BILL ANALYSIS Ó
SB 1069
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Date of Hearing: June 29, 2016
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Susan Talamantes Eggman, Chair
SB
1069 (Wieckowski) - As Amended June 16, 2016
SENATE VOTE: 29-3
SUBJECT: Land use: zoning.
SUMMARY: Makes a number of changes to state law regarding
second units. Specifically, this bill:
1)Replaces the term "second dwelling unit" with "accessory
dwelling unit" in specified sections of housing law.
2)Requires, if a local agency, by ordinance, provides for the
creation of accessory dwelling units (ADUs) in single-family
and multifamily residential zones, the ordinance to do all of
the following:
a) Designate areas within the jurisdiction of the local
agency where ADUs 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 ADUs on traffic flow and public safety;
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b) Impose standards on ADUs that include, but are not
limited to, parking, height, setback, lot coverage,
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; and,
c) Provide that ADUs do not exceed the allowable density
for the lot upon which the ADU is located and that ADUs are
a residential use that is consistent with the existing
general plan and zoning designation for the lot.
3)Requires a local agency with an ADU ordinance to consider
permits within 90 days of submittal of a complete building
permit application.
4)Requires a local agency that has not adopted an ADU ordinance
to approve or disapprove a permit application ministerially
without discretionary review, unless it adopts an ordinance
within 90 days, instead of 120 days, after receiving the
application.
5)Requires every local agency to ministerially approve the
creation of an ADU, if the ADU complies with all of the
following:
a) The unit is not intended for sale separate from the
primary residence and may be rented;
b) The lot is zoned for single-family or multifamily use;
c) The lot contains an existing single-family dwelling;
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d) The ADU 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 increase floor area of an attached ADU shall not
exceed 50 percent of the existing living area;
f) The total area of floorspace for a detached ADU shall
not exceed 1,200 square feet;
g) The 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 located;
h) Local building code requirements that apply to detached
dwellings, if appropriate; and,
i) Approval by the local health officer where a private
sewage disposal system is being used, if required.
6)Allows a local agency to require an applicant for a permit for
an ADU to be an owner-occupant or that property to be used for
rentals of terms longer than 30 days.
7)Prohibits ADUs being required to provide fire sprinklers, if
they are not required for the primary residence.
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8)Allows tandem parking on an existing driveway to meet
specified parking requirements for an ADU.
9)Prohibits a public agency from imposing parking standards for
an ADU in any of the following instances:
a) The ADU is located within mile of public transit or
shopping;
b) The ADU is located within an architecturally and
historically significant historic district;
c) The ADU is part of the existing primary residence;
d) When on-street parking permits are required but not
offered to the occupant of the ADU; or,
e) When there is a car share vehicle located within one
block of the ADU.
10)Requires, notwithstanding existing law, a local agency to
ministerially approve an application for a building permit to
create within a single-family residential zone one ADU per
single-family lot, if the unit is contained within the
existing space of a single-family residence or accessory
structure, has independent exterior access from the existing
residence, and the side and rear setbacks are sufficient for
fire safety. Specifies that ADUs shall not be required to
provide fire sprinklers, if they are not required for the
primary residence.
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11)Prohibits ADUS from being considered new residential uses for
the purposes of calculating private or public utility
connection fees, including water and sewer service.
12)Deletes language from existing law that prohibits local
agencies from adopting an ordinance, which totally precludes
second units, unless the ordinance contains specified
findings.
13)Revises and adds to existing findings and declarations
regarding accessory dwelling units.
14)States that no reimbursement is required 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, as
specified.
EXISTING LAW:
1)Defines "second unit" as an attached or a detached residential
dwelling unit, which provides complete independent living
facilities for one or more persons.
2)Provides that a second unit must include permanent provisions
for living, sleeping, eating, cooking, and sanitation on the
same parcel as the single-family dwelling is situated.
3)Permits a local agency, by ordinance, to provide for the
creation of second units in single-family and multifamily
residential zones, as specified.
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4)Requires, if a local agency adopts a second-unit ordinance,
that applications be considered ministerially without
discretionary review or a hearing. Additionally, nothing may
be construed to require a local government to adopt or amend
an ordinance regulating the issuance of variances or
special-use permits for second units.
5)Requires a local agency that has not adopted a second-unit
ordinance to accept and approve or disapprove the application
ministerially, without discretionary review or hearing, within
120 days after receiving the application. Requires every local
agency to grant a variance or special 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 and located on the same lot as the
existing dwelling;
e) The increased floor area of an attached second unit
shall not exceed 30% of the existing living area;
f) The total area floor space shall not exceed 1,200 square
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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 located;
h) Local building code requirements that apply to detached
dwellings; and,
i) The unit is approved by the local health officer where a
private sewage disposal system is being used.
