.
b. A food preparation counter and storage cabinets that are of a reasonable size in relation to the size of the JADU.
5. "Junior accessory dwelling unit" or "JADU" means a residential unit that satisfies all of the following:
a. It is no more than 500 square feet in size.
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b. It is contained entirely within an existing or proposed single-family structure. An enclosed use within the residence, such as an attached garage, is considered to be a part of and contained within the singlefamily structure. c. It includes its own separate sanitation facilities or shares sanitation facilities with the existing or proposed single-family structure. d. If the unit does not include its own separate bathroom, then it contains an interior entrance to the main living area of the existing or proposed single-family structure in addition to an exterior entrance that is separate from the main entrance to the primary dwelling. e. It includes an efficiency kitchen, as defined in subsection C.4 above.
6. "Living area" means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.
7. "Nonconforming zoning condition" means a physical improvement on a property that does not conform with current zoning standards.
8. "Passageway" means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the ADU or JADU.
9. "Proposed dwelling" means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
10. "Public transit" means a location, including, but not limited to, a bus stop or train station or SC Rides, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
11. "Tandem parking" means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.
D. Permit Procedures. The following approvals apply to ADUs and JADUs under this section:
1. Building-Permit Only. If an ADU or JADU complies with each of the general requirements in subsection E below, it is allowed with only a building permit in the following scenarios:
a. Converted on Single-family Lot: One ADU as described in this subsection D.1.a and one JADU on a lot with a proposed or existing single-family dwelling on it, where the ADU or JADU:
i. Is either: within the space of a proposed single-family dwelling; within the existing space of an existing single-family dwelling; or (in the case of an ADU only) within the existing space of an accessory structure, plus up to 150 additional square feet if the expansion is limited to accommodating ingress and egress; and ii. Has exterior access that is independent of that for the singlefamily dwelling; and 55452.09135\40581161.3
iii. Has side and rear setbacks sufficient for fire and safety, as dictated by applicable building and fire codes; and
iv. The JADU complies with the requirements of Government Code Section 65852.22.
b. Limited Detached on Single-family Lot: One detached, newconstruction ADU on a lot with a proposed or existing single-family dwelling (in addition to any JADU that might otherwise be established on the lot under subsection D.1.a above), if the detached ADU satisfies each of the following limitations:
i. The side- and rear-yard setbacks are at least four feet. ii. The total floor area is 800 square feet or smaller. iii. The peak height above grade does not exceed the applicable height limit in subsection E.2 below.
c. Converted on Multifamily Lot: One or more ADUs within portions of existing multi-family dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each converted ADU complies with state building standards for dwellings. Under this subsection D.1.c, at least one converted ADU is allowed within an existing multi-family dwelling, up to a quantity equal to 25 percent of the existing multi-family dwelling units.
d. Limited Detached on Multifamily Lot: No more than two detached ADUs on a lot that has an existing or proposed multi-family dwelling if each detached ADU satisfies both of the following limitations:
i. The side- and rear-yard setbacks are at least four feet. If the existing multifamily dwelling has a rear or side yard setback of less than four feet, the City will not require any modification to the multifamily dwelling as a condition of approving the ADU. ii. The peak height above grade does not exceed the applicable height limit provided in subsection E.2 below.
2. ADUs that Require an ADU Permit.
a. Except as allowed under subsection D.1 above, no ADU may be created without a building permit and an ADU permit in compliance with the standards set forth in subsections E and F below. b. The City may charge a fee to reimburse it for costs incurred in processing ADU permits, including the costs of adopting or amending the City's ADU ordinance. The ADU permit processing fee is determined the Planning Division and approve by the City Council by resolution.
3. Application Process and Timing.
a. An ADU permit application is considered ministerially, without any discretionary review or a hearing.
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b. The City must approve or deny an application to create an ADU or JADU within 60 days from the date that the City receives a completed application. If the City has not approved or denied the completed application within 60 days, the application is deemed approved unless either:
i. The applicant requests a delay, in which case the 60-day time period is tolled for the period of the requested delay, or ii. When an application to create an ADU or JADU is submitted with a permit application to create a new single-family or multifamily dwelling on the lot, the City may delay acting on the permit application for the ADU or JADU until the City acts on the permit application to create the new single-family or multifamily dwelling, but the application to create the ADU or JADU will still be considered ministerially without discretionary review or a hearing.
c. If the City denies an application to create an ADU or JADU, the City must provide the applicant with comments that include, among other things, a list of all the defective or deficient items and a description of how the application may be remedied by the applicant. Notice of the denial and corresponding comments must be provided to the applicant within the 60-day time period established by subsection D.3.b above.
d. A demolition permit for a detached garage that is to be replaced with an ADU is reviewed with the application for the ADU and issued at the same time.
