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Home My WebLink About2023-02-22 Planning & transportation commission Agenda PacketPLANNING AND TRANSPORTATION COMMISSION Regular Meeting Wednesday, February 22, 2023 Council Chambers & Hybrid 6:00 PM Pursuant to AB 361 Palo Alto City Council meetings will be held as “hybrid” meetings with the option to attend by teleconference/video conference or in person. To maximize public safety while still maintaining transparency and public access, members of the public can choose to participate from home or attend in person. Information on how the public may observe and participate in the meeting is located at the end of the agenda. Masks are strongly encouraged if attending in person. The meeting will be broadcast on Cable TV Channel 26, live on YouTube https://www.youtube.com/c/cityofpaloalto, and streamed to Midpen Media Center https://midpenmedia.org. Commissioner names, biographies, and archived agendas and minutes are available at http://bit.ly/PaloAltoPTC. VIRTUAL PARTICIPATION CLICK HERE TO JOIN (https://cityofpaloalto.zoom.us/j/91641559499) Meeting ID: 916 4155 9499 Phone: 1(669)900‐6833 PUBLIC COMMENTS Public comments will be accepted both in person and via Zoom for up to three minutes or an amount of time determined by the Chair. All requests to speak will be taken until 5 minutes after the staff’s presentation. Written public comments can be submitted in advance to Planning.Commission@CityofPaloAlto.org and will be provided to the Commission and available for inspection on the City’s website. Please clearly indicate which agenda item you are referencing in your subject line. Spokespersons that are representing a group of five or more people who are identified as present at the meeting at the time of the spokesperson's presentation will be allowed up to fifteen (15) minutes at the discretion of the Chair, provided that the non‐speaking members agree not to speak individually. The Chair may limit Public Comments to thirty (30) minutes for all combined speakers. The Chair may reduce the allowed time to speak for Study Sessions and Action Items to two (2) minutes or less to accommodate a larger number of speakers. PowerPoints, videos, or other media to be presented during public comment are accepted only by email to Planning.Commission@CityofPaloAlto.org at least 24 hours prior to the meeting. Once received, the Clerk will have them shared at public comment for the specified item. To uphold strong cybersecurity management practices, USB’s or other physical electronic storage devices are not accepted. TIME ESTIMATES Listed times are estimates only and are subject to change at any time, including while the meeting is in progress. The Commission reserves the right to use more or less time on any item, to change the order of items and/or to continue items to another meeting. Particular items may be heard before or after the time estimated on the agenda. This may occur in order to best manage the time at a meeting or to adapt to the participation of the public. CALL TO ORDER/ ROLL CALL PUBLIC COMMENT Members of the public may speak to any item NOT on the agenda. Three (3) minutes per speaker. AGENDA CHANGES, ADDITIONS AND DELETIONS The Chair or Board majority may modify the agenda order to improve meeting management. CITY OFFICIAL REPORTS 1.Director's Report, Meeting Schedule and Assignments STUDY SESSION Public Comment is Permitted. Three (3) minutes per speaker. ACTION ITEMS Public Comment is Permitted. Applicants/Appellant Teams: Fifteen (15) minutes, plus three (3) minutes rebuttal. All others: Five (5) minutes per speaker. 2.2147 Yale: Preliminary Parcel Map with Exceptions to Subdivide Existing Parcel into Substandard Lots 6:10PM – 7:10PM 3.PUBLIC HEARING/LEGISLATIVE: Adoption of Amendments to Palo Alto Municipal Code Chapter 18.09, Accessory and Junior Accessory Dwelling Units due to Direction from the California Department of Housing and Community Development (HCD). Environmental Assessment: Exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21080.17 and CEQA Guidelines sections 15061(b)(3), 15301, 15302 and 15305. 7:10PM – 8:10PM APPROVAL OF MINUTES Public Comment is Permitted. Three (3) minutes per speaker. COMMITTEE ITEMS COMMISSIONER QUESTIONS, COMMENTS, ANNOUNCEMENTS OR FUTURE MEETINGS AND AGENDAS Members of the public may not speak to the item(s). ADJOURNMENT PUBLIC COMMENT INSTRUCTIONS Members of the Public may provide public comments to teleconference meetings via email, teleconference, or by phone. 1. Written public comments m a y b e s u b m i t t e d b y e m a i l t o planning.commission@cityofpaloalto.org. 2. Spoken public comments using a computer will be accepted through the teleconference meeting. To address the Commission, click on the link below to access a Zoom‐based meeting. Please read the following instructions carefully. You may download the Zoom client or connect to the meeting in‐ browser. If using your browser, make sure you are using a current, up‐to‐date browser: Chrome 30 , Firefox 27 , Microsoft Edge 12 , Safari 7. Certain functionality may be disabled in older browsers including Internet Explorer. You may be asked to enter an email address and name. We request that you identify yourself by name as this will be visible online and will be used to notify you that it is your turn to speak. When you wish to speak on an Agenda Item, click on “raise hand.” The Clerk will activate and unmute speakers in turn. Speakers will be notified shortly before they are called to speak. When called, please limit your remarks to the time limit allotted. A timer will be shown on the computer to help keep track of your comments. 3. Spoken public comments using a smart phone will be accepted through the teleconference meeting. To address the Commission, download the Zoom application onto your phone from the Apple App Store or Google Play Store and enter the Meeting ID below. Please follow the instructions above. 4. Spoken public comments using a phone use the telephone number listed below. When you wish to speak on an agenda item hit *9 on your phone so we know that you wish to speak. You will be asked to provide your first and last name before addressing the Commission. You will be advised how long you have to speak. When called please limit your remarks to the agenda item and time limit allotted. CLICK HERE TO JOIN Meeting ID: 916 4155 9499 Phone:1‐669‐900‐6833 Americans with Disability Act (ADA) It is the policy of the City of Palo Alto to offer its public programs, services and meetings in a manner that is readily accessible to all. Persons with disabilities who require materials in an appropriate alternative format or who require auxiliary aids to access City meetings, programs, or services may contact the City’s ADA Coordinator at (650) 329‐2550 (voice) or by emailing ada@cityofpaloalto.org. Requests for assistance or accommodations must be submitted at least 24 hours in advance of the meeting, program, or service. PLANNING AND TRANSPORTATION COMMISSIONRegular MeetingWednesday, February 22, 2023Council Chambers & Hybrid6:00 PMPursuant to AB 361 Palo Alto City Council meetings will be held as “hybrid” meetings with theoption to attend by teleconference/video conference or in person. To maximize public safetywhile still maintaining transparency and public access, members of the public can choose toparticipate from home or attend in person. Information on how the public may observe andparticipate in the meeting is located at the end of the agenda. Masks are strongly encouraged ifattending in person. The meeting will be broadcast on Cable TV Channel 26, live onYouTube https://www.youtube.com/c/cityofpaloalto, and streamed to Midpen MediaCenter https://midpenmedia.org. Commissioner names, biographies, and archived agendas andminutes are available at http://bit.ly/PaloAltoPTC. VIRTUAL PARTICIPATION CLICK HERE TO JOIN (https://cityofpaloalto.zoom.us/j/91641559499)Meeting ID: 916 4155 9499 Phone: 1(669)900‐6833PUBLIC COMMENTSPublic comments will be accepted both in person and via Zoom for up to three minutes or anamount of time determined by the Chair. All requests to speak will be taken until 5 minutesafter the staff’s presentation. Written public comments can be submitted in advance toPlanning.Commission@CityofPaloAlto.org and will be provided to the Commission and availablefor inspection on the City’s website. Please clearly indicate which agenda item you arereferencing in your subject line.Spokespersons that are representing a group of five or more people who are identified aspresent at the meeting at the time of the spokesperson's presentation will be allowed up tofifteen (15) minutes at the discretion of the Chair, provided that the non‐speaking membersagree not to speak individually. The Chair may limit Public Comments to thirty (30) minutes forall combined speakers. The Chair may reduce the allowed time to speak for Study Sessions andAction Items to two (2) minutes or less to accommodate a larger number of speakers.PowerPoints, videos, or other media to be presented during public comment are accepted onlyby email to Planning.Commission@CityofPaloAlto.org at least 24 hours prior to the meeting.Once received, the Clerk will have them shared at public comment for the specified item. Touphold strong cybersecurity management practices, USB’s or other physical electronic storagedevices are not accepted.TIME ESTIMATES Listed times are estimates only and are subject to change at any time, including while the meeting is in progress. The Commission reserves the right to use more or less time on any item, to change the order of items and/or to continue items to another meeting. Particular items may be heard before or after the time estimated on the agenda. This may occur in order to best manage the time at a meeting or to adapt to the participation of the public. CALL TO ORDER/ ROLL CALL PUBLIC COMMENT Members of the public may speak to any item NOT on the agenda. Three (3) minutes per speaker. AGENDA CHANGES, ADDITIONS AND DELETIONS The Chair or Board majority may modify the agenda order to improve meeting management. CITY OFFICIAL REPORTS 1.Director's Report, Meeting Schedule and Assignments STUDY SESSION Public Comment is Permitted. Three (3) minutes per speaker. ACTION ITEMS Public Comment is Permitted. Applicants/Appellant Teams: Fifteen (15) minutes, plus three (3) minutes rebuttal. All others: Five (5) minutes per speaker. 2.2147 Yale: Preliminary Parcel Map with Exceptions to Subdivide Existing Parcel into Substandard Lots 6:10PM – 7:10PM 3.PUBLIC HEARING/LEGISLATIVE: Adoption of Amendments to Palo Alto Municipal Code Chapter 18.09, Accessory and Junior Accessory Dwelling Units due to Direction from the California Department of Housing and Community Development (HCD). Environmental Assessment: Exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21080.17 and CEQA Guidelines sections 15061(b)(3), 15301, 15302 and 15305. 7:10PM – 8:10PM APPROVAL OF MINUTES Public Comment is Permitted. Three (3) minutes per speaker. COMMITTEE ITEMS COMMISSIONER QUESTIONS, COMMENTS, ANNOUNCEMENTS OR FUTURE MEETINGS AND AGENDAS Members of the public may not speak to the item(s). ADJOURNMENT PUBLIC COMMENT INSTRUCTIONS Members of the Public may provide public comments to teleconference meetings via email, teleconference, or by phone. 1. Written public comments m a y b e s u b m i t t e d b y e m a i l t o planning.commission@cityofpaloalto.org. 2. Spoken public comments using a computer will be accepted through the teleconference meeting. To address the Commission, click on the link below to access a Zoom‐based meeting. Please read the following instructions carefully. You may download the Zoom client or connect to the meeting in‐ browser. If using your browser, make sure you are using a current, up‐to‐date browser: Chrome 30 , Firefox 27 , Microsoft Edge 12 , Safari 7. Certain functionality may be disabled in older browsers including Internet Explorer. You may be asked to enter an email address and name. We request that you identify yourself by name as this will be visible online and will be used to notify you that it is your turn to speak. When you wish to speak on an Agenda Item, click on “raise hand.” The Clerk will activate and unmute speakers in turn. Speakers will be notified shortly before they are called to speak. When called, please limit your remarks to the time limit allotted. A timer will be shown on the computer to help keep track of your comments. 3. Spoken public comments using a smart phone will be accepted through the teleconference meeting. To address the Commission, download the Zoom application onto your phone from the Apple App Store or Google Play Store and enter the Meeting ID below. Please follow the instructions above. 