City of Sunnyvale
Agenda Item
21-1028 Agenda Date: 12/13/2021
REPORT TO PLANNING COMMISSION
SUBJECT
Forward a Recommendation to the City Council to Adopt an Urgency Interim Ordinance and Introduce an Ordinance Amending Titles 18 (Subdivisions) and 19 (Zoning) and Title 13 (Streets and Sidewalks) of the Sunnyvale Municipal Code related to new State Legislation (Senate Bill 9) on Housing Development in Single-Family Zoning Districts and Find that the Action is Exempt from the California Environmental Quality Act
REPORT IN BRIEF
Senate Bill (SB) 9 essentially puts an end to single-family zoning in urbanized areas of California by requiring local agencies to approve multiple residential units on most single-family zoned lots. Nearly two out of three dwellings in California are single-family dwellings. State lawmakers consider SB 9 and other recently approved housing legislation to be key steps toward solving the current housing crisis.
In Sunnyvale, single-family dwellings make up approximately 35% of the housing stock; while this is far lower than the overall State ratio, the City is still subject to the new legislation. These changes will result in an unknown number of new rental and for-sale units. Many of the units will likely be smaller in size than most of the newer single-family dwellings sold in Sunnyvale, which could make them somewhat more affordable. Additionally, some units will be used as rentals and will add to the City’s supply of rental housing, and potentially reduce displacement of existing homeowners by allowing a source of income for aging in place. SB 9 requires a local agency to prohibit the rental of any unit for a term shorter than 30 days (i.e., short term rental).
Staff has performed a consistency review of Title 18 and Title 19 relating to this new type of development and has identified modifications to bring the Sunnyvale Municipal Code (SMC) into conformance with SB 9. While there are many requirements set forth by the legislation, the City can retain some local control through objective development, design, and subdivision standards.
Since 1992, the City has used the Design Review permitting process to review newly constructed or remodeled single-family dwellings; the Single-Family Design Techniques and modified review standards including Planning Commission consideration of larger homes were adopted in the year 2000. The new law requires that additional residential units must be approved ministerially. “Ministerial” review means that the decision-maker must grant the application as long as it meets a set of defined standards.
SB 9 adds two new sections to the California Government Code which go into effect on January 1, 2022. One section amends the Subdivision Map Act to allow splitting of lots in single-family zones; the other section is part of the state housing law and requires local agencies to approve additional dwelling units on single-family zoned lots.
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Sunnyvale
21-1028 Agenda Date: 12/13/2021
Urban Lot Splits (ULS). This term is not defined per se in the state law; however, it is a concept promoted by housing advocates to mean the creation of two legal parcels from an existing parcel zoned for single-family housing in an urbanized area. SB 9 requires cities to ministerially approve urban lot splits meeting certain requirements. Staff is recommending the addition of a new chapter to Title 18 of the SMC (Subdivisions) to allow lot splits consistent with the provisions in the new state law. Applicants will submit an application for a tentative parcel map to be reviewed by the Departments of Community Development (CDD) and Public Works (DPW). After the tentative parcel map is approved by the CDD Director, the applicant will submit a final parcel map for approval by the DPW Director.
Dual Urban Opportunity (DUO) Housing
. Sunnyvale staff coined this term and the abbreviation “DUO” to refer to the independent dwelling units that are allowed on single-family lots under SB 9.
DUOs can either be detached (essentially, two “single family” homes on one lot) or attached (essentially a duplex). A DUO development can also include Accessory Dwelling Units (ADUs) as long as the total number of units does not exceed four dwelling units on the original lot with or without a lot split. For example, with a lot split, the applicant can have either two DUOs (two units) on each lot, or a DUO plus ADU on each lot. Without a lot split, the applicant can have two DUO units plus two ADUs on the lot. Staff is recommending amendments to the Zoning Code (Title 19) of the Sunnyvale Municipal Code, to enable processing of these types of units through a ministerial (non- discretionary) Miscellaneous Plan Permit, followed by issuance of a Building Permit.
The report also addresses seven policy considerations in the Discussion/Options to Consider section of this report; alternative ordinance language for each of the seven policies is provided in Attachment
7. Staff is recommending the adoption of an Interim Urgency Ordinance for changes to the Zoning code and introduction of an ordinance with modifications to SMC Title 19 (Zoning) and SMC Title 18 (Subdivisions) along with an unrelated cleanup to a reference to SMC Title 19 in SMC Title 13 (Streets and Sidewalks). These ordinances are available in Attachments 2 and 3.
The new state legislation goes into effect on January 1, 2022; however, the urgency and regular ordinances will be considered by the City Council on January 4, 2022.
BACKGROUND
The Legislature has proposed several housing bills over the last few years aimed at eliminating single-family zoning or creating “missing middle” housing due to the housing shortage in California.