4. Impact and Utility Fees. The following requirements apply to all ADUs and JADUs that are approved under subsections D.1 or D.2 above. a. Impact Fees.
i. No impact fee is required for an ADU that is less than 750 square feet in size. For purposes of this subsection D.4.a, "impact fee" means a "fee" under the Mitigation Fee Act (Government Code § 66000(b)) and a fee under the Quimby Act (Government Code § 66477). “Impact fee” here does not include any connection fee or capacity charge for water or sewer service.
ii. Any impact fee that is required for an ADU that is 750 square feet or larger in size must be charged proportionately in relation to the square footage of the primary dwelling unit. (E.g., the floor area of the ADU, divided by the floor area of the primary dwelling, times the typical fee amount charged for a new dwelling.)
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b. Utility Fees.
i. If an ADU is constructed with a new single-family home, a separate utility connection directly between the ADU and the utility and payment of the normal connection fee and capacity charge for a new dwelling are required.
ii. Except as described in subsection D.4.b.i, converted ADUs on a single-family lot that are created under subsection D.1.a above are not required to have a new or separate utility connection directly between the ADU and the utility. Nor is a connection fee or capacity charge required.
iii. Except as described in subsection D.4.b.i, all ADUs that are not covered by subsection D.4.b.ii require a new, separate utility connection directly between the ADU and the utility. (a) The connection is subject to a connection fee or
capacity charge that is proportionate to the burden
created by the ADU, based on either the floor area or
the number of drainage-fixture units (DFU) values, as
defined by the Uniform Plumbing Code, upon the water
or sewer system.
(b) The portion of the fee or charge that is charged by the City may not exceed the reasonable cost of providing
this service.
E. General ADU and JADU Requirements. The following requirements apply to all ADUs and JADUs that approved under subsections D.1 and D.2 above:
1. Zoning.
a. An ADU or JADU subject only to a building permit under subsection D.1 above may be created on a lot in a residential or mixed-use zone. b. An ADU subject to an ADU permit under subsection D.2 above may be created on a lot that is zoned to allow single-family dwelling residential use or multi-family dwelling residential use.
2. Height.
a. Except as otherwise provided by subsections E.2.b and E.2.c below, a detached ADU created on a lot with an existing or proposed single family or multifamily dwelling unit may not exceed 16 feet in height. b. A detached ADU may be up to 18 feet in height if it is created on a lot with an existing or proposed single family or multifamily dwelling unit that is located within one-half mile walking distance of a major transit stop or a high quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code, and the ADU may be up to two additional feet in height (for a maximum of 20 feet) if necessary to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit. 55452.09135\40581161.3
c. A detached ADU created on a lot with an existing or proposed multifamily dwelling that has more than one story above grade may not exceed 18 feet in height.
d. An ADU that is attached to the primary dwelling may not exceed 25 feet in height or the height limitation imposed by the underlying zone that applies to the primary dwelling, whichever is lower.
Notwithstanding the foregoing, ADUs subject to this subsection E.2.d may not exceed two stories.
e. For purposes of this subsection E.2, height is measured above existing legal grade to the peak of the structure.
3. Fire Sprinklers.
a. Fire sprinklers are required in an ADU if sprinklers are required in the primary residence.
b. The construction of an ADU does not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling.
4. Rental Term. No ADU or JADU may be rented for a term that is shorter than 30 days. This prohibition applies regardless of when the ADU or JADU was created.
5. No Separate Conveyance. An ADU or JADU may be rented, but, except as otherwise provided in Government Code Section 65852.26, no ADU or JADU may be sold or otherwise conveyed separately from the lot and the primary dwelling (in the case of a single-family lot), or from the lot and all of the dwellings (in the case of a multi-family lot).
6. Septic System. If the ADU or JADU will connect to an onsite waste-water treatment system, the owner must include with the application a percolation test completed within the last five years or, if the percolation test has been recertified, within the last 10 years.
7. Owner Occupancy.
a. An ADU that is permitted after January 1, 2020, but before January 1, 2025, is not subject to any owner-occupancy requirement. b. Unless applicable law requires otherwise, all ADUs that are permitted on or after January 1, 2025 are subject to an owneroccupancy requirement. A natural person with legal or equitable title to the property must reside on the property as the person's legal domicile and permanent residence.
c. As required by applicable law, all JADUs are subject to an owneroccupancy requirement. A natural person with legal or equitable title to the property must reside on the property, in either the primary dwelling or JADU, as the person's legal domicile and permanent residence. However, the owner-occupancy requirement in this subsection E.7.c does not apply if the property is entirely owned by another governmental agency, land trust, or housing organization. 55452.09135\40581161.3
8. Deed Restriction. Prior to issuance of a building permit for an ADU or JADU, a deed restriction must be recorded against the title of the property in the County Recorder's office and a copy filed with the Planning Division.
