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SB-831 Land use: accessory dwelling units.(2017-2018)

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Date Published: 06/22/2018 04:00 AM
SB831:v93#DOCUMENT

Amended  IN  Assembly  June 21, 2018
Amended  IN  Senate  May 25, 2018
Amended  IN  Senate  May 14, 2018
Amended  IN  Senate  May 01, 2018
Amended  IN  Senate  April 09, 2018
Amended  IN  Senate  March 13, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 831


Introduced by Senator Wieckowski
(Coauthors: Senators Atkins, Skinner, and Wiener)

January 04, 2018


An act to amend Sections 65585 and 65852.2, and to add Section 65852.21 to, and to add and repeal Section 65852.23 of, the Government Code, relating to land use.


LEGISLATIVE COUNSEL'S DIGEST


SB 831, as amended, Wieckowski. Land use: accessory dwelling units.
The Planning and Zoning Law authorizes a local agency to provide by ordinance for the creation of accessory dwelling units in single-family and multifamily residential zones, requires that ordinance to designate areas where accessory dwelling units may be permitted, and sets forth standards the ordinance is required to impose, including, among others, maximum unit size, parking, and height standards. Existing law prohibits an accessory dwelling unit from being considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities. Existing law prohibits requirements for the installation of a new or separate utility connection between the accessory dwelling unit and the utility, except in instances where an accessory dwelling unit is subject to ministerial approval, as specified, and authorizes a fee to be charged in those instances. Existing law requires a local agency to submit an ordinance adopted for the creation of accessory dwelling units to the Department of Housing and Community Development and authorizes the department to review and comment on the ordinance. Existing law requires an application for an accessory dwelling unit permit to be considered, as specified, within 120 days of receiving it.
This bill would require the ordinance for the creation of accessory dwelling units to designate areas where accessory dwelling units may be excluded for health and safety purposes, as specified. The bill would revise the standards for the local ordinance to, among other things, delete the authority to include lot courage coverage standards, and include a prohibition on considering the square footage of a proposed accessory dwelling unit when calculating an allowable floor-to-area ratio or lot coverage ratio for the lot. The bill would require that a permit application for an accessory dwelling unit be approved or disapproved within 60 days and would specify that if a local agency does not act on an application for a accessory dwelling unit within 60 days, then the application shall be deemed approved. The bill would prohibit a local agency from requiring that offstreet parking spaces be replaced when a garage, carport, or covered parking structure is demolished or converted in conjunction with the construction of an accessory dwelling unit. The bill would prohibit another local ordinance, policy, or regulation from being the basis for the delay of the issuance of a building permit or use permit for an accessory dwelling unit. The bill would delete provisions authorizing a local agency to require owner occupancy by the permit applicant and would declare an agreement with a local agency to maintain owner occupancy as void and unenforceable.

This bill would prohibit an accessory dwelling unit from being considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating fees charged for new development, except in certain circumstances when a new or separate utility connection between the accessory dwelling unit and the utility may be required and except for certain fees charged by a school district that the bill would limit to $3,000 per accessory dwelling unit.

The bill would authorize the department, upon submission of an adopted ordinance for the creation of accessory dwelling units, to submit written findings to the local agency regarding whether the ordinance complies with statutory provisions. The bill would authorize the department to adopt guidelines to implement uniform standards or criteria to supplement or clarify the terms, references, or standards set forth in statute and would exempt the adoption of those guidelines from the Administrative Procedure Act. The bill would, until January 1, 2029, also require a local building official, upon request of the owner of the accessory dwelling unit, to approve a delay of not less than 10 years of the enforcement of any building code requirement that, in the judgment of the building official, is not necessary to protect public health and safety. By increasing the duties of local agencies with respect to land use regulations, the bill would impose a state-mandated local program.
This bill would also require the department to notify the city, county, or city and county and authorize notice to the Attorney General when the city, county, or city and county is not substantially complying with the above-described provisions regarding accessory dwelling units.
The bill would require a local agency to ministerially approve an application for a building permit to create one or more accessory dwelling units if certain criteria are met.
Existing law authorizes a local agency to provide by ordinance for the creation of junior accessory dwelling units, as defined, in single-family residential zones and requires the ordinance to include, among other things, standards for the creation of a junior accessory dwelling unit, required deed restrictions, and occupancy requirements. Existing law prohibits an ordinance from requiring, as a condition of granting a permit for a junior accessory dwelling unit, additional parking requirements.
The bill would require a local agency to ministerially approve the creation of junior accessory dwelling units in single-family residential zones, if specified criteria are met.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 65585 of the Government Code is amended to read:

