DISCUSSION
Summary of SB 9
To qualify for ministerial approval under SB 9, a two-unit development or urban lot split must satisfy specified criteria. These qualifying criteria include, but are not limited to the following:
- The property must be located within a single-family residential zone.
- The proposed development cannot be located within a historic district or on property included on the State Historic Resources Inventory, or within a site that is designated or listed as a city landmark or historic property pursuant to a city ordinance.
- The development site cannot be prime farmland, wetlands, a site identified for conservation or habitat preservation, or a regulatory floodway and the development must meet specified standards if it is located in high or very high fire hazard severity zone, the flood zone, or within an earthquake fault zone.
- The proposed development cannot require the demolition or alteration of housing that has been occupied by a tenant within the last 3 years.
- The proposed development cannot require the demolition or alteration of housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very-low income.
- The proposed development cannot require the demolition or alteration of housing that is subject to any form of rent or price control.
- An owner of the property cannot have removed residential units on the property from the rental market under the Ellis Act within the last 15 years.
- If the site has been occupied by a tenant within the last 3 years, the proposed development cannot allow for the demolition of more than 25% of the existing exterior structural walls (unless allowed by local ordinance).
In addition, in the case of an urban lot split:
- The parcel map must subdivide an existing lot to create no more than two new lots of approximately equal lot area, provided that one lot shall not be smaller than 40% of the lot area of the original lot;
- Unless the city otherwise allows, both newly created lots must be no smaller than 1,200 square feet;
- The lot proposed to be subdivided must not have been established through a prior urban lot split;
- The subject lot cannot be adjacent to any lot that was established through an urban lot split by the owner of the subject lot or by any person acting in concert with the owner of the subject lot; and
- Except as otherwise provided in SB 9, the proposed subdivision must comply with all objective requirements of the Subdivision Map Act.
In limited circumstances, a city may deny an application for an SB 9 two-unit development or urban lot split where the proposed project would have a specific, adverse impact upon health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.
SB 9 permits cities to impose objective zoning, subdivision, and design standards on two-unit housing developments and urban lot splits, subject to the following caveats:
- The city’s objective standards cannot conflict with any of SB 9’s provisions.
- The city cannot impose any objective standards that would have the effect of physically precluding the construction of two units per lot or that would result in a unit size of less than 800 square feet.
- The city cannot require a setback for an existing structure constructed in the same location and to the same dimensions as an existing structure (but may otherwise require at least 4-foot side and rear setbacks in all circumstances).
- The city cannot require off-street parking of more than one space per unit.
- The city cannot impose any parking requirements where the subject lot is located within one-half mile walking distance of a high-quality transit corridor or a major transit stop or if there is a car share vehicle located within one block of the lot.
- The city cannot reject an application for an SB 9 two-unit development or urban lot split solely because it proposes adjacent or connected structures, provided that the structures meet building code safety standards and are sufficient to allow separate conveyance.
- The city cannot require the construction of offsite improvements or right-of-way dedications in conjunction with approval of a parcel map for an urban lot split.
- The city cannot require the correction of nonconforming zoning conditions as a condition for ministerial approval of a parcel map application for the creation of an urban lot split.
SB 9 also contains the following provisions:
- Cities are not required to permit an ADU or JADU on a lot that utilizes both the urban lot split and the two-unit development provisions of SB 9.
- Cities may require easements for the provision of public services and facilities in conjunction with a parcel map for an urban lot split.
- Cities may require that the two lots resulting from an urban lot split have access to, provide access to, or adjoin the public right-of-way.
- Cities must require that rental of a unit created under SB 9 be for a term longer than 30 days.
- Cities must require that the uses allowed on a lot created through an urban lot split be limited to residential uses.
- Cities must require an applicant for an urban lot split to sign an affidavit stating that the applicant intends to occupy one of the housing units as their principal residence for a minimum of three years from the date of approval of the urban lot split (but cities may not impose any other owner occupancy standards on an urban lot split).
SB 9 expressly authorizes cities to adopt an ordinance to implement its provisions and provides that such ordinances are exempt from review under the California Environmental Quality Act (“CEQA”).
Proposed Land Use Code Amendments
In order to implement SB 9, Staff is proposing that a new Chapter 9.56 be added to the Land Use Code. This new Chapter would establish objective development standards and application and ministerial review procedures for proposed SB 9 two-unit residential developments and urban lot splits.
Staff is also proposing adding a new section to the City’s existing subdivision ordinance (Section 9.40.250) to specifically address parcel maps for urban lot splits. Consistent with the Subdivision Map Act, the City’s current subdivision regulations contemplate and require a discretionary review process for parcel maps, pursuant to which all tentative parcel maps require Planning Commission approval. Since parcel maps for urban lot splits must be approved ministerially, and the city will not have the ability to impose discretionary conditions of approval, new procedures for these unique new types of subdivision maps must be adopted.
In addition to the requirements, qualifications, and limitations expressly required by SB 9, these proposed new Code provisions contain objective design and development standards to ensure that new residential units and lots developed pursuant to SB 9 are attractive, and compatible with the existing development and, to the extent allowed by law, do not substantially alter the residential character of the neighborhoods in which they are located. The proposed regulations include standards specifically addressing multiple matters, including the following:
- Unit Size (minimum 500 sq. ft. / maximum 800 sq. ft.)
- Height/Stories (limited to one story and a maximum of 17 feet)
- Setbacks
- Building Separation
- Maximum Lot Coverage
- Maximum Front Setback Hardscape Coverage Limit
- Minimum Required Open Space/Recreation Areas
- Landscaping
- Perimeter Block Walls
- Minimum Unit Design Standards
- Minimum Storage Space within Units
- Required Laundry Facilities and Water Heaters for each Unit
- Screening of Mechanical Equipment
- Requirements for Driveways, Access, and Circulation
- Requirements that new lots adjoin the public right-of-way and have 25 feet of street frontage
- Refuse Storage Areas
- Drainage and Stormwater Management
- Address Identification
- Utilities
Where a specific development standard is not addressed, the standards for the underlying zone will apply.
SB 9 requires that the City’s development standards must yield if necessary to allow the development of two 800 square foot units on a lot. To address application of this exception, the proposed regulations prioritize certain development standards above others so that standards perceived to be of higher priority to the City may only be waived if the waiver of lower priority development standards is insufficient to facilitate development of two 800 square foot units.
The proposed regulations also include provisions:
- limiting lots created by urban lot splits to having two housing units of any kind (i.e., any combination of primary units, ADUs, or JADUs);
- limiting separate conveyance of units on the same lot;
- Prohibiting condominium airspace divisions and common interest developments;
- limiting applicants to natural persons;
- establishing application procedures and requirements, including requirements pertaining to verification that the subject property has not been occupied by tenants within the last 3 years;
- requiring compliance with OCFA’s emergency access and service requirements;
- clarifying that SB 9 projects are subject to development impact fees;
- requiring recordation of a deed restriction containing specified provisions;
- specifying that SB 9 projects are subject to the replacement housing obligations imposed by the Housing Crisis Act;
- providing that approval of an SB 9 development expires if not acted on within one year;
- authorizing the Director of Economic and Community Development to promulgate standard conditions to implement the regulations; and
- authorizing the City Engineer to interpret and establish guidance and procedures for the processing, approving, and finalizing parcel maps for urban lot splits.
The complete proposed text amendments are set forth in the attached proposed City Council Ordinance that is included with this Report.