Beginning in 2019, California state legislature began passing a number of laws (Senate and Assembly Bills) reducing barriers to entry and streamlining the process for the establishment of Accessory Dwelling Units (ADUs) for all cities and counties in California. According to the Department of Housing and Community Development (HCD) July 2022 ADU Handbook (“ADU Handbook”), there have been eight bills in respect to ADUs passed, primarily codified in Government Code sections 65852.2, with one additional bill passed since the publication of the handbook -bringing the total to nine bills passed since 2019 to-date. Additional legislation has been passed since the publication of the a ADU Handbook.
In short, Government Code sections 65852.2 (“ADU Statute” or “Statute”) requires that a permit application for the establishment of an ADU shall be considered ministerally without discretionary review or a hearing. Further, the statue states that a local agency may, by ordinance, establish objective development and design standards that include, but are not limited to, parking, height, setback, landscape, architectural review, maximum size of a unit. However, these standards cannot preclude the creation of either an attached or detached ADU that is at least 800 square feet and at least 16 feet tall for a detached unit, or no taller than the primary dwelling (up to the maximum height for the zoning district) for an attached unit. This provision goes as far as to say that floor area and building coverage should not be take into consideration, or a waiver should be granted if an ADU within these parameters could otherwise not be established.
Notably, the statute also states (Government Code Section 65852.2(l)) (emphasis added with underline):
Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code), except that the local government shall not be required to hold public hearings for coastal development permit applications for accessory dwelling units.
HCD’s July 2022 ADU handbook states: “ADU laws apply to jurisdictions in the California Coastal Zone, but do not necessarily alter or lessen the effect or application of Coastal Act resource protection policies. (Gov. Code, § 65852.22, subd. (l).) Coastal localities should seek to harmonize the goals of protecting coastal resources and addressing housing needs of Californians. For example, where appropriate, localities should amend Local Coastal Programs for California Coastal Commission review to comply with the California Coastal Act and new ADU laws.”
On January 21, 2022, the California Coastal Commission (CCC) published a memo which discusses the authority that the Coastal Act grants the Commission and local governments over housing in the coastal zone, new legislation regarding ADUs, and how local governments can streamline ADU applications under the Coastal Act. The memo also encourages local governments to update their LCPs with J/ADU provisions in a manner that harmonizes the State’s housing laws with the Coastal Act. Doing so would protect the State’s coastal resources while also reducing barriers to constructing J/ADUs and helping to promote more affordable coastal housing. The memo also re-enforced that the state statue “explicitly recognize that local governments must still abide by the requirements of the Coastal Act, and by extension, Local Coastal Programs (LCPs).”
STAFF ANALYSIS
The Community Planning and Building Department has been tasked with updating the City’s Accessory Dwelling Unit (ADU) Ordinance. The goal of the ordinance is to align the existing ordinance (CMC 17.08.050.G), with new and updated state legislation which has been passed since the original adoption of the City’s ordinance.
While the ADU statute requires that local jurisdictions provide for streamlined and ministerial approvals of ADUs including the granting of certain waivers and exceptions for their development, the city’s LCP conflicts with the requirements and current mandates of the state law both in terms of process and required development standards. The ordinance that is currently in process aims to harmonize the goals of the Coastal Act with the goals of the ADU statute.
On September 14, 2023, Planning Department staff met with California Coastal Commission staff to discuss the relationship between the City’s Local Coastal Program (LCP) and the processing of ADUs to ensure the ordinance takes the correct approach with regard to the required LCP amendment. The Coastal Commission gave general direction to provide evidence and findings as to how any deviations from the state statute would be necessary to maintain consistency with the city’s LCP and the Coastal Act. With this understanding, the first draft of the ADU ordinance was completed, and a workshop on the draft was scheduled with the Planning Commission.
On November 15, 2023, the workshop was held with the Planning Commission to review the first draft of the ordinance to allow the Commission and the public to provide feedback on the ordinance on the draft. Feedback to staff included, for example:
- Direction to explore opportunities to allow for additional floor area above what is prescribed in the Land Use Plan while still maintaining adequate open space on parcels;
- For example, General Plan/Land Use Plan Policy PI-49 States: Limit above-grade floor area on 4,000 square foot lots to a maximum of 1,800 square feet. Projects with less above-grade square footage shall be preferred. Structural coverage shall not exceed 45% of the site. Total site coverage (structural and other impermeable coverage) on 4,000 square foot lots shall not exceed 55% of the site. Locate open space so that it visually links with adjacent properties. (LUP)
This policy is related to Section 30253 of the Coastal Act, as described by Coastal Commission Staff in a Coastal Commission Staff Report for when the city’s Local Coastal Program was under consideration for certification, however, the Planning Commission found that strict adherence to the current policy may discourage development of ADUs and directed staff to explore additional options to allow for some amount of additional floor area specific for ADUs.
The PowerPoint presentation from the Planning Commission meeting is included as Attachment 1 and the view of the November 15, 2023 workshop has been linked as well (CLICK HERE FOR VIDEO).
Following the meeting with the Planning Commission, staff has met with Department of Housing and Community Development (HCD) staff to understand their position as to how potential conflicts with the City’s LCP may impact the development of the ordinance.
On February 1, 2024, Planning Staff and HCD staff met to discuss the progress of the draft ordinance including the meetings with the Coastal Commission staff, and the Planning Commission workshop. Following the meeting, HCD staff provided feedback, clarification, and direction to planning staff regarding the City’s next steps in implementing and updating the ordinance. HCD staff specifically requested that any deviations from the State statute be compliant with the Coastal Act.
Staff has been researching and preparing a response to HCD which will provide evidence that the proposed ordinance cannot directly align with the statue because it must comply with the City’s LCP and the Coastal Act. Areas in which deviations from the statute related to the development of an ADU may be needed for compliance with the Coastal Act include:
- Floor Area, coverage, and open space;
- Setbacks;
- Parking;
- Design Review;
- Tree Removal/Protection;
- Historic and Cultural Resources.
Next Steps
With the feedback received from HCD based on the initial review, as well as the Planning Commission and the public at the workshop, staff is revising the draft ordinance to respond to comments and feedback. Staff is also working to prepare additional findings to support deviations from the State statue where necessary for compliance with the City’s LCP and the Coastal Act, while aligning with the goals of the of the ADU statute.
Once the revisions are complete, staff anticipates reconvening with the Coastal Commission and HCD to receive feedback and concurrence on the modifications. Staff will take forward a revised draft ordinance to the Planning Commission for an optional second review/workshop, or for a hearing for formal recommendation to the City Council. Following a recommendation from the Planning Commission, adoption of the ordinance would require a first and second reading by the City Council and certification by the Coastal Commission. The City must submit a copy of the adopted ordinance to HCD within 60 days after adoption of the ordinance and HCD may review and submit written findings to the City as to whether the ordinance complies with State ADU Law. A second reading of the ordinance would be likely by the end of calendar year 2024, and scheduling on the Coastal Commission’s agenda would follow shortly thereafter.