The deed restriction must run with the land and bind all future owners. The form of the deed restriction will be provided by the City and must provide that:
a. Except as otherwise provided in Government Code Section 65852.26, the ADU or JADU may not be sold separately from the primary dwelling.
b. The ADU or JADU is restricted to the approved size and to other attributes allowed by this section.
c. The deed restriction runs with the land and may be enforced against future property owners.
d. The deed restriction may be removed if the owner eliminates the ADU or JADU, as evidenced by, for example, removal of the kitchen facilities. To remove the deed restriction, an owner may make a written request of the Planning Division, providing evidence that the ADU or JADU has in fact been eliminated. The Planning Division may then determine whether the evidence supports the claim that the ADU or JADU has been eliminated. Appeal may be taken from the Planning Division's determination consistent with other provisions of this code. If the ADU or JADU is not entirely physically removed, but is only eliminated by virtue of having a necessary component of an ADU or JADU removed, the remaining structure and improvements must otherwise comply with all applicable legal requirements, including those of the Zoning Code.
e. The deed restriction is enforceable by the Planning Division for the benefit of the City. Failure of the property owner to comply with the deed restriction may result in legal action against the property owner, and the City is authorized to obtain any remedy available to it at law or equity, including, but not limited to, obtaining an injunction enjoining the use of the ADU or JADU in violation of the recorded restrictions or abatement of the illegal unit.
9. Building & Safety.
a. Must comply with building code. Subject to subsection E.9.b below, all ADUs and JADUs must comply with all local building code requirements.
b. No change in occupancy. Construction of an ADU does not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code, unless the building official or Code Enforcement Division officer makes a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety. Nothing in this subsection E.9.b 55452.09135\40581161.3
prevents the City from changing the occupancy code of a space that was uninhabitable space or that was only permitted for
nonresidential use and was subsequently converted for residential use in accordance with this section.
F. Development Standards for ADUs that Require an ADU Permit. The following requirements apply only to ADUs that require an ADU permit under subsection D.2 above.
1. Passageway. No passageway is required for an ADU.
2. Parking.
a. Generally. One off-street parking space is required for each ADU.
The parking space may be provided in setback areas or as tandem parking.
b. No Replacement. When a garage, carport, or other covered parking structure is demolished in conjunction with the construction of an ADU or converted to an ADU, those off-street parking spaces are not required be replaced.
c. Exceptions. No parking under subsection F.2.a is required in the following situations:
i. The ADU is located within one-half mile walking distance of public transit stops, as defined in subsection C.10 above. ii. The ADU is located within an architecturally and historically significant historic district.
iii. The ADU is part of the proposed or existing primary residence or an accessory structure under subsection D.1.a above. iv. When on-street parking permits are required but not offered to the occupant of the ADU.
v. When there is a city-sanctioned, posted car-share pick-up or drop-off location within one block of the ADU.
vi. When the permit application to create an ADU is submitted with an application to create a new single-family or new multifamily dwelling on the same lot, provided that the ADU or the lot satisfies any other criteria listed in subsections F.2.c.i through F.2.c.v above.
3. Setbacks. An ADU that is subject to this subsection F must conform to:
a. A 20-foot of the front-yard setback. In addition, the ADU may not be closer than the living area of the primary dwelling to the front property line. This subsection F.3.a is subject to subsection F.4.c below b. Four-foot side- and rear-yard setbacks.
c. A detached ADU must be a minimum of five feet from the primary building, measured from the closest point of the ADU (whether wall, balcony, eave, etc.) to the closest point of the primary dwelling. 55452.09135\40581161.3
d. No setback if the ADU is constructed in the same location and to the same dimensions as an existing accessory building.
4. Maximum Size.
a. The maximum size of an attached or detached ADU subject to this subsection F is 850 square feet for a studio or one-bedroom unit and 1,000 square feet for a unit with two or more bedrooms. b. An attached ADU that is created on a lot with an existing primary dwelling is further limited to 50 percent of the floor area of the existing primary dwelling.
c. Application of other development standards in this subsection F, such as lot coverage, might further limit the size of the ADU, but no application of the percent-based size limit in subsection F.4.b, a front setback, or lot coverage limit may require the ADU to be less than 800 square feet.
5. Lot Coverage. No ADU subject to this subsection F may cause the total lot coverage of the lot to exceed 50 percent lot coverage, subject to F.4.c above.
