BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |AB 2299 |Hearing |6/29/16 |
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|Author: |Bloom |Tax Levy: |No |
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|Version: |4/5/16 |Fiscal: |Yes |
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|Consultant|Favorini-Csorba |
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Land use: housing: 2nd units
Requires local agencies to adopt ordinances regulating second
units.
Background
Land Use Regulation. The California Constitution allows a city
to "make and enforce within its limits, all local, police,
sanitary and other ordinances and regulations not in conflict
with general laws." It is from this fundamental power (commonly
called the police power) that local governments derive their
authority to regulate behavior to preserve the health, safety,
and welfare of the public-including land use authority. Local
governments use their police power to enact zoning ordinances
that shape development, including setting maximum densities for
housing units, minimum numbers of required parking spaces, and
setbacks to preserve privacy. These ordinances can also include
conditions to ensure fire safety and aesthetics, or to address
particular site-specific considerations.
Some local ordinances provide "ministerial" processes for
approving projects that are permitted "by right"-the zoning
ordinance clearly states that a particular use is allowable, and
local government does not have any discretion regarding approval
of the permit if the application is complete. Local governments
have two options for providing landowners with relief from
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zoning ordinances that might otherwise prohibit or restrict a
particular land use: variances and conditional use permits. A
variance may be granted to alleviate a unique hardship on a
property owner because of the way a generally-applicable zoning
ordinance affects a particular parcel, and a conditional use
permit allows a land use that is not authorized by right in a
zoning ordinance, but may be authorized if the property owner
takes certain steps, such as to mitigate the potential impacts
of the land use. Both of these processes require hearings by
the local zoning board and public notice.
Second Units. The Legislature has long identified second units,
also known as in-law apartments or "granny flats," as a valuable
form of housing for family members, students, the elderly,
in-home health care providers, the disabled, and others, at
below market prices within existing neighborhoods. In 1982, the
Legislature first provided a framework for local governments to
enact ordinances that permit the construction of second units,
while preserving local government flexibility to regulate the
units as necessary. When fewer second units than anticipated
were developed, the Legislature significantly amended the second
unit law to address some of the barriers that property owners
encountered while trying to develop second units (AB 1866,
Wright, 2002).
Under the second unit law, a local government can adopt an
ordinance that allows the creation of second units in
single-family and multi-family residential zones. The ordinance
can do any of the following to regulate second units: (1)
designate areas within the jurisdiction where accessory dwelling
units will be permitted; (2) impose standards on the units
regarding parking, height, setback, maximum size, and potential
adverse impacts on historic places; and (3) specify that the
units must not exceed the allowed density for the lot and be
consistent with the general plan and zoning designation for the
lot. A local agency may not adopt an ordinance that entirely
prohibits second units unless it makes specific findings
regarding adverse impacts from the units.
A local agency that has an ordinance must consider the
application for a second unit ministerially, without
discretionary review or hearing. If the local agency doesn't
have an ordinance that is consistent with the second unit law,
it must ministerially consider the application within 120 days
AB 2299 (Bloom) 4/5/16 Page 3
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of receiving the application, unless it adopts an ordinance
within that timeframe.
Local agencies must also grant a variance or conditional use
permit for the creation of a second unit that complies with all
of the following requirements:
The unit is not intended for sale and may be rented.
The lot is zoned for single-family or multifamily use.
The second unit is either attached to the existing
dwelling and located within the living area or detached but
located on the same lot
The increased floor area does not exceed 30 percent of
the floor area of the existing residence for an attached
unit or 1,200 square feet for a detached unit.
Compliance with other generally applicable zoning
requirements and building permits that apply to detached
dwellings.
The unit is approved by the local health officer if a
private sewage disposal system is used.
The second unit law also limits the parking requirements that
local governments may impose to one parking space per unit or
bedroom. However, a local government may require higher parking
ratios if it finds that the additional parking requirements are
directly related to the use of the second unit and are
consistent with requirements for existing residences. These
parking requirements may be met by off-street parking or tandem
parking in an existing driveway unless the local government
finds that there are specific site, topographical, or fire and
life safety conditions.
Local Government Limitations on Second Units. Despite state
efforts to encourage second units, many local governments have
passed ordinances that constrain their construction. A 2012
report by the Center for Community Innovation at the University
of California Berkeley found that there is a substantial market
for second units in the San Francisco Bay Area, but that many
cities introduce obstacles such as onerous parking requirements,
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minimum lot sizes, and setbacks that preclude the units from
being built. Conversely, the city of Santa Cruz saw its second
unit production triple following efforts that liberalized its
second unit ordinance and made other changes to encourage
construction. Some stakeholders want to remove impediments to
second unit development contained in local government
ordinances.
Proposed Law
Assembly Bill 2299 requires every city and county, including
charter cities, to adopt an ordinance that provides for the
creation of second units and repeals the ability of local
governments to enact ordinances banning second units. The bill
requires the second unit ordinance to: designate areas where
second units are permitted; impose standards such as parking,
lot coverage, setbacks, and architectural review; and provide
that second units do not exceed the allowable density for the
lot upon which it is located. The ordinance cannot impose
parking standards on second units that are located within: (1)
one-half mile of public transit or shopping, or (2) a historic
district.
