BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |SB 1069 |Hearing |4/20/16 |
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|Author: |Wieckowski |Tax Levy: |No |
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|Version: |4/13/16 |Fiscal: |Yes |
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|Consultant|Favorini-Csorba |
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Land use: zoning
Establishes required components and maximum standards for local
ordinances that permit accessory dwelling 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, in 2002 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).
Currently 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 regulate any of the following aspects of 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 do not exceed the allowed density for the lot and are
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
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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 or 1,200 square
feet
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
Senate Bill 1069 renames second units as "accessory dwelling
units" throughout state law and establishes required components
of local ordinances that permit accessory dwelling units.
Specifically, it requires local ordinances on second units to:
(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 do not exceed the allowed density for the lot and
are consistent with the general plan and zoning designation for
the lot.
SB 1069 repeals the ability of local governments to enact
ordinances that totally prohibit accessory dwelling units. It
also limits the ability of cities and counties to impose certain
standards on accessory dwelling units. SB 1069 prohibits local
agencies from imposing parking standards on units that meet any
of the following conditions:
The unit is located within one-half mile of public
transit or shopping.
The unit is located within an architecturally and
historically significant historic district.
The unit is part of the existing primary residence.
When on-street parking permits are required, but not
offered to the occupant of the unit.
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When there is a car share vehicle located within one
block of the accessory dwelling unit.
SB 1069 also prohibits local governments from requiring more
than one parking space per unit or bedroom and authorizes the
use of tandem parking in an existing driveway to meet this
requirement. It also only allows local governments to prohibit
off-street parking in setback areas or as tandem parking based
on fire and life safety concerns.
SB 1069 requires permits for accessory dwelling units to be
ministerially approved or disapproved within 90 days of receipt
of the application, regardless of whether the local agency has
an ordinance governing these units. SB 1069 also mandates
ministerial approval of accessory dwelling units that, under
existing law, must be granted a variance or special use permit,
and increases the size thresholds for approval of attached
accessory dwelling units to 50 percent of the existing living
area. A local ordinance cannot prohibit an accessory dwelling
unit or efficiency unit of at least 500 feet on the basis of the
size of the unit or the existing residence.
SB 1069 also requires, notwithstanding other provisions of
second unit law, ministerial approval of a building permit for
any accessory dwelling unit if the unit is within the existing
residence or an existing accessory structure and it provides
independent exterior access and setbacks sufficient for fire
safety.
SB 1069 also prohibits local agencies from considering accessory
dwelling units as new residential units for the purposes of
calculating utility connection fees, including water or sewer
service. Local agencies also may not require sprinklers in an
accessory dwelling unit if not required for the existing
residence.
State Revenue Impact
No estimate.
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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. Accessory dwelling
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. To that end, in 2002 the Legislature
encouraged local governments to adopt ordinances providing for
the approval of accessory dwelling units. However, some local
governments 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, lengthy permitting processes that require variances,
minimum lot sizes, and even sprinkler installation. SB 1069
seeks to streamline the process for property owners to develop
accessory dwelling units by requiring local agencies to
ministerially permit them, establishing commonsense limits on
parking requirements, and preventing water and sewer agencies
from charging unnecessary connection fees. SB 1069 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 accessory dwelling 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. SB 1069
would prevent local governments from considering these impacts
by requiring ministerial permits for many accessory dwelling
units. Without some discretion, elected local leaders will be
unable to weigh the tradeoffs between enhanced density that
accessory dwelling units may provide and any community problems
they create.
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3. Bigger problems . While local zoning ordinances that limit the
construction of accessory dwelling units may contribute somewhat
to housing affordability problems in California, there are
larger issues that drive local governments to adopt these kind
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. SB 1069 proposes a solution to add density by
relaxing restrictions on accessory dwelling 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. Yes Minister . Existing second unit law only requires approval
of second units that meet a lengthy list of criteria, including
compliance with zoning requirements and building codes. SB 1069
requires a local agency to ministerially approve a building
permit for any accessory dwelling unit that is within an
existing structure and meets only the barest of criteria for
fire safety and access. This departs significantly from
existing law and creates large loopholes for the construction of
potentially unsafe and unsustainable residences. The Committee
may wish to consider amending SB 1069 to eliminate this
provision.