4. Spoken public comments using a phone use the telephone number listed below. When you wish to speak on an agenda item hit *9 on your phone so we know that you wish to speak. You will be asked to provide your first and last name before addressing the Commission. You will be advised how long you have to speak. When called please limit your remarks to the agenda item and time limit allotted. CLICK HERE TO JOIN Meeting ID: 916 4155 9499 Phone:1‐669‐900‐6833 Americans with Disability Act (ADA) It is the policy of the City of Palo Alto to offer its public programs, services and meetings in a manner that is readily accessible to all. Persons with disabilities who require materials in an appropriate alternative format or who require auxiliary aids to access City meetings, programs, or services may contact the City’s ADA Coordinator at (650) 329‐2550 (voice) or by emailing ada@cityofpaloalto.org. Requests for assistance or accommodations must be submitted at least 24 hours in advance of the meeting, program, or service. PLANNING AND TRANSPORTATION COMMISSIONRegular MeetingWednesday, February 22, 2023Council Chambers & Hybrid6:00 PMPursuant to AB 361 Palo Alto City Council meetings will be held as “hybrid” meetings with theoption to attend by teleconference/video conference or in person. To maximize public safetywhile still maintaining transparency and public access, members of the public can choose toparticipate from home or attend in person. Information on how the public may observe andparticipate in the meeting is located at the end of the agenda. Masks are strongly encouraged ifattending in person. The meeting will be broadcast on Cable TV Channel 26, live onYouTube https://www.youtube.com/c/cityofpaloalto, and streamed to Midpen MediaCenter https://midpenmedia.org. Commissioner names, biographies, and archived agendas andminutes are available at http://bit.ly/PaloAltoPTC. VIRTUAL PARTICIPATION CLICK HERE TO JOIN (https://cityofpaloalto.zoom.us/j/91641559499)Meeting ID: 916 4155 9499 Phone: 1(669)900‐6833PUBLIC COMMENTSPublic comments will be accepted both in person and via Zoom for up to three minutes or anamount of time determined by the Chair. All requests to speak will be taken until 5 minutesafter the staff’s presentation. Written public comments can be submitted in advance toPlanning.Commission@CityofPaloAlto.org and will be provided to the Commission and availablefor inspection on the City’s website. Please clearly indicate which agenda item you arereferencing in your subject line.Spokespersons that are representing a group of five or more people who are identified aspresent at the meeting at the time of the spokesperson's presentation will be allowed up tofifteen (15) minutes at the discretion of the Chair, provided that the non‐speaking membersagree not to speak individually. The Chair may limit Public Comments to thirty (30) minutes forall combined speakers. The Chair may reduce the allowed time to speak for Study Sessions andAction Items to two (2) minutes or less to accommodate a larger number of speakers.PowerPoints, videos, or other media to be presented during public comment are accepted onlyby email to Planning.Commission@CityofPaloAlto.org at least 24 hours prior to the meeting.Once received, the Clerk will have them shared at public comment for the specified item. Touphold strong cybersecurity management practices, USB’s or other physical electronic storagedevices are not accepted.TIME ESTIMATESListed times are estimates only and are subject to change at any time, including while themeeting is in progress. The Commission reserves the right to use more or less time on any item,to change the order of items and/or to continue items to another meeting. Particular items maybe heard before or after the time estimated on the agenda. This may occur in order to bestmanage the time at a meeting or to adapt to the participation of the public.CALL TO ORDER/ ROLL CALLPUBLIC COMMENT Members of the public may speak to any item NOT on the agenda. Three (3) minutes per speaker.AGENDA CHANGES, ADDITIONS AND DELETIONSThe Chair or Board majority may modify the agenda order to improve meeting management.CITY OFFICIAL REPORTS1.Director's Report, Meeting Schedule and AssignmentsSTUDY SESSIONPublic Comment is Permitted. Three (3) minutes per speaker.ACTION ITEMSPublic Comment is Permitted. Applicants/Appellant Teams: Fifteen (15) minutes, plus three (3) minutes rebuttal. All others:Five (5) minutes per speaker.2.2147 Yale: Preliminary Parcel Map with Exceptions to Subdivide Existing Parcel intoSubstandard Lots 6:10PM – 7:10PM3.PUBLIC HEARING/LEGISLATIVE: Adoption of Amendments to Palo Alto Municipal CodeChapter 18.09, Accessory and Junior Accessory Dwelling Units due to Direction from theCalifornia Department of Housing and Community Development (HCD). EnvironmentalAssessment: Exempt from the provisions of the California Environmental Quality Act(CEQA) pursuant to Public Resources Code Section 21080.17 and CEQA Guidelinessections 15061(b)(3), 15301, 15302 and 15305. 7:10PM – 8:10PMAPPROVAL OF MINUTESPublic Comment is Permitted. Three (3) minutes per speaker.COMMITTEE ITEMSCOMMISSIONER QUESTIONS, COMMENTS, ANNOUNCEMENTS OR FUTURE MEETINGS ANDAGENDAS Members of the public may not speak to the item(s). ADJOURNMENT PUBLIC COMMENT INSTRUCTIONS Members of the Public may provide public comments to teleconference meetings via email, teleconference, or by phone. 1. Written public comments m a y b e s u b m i t t e d b y e m a i l t o planning.commission@cityofpaloalto.org. 2. Spoken public comments using a computer will be accepted through the teleconference meeting. To address the Commission, click on the link below to access a Zoom‐based meeting. Please read the following instructions carefully. You may download the Zoom client or connect to the meeting in‐ browser. If using your browser, make sure you are using a current, up‐to‐date browser: Chrome 30 , Firefox 27 , Microsoft Edge 12 , Safari 7. Certain functionality may be disabled in older browsers including Internet Explorer. You may be asked to enter an email address and name. We request that you identify yourself by name as this will be visible online and will be used to notify you that it is your turn to speak. When you wish to speak on an Agenda Item, click on “raise hand.” The Clerk will activate and unmute speakers in turn. Speakers will be notified shortly before they are called to speak. When called, please limit your remarks to the time limit allotted. A timer will be shown on the computer to help keep track of your comments. 3. Spoken public comments using a smart phone will be accepted through the teleconference meeting. To address the Commission, download the Zoom application onto your phone from the Apple App Store or Google Play Store and enter the Meeting ID below. Please follow the instructions above. 4. Spoken public comments using a phone use the telephone number listed below. When you wish to speak on an agenda item hit *9 on your phone so we know that you wish to speak. You will be asked to provide your first and last name before addressing the Commission. You will be advised how long you have to speak. When called please limit your remarks to the agenda item and time limit allotted. CLICK HERE TO JOIN Meeting ID: 916 4155 9499 Phone:1‐669‐900‐6833 Americans with Disability Act (ADA) It is the policy of the City of Palo Alto to offer its public programs, services and meetings in a manner that is readily accessible to all. Persons with disabilities who require materials in an appropriate alternative format or who require auxiliary aids to access City meetings, programs, or services may contact the City’s ADA Coordinator at (650) 329‐2550 (voice) or by emailing ada@cityofpaloalto.org. Requests for assistance or accommodations must be submitted at least 24 hours in advance of the meeting, program, or service. Item No. 1. Page 1 of 1 Planning & Transportation Commission Staff Report From: Jonathan Lait, Planning and Development Services Director Lead Department: Planning and Development Services Meeting Date: February 22, 2023 TITLE Director's Report, Meeting Schedule and Assignments RECOMMENDATION Staff recommends that the Planning and Transportation Commission (PTC) review and comment as appropriate. BACKGROUND This document includes the following items: •PTC Meeting Schedule •PTC Representative to City Council (Rotational Assignments) Commissioners are encouraged to contact Veronica Dao (Veronica.Dao@CityofPaloAlto.org) of any planned absences one month in advance, if possible, to ensure the availability of a PTC quorum. PTC Representative to City Council is a rotational assignment where the designated commissioner represents the PTC’s affirmative and dissenting perspectives to Council for quasijudicial and legislative matters. Representatives are encouraged to review the City Council agendas (https://www.cityofpaloalto.org/City-Hall/City-Council/Council-Agendas-Minutes) for the months of their respective assignments to verify if attendance is needed or contact staff. Prior PTC meetings are available online at http://midpenmedia.org/category/government/city- of-palo-alto/boardsandcommissions/planning-and-transportation-commission. ATTACHMENTS Attachment A: 2023 Meeting Schedule and Assignments AUTHOR/TITLE: Amy French, Chief Planning Official Report #: 2302-0917 1 Packet Pg. 4 Planning & Transportation Commission 2023 Meeting Schedule & Assignments 2023 Schedule Meeting Dates Time Location Status Planned Absences 1/11/2023 6:00 PM Hybrid Cancelled 1/25/2023 6:00 PM Hybrid Cancelled 2/08/2023 6:00 PM Hybrid Regular 2/22/2023 6:00 PM Hybrid Regular 3/08/2023 6:00 PM Hybrid Regular 3/29/2023 6:00 PM Hybrid Regular 4/12/2023 6:00 PM Hybrid Regular Bryna Chang 4/26/2023 6:00 PM Hybrid Regular Bart Hechtman 5/10/2023 6:00 PM Hybrid Regular 5/31/2023 6:00 PM Hybrid Regular 6/14/2023 6:00 PM Hybrid Regular Bart Hechtman 6/28/2023 6:00 PM Hybrid Regular 7/12/2023 6:00 PM Hybrid Regular Bart Hechtman 7/26/2023 6:00 PM Hybrid Regular 8/09/2023 6:00 PM Hybrid Regular 8/30/2023 6:00 PM Hybrid Regular 9/13/2023 6:00 PM Hybrid Regular 9/27/2023 6:00 PM Hybrid Regular 10/11/2023 6:00 PM Hybrid Regular 10/25/2023 6:00 PM Hybrid Regular 11/08/2023 6:00 PM Hybrid Regular 11/29/2023 6:00 PM Hybrid Regular 12/13/2023 6:00 PM Hybrid Regular 12/27/2023 6:00 PM Hybrid Cancelled 2023 Assignments - Council Representation (primary/backup) January February March April May June Cari Templeton Giselle Roohparvar Giselle Roohparvar Keith Reckdahl Bart Hechtman Doria Summa Doria Summa Bryna Chang Bryna Chang Keith Reckdahl Keith Reckdahl Bart Hechtman July August September October November December 1 Packet Pg. 5 Item No. 2. Page 1 of 7 1 7 0 9 Planning & Transportation Commission Staff Report From: Jonathan Lait, Planning and Development Services Director Lead Department: Planning and Development Services Meeting Date: February 22, 2023 TITLE 2147 Yale: Preliminary Parcel Map with Exceptions to Subdivide Existing Parcel into Substandard Lots RECOMMENDATION It is recommended the Planning and Transportation Commission (PTC) take the following action(s): 1. Recommend denial of the proposed project to the City Council based on findings. REPORT SUMMARY This project proposes to subdivide an existing 5,770 sf lot with two detached single-family houses into two 2,885 sf lots with one existing house on each lot. The two lots would be substandard in width, length, and area. While the underlying lot line is shown on an antiquated map, the subject site is not currently recognized as two legally separate parcels. The tenancy-in-common ownership structures also does not affect the Findings or the determination that the proposed subdivision would bring the existing structures out of compliance with the Zoning Code. This project is unable to make the required Subdivision and Exception Findings and therefore denial of the project is recommended. While this subdivision could be allowed under SB 9 if the parcel were zoned R-1, SB 9 procedures do not apply to the site’s RMD zone district. BACKGROUND Project Information Owner: Kathryn Gelman, and Firth Griffith and Yuqing Li Engineer: Yi-Ran Wu, WEC Associates Representative: N/A Legal Counsel: N/A 2 Packet Pg. 6 Item No. 2. Page 2 of 7 1 7 0 9 Property Information Address:2147 and 2149 Yale Neighborhood:College Terrace Lot Dimensions & Area:50 ft x 115 ft, 5,770 sf Housing Inventory Site:No Located w/in a Plume:No Protected/Heritage Trees:N/A Historic Resource(s):No Existing Improvement(s):Two single family, detached, two-story residences, each 1,537 sf, 3,075 sf total. Built 2010 Existing Land Use(s):Two-family residential under one ownership (tenancy in common) Adjacent Land Uses & Zoning: North: Office building (CN) West: Single Family (RMD (NP)) East: Office building (CN) South: Multi-family (RMD (NP)) (Grandfathered use per PAMC 18.10.150) Special Setbacks:None Aerial View of Property: Source: Google Satellite Maps 2 Packet Pg. 7 Item No. 2. Page 3 of 7 1 7 0 9 Land Use Designation & Applicable Plans/Guidelines Comp. Plan Designation:Multiple-Family Residential Zoning Designation:Two Unit Multiple-Family Residential – Neighborhood Preservation Overlay (RMD(NP)) Yes