Previous bills failed to pass the Legislature or were vetoed. However, the most recent bill, SB 9, was signed by the Governor on September 16, 2021. The proposed updates to the Sunnyvale Zoning Code (Title 19) and the Subdivision Code (Title 18) would codify requirements from SB 9, tighten up some of the existing objective development standards, and add new objective design standards so the City is able to maintain some local control over the processes and procedures associated with the requirement to allow this new form of development in single-family zoning districts. The new State legislation goes into effect on January 1, 2022. As with the 2019 ADU legislation, SB 9 contains a number of unclear or ambiguous provisions that will likely be clarified by the State in the future.
Further revisions of the Sunnyvale Municipal Code (SMC) may be necessary in response to any legislative changes.
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The City Council is scheduled to consider this item on January 4, 2022.
EXISTING POLICY
SUNNYVALE GENERAL PLAN
Chapter 3: Land Use and Transportation
GOAL LT-4 AN ATTRACTIVE COMMUNITY FOR RESIDENTS AND BUSINESSES - In combination with the City’s Community Design Sub-Element, ensure that all areas of the city are attractive and that the city’s image is enhanced by following policies and principles of good urban design while valued elements of the community fabric are preserved.
Policy LT-4.3 Enforce design review guidelines and zoning standards that ensure the mass and scale of new structures are compatible with adjacent structures … · LT-4.3c Enforce local design guidelines that ensure buildings and monuments respect the character, scale, and context of the surrounding area.
· LT-4.3d Ensure that new construction and renovation contribute to the quality and overall image of the community.
· LT-4.3e Use the development review and permitting processes to promote high-quality architecture and site design.
GOAL LT-6 PROTECTED, MAINTAINED, AND ENHANCED RESIDENTIAL NEIGHBORHOODS - Ensure that all residential areas of the city are maintained and that neighborhoods are protected and enhanced through urban design which strengthens and retains residential character.
Policy LT-6.1 Improve and preserve the character and cohesiveness of existing residential neighborhoods.
· LT-6.1b Explore developing design standards and guidelines, similar to the Eichler Design Guidelines, to preserve the defining character of existing distinctive neighborhoods. · LT-6.1d Establish standards and promote and support programs that result in the maintenance and rehabilitation of existing housing and residential neighborhoods.
GOAL LT-7 Diverse Housing Opportunities - Ensure the availability of ownership and rental housing options with a variety of dwelling types, sizes, and densities that contribute positively to the surrounding area and the health of the community.
Chapter 5: Housing
Policy HE-1.1
- Encourage diversity in the type, size, price and tenure of residential development in Sunnyvale, including single-family homes, townhomes, apartments, mixed-use housing, transit- oriented development and live-work housing.
Policy HE-4.1 - Provide site opportunities for development of housing that responds to diverse community needs in terms of density, tenure type, unit size, accessibility, location and cost.
INTERIM URGENCY ORDINANCE
California Government Code Section 65858 provides that a city may adopt an urgency interim
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ordinance by a four-fifths vote where necessary to protect the public health, safety and welfare, in order to prohibit uses that may be in conflict with a contemplated zoning proposal of the legislative body, which ordinance shall expire 45 days after adoption unless extended by the legislative body.
The four-fifths requirement means that the Council adopts the Proposed Interim Urgency Ordinance with six (6) affirmative votes. The adopted urgency interim ordinance will be effective immediately and will automatically expire 45 days after the adoption unless extended by the Council.
To ensure that there is only a short time between the effective date of the new legislation (January 1, 2022) and the effective date of the new City standards, an interim urgency ordinance (Attachment 2) is proposed along with a regular ordinance (Attachment 3) for the updates to SMC Title 19 (Zoning).
If the City Council adopts the Proposed Interim Urgency Ordinance at their meeting on January 4, 2022, it will be effective immediately upon adoption and will be effective for 45 days (until February 18, 2022). If a regular ordinance is introduced on January 4, 2022, the soonest it would be effective is on February 24, 2022. Staff will return to the Council on February 15, 2022 to extend the Proposed Interim Urgency Ordinance until the regular ordinance goes into effect. Both ordinances include identical amendments to SMC Title 19 (Zoning).
Under Government Code Section 65868, an urgency ordinance can only be used for zoning regulations; therefore, the Proposed Interim Urgency Ordinance does not include the amendments to SMC Title 18 (Subdivisions). However, if an application for an urban lot split is received prior to the effective date of the ordinance, existing provisions in Title 18 will be followed to process the map application and staff will apply the state law to the extent there are any conflicts. A subdivision map will only split the lots and does not approve any development, which is subject to the regulations in SMC Title 19.
If the City receives any applications for DUO development on January 3 or 4, 2022 (prior to the City Council meeting on January 4) that are determined to be complete, staff will review the application based on existing objective standards along with the language from the legislation.
ENVIRONMENTAL REVIEW
Adoption of these ordinances are exempt from environmental review pursuant to California Environmental Quality Act (CEQA) Guidelines Sections 15061(b)(3) and 15378(b)(5) because it merely implements a state-mandated program and is therefore not a “project” within the meaning of CEQA.