6. Driveway Access. The ADU and primary dwelling must use the same driveway to access the street, unless otherwise required for fire apparatus access as determined by the fire authority.
7. Architecture Review.
a. The materials and colors of the exterior walls, roof, and windows and doors must match the appearance and architectural design of those of the primary dwelling.
b. The roof slope must match that of the dominant roof slope of the primary dwelling. The dominant roof slope is the slope shared by the largest portion of the roof.
c. The exterior lighting must be limited to down-lights or as otherwise required by the building or fire code.
d. The ADU must have an independent exterior entrance, apart from that of the primary dwelling.
e. The interior horizontal dimensions of an ADU must be at least 10 feet wide in every direction, with a minimum interior wall height of seven feet.
f. Fencing, landscaping, privacy glass, or clerestory windows may be used to provide screening and prevent a direct line of sight to contiguous residential property.
8. Historic Protections. An ADU that is on real property that is on or within 600 feet of real property that is listed in the California Register of Historic Resources must be located so as to not be visible from any public right-ofway. 55452.09135\40581161.3
G. Nonconforming Zoning Code Conditions, Building Code Violations, and Unpermitted Structures.
1. Generally. The City will not deny an ADU or JADU application due to a nonconforming zoning condition, building code violation, or unpermitted structure on the lot that does not present a threat to the public health and safety and that is not affected by the construction of the ADU or JADU.
2. Unpermitted ADUs constructed before 2018.
a. Permit to Legalize. As required by state law, the City may not deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if denial is based on either of the following grounds:
i. The ADU violates applicable building standards, or
ii. The ADU does not comply with the state ADU law
(Government Code section 65852.2) or this ADU ordinance (section 17.28.270).
b. Exceptions.
i. Notwithstanding subsection G.2.a above, the City may deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if the City makes a finding that correcting a violation is necessary to protect the health and safety of the public or of occupants of the
structure.
ii. Subsection G.2.a above does not apply to a building that is deemed to be substandard in accordance with California
Health and Safety Code section 17920.3.
H. Nonconforming ADUs and JADUs and Discretionary Approval. Any proposed ADU or JADU that does not conform to the objective standards set forth in subsections A through G of this section may be allowed by the City with an Architectural Permit, in accordance with the other provisions of this title. 55452.09135\40581161.140581161.3
17.28.270 Accessory Dwelling Units
A. A. Purpose and Intent. The purpose and intent of this section is to allow and regulate accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs) within the City. The regulations in this section are intended to comply with California Government Code §§ 65852.2 and 65852.22, as they may be amended.
B. B. Effect of Conforming. An ADU or JADU that conforms to the standards in this section will not be:
1. 1. Deemed to exceed the allowable densitybe inconsistent with the City’s general plan and zoning designation for the lot on which the ADU or JADU is located; .
2. 2. Deemed to be inconsistent with the General Plan and the zoning designationexceed the allowable density for the lot on which the ADU or JADU is located; and.
3. 3. Considered in the application of any local ordinance, policy, or program to limit residential growth.
4. 4. Required to correct a nonconforming zoning condition, as defined in subsection C.7 below. This does not prevent the City from enforcing compliance with applicable building standards in accordance with Health and Safety Code §section 17980.12.
C. C. Definitions. As used in this section, terms are defined as follows:
1. a. "Accessory dwelling unit" or "ADU" means 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. An accessory dwelling unit also includes the following:
a. i. An efficiency unit, as defined by California Health and Safety Code § 17958.1; and
b. ii. A manufactured home, as defined by California Health and Safety Code § 18007.
2. b. "“Accessory structure" means a structure that is accessory and incidental to a dwelling located on the same lot.
3. c. "Complete independent living facilities" means permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multi-family dwelling is or will be situated.
4. d. "Efficiency kitchen" means a kitchen that includes eachall of the following:
a. i. A cooking facility with appliances.
b. ii. A food preparation counter or counters that total at least 15 square feet in areaand storage cabinets that are of a reasonable size in relation to the size of the JADU.
FOR REFERENCE ONLY
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iii. Food storage cabinets that total at least 30 square feet of shelf space.
5. e. "Junior accessory dwelling unit" or "JADU" means a residential unit that satisfies all of the following:
a. i. IsIt is no more than 500 square feet in size,.
b. ii. IsIt is contained entirely within an existing or proposed singlefamily structure,. An enclosed use within the residence, such as an attached garage, is considered to be a part of and contained within the single-family structure.
c. iii. IncludesIt includes its own separate sanitation facilities or shares sanitation facilities with the existing or proposed single-family structure, and .
d. If the unit does not include its own separate bathroom, then it contains an interior entrance to the main living area of the existing or proposed single-family structure in addition to an exterior entrance that is separate from the main entrance to the primary dwelling. e. iv. IncludesIt includes an efficiency kitchen, as defined in subsection C.dC.4 above.
