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HomeMy WebLinkAbout5 - PUBLIC COMMENT_GELFANDMATTHEW GELFAND, COUNSEL MATT@CAFORHOMES.ORG TEL: (213) 739-8206 January 27, 2020 VIA EMAIL Planning Commission City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Email: frivera@santa-ana.org; mmcloughlin@santa-ana.org; knguyen20@santa-ana.org; ccontreras-leo@santa-ana.org; acano@santa-ana.org; ngarcia@santa-ana.org ecomments@santa-ana.org RE: January 27, 2020 Planning Commission Meeting, Agenda Item 5. To the Planning Commission: Californians for Homeownership is a 501(c)(3) non-profit organization devoted to using legal tools to address California’s housing crisis. I am writing as part of our work monitoring local compliance with California’s laws regarding accessory dwelling units (ADUs). At your January 27 meeting, you will discuss an ordinance intended to address recent changes to state ADU law. If the City adopts a compliant ADU ordinance, it will be able to maintain certain local controls on ADU development. Unfortunately, we have very serious concerns regarding the draft ordinance. Our concerns include:  The draft ordinance limits the definitions of “existing accessory structure” and “existing garage” to structures that existed prior to May 4, 2018, depriving owners of later-created structures of the benefit of the special conversion and parking replacement provisions in state ADU law. This is unlawful. As the Department of Housing and Community Development and the Legislature have repeatedly made clear, “existing” means “already present at the time of the ADU application”; it does not mean “in existence on the City passed its first ADU law.” Every other city advised by Best Best & Krieger, to our knowledge, has adopted the correct reading of the law.  The draft ordinance limits ADUs to certain enumerated residential zones, which appears to be unlawfully narrow. An ADU permitted under Section 65852.2(a) must be allowed in any area “zoned to allow single-family or multifamily dwelling residential use.” Gov. Code § 65852.2(a)(1). An ADU permitted under Section 65852.2(e) is allowed in any “residential or mixed-use zone.” Gov. Code § 65852.2(e)(1). The list of permitted zones must be updated to include any commercial or other zone that allows residential use. January 27, 2020 Page 2  The draft ordinance limits attached ADUs to the height of the primary dwelling. This is not allowed; ADUs must be allowed up to 16 feet. Gov. Code § 65852.2(c)(2)(C).  The draft ordinance requires the Historic Resources Commission to review ADUs that might impact historic resources. Because ADUs must be approved ministerially, with no hearing or discretionary review, this is unlawful. Gov. Code § 65852.2(a)(3); see Gov. Code § 65852.2(a)(5) (“No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or a use permit under this subdivision.”). To address an ADU’s impact on historic properties, the City may have staff review the ADU for compliance with the ministerial standards published by the Secretary of the Interior, or another set of ministerial standards.  The draft ordinance does not provide the required special treatment for the categories of ADUs listed in Government Code Section 65852.2(e)(1). These ADUs must be ministerially permitted “notwithstanding” the provisions allowing cities to pass local ADU ordinances, meaning that these ADUs must be approved without applying any local development standards, such as front-yard setbacks. According to guidance from the Department of Housing and Community Development regarding the prior version of Section 65852.2(e), these ADUs “do[] not necessitate a zoning clearance and must not be limited to certain zones or areas or subject to height, lot size, lot coverage, unit size, architectural review, landscape or parking requirements,” and the Department has issued non-compliance letters to cities that have improperly applied local development standards to these ADUs. To assist the City in crafting appropriate language, we are providing (below) example language from the template ordinance being used in other cities advised by Best Best & Krieger. We suggest that you to continue this item to a later meeting and to ask staff to come back with an ordinance that meets the City’s legal obligations. We would like to be part of that process. To that end, we request that you include us on the notice list for all future public meetings regarding the City’s ADU policies, and we request that this letter be included in the correspondence file for those meetings. We look forward to working with you. Sincerely, Matthew Gelfand cc: Minh Thai, Exec. Director, Planning and Building (by email to mthai@santa-ana.org) Vince Fregoso, Planning Manager (by email to vfregoso@santa-ana.org) Ricardo Soto, Associate Planner (by email to rsoto@santa-ana.org) Sonia R. Carvalho, Esq., City Attorney (by email to sonia.carvalho@bbklaw.com) January 27, 2020 Page 3 Example Language From Best Best & Krieger Template Ordinance Approvals. The following approvals apply to ADUs and JADUs under this section: (1) Building-permit Only. If an ADU or JADU complies with each of the general requirements in subsection E below, it is allowed with only a building permit in the following scenarios: (A) Converted on Single-family Lot: Only one ADU or JADU on a lot with a proposed or existing single-family dwelling on it, where the ADU or JADU: (i) Is either: within the space of a proposed single-family dwelling; within the existing space of an existing single-family dwelling; or within the existing space of an accessory structure, plus up to 150 additional square feet if the expansion is limited to accommodating ingress and egress. (ii) Has exterior access that is independent of that for the single- family dwelling. (iii) Has side and rear setbacks sufficient for fire and safety, as dictated by applicable building and fire codes. (B) Limited Detached on Single-family Lot: One detached, new-construction ADU on a lot with a proposed or existing single-family dwelling (in addition to any JADU that might otherwise be established on the lot under subsection D(1)(A) above), if the detached ADU satisfies the following limitations: (i) The side- and rear-yard setbacks are at least four-feet. (ii) The total floor area is 800 square feet or smaller. (iii) The peak height above grade is 16 feet or less. (C) Converted on Multifamily Lot: Multiple ADUs within portions of existing multifamily dwelling structures that are not used as livable space, including but not limited to storage rooms, boiler rooms, passageways, attics, basements, or garages, if each converted ADU complies with state building standards for dwellings. At least one converted ADU is allowed within an existing multifamily dwelling, and up to 25 percent of the existing multifamily dwelling units may each have a converted ADU under this paragraph. (D) Limited Detached on Multifamily Lot: No more than two detached ADUs on a lot that has an existing multifamily dwelling if each detached ADU satisfies the following limitations: (i) The side- and rear-yard setbacks are at least four-feet. (ii) The total floor area is 800 square feet or smaller. January 27, 2020 Page 4 (2) ADU Permit. (A) Except as allowed under subsection (1) above, no ADU may be created without a building permit and an ADU permit in compliance with the standards set forth in subsections E and F below. (B) The City may charge a fee to reimburse it for costs incurred in processing ADU permits, including the costs of adopting or amending the City’s ADU ordinance. The ADU-permit processing fee is determined by the Director and approved by the City Council by resolution. (3) Process and Timing. (A) An ADU permit is considered and approved ministerially, without discretionary review or a hearing. (B) The City must act on an application to create an ADU or JADU within 60 days from the date that the City receives a completed application, unless either: (i) The applicant requests a delay, in which case the 60-day time period is tolled for the period of the requested delay, or (ii) In the case of a JADU and the application to create a junior accessory dwelling unit is submitted with a permit application to create a new single- family dwelling on the lot, the City may delay acting on the permit application for the JADU until the City acts on the permit application to create the new single-family dwelling, but the application to create the JADU will still be considered ministerially without discretionary review or a hearing.