Yes Yes Baylands Master Plan/Guidelines (2008/2005) El Camino Real Guidelines (1976) Housing Development Project Downtown Urban Design Guidelines (1993) South El Camino Real Guidelines (2002) Utilizes Chapter 18.24 - Objective Standards Individual Review Guidelines (2005) Within 150 feet of Residential Use or District Context-Based Design Criteria applicable SOFA Phase 1 (2000)SOFA Phase 2 (2003) Within Airport Influence Area Prior City Reviews & Action City Council:None PTC:None HRB:None ARB:None PROJECT DESCRIPTION This project proposes to subdivide an existing 5,770 sf lot with two detached single-family houses into two 2,885 sf lots with one existing house on each lot. Each lot would be substandard in width, length, and area. The applicant’s justification for requesting the subdivision is based on an underlying lot line. While the underlying lot line did exist, the lots are not two legally separate parcels. The College Terrace tract map, which shows the underlying lot line, was created in 1891, before the adoption of the first Subdivision Map Act. The underlying lots are only recognized if they were separately conveyed. These lots were never separately conveyed and therefore this proposal is to create two very substandard lots and Staff cannot support this application. Requested Entitlements, Findings and Purview: The following discretionary applications are being requested and subject to PTC purview: •Preliminary Parcel Map: The process for evaluating this type of application is set forth in Title 21 of the Palo Alto Municipal Code (PAMC) and Government Code Section 66474. PAMC Section 21.12.090 requires the Director to review whether the proposed subdivision complies and is consistent with certain documents. These include the 2 Packet Pg. 8 Item No. 2. Page 4 of 7 1 7 0 9 Subdivision Map Act (in particular Government Code 66474), PAMC Title 21, the Palo Alto Comprehensive Plan, and other applicable provisions of the Palo Alto Municipal Code and State Law. A series of “reverse findings” are required to approve the project and draft findings are provided in Attachment C. •Preliminary Parcel Map with Conditional Exceptions: A subdivider may apply for exceptions to the requirements and regulations for lot width, lot depth, lot area, and street frontage or access, set forth in Titles 21 and 18. Exceptions may only be granted by the City Council following recommendation by the Planning and Transportation Commission. The findings for parcel map exceptions are set forth in PAMC Section 21.32.020 and draft findings are provided in Attachment C. ANALYSIS Neighborhood Setting and Character 2147-2149 Yale Street is located at the corner of College Avenue and Yale Street in the RMD (NP) zoning district. It contains two, two-story detached residences. They are adjacent to single-family houses along Yale Street, and adjacent to offices along College Avenue. The offices are in the CN zoning district. The lot sizes on the block vary from approximately 3,125 sf to approximately 9,630 sf, with the typical lot being between 3,125 sf and 6,000 sf. Consistency with the Comprehensive Plan, Area Plans and Guidelines1 The Comprehensive Plan includes Goals, Policies, and Programs that guide the physical form of the City. The Comprehensive Plan provides the basis for the City’s development regulations and is used by City staff to regulate building and development and make recommendations on projects. Further, Subdivision Findings #1 and #2 require that the design be consistent and compatible with applicable elements of the Palo Alto Comprehensive Plan. The Comprehensive Plan land use designation for the project site is Multiple-Family Residential, which prescribes a density range of eight to 40 dwelling units per acre. The two existing units on the site is equivalent to a density of 15 dwelling units per acre, which complies with the intended multiple-family residential density. Staff was not able to identify any Comprehensive Plan policies or programs directly relevant to the subject application. The existing structures and uses are consistent with the Comprehensive Plan and are not proposed to change. Therefore, staff recommends finding that on balance, the project is consistent with the policies in the Comprehensive Plan. Proposed findings related to the project’s consistency with the Comprehensive Plan are provided in Attachment C. 1 The Palo Alto Comprehensive Plan is available online: bit.ly/PACompPlan2030 2 Packet Pg. 9 Item No. 2. Page 5 of 7 1 7 0 9 Zoning Compliance2 A detailed review of the proposed project’s consistency with applicable zoning standards has been performed, provided in Attachment B. The site as it exists today is compliant with the zoning code. The proposed subdivision would make the site less consistent with the zoning code, and denial of the project is recommended for that reason. The two lots would not meet the minimum lot size requirement, and new substandard lots cannot be created. The existing structures would also no longer meet minimum setbacks for interior side and rear yard requirements, and one of the proposed lots would not meet front setback requirements. Both lots would exceed allowable floor area by approximately 3%, though they would be in conformance for lot coverage. Multi-Modal Access & Parking The parking requirement for two-family use in the RMD zone is three parking spaces, two of which must be covered. The parking is allocated as one covered garage space in each residence, plus an uncovered shared space between the two houses. This is a typical arrangement for this use. As a part of the proposed subdivision, the property line would go through the shared parking space. An easement would be required to maintain shared used of this space for the two units. For single-family use, two spaces are required per unit, located outside of the front setback and at least 10 foot setback from a street-side property line. If the subdivision were to be approved, the proposed lots would be out of compliance for parking. Consistency with Application Findings The project does not meet all required finding, in particular Subdivision Finding #3, and Exception Findings #1, #2, and #4. Further analysis is provided in Attachment C. Subdivision Finding #3 asks if “the site is not physically suitable for the type of development”. While the existing residences are not proposed to change, the proposed property line would make the existing structures no longer in conformance with Zoning Code requirements. This makes the development not physically suitable for the proposed sites, as the residences could not be built new under this configuration. Exception Findings #1, #2, and #4 ask if there are any special circumstances affecting the site, if granting the exception is necessary to preserve a property right, and if granting the exception will violate the requirements or spirit of the law. As noted above, the creation of new substandard lots is inconsistent with the PAMC. In addition, staff do not believe special circumstances exist or that the exception is necessary to preserve an existing property right. The applicant’s Project 2 The Palo Alto Zoning Code is available online: bit.ly/PAZoningCode 2 Packet Pg. 10 Item No. 2. Page 6 of 7 1 7 0 9 Description Letter (Attachment D) argues that the Tenancy-in-Common is a special circumstance, and is affecting the owner’s ability (right) to sell the property. The letter states this is the only property with a Tenancy-in-Common, which is not the case. Furthermore, the Tenancy-in- Common is a private arrangement, which does not and did not involve the City. Asking for a subdivision as a way for the City to undo this arrangement is not appropriate. The applicant’s letter also seems to suggest that only small ADUs were intended as second units in the RMD(NP) zoning district. This is untrue. PAMC 18.04.030(141) defines two-family use as “the use of a site for two dwelling units, which may be within the same building or separate buildings.” There is no limitation on size, or the size ratio between the two units, as long as the total floor area of the two units does not exceed the development standards for the property as a whole. The existence of two equally sized dwellings on in the RMD zone is not an unusual circumstance. ENVIRONMENTAL REVIEW The subject project has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the environmental regulations of the City. Specifically, the project is statutorily exempt from CEQA per Guideline 15270 (Projects Which Are Disapproved). PUBLIC NOTIFICATION, OUTREACH & COMMENTS The Palo Alto Municipal Code requires notice of this public hearing be published in a local paper and mailed to owners and occupants of property within 600 feet of the subject property at least ten days in advance. Notice of a public hearing for this project was published in the Daily Post on January 27, 2023, which is 12 days in advance of the meeting. Postcard mailing occurred on January 25, 2023, which is 14 days in advance of the meeting. Public Comments As of the writing of this report, one email of public comment was received. It is included as Attachment F. ALTERNATIVE ACTIONS In addition to the recommended action, the Planning and Transportation Commission may: 1. Continue the project to a date (un)certain; or 2. Continue the project to a date (un)certain, and direct staff to prepared modified findings or conditions to recommend approval. 2 Packet Pg. 11 Item No. 2. Page 7 of 7 1 7 0 9 ATTACHMENTS Attachment A: Location Map Attachment B: Zoning Comparison Table Attachment C: Denial Findings Attachment D: Applicant’s Project Description Letter Attachment E: Project Plans Attachment F: Neighbor Comments AUTHOR/TITLE: Emily Foley, Planner Report #: 2212-0508 2 Packet Pg. 12 137-01-125 137-01-104 137-01-102 137-01-103 137-01-034 137-01-035137-01-146 137-01-147 137 01 152 137-01-007 137-01-049 137-01-031 137-01-042 137-01-039 137-01-043 137-01-044 137-01-048 137-01-047 137-01-046 137-01-045 137-01-134 137-01-133 137-36-001 137-36-002 137-36-003 137-36-004 137-36-005 137-36-006 137-36-007 137-01-065 137-36-008 137-01-036 137-01-101 137-01-037 137-01-038 COLLEGE AVENUESTREET STAUNTON COURTOXFORD AVENUE 560 560 552 552 550 550 2172 2172 57 599 2270 2 2251 174 2110 2130 2130 560 570 2135 2139 580 580 2170 2170 2145 2145 2111 2111 589 589 587 587 575 575 2130 2130 2166 2152 2152- 2166 615 615 642 640 638 636 634 634- 642664 664 668 6682175 2175 2179 2179 2145 2145- 2153 2153 22111 657 657- 665 2264 659 666 2177 2147 2149 2151 2253 2255 2147 2147 564 564- 572 643 643 645 645 2260 2260 2262 2100 82 580 2095 95 2123 2178 2178 2172 2172 2166 2166 2160 2160 2150 2150 2140 2140 2139 2139 2133 2133 572 570 2164 2162 2160 2158 2156 2154 2137 2149 2149 545 545 555 555 PC-5069 This map is a product of the City of Palo Alto GIS This document is a graphic representation only of best available sources. Legend Assessment Parcel Palo Alto Assessment Parcel Palo Alto Assessment Parcel Outside Palo Alto abc Road Centerline Small Text (TC) Curb Face (RF) Pavement Edge (RF) abc Address Label (AP) Current Features abc Zone District Labels Zone Districts 0' 46' Attachment A: Location Map 2147 Yale CITY OF PALO ALTOINCORPORATED CAL I F ORN I A P a l o A l t o T h e C i t y o f AP R I L 1 6 1 8 9 4 The City of Palo Alto assumes no responsibility for any errors. ©1989 to 2016 City of Palo Alto efoley2, 2023-01-05 13:11:04 (\\cc-maps\Encompass\Admin\Personal\Planning.mdb) 2 Packet Pg. 13 ATTACHMENT B ZONING COMPARISON TABLE 2147-2149 Yale Street, 22PLN-00374 Table 1: COMPARISON WITH CHAPTER 18.12 (RMD DISTRICT) Regulation Required Existing Proposed Parcel 1 (2147 Yale) Proposed Parcel 2 (2149 Yale) Minimum/Maximum Site Area 5,000-9,999 sf 5,770 sf Non-conforming: 2,885 sf Non-conforming: 2,885 sf Minimum/Maximum Site Width (1) 6 6 50 feet 50.15 feet wide along College Ave. 50.15 feet wide along College Ave. 57.53 feet wide along Yale St. Minimum/Maximum Site Depth FD 100 feet 115.03 feet wide along Yale St. Non-conforming: 57.50 feet long along Yale St. Non-conforming: 50.15 feet deep Residential Density Two-Family use, under one ownership* Two units One unit One unit Front Setback 20 feet 20 feet Non-conforming: 16 feet 20 feet Interior Side Setback 6 feet 6 feet Non-conforming: 3.6 feet right side 20 feet left side 6 feet Street Side Setback 16 feet 16 feet N/A 16 feet Rear Setback 20 feet 20 feet Non-conforming: 6 feet Non-conforming: 3.2 feet Maximum Lot Coverage 40% 2,308 sf 33% 1,891 sf 32.77% 945.45 sf 32.77% 945.45 sf Maximum Floor Area 50% plus 200 sf for purposes of providing one required covered parking space (two- family use only, not applicable to single family) 3,085 sf 3,075 sf Non-conforming: 53.29% 1,537.5 sf Non-conforming: 53.29% 1,537.5 sf * Note SB 9 does not apply in the RMD zoning district 2 Packet Pg. 14 Table 2: CONFORMANCE WITH SECTION 18.10.060 and CHAPTER 18.52 (Off-Street Parking) for Two-Family RMD Use Type Required Existing Proposed 2147 Yale Proposed 2149 Yale Vehicle Parking Two Family 3 spaces total, of which at least two must be covered 3 spaces total: 2 covered spaces (1 assigned to each unit), plus 1 uncovered shared space N/A N/A Vehicle Parking Single Family Two spaces per unit, one of which must be covered N/A Non-conforming: 1 covered space only Non-conforming: 1 covered space only 2 Packet Pg. 15 1 ATTACHMENT C FINDINGS FOR APPROVAL 2147 Yale Street 22PLN-00374 Preliminary Parcel Map Findings A legislative body of a city shall deny approval of a Preliminary Parcel Map with Exceptions, if it makes any of the following findings (CGC Section 66474): 1. That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451: The site does not lie within a specific plan area and is consistent with the provisions of the Comprehensive Plan as noted below. 