6. f. "Living area" means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.
7. g. "Nonconforming zoning condition" means a physical improvement on a property that does not conform with current zoning standards.
8. h. "Passageway" means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the ADU or JADU.
9. i. "Proposed dwelling" means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
10. j. "Public transit" means a location, including, but not limited to, a bus stop or train station or SC Rides, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
11. k. "Tandem parking" means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.
D. D.Permit Procedures.
1. Approvals and Types of ADUs and JADUs. The following approvals apply to ADUs and JADUs under this section:
1. a. ADUs and JADUs that RequireBuilding-Permit Only a Building Permit. If an ADU or JADU complies with each of the general requirements in subsection E below, it is allowed with only a building permit in the following scenarios:
a. (1) Converted on Single-family Lot: Except as allowed byOne ADU as described in this subsection D.1 .a(2) below, onlyD.1.a and 55452.09135\40581161.140581161.3
one ADU or JADU on a lot with a proposed or existing single-family dwelling on it, where the ADU or JADU:
i. i. Is either: within the space of a proposed single-family dwelling; within the existing space of an existing single-family dwelling; or (in the case of an ADU only) within the existing space of an accessory structure, plus up to 150 additional square feet if the expansion is limited to accommodating ingress and egress; and
ii. ii. Has exterior access that is independent of that for the singlefamily dwelling; and iii. iii. Has side and rear setbacks sufficient for fire and safety, as dictated by applicable building and fire codes.; and
iv. The JADU complies with the requirements of Government Code Section 65852.22.
b. (2) Limited Detached on Single-family Lot: One detached, new-construction ADU on a lot with a proposed or existing singlefamily dwelling (in addition to any JADU that might otherwise be established on the lot under subsection D.1.a(1)D.1.a above), if the detached ADU satisfies each of the following limitations:
i. i. The side- and rear-yard setbacks are at least four-feetfour feet.
ii. ii. The total floor area is 800 square feet or smaller. iii. iii. The peak height above grade is 16 feet or lessdoes not exceed the applicable height limit in subsection E.2 below. c. (3) Converted on Multifamily Lot: One or more ADUs within portions of existing multi-family dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each converted ADU complies with state building standards for dwellings.
Under this subsection D.1.a(3)D.1.c, at least one converted ADU is allowed within an existing multi-family dwelling, up to a quantity equal to 25 percent of the existing multi-family dwelling units. d. (4) Limited Detached on Multifamily Lot: No more than two detached ADUs on a lot that has an existing or proposed multi-family dwelling if each detached ADU satisfies both of the following limitations:
i. i. The side- and rear-yard setbacks are at least four-feet. four feet. If the existing multifamily dwelling has a rear or side yard setback of less than four feet, the City will not require any modification to the multifamily dwelling as a condition of approving the ADU.
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ii. ii. The peak height above grade is 16 feet or lessdoes not exceed the applicable height limit provided in subsection E.2 below.
2. b. ADUs that Require an ADU Permit.
a. (1) Except as allowed under subsection D.1.aD.1 above, no ADU may be created without a building permit and an ADU permit in compliance with the standards set forth in subsections EE and FF below.
b. (2) The City may charge a fee to reimburse it for costs incurred in processing ADU permits, including the costs of adopting or amending the City's ADU ordinance. The ADU permit processing fee is determined the Planning Division and approve by the City Council by resolution.
3. 2. Application Process and Timing.
a. a. An ADU permit application shall beis considered ministerially, without any discretionary review or a hearing.
b. b. The City must act onapprove or deny an application to create an ADU or JADU within 60 days from the daydate that the City receives a completecompleted application,. If the City has not approved or denied the completed application within 60 days, the application is deemed approved unless either:
i. (1) The applicant requests a delay, in which case the 60- day time period is tolled for the period of the requested delay, or
ii. (2) When an application to create an ADU or JADU is submitted with a permit application to create a new singlefamily or multifamily dwelling on the lot, the City may delay acting on the ADU permit application for the ADU or JADU until the City acts on the permit application to create the new single-family or multifamily dwelling, but the application to create the ADU or JADU will still be considered ministerially without discretionary review or a hearing.
c. If the City denies an application to create an ADU or JADU, the City must provide the applicant with comments that include, among other things, a list of all the defective or deficient items and a description of how the application may be remedied by the applicant. Notice of the denial and corresponding comments must be provided to the applicant within the 60-day time period established by subsection D.3.b above.
d. A demolition permit for a detached garage that is to be replaced with an ADU is reviewed with the application for the ADU and issued at the same time.