Projects that are subject to the new regulations will be evaluated pursuant to CEQA on an individual basis as applicable. However, purely ministerial decisions are not subject to CEQA. (CEQA Guidelines Section 15268.) In addition, single-family dwellings are generally exempt from CEQA review under CEQA Guidelines Section 15301 (Existing Facilities) and/or Section 15303 (New Construction or Conversion of Small Structures).
DISCUSSION
The provisions of SB 9 essentially eliminate the City’s ability to enforce single-family zoning and
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requires ministerial approval of new DUO units on single-family lots. Staff has reviewed the legislation and related sections of the Sunnyvale Municipal Code and recommends the creation of two new Chapters: 18.26 for Urban Lot Splits (ULS) and 19.78 specific to Dual Urban Opportunity (DUO) Housing. The following information summarizes: the bill mandates; proposed changes to existing development and subdivision standards; the new design standards; and policy options for the Planning Commission and City Council to consider.
The legislation provides two options to develop up to four housing units on existing single-family lots: either with or without an Urban Lot Split (ULS). The four units can be various combinations of unit types provided that they do not exceed the maximum of four, including the original residence, newly built “single family” homes, attached units (duplexes), and ADUs. For clarity, staff is introducing the term “DUO” to refer to multiple, independent (non-ADU) dwelling units that are allowed on a single-family lot under SB 9, whether attached or detached. A proposed amendment to SMC Title 19 will add a definition for “DUO dwelling units” and distinguish DUOs from ADUs. Although as a practical matter, a DUO and an ADU could be identical in size and function, there are important legal differences between them.
Tenant Protection
The Legislature added a number of provisions to SB 9 to address concerns that the legislation will encourage property “flipping” and gentrification. Development under SB 9 cannot occur under the following circumstances:
· The proposed project would demolish or alter any housing that is subject to affordability restrictions, either through the City’s BMR program or a local rent control ordinance. · The proposed project would demolish or “alter” housing that has been occupied by a tenant during the previous three years. (The legislation does not define “alter”). · If the site has been occupied by a tenant in the past three years, the proposed development cannot remove more than 25% of the existing structural walls, unless allowed by local ordinance. o Note that this section appears to overlap and potentially conflict with the earlier section that prohibits any “alteration” of tenant-occupied housing. The Proposed Ordinances would not allow any demolition or alteration of any dwelling unit that has been occupied by a tenant in the previous three years; however, a dwelling unit that has not been occupied by a tenant in the previous three years could be demolished or altered even if there has been a tenant in another dwelling unit on the “site” (such as in an ADU).
Owner-Occupancy
If the project includes an urban lot split, the applicant must sign an affidavit attesting, under penalty of perjury, that they intend to occupy one of the housing units as their principal residence for a minimum of three years from the date of approval. Although submitting a false affidavit could theoretically be prosecuted criminally by the District Attorney, as a practical matter, the affidavit will only operate as a deterrent. SB 9 does not allow the City to require an owner-occupancy deed restriction when the lot is split. As discussed later in this report, the City could require a deed restriction when DUO units are built on a lot. Such restrictions are difficult to enforce and are no longer required of ADUs (note that an applicant could split a lot and choose to build only one home on each lot). · An Urban Lot Split (ULS) is also prohibited if the owner has previously subdivided an adjacent parcel or “acted in concert” with any person to subdivide an adjacent parcel. The legislation does not contain a definition of “acted in concert” but staff is proposing a definition in the subdivision ordinance, with wording based on criminal conspiracy statutes. The applicant will be required to submit an affidavit under penalty of perjury to demonstrate compliance with these requirements.
· The lot is within a historic district or property located on the State Historic Resources Inventory, or within a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance.
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21-1028 Agenda Date: 12/13/2021
Separate Conveyance of DUOs. One important difference between DUOs and ADUs is that ADUs are legally (but not necessarily physically) “attached” to a primary dwelling on the property. That means that ADUs cannot be sold separately from the primary dwelling, except in the case of developments funded by certain qualified non-profits. The exception for qualified non-profits is now mandatory as a result of another bill approved in the 2021 legislative session, AB 345; this is reflected in the proposed ordinance as an update to SMC Chapter 19.79. However, SB 9 provides that DUOs may be separately conveyed. In the case of an urban lot split, the two resulting lots will have separate title and can be sold like any other lot. If there are two DUO units on a single lot, the owner could create a two-unit common interest development (a condominium or co-op) that would allow separate conveyance of individual units and shared maintenance of common areas through a homeowner’s association; and if there is also an ADU on the property, the ADU would need to be included in the title with one of the DUO units.
SB 9 Mandates
The following section presents information on urban lot splits first; however, Sunnyvale staff does not anticipate that this option will be as attractive (at least initially) as the option to develop additional housing units on a lot without subdividing into two parcels.
Urban Lot Split on Single-family Zoned Sites
The City is now required to ministerially approve the split of most single-family zoned lots (exceptions are explained further below) into a maximum of two lots. Each lot must be at least 1,200 sq. ft. in size and the lot must be split so that one of the new lots is at least 40% of the size of the original lot. Once divided, the new lots are treated as standard single- family lots and up to two DUO units may be proposed on each lot once a site has subdivided (split into two lots).