6)Provides that no local agency may adopt an ordinance that
totally precludes second units, unless the ordinance contains
findings and acknowledges that the ordinance may limit housing
opportunities of the region, and further contains findings
from which specific adverse impacts on the public health,
safety, and welfare would result.
7)Provides that a local agency may establish maximum and minimum
unit size requirements for both attached and detached second
units.
8)Establishes the maximum standards that local agencies shall
use to evaluate proposed accessory dwelling units on lots
zoned for residential use that contain an existing
single-family dwelling. No additional standards shall be
utilized or imposed, except that a local agency may require an
applicant for a permit to be an owner-occupant.
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9)Provides that parking requirements shall not exceed one
parking space per unit or per bedroom, but that additional
parking may be required with a finding that additional parking
requirements are directly related to the use of the second
unit and consistent with existing neighborhood standards.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS:
1)Background. ADUs, which are referred to in existing law as
"second units," are additional living quarters on
single-family lots that are independent of the primary
dwelling unit. Also known as accessory apartments, accessory
dwellings, mother-in-law units, or granny flats, ADUs are
either attached or detached to the primary dwelling unit, and
provide complete independent living facilities for one or more
persons. This includes permanent provisions for living,
sleeping, eating, cooking, and sanitation.
In 2002, AB 1866 (Wright), Chapter 1062, Statutes of 2002,
required local governments to use a ministerial process for
approving ADUs, notwithstanding other laws that regulate the
issuance of variances or special use permits. A local
government may provide for the construction of ADUs by
ordinance, and may designate areas where ADUs are allowed, as
well as require standards for parking, setback, lot coverage,
and maximum size. If a local government has not adopted an
ordinance governing ADUs, it must grant a variance or special
use permit for the creation of ADUs, if the unit complies with
requirements specified in statute, including size and zoning
restrictions.
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2)Author's Statement. According to the author, "Accessory
dwellings provide part of the solution to the housing crisis.
They are the only source of housing that can be added within a
year at an affordable price, in existing developed communities
served by infrastructure consistent with SB 375, without
public subsidy, and action by the State on a few issues will
make this possible for tens of thousands of owners to
immediately benefit and help their communities.
"ADUs - referred to in existing law as second units - are
additional living quarters on single-family lots that are
independent of the primary dwelling unit. These units are
inherently affordable - costing as little as $10,000 to
$200,000 or 50-90% less to build than conventional infill
development. Under existing law, any property owner has the
ability to construct an ADU on their property should they meet
certain zoning and building requirements. However, a
significant number of homeowners are prevented from
constructing these units due to the layers of zoning and
regulatory barriers such as lot size, setbacks, independent
off-street parking, and costly duplicative fees. For example,
most local agencies treat accessory dwellings like a "new
development" and require sprinklers and new service fees that
can double the cost of building the unit itself (adding fee
costs of $10,000-75,000/unit) which unreasonably burdens
owners trying to add this low-cost, green, infill form of
housing.
"Despite the existence of the Second Unit Enabling Act
amended and by AB 1866 (2003), studies at UC Berkeley and
UCLA demonstrate that taken together many local agency
zoning standards plus high fees prevent owners from creating
an accessory dwelling, even within an existing structure
that has been accepted by the neighborhood. Drawing a
random sample of 10% of California's 482 jurisdictions, a
team from UC Berkeley found that most jurisdictions impose
one or more of three main barriers to construction
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effectively preventing all but a small number of parcels
from ever qualifying for an accessory dwelling regulations
including minimum lot size, setbacks, and parking
requirements. A similar study led by a team at UCLA found
that Los Angeles County jurisdictions similarly had layered
regulations that taken together preclude many owners from
ever qualifying for a legal accessory dwelling.
"With these barriers to construction, homeowners, especially
lower income homeowners who face dire family needs and
potential foreclosure if they cannot share with family
members or rent space in their homes, build accessory
dwellings illegally. A recent study by UT-Austin Professor
Jake Wegmann found that 55% of ALL NEW, the housing units
produced in the Gateway Cities area of Southeast Los Angeles
County between 1980 and 2010, were unpermitted illegal
accessory dwellings. With regulations making it
challenging to build legally, the study concluded that the
majority of housing in the Gateway area is now produced
illegally.