55452.09135\40581161.140581161.3
4. 3. Impact and Utility Fees. The following requirements apply to all ADUs and JADUs that are approved under subsections D.1 .aD.1 or D.1 .bD.2 above.
a. a. Impact Fees.
i. (1) No impact fee is required for an ADU or JADU that is less than 750 square feet in size. For purposes of this subsection D.3D.4.a, "impact fee" means a "fee" under the Mitigation Fee Act (Government Code § 66000(b)) and a fee under the Quimby Act (Government Code § 66477). “Impact fee” here does not include any connection fee or capacity charge for water or sewer service.
ii. (2) Any impact fee that is required for an ADU that is 750 square feet or larger in size must be charged proportionately in relation to the square footage of the primary dwelling unit. (E.g., the floor area of the ADU, divided by the floor area of the primary dwelling, times the typical fee amount charged for a new dwelling.) "Impact fee" here does not include any connection fee or capacity charge for water or sewer service.
b. b. Utility Fees.
i. (1) If an ADU or JADU is constructed with a new singlefamily home, a separate utility connection directly between the ADU or JADU and the utility and payment of the normal
connection fee and capacity charge for a new dwelling are required.
ii. (2) Except as described in subsection D.3.b(1)D.4.b.i, converted ADUs and JADUs on a single-family lot that are created under subsection D.1 .a(1)D.1.a above are not
required to have a new or separate utility connection directly between the ADU or JADU and the utility. Nor is a connection fee or capacity charge required.
iii. (3) Except as described in subsection D.3.b(1) D.4.b.i, all ADUs and JADUs that are not covered by subsection
D.3.b(2)D.4.b.ii require a new, separate utility connection directly between the ADU or JADU and the utility.
(a) (a) The connection is subject to a connection fee or capacity charge that is proportionate to the burden
created by the ADU or JADU, based on either the floor
area or the number of drainage-fixture units (DFU)
values, as defined by the Uniform Plumbing Code,
upon the water or sewer system.
55452.09135\40581161.140581161.3
(b) (b) The portion of the fee or charge that is charged by the City may not exceed the reasonable cost of
providing this service.
E. E. General ADU and JADU Requirements. The following requirements apply to all ADUs and JADUs that approved under subsections D.1.aD.1 and D.1.bD.2 above:
1. 1. Zoning.
a. a. An ADU or JADU subject only to a building permit under subsection D.1 .aD.1 above may be created on a lot in a residential or mixed-use zone.
b. b. An ADU subject to an ADU permit under subsection D.1.bD.2 above may be created on a lot that is zoned to allow single-family dwelling residential use or multi-family dwelling residential use.
2. Height.
a. Except as otherwise provided by subsections E.2.b and E.2.c below, a detached ADU created on a lot with an existing or proposed single family or multifamily dwelling unit may not exceed 16 feet in height. b. A detached ADU may be up to 18 feet in height if it is created on a lot with an existing or proposed single family or multifamily dwelling unit that is located within one-half mile walking distance of a major transit stop or a high quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code, and the ADU may be up to two additional feet in height (for a maximum of 20 feet) if necessary to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit. c. A detached ADU created on a lot with an existing or proposed multifamily dwelling that has more than one story above grade may not exceed 18 feet in height.
d. An ADU that is attached to the primary dwelling may not exceed 25 feet in height or the height limitation imposed by the underlying zone that applies to the primary dwelling, whichever is lower.
Notwithstanding the foregoing, ADUs subject to this subsection E.2.d may not exceed two stories.
e. For purposes of this subsection E.2, height is measured above existing legal grade to the peak of the structure.
3. 2. Fire Sprinklers.
a. Fire sprinklers are required in an ADU if sprinklers are required in the primary residence.
b. The construction of an ADU does not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling. 55452.09135\40581161.140581161.3
4. 3. Rental Term. No ADU or JADU may be rented for a term that is shorter than 30 days. This prohibition applies regardless of when the ADU or JADU was created.
5. 4. No Separate Conveyance. An ADU or JADU may be rented, but, except as otherwise provided in Government Code Section 65852.26, no ADU or JADU may be sold or otherwise conveyed separately from the lot and the primary dwelling (in the case of a single-family lot), or from the lot and all of the dwellings (in the case of a multi-family lot).
6. 5. Septic System. If the ADU or JADU will connect to an onsite watertreatmentwaste-water treatment system, the owner must include with the application a percolation test completed within the last five years or, if the percolation test has been recertified, within the last 10 years.