A lot can only be split once using an ULS. The proposed SMC Chapter 18.26 will require the applicant to record a covenant on the title which provides that the lots shall not be split again using an ULS.
The City can use objective development, design, and subdivision standards to regulate development, and can require the following:
· Easements required for the provision of public services and facilities. · A requirement that the parcels have access to, provide access to, or adjoin the right-of-way. · Parking at one space per unit (provided that that the lot is more than a half mile walking distance of either a high- quality transit corridor or a major transit stop (as defined in the Government Code) or is more than one block from car share vehicle.
· That the uses on the lot remain residential.
· A signed affidavit from the applicant stating that they have not previously subdivided or acted in concert with another person to subdivide an adjacent parcel.
· A signed affidavit from the applicant stating that they intend 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 ULS. o This requirement is waived if the applicant is a “community land trust” or “qualified nonprofit” as defined by the Government Code.
· The new housing units cannot be used as short-term rentals. · That no more than two units (including ADUs) per new lot must be allowed.
In conjunction with an ULS, the application must be approved ministerially, and the City has limitations associated with the approval:
· No regulations that require dedications of rights-of-way or the construction of offsite improvements for the parcels being created, however objective subdivision standards and objective design review standards may be applied as applicable to a parcel created by an ULS, as necessary for a parcel to have access to the rights-of-way (such as a driveway apron).
· Objective standards may be used but cannot preclude the construction of two DUO units that are at least 800 sq. ft. each. with minimum four-foot side and rear yard setbacks. o If the structure is replacing an existing legal non-conforming structure, the new structure can be placed in the same location as the existing structure and can maintain the existing setbacks. · No conditions can be placed on the map
application to correct nonconforming zoning conditions prior to approval.
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Corrections to nonconforming conditions can proceed on a separate track; however, any zoning enforcement efforts cannot hold up the urban lot split.
Multiple Dwelling Units on Single-family Zoned Lots
Under the new legislation, jurisdictions are now required to ministerially allow up to two main residential units on most single-family zoned lots (exceptions are explained further below) plus, on lots where an ULS is not proposed (or was not utilized in the past), accessory dwelling units (ADUs) may also be permitted per the City’s ADU Ordinance. For purposes of the report, and language proposed for Title 19 (Zoning), these types of developments and the individual units are called Dual Urban Opportunity (DUO) housing developments or units.
Maximum Number of Units on a Single-family Zoned Lot
The table below details what may be allowed on single-family lots based on the existing use at the time the development application is submitted and whether or not the development includes a ULS.
Vacant Parcel or
Proposed Demo of
Existing Structure(s)
Existing Single-family
Dwelling
Existing Duplex
w/out ULSw/ULS w/out ULS w/ULS w/out
ULS
w/ULS
DUO Unit(s) 2 4 1 3 0 2
ADUs 2 0 2 0 2 0
Total Units 4 4 4 4 4 4
The table reflects the maximum development options; property owners may choose to build some variation. For instance, if an applicant proposes an urban lot split, they may choose to develop the two lots with a single-family dwelling only and in this case, could also build an ADU as long as the total new units do not exceed two per lot (four units total). Alternatively, if an applicant does not split the lot and builds a second DUO unit (the original house plus one) on the lot, they would be entitled to two additional ADUs on the lot. In this instance, the additional ADU allowances could add up to 1,600 sq. ft. (two 800 sq. ft. detached ADUs) on top of the DUO development.
City Actions as a Result of Senate Bill 9
In accordance with the new legislation, several modifications to the SMC are recommended to create consistency and retain local control over some aspects of the new growth through objective development, design, and subdivision standards. Two new Chapters are proposed: Chapter 18.26 Urban Lot Splits in Title 18 (Subdivisions) and Chapter 19.78 Dual Urban Opportunity Housing in Title 19 (Zoning). Various other Chapters and Sections will be amended in Title 19 (Zoning) as described further below.
SMC Title 18 (Subdivisions) Updates
Title 18 (Subdivisions) contains the subdivision regulations for the City and the new Chapter 18.26 (Urban Lot Splits).
Chapter 18.26 (Urban Lot Splits)
The new Chapter 18.26 (Urban Lot Splits), contains the general provisions, lists the requirements, and identifies the steps for filing and processing of an Urban Lot Split:
· Purpose and intent. This section details why the Chapter has been created to establish procedures necessary for the implementation of Section 66411.7 to the Government Code.
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· General Provisions. This section introduces and defines the term Urban Lot Split and provides an overview describing the ULS process.
· Requirement. This section identifies and explains the criteria for ULS to be approved ministerially and without discretionary review.
· Filing, Processing, and Action. This section identifies the prerequisite of a Tentative Parcel Map to be filed and processed prior to submittal of a Parcel Map and lists exceptions to Title 18 (Subdivisions) requirements specific to ULS. The tentative map would be approved by the Director of Community Development; the final map would be approved by the Director of Public Works (or designee).