2.That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans: Staff is not able to identify any Comprehensive Plan policies or Programs directly relevant to the subject application. The existing structures and uses are consistent with the Comprehensive Plan and are not proposed to change. Therefore, staff recommends finding that on balance, the project is consistent with the policies in the Comprehensive Plan. 3.That the site is not physically suitable for the type of development: No change to the existing development is proposed, however by re-orienting the property lines, the required setbacks for the proposed 2147 Yale property are significantly less than what is typically required. Additionally both proposed lots would exceed allowable FAR by approximately 3%. The two created lots would not meet the minimum lot size requirement of 5,000 sf. 4.That the site is not physically suitable for the proposed density of development: The subdivision application for the site will not change the existing residential density of two units. 5.That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat: 2 Packet Pg. 16 2 The minor subdivision will not cause environmental damage or injure fish, wildlife, or their habitat. The project site has been fully urbanized and developed and is centrally located within the College Terrace neighborhood. There is no recognized sensitive wildlife or habitat in the project vicinity. 6.That the design of the subdivision or type of improvements is likely to cause serious public health problems: The creation of two individual parcels will not cause serious public health problems, as it does not substantially affect the existing conditions and overall function of the property as a site for single-family residences. 7.That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the governing body may approve a map if it finds that alternate easements, for access or for use, will be provided, and that these will be substantially equivalent to ones previously acquired by the public. This subsection shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to determine that the public at large has acquired easements for access through or use of property within the proposed subdivision. It may be possible to retain the existing uncovered parking space by requiring an access easement between the two properties, however this is not currently part of the proposal. SECTION 5. Exception Findings. A legislative body of a city shall deny approval of a Preliminary Parcel Map with Exceptions, if it fails to make any of the following findings (PAMC 21.32.020): 1.There are special circumstances or conditions affecting the property. The existing property is a typical size for the RMD (NP) zoning district, and contains the allowed use of two-family use under one ownership. While the tenancy-in-common is not the most typical ownership arrangement, it is a private matter outside of the scope of the Zoning Code and does not constitute a special circumstance. 2 Packet Pg. 17 3 2.The exception is necessary for the preservation and enjoyment of a substantial property right of the petitioner. No property rights are affected by the current arrangement, as either or both sellers may sell their share of the property. Therefore, no property rights are preserved or recovered by subdividing. 3.The granting of the exception will not be detrimental to the public welfare or injurious to other property in the territory in which the property is situated. The use of the property would not be changing, and therefore will not be detrimental to the public welfare or injurious to other properties in the area. 4.The granting of the exception will not violate the requirements, goals, policies, or spirit of the law. Granting this exception would create violations of the Zoning Code for required setbacks and FAR, and render the existing units non-conforming. Furthermore, the permitted use of two-family use under one ownership was developed to allow and encourage this type of development. Allowing this exception would violate the spirit of the law by setting a precedent for other RMD-zoned properties with this land use and/or tenancy-in-common arrangement, as well as potentially discouraging similar projects from being built in the future. This acts against Palo Alto’s goals to build more housing and increase density in the existing lower-density multi-family residential neighborhoods. 2 Packet Pg. 18 2 Packet Pg. 19 2 Packet Pg. 20 2 Packet Pg. 21 2 Packet Pg. 22 2 Packet Pg. 23 2 Packet Pg. 24 2 Packet Pg. 25 2 Packet Pg. 26 2 Packet Pg. 27 2 Packet Pg. 28 2 Packet Pg. 29 2 Packet Pg. 30 2 Packet Pg. 31 2 Packet Pg. 32 2 Packet Pg. 33 2 Packet Pg. 34 2 Packet Pg. 35 2 Packet Pg. 36 2 Packet Pg. 37 2 Packet Pg. 38 2 Packet Pg. 39 2 Packet Pg. 40 2 Packet Pg. 41 2 Packet Pg. 42 2 Packet Pg. 43   2     Packet Pg. 44   2 Packet Pg. 45 2 Packet Pg. 46   2     Packet Pg. 47   2 Packet Pg. 48   2     Packet Pg. 49   2 Packet Pg. 50 Attachment E Project Plans In order to reduce paper consumption, a limited number of hard copy project plans are provided to Commissioners for their review. The same plans are available to the public, at all hours of the day, via the following online resources. Directions to review Project plans online: 1. Go to: bit.ly/PApendingprojects 2. Scroll down to find “2147 Yale” and click the address link 3. On this project specific webpage you will find a link to the project plans and other important information Direct Link to Project Webpage: https://www.cityofpaloalto.org/News-Articles/Planning-and-Development-Services/2147-Yale- Street 2 Packet Pg. 51 1 Foley, Emily From:Pria Graves <priag@birketthouse.com> Sent:Friday, December 2, 2022 2:57 PM To:Foley, Emily Subject:Application 22PLN-00374, 2147 Yale Street CAUTION: This email originated from outside of the organization. Be cautious of opening attachments and clicking on links. Dear Emily ‐ I am writing to urge you to deny approval of this request to divide the existing parcel with two Single‐Family Residences into two lots. This request is totally inconsistent with the RMD(NP) zoning which explicitly states: " The RMD two‐unit multiple‐family residence district is intended to allow a second dwelling unit under the same ownership as the initial dwelling unit on appropriate sites in areas designated for multiple‐family use by the Palo Alto Comprehensive Plan.” When these two homes were built in 2010, it was made very clear that the entire lot (parcel 137‐01‐038) was to remain under one owner. There was never any provision for subsequent subdivision. One of the benefits of the RMD zoning is that it allows certain exceptions without requiring the applicant to obtain a variance. The original application included a minimum lot size exception and minimum depth exception and I believe that the setback at the rear of the current structures is also slightly less than required. Since the project took advantage of these exceptions, it is absurd that the owners now wish to ignore the RMD zoning requirements that allowed the homes to be built! This subdivision also may be the beginning of a slippery slope for the City. If this property, explicitly required to remain under one owner, can be subdivided, what will the City’s answer be when the owners of homes with ADUs apply to subdivide their lots so they can sell the ADU? As I say, a slippery slope. As the long‐time owner of a home in this zoning district, I really do not wish to see the zoning requirements eroded. It is unfair to those who choose to comply with the intent of the zoning and wish to retain our moderately dense housing area. Regards, Pria Graves 2130 Yale Street You don't often get email from priag@birketthouse.com. Learn why this is important 2 Packet Pg. 52 Item No. 3. Page 1 of 9 Planning & Transportation Commission Staff Report From: Jonathan Lait, Planning and Development Services Director Lead Department: Planning and Development Services Meeting Date: February 22, 2023 TITLE PUBLIC HEARING/LEGISLATIVE: Adoption of Amendments to Palo Alto Municipal Code Chapter 18.09, Accessory and Junior Accessory Dwelling Units due to Direction from the California Department of Housing and Community Development (HCD). Environmental Assessment: Exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21080.17 and CEQA Guidelines sections 15061(b)(3), 15301, 15302 and 15305. RECOMMENDATION Staff recommends the Planning and Transportation Commission (PTC) take the following action(s): 1. Receive public testimony on the ordinance revisions, which include responses to address feedback received from HCD, and 2. Recommend that the City Council adopt the attached Ordinance (Attachment A) amending Palo Alto Municipal Code Title 18 (Zoning) regulations for Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs). REPORT SUMMARY/BACKGROUND On December 23, 2021, the City received a letter from HCD regarding the ordinance the City adopted in November 2020 (Attachment B). HCD raised 12 issues with the City’s ordinance which they thought conflicted with state law or required further clarification in the ordinance. On February 3, 2022, City staff met with HCD staff to discuss HCD’s comments and concerns as well as to explain the structure and intent of the language incorporated into the City’s ordinance. Following that discussion, City staff provided detailed responses to the HCD letter, indicating areas where the City would incorporate changes and where staff required clarification (Attachment C). On December 21, 2022, the City received a follow up letter from HCD responding to the City’s comments (Attachment D). Only five items were included in the letter HCD provided and primarily discussed the items that the City contended were consistent between the adopted ordinance from 2020 and state law at the time. On January 13, 2023, City staff met with HCD staff to discuss HCD’s comments and concerns. City staff provided detailed responses to the HCD letter on the same day, indicating areas where the City would incorporate changes to its ordinance 3 Packet Pg. 53 Item No. 3. Page 2 of 9 (Attachment E). The five items from HCD’s recent letter are summarized below and are discussed in greater detail in the report: A. Application of Daylight Planes for Table 2 Units B. Calculating Floor Area for ADUs/JADUs C. Noise Producing Equipment Location Standards D. Entryways for ADUs/JADUs E. Parking Attached to ADUs Contributing to the Unit’s Maximum Size Separate from the items HCD requested changes from, staff has recently encountered issues they wanted to discuss with the PTC regarding uncovered parking spaces and privacy issues. These policies are not raised as issues in HCD’s letter. These two items are discussed in greater detail in the report, but are not included in the draft ordinance: F. Conversion/Relocation of Uncovered Parking Stalls G. Privacy Measures for ADUs/JADUs Finally, staff wish to convey early feedback received from Alta Housing regarding an affordable ADU program (topic H below) and seek input from the PTC on whether it will reaffirm its prior recommendation or modify it in some way. Staff previously met with the PTC in July, August, and September of 2022 to discuss code changes relative to other items raised by HCD in their original letter from 2021. The meeting minutes, video, and staff reports are available here: https://www.cityofpaloalto.org/Departments/Planning-Development-Services/Planning-and- Transportation-Commission-PTC/Previous-PTC-Agendas-Minutes. After receiving additional direction from HCD, staff recommends proceeding with the updated draft ordinance in Attachment A which will be incorporated into the draft ordinance the PTC previously recommended to City Council in July, August, and September of 2022. DISCUSSION A. Application of Daylight Planes for Table 2 Units Section 18.09.040 of the City’s zoning ordinance identifies that daylight planes can be applied to ADUs for which the City has some regulatory authority (commonly referred to as “Table 2 units”). This was based on staff’s interpretation of the framework and language that was adopted by State law in 2020. Staff’s interpretation of state law was that requiring a