AB 2299 also prohibits local governments from requiring more
than one parking space per unit or bedroom. If a garage,
carport, or covered parking structure is demolished to build a
second unit and the local agency requires those spaces to be
replaced, the replacement spaces can be in any configuration on
the lot, including as tandem spaces. In addition, the bill
allows local agencies to reduce or eliminate parking
requirements for any second unit located within its
jurisdiction.
AB 2299 prohibits local agencies from requiring second units to
have a pathway clear to the sky between the second unity and a
public street, and second units that are constructed above a
garage on an alley cannot be required to have a setback of more
than five feet. The bill deems second units to be accessory
uses or accessory buildings if they meet the statutory criteria
in current law to automatically receive a variance or special
use permit.
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State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . California continues to face a housing
affordability crisis, despite changes to state housing element
law, incentives for infill development and high density
developments, and other state laws intended to allow for the
construction of new, affordable housing. Second units provide
one option for increasing density while avoiding some of the
impacts associated with larger, high density projects such as
multifamily housing. These units provide older Californians
with an additional revenue stream and also promote infill
development. In 2002 the Legislature encouraged local
governments to adopt ordinances providing for the approval of
second units, but some have placed onerous requirements on
individuals that want to construct these units on their
property, such as parking requirements that can be expensive or
physically impossible to achieve and lengthy permitting
processes that require variances. AB 2299 seeks to streamline
the process for property owners to develop second units by
requiring local agencies to permit them without making
applicants jump through hoops. It also establishes commonsense
limits on requirements for parking or setbacks that have been
used to hold up development of these units. AB 2299 takes an
important step towards making affordable housing available to
the millions of Californians who need it.
2. Home rule . Local governments must balance competing
priorities when determining the conditions attached to the
development of second units. Cities must look at the potential
impacts on the community that result from these units: impaired
neighborhood character, spillover effects on nearby homes and
businesses due to inadequate parking, and loss of privacy for
existing homeowners. Some local governments have adopted more
involved processes for permitting second units to allow for
consideration of these important factors. But where the demand
for these units is limited, local agencies could rely on
provisions of existing law to govern the second units for which
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they must grant a variance or conditional use permit-without
going through a time-consuming and expensive process of
developing a universally applicable ordinance. AB 2299
eliminates that option by mandating that all cities and
counties, including charter cities, develop ordinances that
allow for the ministerial approval of second units. Thus the
bill applies equally to the City of Maywood, with a population
density of over 23,000 people per square mile, as to the County
of Alpine, which has a population density of less than 2 people
per square mile. Is it really necessary to make all 58 counties
and 482 cities develop or revise these ordinances? The
Committee may wish to consider amending AB 2299 to retain the
option of not developing an ordinance but also strengthen the
alternative by requiring ministerial review of some second unit
applications in jurisdictions that do not have an ordinance.
3. Bigger problems . While local zoning ordinances that limit the
construction of second units may contribute somewhat to housing
affordability problems in California, there are larger issues
that drive local governments to adopt these kinds of rules.
Proposition 13 encourages local governments to prefer commercial
development over residential development because commercial
development provides greater revenue while consuming fewer
costly services. The high cost of housing and the intensity of
community involvement in land use decisions provide existing
residents with strong incentives-and the means-to object to new
development that might lower housing prices for existing units.
AB 2299 proposes a solution to add density by relaxing
restrictions on second units, but enacting a more comprehensive
fix to the incentives that local governments face could obviate
the need for the state to intervene on these local matters.
4. Incoming ! The Senate Transportation and Housing Committee
passed AB 2299 on a vote of 7-0 on June 14, 2016.
5. Related legislation . SB 1069 (Wiekowski), which the Committee
approved by a vote of 6-0 at its April 20, 2016 hearing, repeals
the ability of cities and counties to adopt an ordinance that
prohibits the development of accessory dwelling units (ADUs,
also known as second units) and establishes required components
and maximum standards for local ordinances that permit ADUs, and
mandates nondiscretionary approval of ADUs that meet certain
standards. SB 1069 is currently pending in the Assembly Local
Government Committee. AB 2406 (Thurmond) allows local agencies
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to adopt an ordinance that authorizes the construction of
"junior accessory dwelling units" of 500 square feet or less and
describes standards that local agencies may adopt regarding
those units. AB 2406 is pending on the Senate Floor.
6. Mandate . The California Constitution generally requires the
state to reimburse local agencies for their costs when the state
imposes new programs or additional duties on them. According to
the Legislative Counsel's Office, SB 2299 creates a new
state-mandated local program. But this bill disclaims the
state's responsibility for reimbursing local agencies by
including findings and declarations that local agencies may levy
fees to cover the costs of the program.
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Assembly Actions
Assembly Housing and Community Development: 5-2
Assembly Local Government Committee: 6-2
Assembly Appropriations: 14-6
Assembly Floor: 51-24
Support and
Opposition (6/23/16)
Support : American Planning Association, California Chapter;
Apartment Association of Greater Los Angeles; California
Association of Realtors; California Council for Affordable
Housing; California Housing Consortium; City of Los Angeles;
Santa Barbara Rental Property Association; West Hollywood
Chamber of Commerce.
Opposition : California State Association of Counties; City of
Camarillo; City of Fillmore; City of Moorpark; City of Morgan
Hill; City of Ojai; City of Oxnard; City of Port Hueneme; City
of San Dimas; City of Santa Paula; City of Simi Valley; City of
Thousand Oaks; City of Ventura; County of Ventura; League of
California Cities; Ventura Council of Governments.
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