SMC Title 19 (Zoning) Updates
The Title 19 (Zoning) proposed amendment contains the objective development standards for single- family zoning districts and the new Chapter 19.78 Dual Urban Opportunity (DUO) Housing. The Proposed Interim Urgency and Regular Ordinances can be found in Attachments 2 and 3, respectively. In addition to addressing the legislation, there are other changes to existing development standards that staff recommend be updated/modified to allow the City to some local control over development on these sites. While some of these modifications are minor in nature, there are others that warrant discussion and consideration by the Planning Commission and Council.
Therefore, the staff recommended changes are detailed in the following sections, but also in a later section (Options to Consider) so it is clear which policy decision items warrant further discussion.
Chapter 19.78 (Dual Urban Opportunity Housing)
The recommended new Chapter 19.78 (Dual Urban Opportunity Housing) to be added to Title 19 (Zoning) contains the procedures and objective development and design standards that are specific to this new type of development. While objective development standards from other Chapters of Title 19 may also apply, there are standards that are specific to DUO development. The following items summarize the DUO Chapter:
· Purpose, Intent, and Applicability. These sections detail why the Chapter has been created, the zoning districts in which the new legislation applies, and the exceptions to when the development option cannot be used. These exceptions (statutory restrictions) include tenant protections, historic property exclusion, and limit of one urban lot split per original parcels are explained in more detail in several sections above).
o The single-family zoning districts in Sunnyvale where the legislation must be allowed are:
§ R-0 and R-1 (Low Density Residential)
§ R-1.5 and R-1.7/PD (Low Medium Density Residential)
o Staff is also recommending that the R-2 zoning district (Low Medium Density Residential) be included, which is discussed further below in the Options to Consider section.
· Requirements. This section explains the general requirements for DUO development regarding the number of allowed units, floor area ratio maximum (discussed further below in Options to Consider), lot width or depth standards, setback information, building separation requirements, separate conveyance standards, parking requirements (discussed further below in Options to Consider), and other minor requirements.
o Limitations on Paved Surfaces - A requirement similar to that in SMC Section
19.32.060 of Title 19 (Zoning) is recommended for DUO developments. This requirement would state that “not more than fifty percent of the required front yard of
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any DUO project shall be paved with asphalt, concrete cement, or any other impervious surface, except as may be required to meet off-street parking and access requirements of this code”. This provision will help maintain front yards and avoid them becoming parking lots for the units since no covered parking can be required. § Staff Note
: if no on-site parking is provided and a resident has a vehicle, the vehicle will likely be parked on the public street.
o Second Story Front Setback - Similar to the R-0 and R-1 standard in SMC Section 19.34.045 of Title 19 (Zoning), any two-story residential DUO development will have a front yard setback of at least twenty-five feet for the second story.
· Objective Design Standards. The City currently relies on the Citywide Design Guidelines and the Single-family Home Design Techniques Document to guide design for single-family and duplex development projects. However, SB 9 requires that a City guide design through objective design standards in lieu of design guidelines, which are often subjective. An update to the Single-family Home Design Techniques Document is a currently funded project and will involve the modification of this document to make it objective and specify that it will be used to guide design for both single-family design review projects and for projects that propose two to four units in compliance with the DUO process. This project will begin once staff is able to hire a specialized consultant, likely by mid-2022, and will take approximately 18 months to complete. Since those comprehensive standards are not yet in place, staff has created a limited number of objective design standards (Section 19.78.050, of Chapter 19.78, Attachments 2 and 3) that can be used to guide design until the Guideline updates are adopted. The proposed design standards reflect current common practice as well as standards that staff and the Planning Commission request commonly when reviewing Design Review applications. The new objective standards consist of four categories: Architectural Style, Height/Massing, Frontage, and Privacy.
· Rental and Sale. Specifies the requirements associated with the sale of one of the DUO units if no ULS is proposed and also that they cannot be used as short-term rentals. · Permit Requirements. Explains the procedure and planning permit type associated with the DUO development process.
Other Title 19 (Zoning) Modifications
In addition to the regulations in Chapter 19.78, there are other objective design standards throughout Title 19 (Zoning) that are proposed to be modified to retain some local control over DUO development. As mentioned above, all existing objective development standards may be required (with a few exceptions mentioned above that are specific in the legislation) by the City if they apply to the zoning districts where DUO development is allowed.
The following modifications are proposed within other chapters of Title 19 (Zoning):
· Amend the Definition of “Accessory Dwelling Unit” in SMC 19.12.020 and Add a Definition of “Dual Urban Opportunity (DUO) Dwelling Unit” in SMC 19.12.050. - These definitions will help distinguish DUOs from ADUs and avoid potential ambiguity that could arise when referring to the multiple units on the lot as “single family” or “main dwellings.” · Amend the Definition for “Gross Floor Area - Single-family Residential Uses” SMC Section 19.12.080(12)(a) - Include “two-family dwelling” in the title, specify that patio covers are included in gross floor area (code clean up items), and exclude the first 800 sq. ft. of an accessory dwelling unit (discussed further in Options to Consider).
