Amended in Assembly April 5, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2299

Introduced by Assembly Member Bloom

February 18, 2016

An act to amend Section 65852.2 of the Government Code, relating to land use.

LEGISLATIVE COUNSEL’S DIGEST

AB 2299, as amended, Bloom. Land use: housing: 2nd units.

The Planning and Zoning Law authorizes the legislative body of a city or county to regulate, among other things, the intensity of land use, and also authorizes a local agency to provide by ordinance for the creation of 2nd units in single-family and multifamily residential zones, as specified.

This bill would, instead, require a local agency to provide by ordinance for the creation of 2nd units in these zones. begin delete By end delete begin insert The bill would also specify that a local agency may reduce or eliminate parking requirements for any 2nd unit located within its jurisdiction. end insert

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Existing law also requires a local agency, if it has not adopted an ordinance governing 2nd units and receives an application for a permit for the creation of a 2nd unit, as provided, to grant a variance or special use permit if the 2nd unit complies with specified requirements, including specified zoning requirements generally applicable to residential construction in the zone in which the property is located.

end insert begin insert

This bill would prohibit a requirement for a passageway or pathway clear to the sky between the 2nd unit and a public street and, for a 2nd unit constructed above a garage located on an alley, for a setback of more than 5 feet from the side and rear lot. The bill would also provide that a 2nd unit constructed above a garage or a garage converted in whole or in part into a 2nd unit is deemed to be an accessory building or accessory use that may be permitted within a required yard or setback area, provided that the 2nd unit is set back a minimum of 5 feet from the side and rear lot areas.

end insert begin insert

Existing law requires that parking requirements for 2nd units not exceed one parking space per unit or per bedroom. Under existing law, additional parking may be required provided that a finding is made that the additional parking requirements are directly related to the use of the 2nd unit and are consistent with existing neighborhood standards applicable to residential dwellings.

end insert begin insert

This bill would delete the above-described authorization for additional parking requirements. The bill would also provide that, when a garage, carport, or covered parking structure is demolished in conjunction with the construction of a 2nd unit and the local agency requires that those off-street parking spaces be replaced, the replacement spaces may be located in any configuration on the same lot as the 2nd unit, as provided.

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begin insert By end insert increasing the duties of local begin delete officials, end delete begin insert officials with respect to land use regulations, end insert this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 65852.2 of the Government Code is
amended to read:

65852.2.  

(a) (1) A local agency shall, by ordinance, provide
for the creation of second units in single-family and multifamily
residential zones. The ordinance shall do all of the following:

(A) Designate areas within the jurisdiction of the local agency
where second units may be permitted. The designation of areas
may be based on criteria, that may include, but are not limited to,
the adequacy of water and sewer services and the impact of second
units on traffic flow.

(B) Impose standards on second units that include, but are not
limited to, parking, height, setback, lot coverage, begin insert landscape, end insert
architectural review, maximum size of a unit, and standards that
prevent adverse impacts on any real property that is listed in the
California Register of Historic Places. However, notwithstanding
subdivision (d), a local agency shall not impose parking standards
for a second unit that is located within one-half mile of public
transit or shopping or is within an architecturally and historically
significant historic district.

begin insert

(C) Notwithstanding subparagraph (B), a local agency may
reduce or eliminate parking requirements for any second unit
located within its jurisdiction.

end insert begin delete

(C)

end delete

begin insert (D) end insert  Provide that second units do not exceed the allowable
density for the lot upon which the second unit is located, and that
second units are a residential use that is consistent with the existing
general plan and zoning designation for the lot.

(2) The ordinance shall not be considered in the application of
any local ordinance, policy, or program to limit residential growth.

(3) When a local agency receives its first application on or after
July 1, 2003, for a permit pursuant to this subdivision, the
application shall be considered ministerially without discretionary
review or a hearing, notwithstanding Section 65901 or 65906 or
any local ordinance regulating the issuance of variances or special
use permits. A local agency may charge a fee to reimburse it for
costs that it incurs as a result of amendments to this paragraph
enacted during the 2001-02 Regular Session of the Legislature,
including the costs of adopting or amending any ordinance that
provides for the creation of second units.

(b) (1) When a local agency has not adopted an ordinance
governing second units in accordance with subdivision (a) receives
its first application on or after July 1, 1983, for a permit pursuant
to this subdivision, the local agency shall accept the application
and approve or disapprove the application ministerially without
discretionary review pursuant to this subdivision unless it adopts
an ordinance in accordance with subdivision (a) within 120 days
after receiving the application. Notwithstanding Section 65901 or
65906, every local agency shall grant a variance or special use
permit for the creation of a second unit if the second unit complies
with all of the following:

(A) The unit is not intended for sale and may be rented.

(B) The lot is zoned for single-family or multifamily use.