7. 6. Owner Occupancy.
a. All ADUs permitted before January 1, 2020 are subject to the owneroccupancy requirement that was in place when the ADU was created. a. b. An ADU that is permitted after that dateJanuary 1, 2020, but before January 1, 2025, is not subject to any owner-occupancy requirement.
b. c. AllUnless applicable law requires otherwise, all ADUs that are permitted on or after January 1, 2025 are subject to an owneroccupancy requirement. A natural person with legal or equitable title to the property must reside on the property as the person's legal domicile and permanent residence.
c. d. AllAs required by applicable law, all JADUs are subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property, in either the primary dwelling or JADU, as the person's legal domicile and permanent residence. However, the owner-occupancy requirement in this subsection E.6.dE.7.c does not apply if the property is entirely owned by another governmental agency, land trust, or housing organization.
8. 7. Deed Restriction. Prior to issuance of a building permit for an ADU or JADU, a deed restriction must be recorded against the title of the property in the County Recorder's office and a copy filed with the Planning Division.
The deed restriction must run with the land and bind all future owners. The form of the deed restriction will be provided by the City and must provide that:
a. a. TheExcept as otherwise provided in Government Code Section 65852.26, the ADU or JADU may not be sold separately from the primary dwelling.
b. b. The ADU or JADU is restricted to the approved size and to other attributes allowed by this section.
55452.09135\40581161.140581161.3
c. c. The deed restriction runs with the land and may be enforced against future property owners.
d. d. The deed restriction may be removed if the owner eliminates the ADU or JADU, as evidenced by, for example, removal of the kitchen facilities. To remove the deed restriction, an owner may make a written request of the Planning Division, providing evidence that the ADU or JADU has in fact been eliminated. The Planning Division may then determine whether the evidence supports the claim that the ADU or JADU has been eliminated. Appeal may be taken from the Planning Division's determination consistent with other provisions of this code. If the ADU or JADU is not entirely physically removed, but is only eliminated by virtue of having a necessary component of an ADU or JADU removed, the remaining structure and improvements must otherwise comply with all applicable legal requirements, including those of the Zoning Code.
e. e. The deed restriction is enforceable by the Planning Division for the benefit of the City. Failure of the property owner to comply with the deed restriction may result in legal action against the property owner, and the City is authorized to obtain any remedy available to it at law or equity, including, but not limited to, obtaining an injunction enjoining the use of the ADU or JADU in violation of the recorded restrictions or abatement of the illegal unit.
9. Building & Safety.
a. Must comply with building code. Subject to subsection E.9.b below, all ADUs and JADUs must comply with all local building code requirements.
b. No change in occupancy. Construction of an ADU does not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code, unless the building official or Code Enforcement Division officer makes a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety. Nothing in this subsection E.9.b prevents the City from changing the occupancy code of a space that was uninhabitable space or that was only permitted for
nonresidential use and was subsequently converted for residential use in accordance with this section.
F. F. Development Standards for ADUs that Require an ADU Permit. The following requirements apply only to ADUs that require an ADU permit under subsection D.2 above.
1. 1. Passageway. No passageway is required for an ADU.
2. 2. Parking.
55452.09135\40581161.140581161.3
a. a. Generally. One off-street parking space is required for each ADU. The parking space may be provided in setback areas or as tandem parking.
b. b. No Replacement. When a garage, carport, or other covered parking structure is demolished or converted forin conjunction with the construction of an ADU or converted to an ADU, those off-street parking spaces are not required be replaced.
c. c. Exceptions. No parking under subsection F.2.a is required in the following situations:
i. (1) The ADU is located within one-half mile walking
distance of public transit stops (bus, rail, or SC Rides), as defined in subsection C.10 above.
ii. (2) The ADU is located within an architecturally and historically significant historic district.
iii. (3) The ADU is part of the proposed or existing primary residence or an accessory structure under subsection D.1 .a(1)D.1.a above.
iv. (4) When on-street parking permits are required but not offered to the occupant of the ADU.
v. (5) When there is a city-sanctioned, posted car-share pickup or drop-off location within one block of the ADU.
3. Height. No ADU subject to this subsection F may exceed 16 feet in height above grade, measured to the peak of the structure.
vi. When the permit application to create an ADU is submitted with an application to create a new single-family or new multifamily dwelling on the same lot, provided that the ADU or the lot satisfies any other criteria listed in subsections F.2.c.i through F.2.c.v above.