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· Permitted Use Table 19.18.030 & 19.28.080 - Addition of a line for DUO and the zoning districts where this type of development is allowed.
· Miscellaneous Plan Permit SMC Section 19.82.020 - Add DUO to the list of what projects require a Miscellaneous Plan Permit. The right of appeal to Planning Commission would be limited to the project applicant.
· Other minor amendments needed for consistency.
Title 13 clean-up item
Staff is using this opportunity to make a minor revision to SMC Section 13.08.040(f) to correct an erroneous cross-reference to Section 19.44.100, which should be 19.48.020 (fence requirements).
This is a clean-up item that is unrelated to SB 9.
Options to Consider
If the City Council adopts any of the following alternatives, the proposed ordinances will be revised with the wording indicated in Attachment 7.
A. Appeal Process for DUO Developments and ADUs
SMC Section 19.98.070(a)(1) provides that “Any person aggrieved by a final decision of the director of community development may appeal the decision to the planning commission.” Similarly, SMC Section 19.82.030 provides that miscellaneous plan permits are approved or denied by the CDD director with appeal to Planning Commission.
Staff recommends adding a provision for both DUOs and ADUs that will limit the right of appeal to the applicant only, not “any person aggrieved” by the decision. Because SB 9 overrides local authority and requires the City to approve the applications ministerially, allowing community members to file an appeal may create an expectation that the Planning Commission has the ability to address subjective concerns about parking, aesthetics, neighborhood character, etc. Such appeals will be time consuming for staff and the Planning Commission, without offering a meaningful opportunity for neighbors to have their concerns addressed. The Planning Commission is not normally tasked with reviewing purely ministerial staff decisions and allowing aggrieved community members to appeal could conflict with SB 9 mandates.
Alternatively, the Ordinance could indicate that appeals could be made by other interested parties.
B. Maximum Floor Area Ratio for DUO Developments
As shown in the scenarios in Attachment 6, choosing a maximum FAR for DUO developments is complicated and may still result in a much higher overall FAR because of ADU requirements, lot splits of smaller sites through the ULS process, and if existing single-family dwellings are retained as a part of the development. Therefore, it is important to consider these factors when deciding what the maximum base FAR should be for DUO development.
The City has a requirement for the Planning Commission to review for proposals over 45% floor area ratio (FAR) or 3,600 sq. ft. in size. The DUO development process; however, must be non- discretionary and regulated by objective development standards. Therefore, staff recommends the establishment of a maximum FAR to help with local control on the size of these new DUO units.
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In the last ten years almost 2,000 Design Review applications were submitted to the City; 132 of the applications were evaluated by the Planning Commission (about 7%). The applications reviewed by Planning Commission proposed FARs ranging from 26% (over 3,600 sq. ft. of FAR) to 62% with a
47.5% average; two applications were denied. Due to the relatively small percentage of proposals exceeding 45% FAR (or 3,600 sq. ft.), staff is proposing a maximum FAR for properties developed through the DUO provisions of 45%. The Proposed Ordinances also include provisions for allowing a higher FAR (up to 50% or 4,000 sq. ft.) if objective findings can be met. Alternatively, there is the policy option for the maximum FAR to be a precise number with no increase above that standard.
Below are possible findings the City Council could require so that a defined number be met (e.g., at least three) to allow the applicant to qualify for a higher FAR:
1. The site is adjacent to a parcel zoned for a higher density residential land use or is zoned for mixed-use, commercial, or industrial development.
2. The project proposes setbacks that meet at least all of the following:
a) The second story side setback of any structure must be a minimum of seven feet. b) The first story rear setback of any structure must be a minimum of 10 feet.
3. No second story structures are proposed within 20 feet of the rear property line.
4. The lot is adjacent to a development that exceeds 45% FAR.
5. The DUO units are attached.
6. The project proposes parking that meets the minimum requirements in SMC Chapter 19.46.
At this point, due to minimal public outreach, staff is recommending the FAR limit apply only for the ULS and DUO situations (and that there is no change to the rules for other Single-family homes, discussed below in paragraph C.). A future action may be to examine maximum FAR for all single- family development. Note that if a site develops in excess of 45% FAR and then there is an action in the future to add units under the SB 9 provisions, the site development (ultimate FAR) could be perceived as quite high.
It is important to evaluate this concept further with some scenarios because even though there will be a maximum FAR there still exists the allowance for ADUs on some of the DUO sites which can exceed the FAR maximum and there may be scenarios where a property is already developed with a single-family dwelling that is close to, or exceeds, 45% and would still be entitled to one additional DUO unit and ADUs.
Attachment 6 presents several scenarios for further understanding of potential FAR.