"The widespread existence of barriers preventing ADUs and
the resulting frequency of illegal accessory dwellings
documents the need for the State to intervene to ensure more
and safer accessory dwellings. The State must intervene and
eliminate barriers to accessory dwelling units which exist
despite 14 years of State legislation that require local
agencies to allow accessory dwellings. These barriers,
including parking, fees, and zoning limits prevent
homeowners from legally taking care of their families during
times of economic difficulty, and prevent people with too
much house from sharing a space on their property [with]
those who have too little. The State must remove the most
significant barriers and fees so that homeowners can create
legal and safe accessory dwellings, inspected and approved
under California's rigorous building, fire, and safety codes
and bring these onto the tax rolls as legal improved space.
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3)May Revise and Current Legislation on ADUs. According to the
Governor's 2016-17 May Revision:
The Administration is also supportive of other initiatives
to increase housing supply where such initiatives do not
create a state reimbursable mandate. This includes using
inventory such as accessory dwelling units (additional
living quarters on single-family lots that are independent
of the primary dwelling unit)?.. Policies can increase the
availability of accessory dwelling units with expanded
ministerial approval, shortened permitting timelines,
reduced duplicative fees, and relaxed parking requirements,
consistent with the principles identified by SB 1069
(2016). The state can further increase supply by
eliminating overly burdensome requirements for accessory
dwelling units identified by AB 2299 (2016), such as
passageways to public streets and setbacks of five feet
from lot lines.
As mentioned above, there are several pending bills that aim
to increase the availability of ADUs, including the following:
a) AB 2299 (Bloom) 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 they
are located. The ordinance cannot impose parking standards
on second units that are located within:
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(1) one-half mile of public transit or shopping, or (2) an
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 unit
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.
AB 2299 is currently pending in the Senate Governance and
Finance Committee.
b) AB 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. The bill is pending on the Senate Floor.
1)Policy Considerations. The Committee may wish to consider the
following.
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a) Local Agency Fees:
i) Connection Fees and Capacity Charges. 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 do not
entirely fund an agency's operations. Opponents to the
bill note that 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.
SB 1069 provides the following language:
Fees charged for the construction of accessory dwelling
units shall be determined in accordance with Chapter 5
(commencing with Section 66000). Accessory dwelling
units shall not be considered new residential uses for
the purposes of calculating private or public utility
connection fees, including water and sewer service.
Local agencies are authorized, pursuant to Government
Code Section 66013 [Chapter 7: Fees for Specific
Purposes], to impose fees for water connections or sewer
connections, and impose capacity charges, but are
prohibited from exceeding the "estimated reasonable cost
of providing the service for which the fee or charge is
imposed?"
Government Code Section 66013 is not referenced in the
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provisions of SB 1069.
ii) Constitutional Issues. The Association of
California Water Agencies notes that "The state
constitution and state law, namely Article XIII C,
section 1 (e)(2), Article XIII D, section 6(b) and
Government Code Section 66013, require that water and
wastewater rates and charges be based on cost of service
principles. Because of these requirements, an agency may
not waive, discount, or establish differential rates that
pass on costs associated with obtaining water and/or
wastewater service to the general customer base or to
other fee payers."
The Committee may wish to consider whether charging some
ADUs less for their capacity charges or connection fees
could result in violating Proposition 26 (2010).
If a local agency's connection fee or capacity charge is
challenged, the agency may not be able to meet the burden
of proof requirements specified in Prop. 26 - the local
government bears the burden of proving by a preponderance
of the evidence that a levy, charge, or other exaction is
not a tax, that the amount is no more than necessary to
cover the reasonable costs of the governmental activity,
and that the manner in which those costs are allocated to
a payor bear a fair and reasonable relationship to the
payor's burdens on, or benefits received from, the
governmental activity.
iii) Mandate Disclaimer. The bill, in Section 7,
contains a mandate disclaimer which specifies that no
reimbursement is required by the bill because a local
agency has the authority to levy service charges, fees,
or assessment sufficient to pay for the program or level
of service mandated by the bill. The Committee may wish
to consider whether local agencies will have the
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authority to levy fees and charges that are sufficient to
pay for the requirements in the bill, given the issues
raised above.
b) Impact on Existing Resources. According to the City of
Roseville, in opposition to the bill, "the City is
supportive of ADU, and has set aside areas in the last two
adopted specific plan areas that allow second units by
right. However, the location and number
of units allowed was carefully analyzed through the
environmental review process and thoughtfully designed to
ensure that the City allocated sufficient water supplies,
and wastewater and other utility capacity. The plan also
included a fiscal analysis to ensure that the City had
sufficient funding to provide adequate police, fire, parks
and recreation facilities and other services to serve
project areas."