65585.
 (a) In the preparation of its housing element, each city and county shall consider the guidelines adopted by the department pursuant to Section 50459 of the Health and Safety Code. Those guidelines shall be advisory to each city or county in the preparation of its housing element.
(b) (1) At least 90 days prior to adoption of its housing element, or at least 60 days prior to the adoption of an amendment to this element, the planning agency shall submit a draft element or draft amendment to the department.
(2) The planning agency staff shall collect and compile the public comments regarding the housing element received by the city, county, or city and county, and provide these comments to each member of the legislative body before it adopts the housing element.
(3) The department shall review the draft and report its written findings to the planning agency within 90 days of its receipt of the draft in the case of an adoption or within 60 days of its receipt in the case of a draft amendment.
(c) In the preparation of its findings, the department may consult with any public agency, group, or person. The department shall receive and consider any written comments from any public agency, group, or person regarding the draft or adopted element or amendment under review.
(d) In its written findings, the department shall determine whether the draft element or draft amendment substantially complies with this article.
(e) Prior to the adoption of its draft element or draft amendment, the legislative body shall consider the findings made by the department. If the department’s findings are not available within the time limits set by this section, the legislative body may act without them.
(f) If the department finds that the draft element or draft amendment does not substantially comply with this article, the legislative body shall take one of the following actions:
(1) Change the draft element or draft amendment to substantially comply with this article.
(2) Adopt the draft element or draft amendment without changes. The legislative body shall include in its resolution of adoption written findings which explain the reasons the legislative body believes that the draft element or draft amendment substantially complies with this article despite the findings of the department.
(g) Promptly following the adoption of its element or amendment, the planning agency shall submit a copy to the department.
(h) The department shall, within 90 days, review adopted housing elements or amendments and report its findings to the planning agency.
(i) (1) (A) The department shall review any action or failure to act by the city, county, or city and county that it determines is inconsistent with an adopted housing element or Section 65583, including any failure to implement any program actions included in the housing element pursuant to Section 65583. The department shall issue written findings to the city, county, or city and county as to whether the action or failure to act substantially complies with this article, and provide a reasonable time no longer than 30 days for the city, county, or city and county to respond to the findings before taking any other action authorized by this section, including the action authorized by subparagraph (B).
(B) If the department finds that the action or failure to act by the city, county, or city and county does not substantially comply with this article, and if it has issued findings pursuant to this section that an amendment to the housing element substantially complies with this article, the department may revoke its findings until it determines that the city, county, or city and county has come into compliance with this article.
(2) The department may consult with any local government, public agency, group, or person, and shall receive and consider any written comments from any public agency, group, or person, regarding the action or failure to act by the city, county, or city and county described in paragraph (1), in determining whether the housing element substantially complies with this article.
(j) The department shall notify the city, county, or city and county and may notify the Office of the Attorney General that the city, county, or city and county is in violation of state law if the department finds that the housing element or an amendment to this element, or any action or failure to act described in subdivision (i), does not substantially comply with this article or that any local government has taken an action in violation of the following:
(1) Housing Accountability Act (Section 65589.5 of the Government Code).
(2) Section 65863 of the Government Code.
(3) Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code.
(4) Section 65008 of the Government Code.
(5) Section 65852.2 of the Government Code.

SEC. 2.