3. 4. Setbacks. An ADU that is subject to this subsection F must conform to:
a. a. A 20-foot of the front-yard setback. In addition, the ADU may not be closer than the living area of the primary dwelling to the front property line. This subsection F.3.a is subject to subsection F.4.c below
b. b. Four-foot side- and rear-yard setbacks.
c. c. A detached ADU shallmust be a minimum of five feet from the primary building, measured from the closest point of the ADU (whether wall, balcony, eave, etc.) to the closest point of the primary dwelling.
d. d. No setback if the ADU is constructed in the same location and to the same dimensions as an existing accessory building. 55452.09135\40581161.140581161.3
4. 5. Maximum Size.
a. a. The maximum size of an attached or detached ADU subject to this subsection F is 850 square feet for a studio or one-bedroom unit and 1,000 square feet for a unit with two or more bedrooms. No more than two bedrooms are allowed.
b. An attached ADU that is created on a lot with an existing primary dwelling is further limited to 50 percent of the floor area of the existing primary dwelling.
b. The maximum size of a detached ADU subject to this subsection F is 850 square feet for a studio or one-bedroom unit and 1,000 square feet for a unit with two bedrooms. No more than two bedrooms are allowed. c. c. Application of other development standards in this subsection F, such as lot coverage, might further limit the size of the ADU, but no application of the percent-based size limit in subsection F.5.a above or of F.4.b, a front setback, or lot coverage requirementslimit may require the ADU to be less than 800 square feet.
5. 6. Lot Coverage. No ADU subject to this subsection F may cause the total lot coverage of the lot to exceed 50 percent lot coverage, subject to E.5.cF.4.c above.
6. 7. Driveway Access. The ADU and primary dwelling must use the same driveway to access the street, unless otherwise required for fire apparatus access as determined by the fire authority.
7. 8. Architecture Review.
a. a. The materials and colors of the exterior walls, roof, and windows and doors must match the appearance and architectural design of those of the primary dwelling.
b. b. The roof slope must match that of the dominant roof slope of the primary dwelling. The dominant roof slope is the slope shared by the largest portion of the roof.
c. c. The exterior lighting must be limited to down-lights or as otherwise required by the building or fire code.
d. d. The ADU must have an independent exterior entrance, apart from that of the primary dwelling. The ADU entrance must be located on the side or rear building façade, or if located in front, not visible from public-right-of-way.
e. e. The interior horizontal dimensions of an ADU must be at least 10 feet wide in every direction, with a minimum interior wall height of seven feet.
f. f. Windows and doors of the ADU may not have a direct line of sight to an adjoining residential property. Fencing, landscaping, privacy glass, or clerestory windows may be used to provide 55452.09135\40581161.140581161.3
screening and prevent a direct line of sight to contiguous residential property.
8. 9. Historic Protections. An ADU that is on real property that has an identified historic resource listed on a federal, state, or local register of historic places must comply with the Secretary of the Interior's objective Standards for the Treatment of Historic Properties, as applicable. An ADU may not be located in front of a historic resource, except when the ADU is created from an existing structure. is on or within 600 feet of real property that is listed in the California Register of Historic Resources must be located so as to not be visible from any public right-of-way.
G. Nonconforming Zoning Code Conditions, Building Code Violations, and Unpermitted Structures.
1. Generally. The City will not deny an ADU or JADU application due to a nonconforming zoning condition, building code violation, or unpermitted structure on the lot that does not present a threat to the public health and safety and that is not affected by the construction of the ADU or JADU.
2. Unpermitted ADUs constructed before 2018.
a. Permit to Legalize. As required by state law, the City may not deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if denial is based on either of the following grounds:
i. The ADU violates applicable building standards, or
ii. The ADU does not comply with the state ADU law
(Government Code section 65852.2) or this ADU ordinance (section 17.28.270).
b. Exceptions.
i. Notwithstanding subsection G.2.a above, the City may deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if the City makes a finding that correcting a violation is necessary to protect the health and safety of the public or of occupants of the
structure.
ii. Subsection G.2.a above does not apply to a building that is deemed to be substandard in accordance with California
Health and Safety Code section 17920.3.
H. G. Nonconforming ADUs and JADUs and Discretionary Approval. Any proposed ADU or JADU that does not conform to the objective standards set forth in subsections AA through FG of this section may be allowed by the City with an Architectural Permit, in accordance with the other provisions of this title. (Ord. No. 1668 , § 2, 3-5-2019; Ord. No. 1707 , § 3, 2-2-2021) 55452.09135\40581161.140581161.3
Editor's note(s)—Ord. No. 1668 , § 2, adopted March 5, 2019, repealed § 17.28.270 and enacted a new section as set out herein. Former § 17.28.270 pertained to second residential dwelling units and derived from Ord. No. 1172, § 3(part), adopted in 1996.
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