C. Planning Commission Threshold for Design Review (non-SB 9 Proposals) The City still has the right to utilize the existing Design Review process for single-family developments that do not utilize the provisions within SB 9; staff is not recommending a change to this allowance, at this time. However, it is an important discussion point because property owners who ask for an FAR above 45% or 3,600 sq. ft. from the Planning Commission could propose a DUO development in the future. This situation could be problematic as the City would have to allow an 800 sq. ft. DUO unit and the two 800 sq. ft. ADUs. These FARs are best demonstrated in the table showing the scenario (in Attachment 6) where the existing single-family dwelling is retained and the FAR exceeds 45%.
While staff is not recommending removing the threshold for Design Review by the Planning
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Commission at this time, it is important to consider whether allowing single-family developments to exceed the 45% threshold should still be considered or if it may be better to eliminate that allowance in an effort to keep future DUO development FAR lower.
D. DUOs in the R-2 Zoning District
The R-2 zoning district allows for 12 dwelling units an acre whereas the R-0 and R-1 zoning districts only allow for seven dwelling units an acre under the current regulations. The City has the potential to exclude R-2 properties in the DUO regulations; however, if R-2 properties are less than 7,200 sq. ft. they are limited to one single-family residence as the site does not meet the minimum lot area required to construct a duplex (the Zoning Code requires 3,600 sq. ft. of land area per unit). There are approximately 2,800 R-2 properties in Sunnyvale that are not 7,200 sq. ft. and although some are developed with legal non-conforming duplexes, many others are developed with one single-family dwelling and are not large enough for duplex development under the current density allowances (one unit per 3,600 sq. ft.). When evaluating the requirements of the legislation and considering the intent of the R-2 zoning district, staff is recommending the inclusion of the R-2 zoning district in the recommended zoning districts where DUO development is allowed. In this case, duplex-style development would be allowed in this zoning district even if the existing lot size would not have allowed that density under the current density allowances similar to the R-0, R-1, R-1.5, and R-
1.7/PD sites.
E. Parking Requirements for DUO Dwelling Units
As mentioned above, and similar to the ADU legislation, parking can only be required for DUO development when the lot is further than a half mile walking distance of either a high-quality transit corridor or a major transit stop (as defined in the California Government Code). When mapped (see Attachment 5), there are several areas of the City where parking could be required. The map presents a half mile buffer and not walking distance, which could be determined on a site-by-site basis; the map identifies areas that would require parking and the areas that might not require parking. The areas that would not require parking include: most of the single-family neighborhoods west of Hollenbeck and south of Knickerbocker; the area east of Sunnyvale-Saratoga Road to the eastern city limit with Santa Clara along E. Homestead Rd. and north of Homestead and to the north for about a half mile; the north half of the Ponderosa neighborhood south of Reed Avenue between Wolfe Road and Lawrence Expressway; the San Miguel neighborhood (north of Duane); and, the southern half of Lakewood Village. Staff is recommending that, where allowed by the state law, one parking space be required in conjunction with any new DUO units. However, this is an option for the Planning Commission and City Council to discuss and the map in Attachment 5 shows the areas that are not within the transit buffer areas. The City has already waived the parking requirement for ADUs.
F. Owner-Occupancy Restrictions
While the language is specific in the ULS legislation that traditional owner occupancy requirements are not allowed, for the non-ULS sites the legislation is silent on whether a City can require owner- occupancy in one of the new or existing units. This means that the City could consider requiring a deed restriction for these sites with the DUO application that states that the property owner will reside in one of the units on the lot. The Proposed Ordinance does not include an owner occupancy requirement, as that was eliminated with past ADU legislation and it was a difficult provision to enforce; however, it could be added to the Proposed Ordinance if the City Council so directs.
G. Gross Floor Area Accessory Dwelling Unit Exemption
As mentioned above, staff is recommending a few modifications to the Title 19 (Zoning) definition of
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“gross floor area” (SMC Section 19.12.080(g)) for “single-family dwellings”:
· to add “two-family dwellings” into the definition,
· to specifically state that covered patios are included in the gross floor area calculation, · and by adding an exemption for the first 800 sq. ft. of an ADU.
While the first two modifications are considered Code clean up items, the exclusion of the first 800 sq. ft. of ADU from the definition is something for the Planning Commission and City Council to consider further. This recommendation stems from single-family design review applications that propose house additions along with a streamlined 800 sq. ft. (or less) ADU. If an applicant does both of these items at the same time, and the combined FAR exceeds 45% or 3,600 sq. ft., under our current requirements staff must take the application to the Planning Commission even though the Commission would not have any ability to reduce the size of the ADU because if proposed on its own, it would be streamlined through a building permit. The alternative would be for an applicant to propose a house addition that does not exceed the Planning Commission threshold and then come back later to propose the streamlined ADU; however, it is simpler to allow an owner to do both at the same time because it can result in better and more coordinated design and the process is also less impactful to neighbors if the construction only happens once. Due to these reasons, staff is recommending that the process is simplified by excluding the first 800 sq. ft. of an ADU from the gross floor area for the lot.
This recommendation would not impact DUO developments since the review process is ministerial and cannot go to the Planning Commission but will help free up some staff time to process these new DUO applications.