Daylight Plane did not prohibit units from achieving the 16-foot height guaranteed by State law but did alter the massing of it to ensure ADUs would more appropriately fit into the context of Palo Alto neighborhoods and reduce impacts on adjacent properties. In their response, HCD appeared to state that the nuance staff was trying to assert between total height allowed for an ADU and allowing for a 16-foot-tall structure at a four-foot setback was inaccurate and that the City could not apply daylight planes to detached ADUs that prohibit them from achieving these minimum height standards. HCD further clarified that Senate Bill 897 modified the language of the previous statute to allow for taller attached and detached ADUs that met certain provisions. In response to this direction, staff has removed the ADU-specific 3 Packet Pg. 54 Item No. 3. Page 3 of 9 daylight plane requirement from PAMC 18.09.040 for detached ADUs and JADUs. Based on the language adopted under SB 897, the State allows for attached ADUs to be built in conformance with the height requirements of the main house in the local zoning ordinance. This would mean that for attached ADUs, daylight planes still apply, and Table 2 has been updated to reflect this as well. B. Calculating Floor Area for ADUs/JADUs The City’s 2020 ordinance provided a “bonus” floor area and lot coverage exemption for ADUs and JADUs to incentivize the development of these units and provided staff a clear term to convey development rights to homeowners under PAMC 18.09.040, Table 2. The City also updated its ordinance in 2020 to allow for JADUs to be expansions of existing or proposed single-family homes rather than limiting them to only occur as conversions of an existing home, as required by the State. The purpose was to eliminate a multi-stepped process requiring a portion of a house to first be built and then receive a new permit to convert it to a JADU. Additionally, the underlying house would be limited by its existing floor area and lot coverage restrictions which would continue to disincentivize the creation of JADUs as a homeowner would need to choose to sacrifice the allowable square footage of their home to build a JADU. In the HCD staff’s letter, they contest that JADUs do not count towards a property’s floor area or lot coverage limit as they can only exist within the buildable area of an existing or proposed single-family home. Without expanding the allowances for the primary dwelling to have more floor area, the City cannot allow JADUs to be additions, nor allow a certain amount to be considered exempt from floor area and lot coverage. When staff met with HCD staff and highlighted the way the City uses terms such as “floor area” and “lot coverage” to convey development rights to homeowners, HCD staff agreed that the issue between their understanding of Palo Alto’s local terms and the State’s approach to implementing ADU/JADU law may be an issue of semantics, with respect to this specific issue, because they were supportive of what the City was doing to encourage JADU development. Regardless, HCD reiterated its position on that state law only allows for JADUs to occur within existing or proposed single-family homes and that Palo Alto would need to provide more floor area or lot coverage for the primary home to allow the JADU to benefit from the City’s “bonus” provisions. Staff does not belief that additional clarification is needed in the City’s ordinance to ensure that the policies it has been enacting since 2020 are consistent with the State law. Staff will continue to be flexible with how floor area and lot coverage are afforded homeowners to encourage ADU/JADU development. C. Noise Producing Equipment/JADU Location Standards In concert with State law, the City updated its 2020 ordinance to allow for reduced setbacks for ADUs. As an incentive to encourage more units to be built, and in line with what is noted in the response above, the City also allowed for JADUs and noise-producing producing equipment four- foot setback from the rear and side property lines. HCD repeated its concern that the City was inappropriately applying setback standards to JADUs that should not exist given that JADUs are only supposed to exist within the existing or proposed walls of a single-family home. From HCD’s perspective, for a JADU to have a four-foot setback the City would need to update its zoning code to allow the primary dwelling unit to have a four-foot setback. While it may be technically more 3 Packet Pg. 55 Item No. 3. Page 4 of 9 accurate to call this four-foot setback a “setback for the new construction portion of a single- family home that is dedicated to a JADU,” staff believe it is easier for applicants and staff to refer to this as a “setback for a new construction JADU.” For noise For noise-producing equipment, the City has already updated its code to allow for reduced llowances when that equipment serves an ADU or JADU. As a result, staff does not believe additional modifications to the City’s ordinance is necessary to address this comment. D. Entryways for ADUs/JADUs Since the City updated its ordinance in 2017 to allow for attached ADU/JADUs, the Palo Alto Municipal Code requires attached units to have a doorway that faces toward a different property line than the doorway for the primary dwelling unit. The only exceptions allowed were when an attached unit was on a corner lot, or the unit was in the rear half of the lot. In 2020, staff updated this provision to also require that any exterior staircase to second-floor units face towards and interior side or rear yard. The purpose of this design requirement was to ensure that the primary façade did not appear cluttered or visually confusing with entries to the building(s). HCD contends that this policy could have the potential to unduly restrict ADU/JADU development by adding additional cost and site development constraints to homeowners. Since 2017, after reviewing at least 500 applications for ADU/JADUs, staff has yet to encounter a scenario where this has prevented a unit from being developed on a property. Regardless, HCD states that the City must either eliminate this provision or add language which states that this provision applies “when feasible”. Staff is concerned that adding “when feasible” to this provision has no clear definition in the City’s municipal code nor state law and will likely create an un-enforceable standard when applicants don’t want to comply with it. As a result, staff recommends removing the provision altogether if HCD believes that the City’s ordinance will not comply with state law because of this rule. E. Parking Attached to ADUs Contributing to the Unit’s Maximum Size In HCD’s recent letter, the HCD staff reiterated their previous position that garages attached to ADUs should not contribute to the maximum size or floor area of the ADU. At the PTC meeting on July 13 of 2022, the PTC included in their motion a recommendation to remove this requirement from the City’s ordinance which is specified in PAMC 18.09.040(k)(4). As a result, an additional motion is not required to be made on this topic and staff will carry forward the PTC’s previous direction to City Council. F. Conversion/Relocation of Uncovered Parking Stalls The City’s current zoning code requires that single-family homes include two parking spaces on site, both of which need to be beyond the front yard setback and one of which must be a covered parking space. Through multiple plan reviews, staff has recognized a disconnect between the parking requirements for single-car garages with adjacent uncovered parking spaces that are converted to an ADU and two-car garages converted to an ADU. Namely, both City codes and State laws do not require the replacement of covered parking spaces lost through conversion of space to an ADU, but also do not provide direction on what should occur for uncovered parking spaces. Staff’s current application of the law is that there is no such relaxed replacement 3 Packet Pg. 56 Item No. 3. Page 5 of 9 allowance for uncovered parking spaces and that they must comply with the typical siting requirements – that these must be placed on site and beyond the front yard setback. Below is an example to demonstrate this issue: An owner who wants to eliminate the uncovered parking stall in the example above would first need to expand a garage within the blue area to accommodate two, 10-foot wide by 20-foot- deep parking stalls. Once that building permit is finaled, the owner could then file another permit to convert the new garage into an ADU. This creates a two-step process that adds time, money, and constraints to developing an ADU that, under a different existing configuration, could already take advantage of the relaxed conversion allowances. The City currently allows JADUs under PAMC 18.09.040(k) to replace parking lost through garage conversions to be replaced in the driveway as uncovered space. If the PTC is supportive of this approach, staff could update the draft ordinance. Staff would extend this provision to uncovered parking spaces when a single-car garage is converted into an ADU. Staff would expand this provision into the home’s required uncovered parking space. If PTC is not supportive of this approach, staff will continue to enforce the existing policy, which requires the uncovered parking space to be located beyond the front yard setback. G. Privacy Measures for ADUs/JADUs During the July 13, 2022, PTC meeting, two commissioners raised the question of how to best affect the City’s privacy measures for Table 2 units. The specific issue raised was whether the City should adopt a more stringent privacy requirement for windows that face adjacent properties based on a height standard instead of whether there is a second floor, or equivalent space, as is required by the City’s current ordinance under PAMC 18.09.040(j)(2). The example provided at 3 Packet Pg. 57 Item No. 3. Page 6 of 9 the time was to modify the City’s current standard to require windows at and above 12 feet in height to have obscured glazing regardless of interior floor level. However, the PTC did not adopt a motion to change the existing policy, other than to clarify that these policies only applied when a second-floor level was proposed for an ADU. Staff have been receiving more complaints from neighbors regarding privacy impacts from ADUs built near their property lines and wanted to revisit this discussion with the PTC. Below is an example of an ADU that was built in conformance with current ADU law: East Elevation West Elevation 3 Packet Pg. 58 Item No. 3. Page 7 of 9 South Elevation Building Section When reviewing the application, staff was unable to apply any privacy measures to the building as it did not have a second-floor level, even though it was proposed to be a 16-foot-tall structure. Staff added a height measurement of seven feet to the drawing image to simulate where an adjacent fence would likely be relative to the height of the windows on the structure. Due to the nature of how state law is structured, the only area staff has discretion to apply privacy measures is when a unit does not qualify under PAMC 18.09.030. Given the recent concerns raised by residents, staff requests the PTC discuss whether the City’s privacy measures need to be codified to recognize and protect against these issues, when applicable. H. Pilot Affordable ADU Program On September 28, 2022, the PTC recommended that the Council adopt a pilot program for deed- restricted, affordable ADUs. Under this pilot program, property owners who agreed to deed 3 Packet Pg. 59 Item No. 3. Page 8 of 9 restrict an ADU to rents affordable to households earning no more than 80% of area median income would have development impact fees waived, up to $50,000 per unit. The pilot program would be limited to a total of $400,000 of waived fees per year. Staff indicated that, prior to bringing the recommendation to Council, staff would discuss administrative details like income certification, tenant selection, and monitoring with Alta Housing, the City’s affordable housing administrator. Early feedback from Alta Housing included several reservations about an affordable ADU program as recommended by the PTC. Alta’s concerns were as follows: •The eight-year period is shorter than the typical length that affordable housing tenants remain in one location. This raises additional concerns about transition when the affordability restriction is over. •In larger projects, tenants who exceed income thresholds can often convert to a market rate unit and remain in the same development. That won't be possible for ADUs. •The program may result in fair housing/discrimination issues if homeowners are responsible for choosing tenants. Personality or preferred tenant clashes could create additional administrative burden. •Homeowners are typically not in the business of being landlords. Significant outreach is needed to educate homeowners on what they would be signing up for (vis-à-vis renter rights, fair housing laws, relocation compensation if work needs to occur on-site and tenants must move out, etc.). In short, it appears that the program would result in an inordinate administrative burden compared to affordable units typically administered by Alta Housing. Currently, when Alta Housing works with a private property owner, they typically administer multiple units at a single site and these units are deed restricted for terms ranging from 55 to 99 years. This limits the amount of onboarding and education required per unit. By contrast, an affordable ADU program would involve a different property owner for each unit, and these units would only participate for a period of 8 years. In addition, staff have noticed that there is currently an unprecedented level of affordable housing projects in Palo Alto, which have already sought or may seek support from the City’s affordable housing funds. Projects at various stages of the process include 231 Grant, 525 E Charleston, Palo Alto Homekey, Buena Vista Mobile Home Park, and 3001 El Camino Real. In addition, some existing affordable housing projects have recently reached out to the City to inquire about support for unexpected expenses. As a result, staff believe there are ample other opportunities for the City to support affordable housing, which may provide greater overall benefit than an affordable ADU program. Quarterly ADU report dated June 20, 2022 The Council received a quarterly report on ADUs – prior reports to the PTC on ADUs may or may not have been included this link: https://cityofpaloalto.primegov.com/Portal/Meeting?meetingTemplateId=1073 . In the report, the average size of ADUs was reported to be around 589 square feet, which is an increase largely 3 Packet Pg. 60 Item No. 3. Page 9 of 9 associated with the additional flexibility the State provides for minimum sizes of second units that homeowners can develop by-right. ENVIRONMENTAL REVIEW The adoption of the Draft Ordinance would be exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21080.17 and CEQA Guidelines sections 15061(b)(3), 15301, 15302, and 15305, because of requirements related to accessory dwelling units as established in Government Code Section 65852.2, and these changes are also likely to result in few additional dwelling units dispersed throughout the City. As such, it can be seen with certainty that the proposed action will not have the potential for causing a significant effect on the environment. Public Notification, Outreach & Comments The PAMC requires notice of this public hearing be published in a local paper at least 10 days in advance. Notice of a public hearing for this project was published in the Daily Post on February 10, which is 12 days in advance of the meeting. ALTERNATIVE ACTIONS In addition to the recommended action, the PTC may: 1. Provide direction to make further modifications to the ordinance, or 2. Continue the hearing to a date (un)certain to enable staff to perform additional study. ATTACHMENTS Attachment A: Draft ADU Ordinance Feb 2023 Attachment B: HCD Letter on ADU Ordinance (2021) Attachment C: Staff Response to HCD (2022) Attachment D: HCD Letter on ADU Ordiance (2022) Attachment E: Staff Response to HCD (2023) Attachment F: Government Code Section 65852.2 AUTHOR/TITLE: Amy French, Chief Planning Official Report #: 2301-0847 3 Packet Pg. 61 *NOT YET APPROVED* 1 20232215_ay16 Ordinance No. _____ Ordinance of the Council of the City of Palo Alto Amending Title 18 (Zoning) of the Palo Alto Municipal Code to Amend Requirements Relating to Accessory Dwelling Units and Junior Accessory Dwelling Units The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. Chapter 18.09 (Accessory Dwelling Units and Junior Accessory Dwelling Units) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to read as follows (additions underlined and deletions struck-through): 18.09.010 Purpose The intent of this Chapter is to provide regulations to accommodate accessory and junior accessory dwelling units (ADU/JADU), in order to provide for variety to the city's housing stock and additional affordable housing opportunities. These units shall be separate, self-contained living units, with separate entrances from the main residence, whether attached or detached. The standards below are provided to minimize the impacts of units on nearby residents and throughout the city, and to assure that the size and location of such dwellings is compatible with the existing or proposed residence(s) on the site and with other structures in the area. 18.09.020 Applicable Zoning Districts The establishment of an accessory dwelling unit is permitted in zoning districts when single-family or multi-family residential is a permitted land use. The development of a single-family home, ADU, and/or a JADU on a lot that allows for single-family development shall not be considered a multifamily development pursuant to PAMC Section 18.04.030, nor shall they require Architectural Review pursuant to other sections of Chapter 18. 18.09.030 Units Exempt from Generally Applicable Local Regulations (a) Government Code section 65852.2, subdivision (e) provides that certain units shall be approved notwithstanding state or local regulations that may otherwise apply. The following types of units shall be governed by the standards in this section. In the event of a conflict between this section and Government Code section 65852.2, subdivision (e), the Government Code shall prevail. i. An ADU and JADU within the existing space of a single-family dwelling or an ADU within the existing space of an accessory structure (i.e. conversion without substantial addition). 3 Packet Pg. 62 *NOT YET APPROVED* 2 20232215_ay16 ii. An ADU and JADU within the proposed space of a single-family dwelling. iii. A detached, new construction ADU on a lot with a proposed or existing single-family dwelling, provided the ADU does not exceed 800 square feet, sixteen feet in height, or four-foot side and rear (i.e. interior) setbacks. iv. ADUs created by conversion of portions of existing multi-family dwellings not used as livable space. v. Up to two detached ADUs on a lot with an existing multi-family dwelling. (b) The Development Standards for units governed by this section are summarized in Table 1. Regulations set forth in section 18.09.040 do not apply to units created under 18.09.030. The minimum and maximum sizes indicated in Table 1 do not prohibit units that are greater than 800 square feet. These sizes simply serve to distinguish when a unit transitions from regulations set forth in Table 1 and section 18.09.030 to regulations set forth in Table 2 and section 18.09.040. Table 1: Development Standards for Units Described in Government Code Section 65852.2(e) Single-Family Multi-Family Conversion of Space Within the Existing Space of a Single-Family Home or Accessory Structure Construction of Attached ADU Within the Proposed Space of a Single- Family Home New Construction of Detached ADU Conversion of Non-Habitable Space Within Existing Multi- family Dwelling Structure Conversion or Construction of Detached(4) ADU Number of Units Allowed 1 ADU and 1 JADU 25% of the existing units (at least one) 2 Minimum size(1)150 sf Maximum size(1)N/A2 800 sf N/A Setbacks N/A, if condition is sufficient for fire and safety 4 feet from side and rear lot lines; underlying zoning for front setback N/A 4 feet from side and rear lot lines; underlying zoning for front setback Daylight N/A Underlying zone standard for Single Family Home (ADU must be within N/A 3 Packet Pg. 63 *NOT YET APPROVED* 3 20232215_ay16 Plane Maximum Height(3)N/A allowable space of Single-Family Home)16(5)N/A 16(5)(6) Parking None State Law Reference 65852.2(e)(1)(A)65852.2(e)(1)(A)65852.2(e)(1)(B)65852.2(e)(1)(C)65852.2(e)(1)(D) (1)Lofts where the height from the floor level to the underside of the rafter or finished roof surface is 5' or greater shall count towards the unit’s floor area. (2)New construction must be consistent with allowable space (e.g. FAR, Lot Coverage) of a single family residence, except that up to 150 sf may be added for the purpose of ingress and egress only, without regard to underlying zone standards. (3)Units built in a flood zone are not entitled to any height extensions granted to the primary dwelling. (4)Units must be detached from existing primary dwellings but may be attached to each other. (5)A height of 18 feet for a detached ADU on a lot with an existing or proposed single family or multifamily dwelling unit that is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. An additional two feet in height shall be provided to accommodate a roof pitch on an ADU that is aligned with the roof pitch of the primary dwelling unit. (6)A height of 18 feet for a detached ADU on a lot with an existing or proposed multifamily, multistory dwelling. (c) Development standards stated elsewhere in this Section or Title 18, including standards related to FAR, lot coverage, and privacy, are not applicable to ADUs or JADUs that qualify for approval under this section. When there is an ADU or JADU attached to an existing or proposed primary dwelling, the shared wall between these units shall contribute to the maximum allowable Floor Area, Lot Coverage, and Maximum House Size of the primary unit. For a single family home, this measurement shall be taken to the outside of stud of the wall in accordance with Section 18.04.030(a)(65)(D). For a multi-family dwelling, this measurement shall be taken to the outside surface of exterior walls in accordance with Section 18.04.030(a)(65)(B) and (C). (d) The establishment of accessory dwelling units and junior accessory dwelling units pursuant to this section shall not be conditioned on the correction of non- conforming zoning conditions; provided, however, that nothing in this section shall limit the authority of the Chief Building Official to require correction of building standards relating to health and safety. (e) The installation of fire sprinklers shall not be required in an accessory dwelling unit if sprinklers are not required for the primary residence. Nothing in this section shall preclude the Fire Marshal from accepting fire sprinklers as an alternative means of compliance with generally applicable fire protection requirements. 3 Packet Pg. 64 *NOT YET APPROVED* 4 20232215_ay16 (f) Rental of any unit created pursuant to this section shall be for a term of 30 days or more. (g) Attached units shall have independent exterior access from a proposed or existing single-family dwelling. Except for JADUs, attached units shall not have an interior access point to the primary dwelling (e.g. hotel door or other similar feature/appurtenance). (h) Conversion of an existing accessory structure pursuant to Government Code section 65852.2(e)(1)(A) may include reconstruction in-place of a non-conforming structure, so long as the renovation of reconstruction does not increase the degree of non- compliance, such as increased height, envelope, or further intrusion into required setbacks. Any portion of an ADU that exceeds the envelope of the existing accessory structure shall be subject to Section 18.09.040. (i) Street addresses shall be assigned to all units prior to building permit final to assist in emergency response. (j) The unit shall not be sold separately from the primary residence. (k) Replacement parking is not required when a garage, carport, or covered parking structure is converted to, or demolished in conjunction with the construction of, an ADU. (l) JADUs shall comply with the requirements of Section 18.09.050. 