(C) The lot contains an existing single-family dwelling.

(D) The second unit is either attached to the existing dwelling
and located within the living area of the existing dwelling or
detached from the existing dwelling and located on the same lot
as the existing dwelling.

(E) The increased floor area of an attached second unit shall
not exceed 30 percent of the existing living area.

(F) The total area of floorspace for a detached second unit shall
not exceed 1,200 square feet.

(G) Requirements relating to height, setback, lot coverage,
architectural review, site plan review, fees, charges, and other
zoning requirements generally applicable to residential construction
in the zone in which the property is begin delete located. end delete begin insert located, except as
follows: end insert

begin insert

(i) No passageway or pathway clear to the sky between the
second unit and a public street shall be required in conjunction
with the construction of a second unit.

end insert begin insert

(ii) No setback more than five feet from the side and rear lot
line shall be required for a second unit constructed above a garage
located on an alley.

end insert

(H) Local building code requirements that apply to detached
dwellings, as appropriate.

(I) Approval by the local health officer where a private sewage
disposal system is being used, if required.

(2) No other local ordinance, policy, or regulation shall be the
basis for the denial of a building permit or a use permit under this
subdivision.

(3) This subdivision establishes the maximum standards that
local agencies shall use to evaluate proposed second units on lots
zoned for residential use that contain an existing single-family
dwelling. No additional standards, other than those provided in
this subdivision or subdivision (a), shall be utilized or imposed,
except that a local agency may require an applicant for a permit
issued pursuant to this subdivision to be an owner-occupant.

(4) No changes in zoning ordinances or other ordinances or any
changes in the general plan shall be required to implement this
subdivision. A local agency may amend its zoning ordinance or
general plan to incorporate the policies, procedures, or other
provisions applicable to the creation of second units if these
provisions are consistent with the limitations of this subdivision.

(5) A second unit that conforms to this subdivision shall begin insert be
deemed to be an accessory use or an accessory building and shall end insert
not be considered to exceed the allowable density for the lot upon
which it is located, and shall be deemed to be a residential use that
is consistent with the existing general plan and zoning designations
for the lot. The second units shall not be considered in the
application of any local ordinance, policy, or program to limit
residential growth.

(c) A local agency may establish minimum and maximum unit
size requirements for both attached and detached second units. No
minimum or maximum size for a second unit, or size based upon
a percentage of the existing dwelling, shall be established by
ordinance for either attached or detached dwellings that does not
permit at least an efficiency unit to be constructed in compliance
with local development standards.

(d)  begin insert (1) end insert begin insert   end insert Parking requirements for second units shall not exceed
one parking space per unit or per bedroom. begin delete Additional parking
may be required provided that a finding is made that the additional
parking requirements are directly related to the use of the second
unit and are consistent with existing neighborhood standards
applicable to existing dwellings. end delete Off-street parking shall be
permitted in setback areas in locations determined by the local
agency or through tandem parking, unless specific findings are
made that parking in setback areas or tandem parking is not feasible
based upon specific site or regional topographical or fire and life
safety conditions, or that it is not permitted anywhere else in the
jurisdiction.

begin insert

(2) When a garage, carport, or covered parking structure is
demolished in conjunction with the construction of a second unit,
and the local agency requires that those off-street parking spaces
be replaced, the replacement spaces may be located in any
configuration on the same lot as the second unit, including, but
not limited to, as covered spaces, uncovered spaces, or tandem
spaces, or by the use of mechanical automobile parking lifts.

end insert

(e) Fees charged for the construction of second units shall be
determined in accordance with Chapter 5 (commencing with
Section 66000).

(f) This section does not limit the authority of local agencies to
adopt less restrictive requirements for the creation of second units.

(g) Local agencies shall submit a copy of the ordinances adopted
pursuant to subdivision (a) to the Department of Housing and
Community Development within 60 days after adoption.

(h) As used in this section, the following terms mean:

(1) “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.

(2) “Local agency” means a city, county, or city and county,
whether general law or chartered.

(3) For purposes of this section, “neighborhood” has the same
meaning as set forth in Section 65589.5.

(4) “Second unit” means an attached or a detached residential
dwelling unit which provides complete independent living facilities
for one or more persons. It shall include permanent provisions for
living, sleeping, eating, cooking, and sanitation on the same parcel
as the single-family dwelling is situated. A second unit also
includes the following:

(A) An efficiency unit, as defined in Section 17958.1 of Health
and Safety Code.

(B) A manufactured home, as defined in Section 18007 of the
Health and Safety Code.

(i) Nothing in this section shall be construed to supersede or in
any way alter or lessen the effect or application of the California
Coastal Act (Division 20 (commencing with Section 30000) of
the Public Resources Code), except that the local government shall
not be required to hold public hearings for coastal development
permit applications for second units.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.