FISCAL IMPACT
The modifications to the Sunnyvale Municipal Code as described in this report will have no direct fiscal impact on the City.
PUBLIC CONTACT
For policy items, community outreach is typically conducted to gather input on the topic and inform the community of potential code changes. Due to the challenges in understanding the provisions of the legislation and the staff recommendation to get clarifying language in the Sunnyvale Municipal Code by the beginning of the year, the standard outreach was not conducted. In addition to newspaper publications and posting of agendas, email messages were sent to neighborhood associations and parties who have expressed interest in community standards and housing issues.
The messages indicated the topic and when staff reports would be available for review.
Public contact regarding this item was made through posting the agenda for the Planning Commission on the City’s official-notice bulletin board, on the City’s website, the availability of the agenda and report in the Office of the City Clerk, and with publication in the Sun newspaper, at least 10 days prior to the hearing.
ALTERNATIVES
Forward a Recommendation to the City Council to:
1. Find that the Action is Exempt from the California Environmental Quality Act (“CEQA”) pursuant to Public Resource Code Section 15282(h) and does not constitute a “project” within the meaning of CEQA pursuant to CEQA Guidelines Section 15061(b)(3) and Adopt an Urgency
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Interim Ordinance (Attachment 2 to the report) and Introduce an Ordinance (Attachment 3 to the report) Amending Title 18 (Subdivisions) and Title 19 (Zoning) of the Sunnyvale Municipal Code related to new State Legislation (Senate Bill 9) on Housing Development in Single-Family Zoning Districts.
2. Find that the Action is Exempt from the California Environmental Quality Act (“CEQA”) pursuant to Public Resource Code Section 15282(h) and does not constitute a “project” within the meaning of CEQA pursuant to CEQA Guidelines Section 15061(b)(3) and Adopt an Urgency Interim Ordinance (Attachment 2 to the report) and Introduce an Ordinance (Attachment 3 to the report) Amending Title 18 (Subdivisions) and Title 19 (Zoning) of the Sunnyvale Municipal Code related to new State Legislation (Senate Bill 9) on Housing Development in Single-Family Zoning Districts with any of the following modifications as set forth in Attachment 7 to the report:
A. Allow any aggrieved person to appeal a DUO decision to Planning Commission.
B. Keep the maximum FAR for DUOs at 45% or 3,600 sq. ft. and delete language that would allow up to 50% FAR.
C. Remove the 45% FAR threshold for Planning Commission design review for non-DUO residential projects.
D. Do not allow DUOs in the R-2 zoning district.
E. Waive parking requirements for all DUOs.
F. Require an Owner Occupancy deed restriction for DUO developments.
G. Exclude the first 800 sq. ft. of an ADU from the calculation of “gross floor area” for single-family and two-family residential uses.
3. Take no action and do not amend the Sunnyvale Municipal Code which utilizes existing objective development standards and the language in the California Government Code to dictate how new dwellings are allowed pursuant to State legislation (Senate Bill 9) in Sunnyvale.
RECOMMENDATION
Alternative 1: Find that the Action is Exempt from the California Environmental Quality Act (“CEQA”) pursuant to Public Resource Code Section 15282(h) and does not constitute a “project” within the meaning of CEQA pursuant to CEQA Guidelines Section 15061(b)(3) and Adopt an Urgency Interim Ordinance (Attachment 2 to the report) and Introduce an Ordinance (Attachment 3 to the report) Amending Title 18 (Subdivisions) and Title 19 (Zoning) of the Sunnyvale Municipal Code related to new State Legislation (Senate Bill 9) on Housing Development in Single-Family Zoning Districts.
The adoption of the Proposed Ordinances amending the Sunnyvale Municipal Code will ensure consistency with the amended State legislation near the effective date of January 1, 2022. In addition, the recommended modifications ensure that the City retains some local authority through objective development, design, and subdivision standards to regulate these new dwelling units within single-family zoning districts for applications received after January 4, 2022.
Making no changes to the Sunnyvale Municipal Code would require the City to impose the adopted State standards in their entirety and may create inconsistencies with the City’s Zoning Code. Staff expects to see an increase in allowed development permits with these modifications, resulting in an increase of new parcels and housing units within the City.
Prepared by: Amber Blizinski, Principal Planner
Prepared by: Arnold Chu, Senior Engineer
Reviewed by: Jennifer Ng, Assistant Director, Public Works
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Reviewed by: Andrew Miner, Assistant Director, Community Development Reviewed by: Chip Taylor, Director, Public Works
Reviewed by: Trudi Ryan, Director, Community Development Reviewed by: Teri Silva, Assistant City Manager
Approved by: Kent Steffens, City Manager
ATTACHMENTS
1. Reserved for Report to Council
2. Draft Urgency Ordinance
3. Draft Ordinance
4. Link to Senate Bill 9
5. Map Showing the Half-Mile Transit Buffers
6. Background Data on Lot Size and Buildout Scenarios
7. Ordinance Alternatives
Attachment 1