18.09.040 Units Subject to Local Standards (a) This section shall govern applications for ADUs and JADUs that do not qualify for approval under section 18.09.030 and for which the City may impose local standards pursuant to Government Code section 65852.2, subdivisions (a) through (d). Nothing in this section shall be interpreted to prohibit an ADU of up to 800 square feet, at the heights stated in Table 2, with a four foot side and rear setbacks. (b) The Development Standards for units governed by this section are provided in Table 2. These regulations do not limit the height of existing structures converted into ADU/JADUs unless the envelope of the building is proposed to be modified beyond any existing legal, non-conforming condition. Table 2: All other Units Attached Detached JADU Number of Units Allowed1 1 1 Minimum size 150 sf 3 Packet Pg. 65 *NOT YET APPROVED* 5 20232215_ay16 Maximum size 900 sf (1,000 sf for two or more bedrooms); no more than 50% of the size of the single- family home 900 sf (1,000 sf for two or more bedrooms) 500 sf Setbacks 4 feet from side and rear lot lines; underlying zone standard for front setback Daylight Plane Underlying zone standard per footnote (7) N/A Underlying zone standard Initial Height 8 feet at lot line Angle 45 degrees Maximum Height3 Res. Estate (RE)30 feet Open Space (OS)25 feet All other eligible zones 16 feet(5)(6)(7) Underlying zone standard Parking None Square Footage Exemption when in conjunction with a single family home(4) Up to 800 sf(4)Up to 500 sf(4) (1) An attached or detached ADU may be built in conjunction with a JADU on a lot with an existing or proposed single family home. One attached or detached ADU may be built in conjunction with an existing or proposed multifamily building. (2) Lofts where the height from the floor level to the underside of the rafter or finished roof surface is 5' or greater shall count towards the unit’s floor area. (3) Units built in a flood zone are not entitled to any height extensions granted to the primary dwelling. (4) Lots with both an ADU and a JADU may exempt a maximum combined total of 800 square feet of the ADU and JADU from FAR, Lot Coverage, and Maximum House Size calculations. Any square footage that exceeds this exemption shall contribute to the FAR, Lot Coverage, and (if attached) Maximum House Size calculations for the subject property. This exemption is not afforded to lots with existing or proposed multifamily dwellings. (5) A height of 18 feet for a detached ADU on a lot with an existing or proposed single family or multifamily dwelling unit that is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. An additional two feet in height shall be provided to accommodate a roof pitch on an ADU that is aligned with the roof pitch of the primary dwelling unit. (6) A height of 18 feet for a detached ADU on a lot with an existing or proposed multifamily, multistory dwelling. (7) A height of 25 feet or the height limitation in the underlying zone district that applies to the primary dwelling, whichever is lower, for an ADU that is attached to a primary dwelling. These ADUs shall not exceed two stories in height. 3 Packet Pg. 66 *NOT YET APPROVED* 6 20232215_ay16 (c) A single-family dwelling shall exist on the lot or shall be constructed on the lot in conjunction with the construction of an ADU/JADU. (d)ADU and/or JADU square footage shall not be included in FAR, Lot Coverage, and Maximum House Size calculations for a lot with an existing or proposed single family home, up to the amounts stated in Table 2. ADU and/or JADU square footage in excess of the exemptions provided in Table 2 shall be included in FAR, Lot Coverage, and Maximum House Size calculations for the lot. (d)(e)When there is an ADU or JADU attached to an existing or proposed primary dwelling, the shared wall between these units shall contribute to the maximum allowable Floor Area, Lot Coverage, and Maximum House Size of the primary unit. For a single family home, this measurement shall be taken to the outside of stud of the wall in accordance with Section 18.04.030(a)(65)(D). For a multi-family dwelling, this measurement shall be taken to the outside surface of exterior walls in accordance with Section 18.04.030(a)(65)(B) and (C). (e)(f)Attached units shall have independent exterior access from a proposed or existing single-family dwelling. Except for JADUs, attached units shall not have an interior access point to the primary dwelling (e.g. hotel door or other similar feature/appurtenance). (f)(g)No protected tree shall be removed for the purpose of establishing an accessory dwelling unit unless the tree is dead, dangerous or constitutes a nuisance under Section 8.04.050. Any protected tree removed pursuant to this subsection shall be replaced in accordance with the standards in the Tree Technical Manual. (g)(h)For properties listed in the Palo Alto Historic Inventory, the California Register of Historical Resources, the National Register of Historic Places, or considered a historic resource after completion of a historic resource evaluation, compliance with the appropriate Secretary of Interior’s Standards for the Treatment of Historic Properties shall be required. (h)(i)Noise-producing equipment such as air conditioners, water heaters, and similar service equipment that exclusively serves an ADU/JADU may be located anywhere on the site, provided they maintain the underlying front yard setback requirements of the property and, if the property is a corner lot, a 10-foot street-side setback. shall be located outside of the setbacks for the ADU/JADU. All such equipment shall be insulated and housed, except that the Director may permit installation without housing and insulation, provided that a combination of technical noise specifications, location of equipment, and/or other screening or buffering will assure compliance with the city’s Noise Ordinance at the nearest property line. All service 3 Packet Pg. 67 *NOT YET APPROVED* 7 20232215_ay16 equipment must meet the city’s Noise Ordinance in Chapter 9.10 of the Municipal Code. (i)(j)Setbacks (1) Detached units shall maintain a minimum three-foot distance from the primary unit, measured from the exterior walls of structures. (2) No A basement or other subterranean portion that serves of an ADU/JADU shall may encroach into a setback required for the primary dwelling provided the following conditions are met:. (A) Newly constructed basement walls are no closer than four feet to an adjacent interior side or rear property line. (B) A new lightwell associated with a basement shall not be placed closer than four feet to an adjacent property line. When visible from the right of way, these facilities shall be screened from view with vegetation. (C) The new basement shall not negatively impact tree roots on the subject property or on adjacent lots such that it would require a protected tree to be removed or cause the tree to die. (D) ADU/JADU basements shall contribute to toward the unit’s total allowable square footage. Any square footage in excess of the exemptions provided in this Section shall contribute to the total allowable limits for the site. (3)Projections, including but not limited to windows, doors, mechanical equipment, venting or exhaust systems, are not permitted to encroach into the required setbacks, with the exception of a roof eave of up to 2 feet. (3)(4)For corner lots developed as a single-family home only, when an existing or proposed primary dwelling unit is expanded or constructed simultaneously with the construction of a new ADU/JADU, all structures may be built to a 10- foot street-side setback and a 16-foot front yard setback, regardless of the presence of a special setback, unless a fire or life-safety regulation requires a greater setback. (4)(5)When an existing, legal, nonconforming structure is converted or reconstructed to create an ADU/JADU, any portion of the ADU/JADU that is in the same location and falls within the building envelope of the original structure shall not be subject to the development standards stated in this Section. Any portion of the ADU/JADU that is in a different location or 3 Packet Pg. 68 *NOT YET APPROVED* 8 20232215_ay16 exceeds the envelope of the original structure shall comply with the development standards stated in this Section. (5)(6)Notwithstanding the development standards stated in Table 2 and paragraph (5) above, when an existing, legal, non-conforming structure is converted in-place to an ADU/JADU, the envelope of the structure may be modified to encroach further into a setback or daylight plane as follows: (A) The height of the existing structure may be increased by no more than one linear foot in height commensurate to the existing roofline of the structure provided the height of the addition does not exceed 12 feet from grade. The roofline shall not be changed to a style other than what currently exists on the structure. (B) Each non-conforming wall may be expanded by no more than six inches in thickness based on its existing location, as measured to the surface of the exterior material, to provide for greater insulation and energy requirements provided that a minimum of one foot is maintained between the addition and an adjacent property line. An existing wall of a structure that does not currently have a separation of one foot from a parallel property line shall not be expanded outward. (C) All other additions not specified here shall follow the standard setbacks for the ADU/JADU identified in Table 2. (j)(k)Design (1) Except on corner lots, the unit shall not have an entranceway facing the same lot line (property line) as the entranceway to the main dwelling unit unless the entranceway to the accessory unit is located in the rear half of the lot. Exterior staircases to second floor units shall be located toward the interior side or rear yard of the property. (2) Privacy (A) Second story doors and decks shall not face a neighboring dwelling unit property line. Second story decks and balconies shall utilize screening barriers to prevent views into adjacent properties. These barriers shall provide a minimum five-foot, six-inch, screen wall from the floor level of the deck or balcony and shall not include perforations of any kind that would allow visibility between properties. (B) Second story w Windows on a second floor, loft, or equivalent elevated space, excluding those required for egress, shall have a five- foot sill height as measured from the second-floor level, or utilize 3 Packet Pg. 69 *NOT YET APPROVED* 9 20232215_ay16 obscured opaque glazing on the entirety of the window when facing any window that faces adjacent properties. Second story e Egress windows shall utilize obscured opaque glazing on the entirety of the windows which face that faces adjacent properties. (C) Second story w Windows on a second floor, loft, or equivalent elevated space, shall be offset from neighbor’s windows to maximize privacy. (D) Egress windows on a second floor, loft, or equivalent elevated space located in the primary unit’s side or rear yard setbacks shall not face adjacent property lines. (E)Where feasible, the use of skylights (whether operable or not) shall be used in lieu of operable windows that face adjacent properties (F) No exterior lighting shall be mounted above seven feet. All lighting mounted on walls shall be directed downwards and shall not direct light towards adjacent property lines. Any ground lighting shall not direct light upwards to the building or sky. (k)(l)Parking (1) Replacement parking is not required when a garage, carport, or covered parking structure is converted to, or demolished in conjunction with the construction of, an ADU. (2) Replacement parking is required when an existing attached garage, carport, or covered parking structure is converted to a JADU. These replacement spaces may be provided as uncovered spaces in any configuration on the lot including within the front or street side yard setback for the property. (A) The Director shall have the authority to modify required replacement parking spaces by up to one foot in width and length upon finding that the reduction is necessary to accommodate parking in a location otherwise allowed under this code and is not detrimental to public health, safety or the general welfare. (B) Existing front and street side yard driveways may be enlarged to the minimum extent necessary to comply with the replacement parking requirement above. Existing curb cuts shall not be altered except when necessary to promote public health, safety or the general welfare. (3)When parking is provided, the unit shall have street access from a driveway in common with the main residence in order to prevent new curb cuts, excessive paving, and elimination of street trees, unless separate driveway 3 Packet Pg. 70 *NOT YET APPROVED* 10 20232215_ay16 access will result in fewer environmental impacts such as paving, grading or tree removal. (3)(4)When a single-family dwelling unit is permitted simultaneously with the construction of new ADU/JADUs, the primary unit’s covered parking requirements identified in Chapter 18.10 and 18.12 do not need to be provided. Two uncovered parking spaces shall be provided in any configuration on the lot including within the front or street-side setback for the property. (4)(5)If covered parking for a unit is provided in any district, the maximum size of the covered parking area for the accessory dwelling unit is 220 square feet. This space shall count towards the total floor area for the site but does not contribute to the maximum size of the unit unless attached to the unit. Any attached garage shall not have an interior access point to the ADU/JADU (e.g. hotel door or other similar feature/appurtenance). (l)(m)Miscellaneous requirements (1) Street addresses shall be assigned to all units prior to building permit final to assist in emergency response. (2) The unit shall not be sold separately from the primary residence. (3) Rental of any unit created pursuant to this section shall be for a term of 30 days or more. (4) The installation of fire sprinklers shall not be required in an accessory dwelling unit if sprinklers are not required for the primary residence. Nothing in this section shall preclude the Fire Marshal from accepting fire sprinklers as an alternative means of compliance with generally applicable fire protection requirements. 