 Section 65852.2 of the Government Code is amended to read:

65852.2.
 (a) (1) A local agency may, by ordinance, provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily dwelling residential use. The ordinance shall do all of the following:
(A) Designate areas within the jurisdiction of the local agency where accessory dwelling units may be excluded for health and safety, including fire safety, purposes, based on clear findings that are supported by substantial evidence. The designation of areas shall be based on criteria that may include, but are not limited to, the adequacy of water and sewer services and other health and safety, including fire safety, issues.
(B) (i) Impose standards on accessory dwelling units that include, but are not limited to, parking, height, setback, landscape, 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.
(ii) Notwithstanding clause (i), a local agency may reduce or eliminate parking requirements for any accessory dwelling unit located within its jurisdiction.
(iii) Notwithstanding clause (i), a local agency may not implement standards for minimum lot size requirements for accessory dwelling units and shall allow for the construction of an accessory dwelling unit that complies with this section on any lot zoned for residential use, unless the local agency makes specific findings that the construction of the accessory dwelling unit would adversely impact public health and safety, including fire safety.
(C) Provide that accessory dwelling units do not exceed the allowable density for the lot upon which the accessory dwelling unit is located, and that accessory dwelling units are a residential use that is consistent with the existing general plan and zoning designation for the lot. The square footage of a proposed accessory dwelling unit shall not be considered when calculating an allowable floor-to-area ratio or lot coverage ratio for the lot upon which the accessory dwelling unit is to be located.
(D) Require the accessory dwelling units to comply with all of the following:
(i) The unit may be rented separate from the primary residence, but may not be sold or otherwise conveyed separate from the primary residence.
(ii) The lot includes a proposed or existing single-family dwelling.
(iii) The accessory dwelling unit is either attached or located within the proposed or existingirements for accessory dwelling units shall not exceed one parking space per unit or per bedroom, whichever is less. These spaces may be provided as tandem parking on a driveway.
(II) Off­street parking shall be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made that parking in setback areas or tandem parking is not feasible based upon specific site or regional topographical or fire and life safety conditions.
(III) This clause shall not apply to a unit that is described in subdivision (d).
(xi) When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, a local agency shall not require that those off­street parking spaces be replaced.
(2) The ordinance shall not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(3) A permit application for an accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits, within 60 days after receiving the application. If the local agency has not acted upon the submitted application within 60 days, the application shall be deemed approved. A local agency may charge a fee to reimburse it for costs that it incurs as a result of amendments to this paragraph enacted during the 2001–02 Regular Session of the Legislature, including the costs of adopting or amending any ordinance that provides for the creation of an accessory dwelling unit.
(4) An existing ordinance governing the creation of an accessory dwelling unit by a local agency or an accessory dwelling ordinance adopted by a local agency shall provide an approval process that includes only ministerial provisions for the approval of accessory dwelling units and shall not include any discretionary processes, provisions, or requirements for those units, except as otherwise provided in this subdivision. In the event that a local agency has an existing accessory dwelling unit ordinance that fails to meet the requirements of this subdivision, that ordinance shall be null and void and that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section.
(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.
(6) This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be utilized or imposed, except that a local agency may require that the property be used for rentals of terms longer than 30 days.
(7) A local agency may amend its zoning ordinance or general plan to incorporate the policies, procedures, or other provisions applicable to the creation of an accessory dwelling unit if these provisions are consistent with the limitations of this subdivision.
(8) An accessory dwelling unit that conforms to this subdivision shall be deemed to be an accessory use or an accessory building and shall not be considered to exceed the allowable density for the lot upon which it is located, and shall be deemed to be a residential use that is consistent with the existing general plan and zoning designations for the lot. The accessory dwelling unit shall not be considered in the application of any local ordinance, policy, or program to limit residential growth. The square footage of a proposed accessory dwelling unit shall not be considered when calculating an allowable floor-to-area ratio for the lot upon which the accessory dwelling unit is to be located.
(b) When a local agency that has not adopted an ordinance governing accessory dwelling units in accordance with subdivision (a) receives an application for a permit to create an accessory dwelling unit pursuant to this subdivision, the local agency shall approve or disapprove the application ministerially without discretionary review pursuant to subdivision (a) within 60 days after receiving the application. If the local agency has not acted upon the submitted application within 60 days from the date of receipt, it shall be deemed approved.
(c) A local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units. No minimum or maximum size for an accessory dwelling unit, or size based upon a percentage of the proposed or existing primary dwelling, shall be established by ordinance for either attached or detached dwellings that does not permit at least an 800-square-foot accessory dwelling unit to be constructed in compliance with local development standards. Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence.
(d) Notwithstanding any other law, a local agency, whether or not it has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), shall not impose parking standards for an accessory dwelling unit in any of the following instances:
(1) The accessory dwelling unit is located within one-half mile of public transit.
(2) The accessory dwelling unit is located within an architecturally and historically significant historic district.
(3) The accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure.
(4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
(5) When there is a car share vehicle located within one block of the accessory dwelling unit.
(e) Notwithstanding subdivisions (a) to (d), inclusive, a local agency shall ministerially approve an application for a building permit to create one accessory dwelling unit per lot if the unit is substantially 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. Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence.
(f) A city shall not require owner occupancy for either the primary or the accessory dwelling unit. An agreement with a local agency to maintain owner occupancy as a condition for issuance of a building permit for an accessory dwelling unit shall be void and unenforceable.