5. Water under the bridge ? Water retailers and sanitation
agencies levy connection fees to ensure that a new development
pays for the costs that it imposes on the water system, such as
to maintain water pressure for firefighting or expand wastewater
treatment capacity. These fees are a key part of these
agencies' rate structures-monthly water and sewer bills don't
entirely fund an agency's operations. However, under SB 1069,
accessory dwelling units cannot be considered new residential
uses for the purposes of calculating private or public utility
connection fees. The cumulative impact of thousands of new
units on a water or sewer system could create financial strains
for those agencies, necessitating rate hikes on existing
customers that have already paid their fair share of the water
system's costs. The Committee may wish to consider amending SB
1069 to ensure that individuals that construct new accessory
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dwelling units pay the full cost of their water and sewer
services.
6. Who benefits ? SB 1069 intends to streamline the development
of accessory dwelling units in order to increase housing
density, create more affordable housing, and provide an income
stream to elderly homeowners. Yet there may be side effects to
this liberalization that undermine some of these goals. Local
governments have been struggling to develop enforceable
ordinances that regulate the use of residential housing for
short-term rentals through online platforms such as AirBNB.
These rentals can impose some of the same consequences on a
neighborhood as commercial lodging, such as increased traffic.
In addition, some studies have shown that short-term rentals
decrease housing stock, potentially increasing housing costs.
SB 1069 may simply encourage the construction of
quasi-commercial accessory dwelling units solely for the purpose
of short-term rentals. Yet SB 1069 potentially prohibits a
local government from placing conditions on a permit to ensure
that a unit is used for long-term rental. The Committee may
wish to consider amending SB 1069 to specifically authorize a
city or county to include such conditions in its accessory
dwelling unit ordinance.
7. Technical amendment . SB 1069 deletes a provision of existing
law that states that a local government is not required to adopt
or amend an ordinance for the creation of section units
(65852.2(a)(3)), but leaves a similar provision in place in a
related subdivision (65852.2(b)(4)). In order to ensure that
the bill is consistent, the Committee may wish to consider
amending SB 1069 to delete this contradictory provision.
8. Incoming ! Prior to the arrival of SB 1069 in this committee,
it must pass the Senate Committee on Transportation and Housing
at its April 19, 2016 hearing.
9. 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 1069 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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10. Related legislation . Two other bills relating to second
units have been introduced this session. SB 2299 (Bloom)
restricts the standards local governments may impose on second
units by prohibiting imposition of parking requirements on
second units within a half-mile of transit or shopping,
constraining the setbacks that local governments may require,
and repealing ability to prohibit second units. SB 2406
(Thurmond) allows local agencies to adopt an ordinance that
authorizes the construction of "junior accessory dwelling units"
of 500 square feet or less and includes standards that local
agencies may adopt regarding those units.
Support and
Opposition (4/14/16)
Support : Bay Area Council (sponsor); AARP; American Planning
Association of California; Bay Area Building Industry
Association; Bishop Ranch; Blue Shield of California; Bridge
Housing; California Association of Realtors; California Building
Industry Association; California Renters Legal Advocacy and
Education Fund; Center for Creative Land Recycling; Chase
Communications; Colliers International; Cushman & Wakefield;
East Bay Leadership Council; Emerald Fund; Facebook; Hanson
Bridgett; HKS; Joint Venture Silicon Valley Network; Karen
Chappelle, Professor of City and Regional Planning, UC Berkeley;
Lennar Urban; MacKenzie Communications, Inc.; Manatt; Marvell;
McKinsey & Company; Nehemiah Corporation of America; New Avenue;
Nibbi; Nonprofit Housing Association of California; North Bay
Leadership Council; PLANT; Polaris Pacific; Rhoades Planning
Group; Richard Rosenberg, Chairman and CEO (RET.) Bank of
America; Reuben, Junius & Rose, LLP; San Francisco Housing
Action Coalition; San Mateo County Economic Development
Association; SPUR; SVAngel; SV@Home; TechCU; Virgin America;
Webcor Builders.
Opposition : California State Association of Counties.
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