Further, the City of Roseville notes that "As a full
service city providing water, wastewater, recycled water,
solid waste and electric services, we are concerned this
measure could result in rate hikes to existing private and
public utility customers?The City has secured a surface
water allocation sufficient to serve the build out of the
City based on a detailed analysis of potential units. If
additional units were to be allowed by right, but not
subjected to review and if they are not currently included
in the City's Urban Water Management Plan, it may impact
existing residences especially in a drought situation."
c) Definitions. The American Planning Association,
California Chapter, notes that it has a "Support, if
amended" position on the bill and that "as written the bill
doesn't allow an ordinance to require parking to be proved
if the ADU 'is located within one-half mile of public
transit or shopping.' They ask that the bill be amended to
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remove "shopping" and better define "transit" by including
the definition of a "major transit stop" as used in
AB 744 (Chau), Chapter 699, Statutes of 2015.
2)Arguments in Support. Supporters argue that ADUs are the only
widely supported approach to get thousands of low cost units
on the market fast and that ADUs provide lower cost and
low-carbon footprint homes in existing neighborhoods
consistent with architectural traditions, and that this bill
would further simplify the process of ADU adoption for
residents by reducing parking requirements and streamlining
the permitting process.
3)Arguments in Opposition. Opponents write that the bill
removes any local land use flexibility, limits the public
engagement process, could result in rate hikes to existing
private and public utility customers, and that the cumulative
impact of thousands of new units on a water or sewer system
could create financial strains for utility agencies on
existing customers who have already paid their fair share to
be part of that system.
4)Double-Referral. This bill was heard in the Housing &
Community Development Committee on June 15, 2016, and passed
with a 6-0 vote.
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REGISTERED SUPPORT / OPPOSITION:
Support
Bay Area Council [SPONSOR]
BRIDGE Housing
American Planning Association, California Chapter (if amended)
AARP
BIA Bay Area
BHV CenterStreet Properties
Bishop Ranch
Blue Shield of California
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CalChamber
California Association of Realtors
California Building Industry Association
California Council for Affordable Housing
California Housing Consortium
California Renters Legal Advocacy & Education Fund
California Rural Legal Assistance Foundation
California School Employees Association
Center for Creative Land Recycling
Chase Communications
City of Berkeley, Los Angeles, Oakland
City and County of San Francisco
Colliers International
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Comcast
Cushman & Wakefield
East Bay Leadership Council
Eden Housing
Emerald Fund
Facebook
Greenbelt Alliance
Greenberg Traurig LLP
Hallisey & Johnson Law
Hanson Bridgett
HKS Architects
Housing Trust Silicon Valley
Jenifer Hernandez
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Kaiser Permanente
Joint Venture Silicon Valley
LA-Más
Lenny, Mendonca, McKinsey & Company
Lilypad Homes
Local Government Commission
MacKenzie Communications, Inc.
Main Street Property Services
LA-Mas
Lennar Urban
Los Angeles Chamber of Commerce
Support (continued)
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Manatt, Phelps & Phillips LLP
Marvell
Montezuma Wetlands LLC
Nehemiah Corporation of America
New Avenue Homes
Nossaman LLP
NHA Advisors
Nibbi Brothers Construction
Non-profit Housing Association of Northern California
North Bay Leadership Council
North Lake Tahoe Resort Association
Natural Resources Defense Council
Orange County Business Council
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Pier 39
Planning and Conservation League
Plant Construction Company, L.P.
Plumbing-Heating-Cooling Contractors Association
Polaris Pacific
Radiant Brands
Read Investments
Redondo Beach Chamber of Commerce
Reuben, Junius & Rose, LLP
Rhoades Planning Group
Richard Rosenberg
San Francisco Chamber of Commerce
San Francisco Housing Action Coalition
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San Mateo County Economic Development Association
SARES.REGIS Group
Silicon Valley Leadership Group
SPUR
SV Angel
SV@Home
Technology Credit Union
Terner Center for Housing Innovation
The Home Depot
The Two Hundred
TMG Partners
United Parcel Service
Virgin America
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WEBCORBUILDERS
Western Center on Law and Poverty
Individual letters (3)
Opposition
Association of California Water Agencies
California State Association of Counties
Dublin San Ramon Services District
Cities of:
Angels Camp, Brentwood, Burbank, Cerritos, Clearlake,
Cloverdale, Commerce, Camarillo, Daly City, Dublin, Goleta,
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Laguna Hills, Lake Forest, Lakeport, Lakewood, La Mirada,
Lodi, Los Banos, Manteca, Merced, Mill Valley, Morena Valley,
Rancho Cucamonga, Rancho Palos Verdes, Redding, Riverbank,
Roseville, Placerville, San Carlos, San Clemente, San Rafael,
South Gate, Sunnyvale, Tehama, Thousand Oaks, Torrance
League of California Cities
Ventura Council of Governments
Analysis Prepared by:Debbie Michel / L. GOV. / (916)
319-3958