(g)(1)An accessory dwelling unit shall not be considered by a local agency, special district, or water corporation to be a new residential use for the purposes of calculating fees charged for new development, except as provided in paragraphs (2) and (3).

(2)For an accessory dwelling unit that is not described in subdivision (e), a local agency, special district, or water corporation may require a new or separate utility connection directly between the accessory dwelling unit and the utility. Consistent with Section 66013, the connection may be subject to a connection fee, capacity charge, or equivalent charge for new service that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its size or the number of its plumbing fixtures, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.

(3)Fees charged by a school district pursuant to Chapter 4.9 (commencing with Section 65995) of this code and Chapter 6 (commencing with Section 17620) of Part 10.5 of Division 1 of Title 1 of the Education Code shall be limited to no more than three thousand dollars ($3,000) per accessory dwelling unit.

(g) (1) Fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012).
(2) An accessory dwelling unit shall not be considered by a local agency, special district, or water corporation to be a new residential use for the purposes of calculating connection fees or capacity charges for utilities, including water and sewer service.
(A) For an accessory dwelling unit described in subdivision (e), a local agency, special district, or water corporation shall not require the applicant to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge.
(B) For an accessory dwelling unit that is not described in subdivision (e), a local agency, special district, or water corporation may require a new or separate utility connection directly between the accessory dwelling unit and the utility. Consistent with Section 66013, the connection may be subject to a connection fee or capacity charge that shall be proportionate to the burden of the proposed accessory dwelling unit, based upon either its size or the number of its plumbing fixtures, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service.
(h) This section does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an accessory dwelling unit.
(i) A local agency shall submit a copy of the ordinance adopted pursuant to subdivision (a) to the Department of Housing and Community Development within 60 days after adoption. After adoption of an ordinance, the department may submit written findings to the local agency as to whether the ordinance complies with this section. If the department finds that the local agency’s ordinance does not comply with this section, the department shall notify the local agency and may notify the office of the Attorney General that the local agency is in violation of state law. The local agency shall consider findings made by the department and may change the ordinance to comply with this section or adopt the ordinance without changes. The local agency shall include findings in its resolution adopting the ordinance that explain the reasons the local agency believes that the ordinance complies with this section despite the findings of the department.
(j) The department may review, adopt, amend, or repeal guidelines to implement uniform standards or criteria that supplement or clarify the terms, references, and standards set forth in this section. The guidelines adopted pursuant to this subdivision are not subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2.
(k) As used in this section, the following terms mean:
(1) “Accessory structure” means an existing, fixed structure, including, but not limited to, a garage, studio, pool house, or other similar structure.
(2) “Living area” means the interior habitable area of a dwelling unit including basements and attics but does not include a garage or any accessory structure.
(3) “Local agency” means a city, county, or city and county, whether general law or chartered.
(4) “Neighborhood” has the same meaning as set forth in Section 65589.5.
(5) “Accessory dwelling unit” means an attached or a detached residential dwelling unit which provides complete independent living facilities for one or more persons. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family dwelling is situated. An accessory dwelling unit also includes the following:
(A) An efficiency unit, as defined in Section 17958.1 of the Health and Safety Code.
(B) A manufactured home, as defined in Section 18007 of the Health and Safety Code.
(6) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit.
(7) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public.
(8) “Tandem parking” means that two or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another.
(l) 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.

