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Second-Unit Ordinances Overhauled: State Law Forces Revisions in Many Cities and Counties

In response to a new state law that mandates the easier regulatory processing of second units, cities and counties across California have been revising their regulations. Most jurisdictions are relaxing their rules, although some cities and counties appear to be adding performance standards that could discourage second-unit development. Many cities and counties are allowing larger second units commonly called granny units or granny flats than the jurisdictions used to permit. In general, the local governments are still requiring setbacks and off-street parking. Some cities and counties are requiring affordability deed restrictions, and some places insist that the property owner occupy either the principal house or the accessory dwelling. Few planners anticipate a rush to build second units, although there appears to be more demand in some rural areas than in the suburbs or central cities. Still, local officials are chafing at what they see as a loss of local control. "The state took away the ability to have local input," said Mark Deming, principal planner for Santa Cruz County. To comply with state law, a revised county ordinance for second units "basically makes the process a building permit process," he said. The law that spurred the ordinance revisions is AB 1866 (Wright), which the Legislature approved in 2002 (see CP&DR, October 2002). The law requires ministerial review of applications for second units on land zoned for single- or multi-family residential development. Backers of the legislation contended it was necessary because many local governments subjected second-unit applications to lengthy, discretionary reviews and imposed expensive conditions. Supporters said the process could be difficult enough to discourage applicants. The law gave cities and counties a July 1 deadline. The League of California Cities and the California State Association of Counties lobbied against AB 1866, but only partly because of the second-unit provisions. The bill also mandated that local governments grant almost any application for a housing development density bonus. But it is the prohibition on discretionary review of second units that has received most of the attention. "I just have to express my continued amazement at the amount of attention that part of the bill has received," said Marc Brown, co-director of the California Housing Law Project and an AB 1866 backer. The density bonus provision is more important, he contended. Still, many planning departments have spent months working on second-unit ordinance revisions. A sampling: The City of Berkeley dropped its requirement for a use permit for second units, which were permitted only in single-family residential zones. Accessory dwellings of 300 to 500 square feet are now allowed by right in nearly all residential zoning districts, as long as the units meet setback and height restrictions that apply to the main house. Proposed second units that do not meet the performance standards could still be approved via an administrative review process, said Senior Planner Janet Homrighausen. City officials hope the new rules, which were adopted in July, will encourage owners of single-family houses on lots zoned for multi-family development (the city has many of these) to build second units. The revised ordinance does mandate that the owner reside in one of the units, which is a new requirement. Berkeley has received about two dozen applications for second units during the last seven years. "We can't really predict how many more applications we will have, but I would expect it to rise," Homrighausen said. The City of Livermore relaxed its regulations to allow second units of up to 1,200 square feet. The units may be one or two stories and are allowed only in single-family zoning districts. Setback and lot-coverage standards apply. The Town of Moraga did away with its discretionary review process, but an ordinance adopted in May still requires the city to notify neighbors of a second-unit application. The second units are permitted in any residential zoning district and may be up to 750 square feet. Second units must be at least 500 feet apart, are not allowed on slopes of more than 20%, and they are subject to a number of design standards. "We have not shut the public out of the process. They just have to comment on these objective standards," said Planning Director Lori Salamack. Although the planning director will decide second-unit applications, anyone can appeal to the Planning Commission "to allow for human error," she explained. Salamack expects to see most second-unit construction occur with development of new homes, as the city has potential for large-lot residential development. The city will impose conditions on second units that accompany new houses, she said. Santa Cruz County eliminated its discretionary review process for second units, which included public notification and a zoning administrator hearing. But because the process is now ministerial and the county cannot consider site-specific conditions, a county ordinance adopted in June includes more standards, said Deming. Inside the county's urban services line, second units are now restricted to 640-square-feet and one story. Outside of the urban services line, second units of up to 1,200 square feet are allowed, depending upon the lot size. Second-unit occupancy is limited to a family member, a moderate-income senior renter or a low-income, non-senior renter. The county processed "a few hundred" second-unit applications under the old system, said Deming, who has already seen increased activity. "We had them lined up at the counter as of July first," he said. The City of Sierra Madre is considering scrapping its ordinance that requires second units to be attached to the primary house and that requires the second unit occupant to be a relative of the primary unit owner. Under the new ordinance a unit of up to 400 square feet could be attached or detached, and could be rented to anyone. However, the city is would require that second units have a deed restriction limiting them to very low- or low-income rents. The second units would be allowed only in single-family residential zones. The idea is to accommodate one or two people in an efficiency-style unit, said Sierra Madre Community Development Director Kent Christiansen. "We certainly don't want these units turning into family units. We didn't want two full houses on a single-family lot. We truly want these to be an accessory unit," he said. Sierra Madre has a number of "guest houses," which have no kitchen. Christiansen said he expects to see applications for converting those guest houses into separate living units, although he was unsure how the city would handle retrofits. Ventura County revised its ordinance to allow larger second units. Under regulations adopted in May, the county will permit units of up to 900 square feet on parcels of more than 10,000 square feet, and second units of up to 1,200 square feet on lots larger than 5 acres. The county also amended its ordinance to permit second units on nonconforming lots of at least 20,000 square feet. In general, second-unit ordinances reflect local political values, said Jeff Goldman, a principal at Cotton/Bridges Associates in Sacramento. Concern is often greatest in built-out urban and suburban areas, he said. "Some people see second units as anathema second units are going to ruin the single-family nature of our neighborhood," Goldman related. But Goldman said concerns about second units overwhelming a neighborhood are unfounded. "I don't see a groundswell of consumer demand to create second units," he said. Second units are likely to play only a minor role in resolving California's housing shortage, he said. Housing advocate Brown is tracking local government compliance with AB 1866. He and other housing lobbyists are behind AB 1160 (Steinberg), which would bar cities and counties from imposing unreasonable standards on second units. That bill has stalled for the year, but Brown believes that some cities and counties are inadvertently making the case for AB 1160 by adding strict standards to second-unit ordinances. Contacts: Marc Brown, California Housing Law Project, (916) 739-6293. Kurt Christiansen, City of Sierra Madre, (626) 355-7135. Mark Deming, Santa Cruz County, (858) 454-2580. Jeff Goldman, Cotton/Bridges Associates, (916) 649-0196. Janet Homrighausen, City of Berkeley, (510) 981-7480. Lori Salamack, Town of Moraga, (925) 376-5200.
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