SEC. 3.

 Section 65852.21 is added to the Government Code, immediately following Section 65852.2, to read:

65852.21.
 (a) Notwithstanding Sections 65852.2 and 65852.22, a local agency shall ministerially approve an application for a building permit within a residential or mixed-use zone to create any of the following:
(1) One accessory dwelling unit on a lot with a single-family dwelling, if all of the following apply:
(A) The accessory dwelling unit is substantially contained within the existing space of a single-family dwelling or accessory structure, including, but not limited to, reconstruction of an existing space with the same physical dimensions as the existing accessory structure.
(B) The space has exterior access from the existing single-family dwelling.
(C) The side and rear setbacks are sufficient for fire and safety.
(2) One junior accessory dwelling unit on a lot with a single family dwelling, if all of the following apply:
(A) The junior accessory dwelling unit is contained within the existing space of a single-family dwelling or accessory structure, including, but not limited to, reconstruction of an existing space with the same physical dimensions as the existing accessory structure.
(B) The space has exterior access from the existing single-family dwelling.
(C) The side and rear setbacks are sufficient for fire and safety.
(3) Multiple accessory dwelling units within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, or garages, if each unit complies with state building standards for dwellings.
(4) Not more than two accessory dwelling units that are located on a lot that has an existing multifamily dwelling, but are detached from that multifamily dwelling and are subject to a height limit of 16 feet and three-foot rear yard and side setbacks.
(b) Accessory dwelling units and junior accessory dwelling units permitted pursuant to this section shall not be considered by a local agency, special district, or water corporation to be a new residential use for the purposes of calculating fees charged for new development.
(c) For purposes of this section, the following terms have the following meanings:
(1) “Junior accessory dwelling unit” has the same meaning as set forth in Section 65852.22.
(2) “Accessory dwelling unit” has the same meaning as set forth in Section 65852.2.
(3) “Accessory structure” has the same meaning as set forth in Section 65852.2.
(4) “Local agency” means a city, county, or city and county, whether general law or chartered.

SEC. 4.

 Section 65852.23 is added to the Government Code, immediately following Section 65852.22, to read:

65852.23.
 (a) As used in this section, the following definitions apply:
(1) “Accessory dwelling unit” is defined as in Section 65852.2.
(2) “Building code” means the California Building Standards Code or that code as modified by a local agency.
(3) “Local agency” is defined as in Section 65852.2.
(b) When a local building official finds that a substandard accessory dwelling unit poses an imminent risk to the health and safety of the residents of the accessory dwelling unit, the local building official shall, upon request of the owner of the accessory dwelling unit and subject to the conditions set forth in this section, approve a delay of not less than 10 years of the enforcement of any building code requirement that, in the judgment of the building official, is not necessary to protect public health and safety.
(c) An owner of an accessory dwelling unit shall be eligible for the delay specified in subdivision (b) only if the owner has not received a notice or order to abate.
(d) In granting a delay pursuant to subdivision (b), a building official shall consult with the applicable fire and code enforcement officials regardless of whether those officials are organized in a different department or a separate agency from the building official.
(e) A local building official shall not approve a delay pursuant to subdivision (b) on or after January 1, 2029. A delay approved before January 1, 2029, shall remain in force for the full term of the delay after January 1, 2029.
(f) This section shall remain in effect only until January 1, 2039, and as of that date is repealed.

SEC. 5.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution 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, within the meaning of Section 17556 of the Government Code.