18.09.050 Additional Requirements for JADUs (a) A junior accessory dwelling unit may only be created on a lot in a single-family residential zone with an existing or proposed single family residence. A junior accessory dwelling unit shall be attached to or created within the walls of an existing or proposed primary dwelling. (b) The junior accessory dwelling unit shall include an efficiency kitchen, requiring the following components: A cooking facility with appliances, and; food preparation counter and storage cabinets that are of reasonable size in relation to the size of the junior accessory dwelling unit. 3 Packet Pg. 71 *NOT YET APPROVED* 11 20232215_ay16 i. A cooking facility with appliances shall mean, at minimum a one burner installed range, an oven or convection microwave, a 10 cubic foot refrigerator and freezer combination unit, and a sink that facilitates hot and cold water. ii.A food preparation counter and storage cabinets shall be of reasonable size in relation to a JADU if they provide counter space equal to a minimum 24-inch depth and 36-inch length. ii.iii.JADUs may share sanitation facilities (bathrooms, laundry facilities, etc.) with the primary unit. In this instance, the floor area and lot coverage associated with shared space shall count towards the primary unit’s maximum allowances only. The combined sanitation facilities between the units shall include shower, toilet, and sink fixtures at a minimum and shall conform to the minimum requirements specified in the Building Code (c) For the purposes of any fire or life protection ordinance or regulation or for the purposes of providing service for water, sewer, or power, a junior accessory dwelling unit shall not be considered a separate or new unit. (d) The owner of a parcel proposed for a junior accessory dwelling unit shall occupy as a primary residence either the primary dwelling or the junior accessory dwelling. Owner-occupancy is not required if the owner is a governmental agency, land trust, or housing organization. (e) Prior to the issuance of a building permit for a junior accessory dwelling unit, the owner shall record a deed restriction in a form approved by the city that includes a prohibition on the sale of the junior accessory dwelling unit separate from the sale of the single-family residence, requires owner-occupancy consistent with subsection (d) above, does not permit short-term rentals, and restricts the size and attributes of the junior dwelling unit to those that conform with this section. 18.09.060 Affordable ADU/JADU Pilot Program (a) This section shall govern applications for ADUs and JADUs that will be deed restricted for a minimum of 8 years to provide affordable rental units for households earning up to 80% of area median income. These units shall be exempt from all development impact fees, regardless of size, up to a maximum of $50,000 unit and a Citywide total of $400,000 per calendar year. To participate in this program, units shall follow the development standards in section 18.09.040 unless otherwise stated here. (b) The City’s affordable housing administrator shall income qualify potential tenants prior to issuing a permit for an affordable ADU/JADU. The property owner shall be responsible for 3 Packet Pg. 72 *NOT YET APPROVED* 12 20232215_ay16 paying the City’s housing administrator to cover the cost associated with documenting a potential tenants income level as well as annually recertifying the tenant’s income. SECTION 2. Subsection (g) of Section 16.58.030 of Chapter 16.58 (Development Impact Fees) of Title 16 (Building) of the Palo Alto Municipal Code (“PAMC”) is amended to read: (f) Accessory dwelling units (ADU) less than 750 square feet in size. Any impact fees to be charged for an accessory dwelling unit of 750 square feet or more shall be proportional to the square footage of the primary dwelling unit. Any unit that is deed restricted to be rented at a rate of up to 80% of AMI, in accordance with the City’s established Affordable ADU/JADU program, shall be exempt from all impact fees, regardless of size, up to a maximum of $50,000 per unit and a Citywide total of $400,000 per calendar year; SECTION 3. Subsections (a)(4) and (a)(65) of Section 18.04.030 (Definitions) of Chapter 18.04 (Definitions) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to read: [. . .] (4) “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 singlefamily dwelling is situated. An ADU bathroom shall include a shower, toilet, and sink fixture at a minimum and shall conform to the minimum requirements specified in the Building Code. An accessory dwelling unit also includes the following: [. . .] (65) “Gross Floor Area” is defined as follows: [. . .] (D) Low Density Residential Exclusions: In the RE and R-1 single-family residence districts and in the R-2 and RMD two-family residence districts, “gross floor area” shall not include the following: [. . .] (ix) Accessory structures equal to or less than one hundred and twenty square feet in area shall not contribute to floor area provided that any attached porches, patios, or similar features are substantially open; (E) In all districts, gross floor area shall be calculated to the nearest 1000th decimal point and represented on plans to the nearest 100th decimal point (e.g. 123.456 3 Packet Pg. 73 *NOT YET APPROVED* 13 20232215_ay16 sf shall be rounded to 123.46 sf). Standard rounding shall apply such that a number of four or less shall be rounded down and a number of five or more shall be rounded up. SECTION 4. Subsections (b)(5) of Section 18.10.080 (Accessory Uses and Facilities) of Chapter 18.10 (Low-Density Residential) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to read: [. . .] (5) When located within a required interior yard as permitted by this section, no such No accessory building shall have more than two plumbing fixtures. Accessory buildings shall not be allowed to be turned into habitable space nor shall these structures be allowed to have showers (indoor or outdoor), gas lines, washer/dryers, and/or cooking facilities to be provided inside or attached to the structure, unless the structure is proposed as an ADU/JADU that satisfies all requirements of the Palo Alto Municipal Code. [. . .] SECTION 5. Subsections (b)(5) of Section 18.12.080 (Accessory Uses and Facilities) of Chapter 18.12 (Single-Family Residential District) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to read: [. . .] (5) No such accessory building greater than 200 square feet in size shall have more than two plumbing fixtures. Accessory buildings shall not be allowed to be turned into habitable space nor shall these structures be allowed to have showers (indoor or outdoor), gas lines, washer/dryers, and/or cooking facilities to be provided inside or attached to the structure, unless the structure is proposed as an ADU/JADU that satisfies all requirements of the Palo Alto Municipal Code. [. . .] SECTION 6. Subsection (b)(5) of 18.40.050 (Location and Use of Accessory Buildings) of Chapter 18.40 (General Standards and Exceptions) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to read: [. . .] (5) No such accessory building shall have more than two plumbing fixtures. Accessory buildings shall not be allowed to be turned into habitable space nor shall these 3 Packet Pg. 74 *NOT YET APPROVED* 14 20232215_ay16 structures be allowed to have showers (indoor or outdoor), gas lines, washer/dryers, and/or cooking facilities to be provided inside or attached to the structure, unless the structure is proposed as an ADU/JADU that satisfies all requirements of the Palo Alto Municipal Code. [. . .] SECTION 7. Table 1 of 18.10.030 (Land Uses) of Chapter 18.10 (Low Density Residential) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to read: Table 1 shows the permitted and conditionally permitted uses for the low-density residential districts. TABLE 1 PERMITTED AND CONDITIONALLY PERMITTED LOW-DENSITY RESIDENTIAL USES [P = Permitted Use -- CUP = Conditional Use Permit Required] RE R-2 RMD Subject to Regulations in: [. . .] Accessory Dwelling Units P P(2)P(2)18.42.040 18.09 Junior Accessory Dwelling Units P P(2)P(2)18.42.040 18.09 [. . .] (1) Sale of Agricultural Products: No permanent commercial structures for the sale or processing of agricultural products are permitted. (2) Accessory Dwelling Units in R-2 and RMD Zones: An accessory dwelling unit or a Junior Accessory Dwelling Unit associated with a single-family residence on a lot in the R-2 or RMD zones is permitted, subject to the provisions of Section 18.42.040 Chapter 18.09, and such that no more than two units result on the lot. (3) [. . .] SECTION 8. Table 1 of 18.12.030 (Land Uses) of Chapter 18.12 (Single-Family Residential District) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to read: The permitted and conditionally permitted uses for the single family residential districts are shown in Table 1: Table 1 PERMITTED AND CONDITIONAL R-1 RESIDENTIAL USES R-1 and all R-1 Subdistricts Subject to Regulations for in: [. . .] Accessory Dwelling Units P(1)18.42.040 18.09 Junior Accessory Dwelling Unit P(1)18.42.040 18.09 3 Packet Pg. 75 *NOT YET APPROVED* 15 20232215_ay16 [. . .] (1) An Accessory Dwelling Unit or a Junior Accessory Dwelling Unit associated with a single-family residence on a lot is permitted, subject to the provisions of Chapter 18.09Section 18.42.040, and such that no more than two total units result on the lot. SECTION 9. Table 1 of 18.13.030 (Land Uses) of Chapter 18.13 (Multiple-Family Residential Districts) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to read: Table 1 specifies the permitted and conditionally permitted land uses in the multiple-family residence districts. Table 1 Multiple Family Residential Uses [P = Permitted Use • CUP = Conditional Use Permit Required] RM-20 RM-30 RM-40 Subject to Regulations in: [. . .] Accessory Dwelling Unit when accessory to permitted single- family residence P(1) & (4)P(1) & (4)P(2) & (4)18.42.040 18.09 Junior Accessory Dwelling Unit when accessory to permitted single-family residence P(1)P(1)P(2)18.09 [. . .] (1) Permitted use only on lots less than 8,500 square feet in size. (2) Permitted use only on lots less than 6,000 square feet in size. (3) Permitted use only if lot is substandard in size, e.g., less than 8,500 square feet or less than 70 feet in width, or at the perimeter of a site in excess of one acre where used as a transition to low-density residential area. (4) An accessory dwelling unit associated with a single-family residence on a lot is permitted if it is contained within the existing space of a single-family residence or an existing accessory structure in accordance with and pursuant to Section 18.42.040(a)(5), subject to the provisions of Section 18.42.040 and such that no more than two total units result on the lot. SECTION 10. Any provision of the Palo Alto Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 11. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 12. The Council finds that the adoption of this Ordinance is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Public Resources 3 Packet Pg. 76 *NOT YET APPROVED* 16 20232215_ay16 Code Section 21080.17 and CEQA Guidelines sections 15061(b)(3), 15301, 15302 and 15305 because it constitutes minor adjustments to the City’s zoning ordinance to implement State law requirements related to accessory dwelling units as established in Government Code Section 65852.2, and these changes are also likely to result in few additional dwelling units dispersed throughout the City. As such, it can be seen with certainty that the proposed action will not have the potential for causing a significant effect on the environment. SECTION 13. This ordinance shall be effective on the thirty-first date after the date of its adoption. INTRODUCED: PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: ____________________________ ____________________________ City Clerk Mayor APPROVED AS TO FORM: APPROVED: ____________________________ ____________________________ Assistant City Attorney City Manager ____________________________ Director of Planning and Development Services 3 Packet Pg. 77 STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT DIVISION OF HOUSING POLICY DEVELOPMENT 2020 W. El Camino Avenue, Suite 500 Sacramento, CA 95833 (916) 263-2911 / FAX (916) 263-7453 www.hcd.ca.gov December 23, 2021 Jonathan Lait, Planning Director Planning Department City of Palo Alto 250 Hamilton Avenue – Fifth Floor Palo Alto, CA 94301 Dear Jonathan Lait: RE: Review of Palo Alto’s Accessory Dwelling Unit (ADU) Ordinance under ADU Law (Gov. Code § 65852.2) Thank you for submitting the City of Palo Alto (City) accessory dwelling unit (ADU) ordinance (Ordinance No.5507) adopted September 26, 2020, to the California Department of Housing and Community Development (HCD). The ordinance was received on October 20, 2020. HCD has reviewed the ordinance and is submitting these written findings pursuant to Government Code section 65852.2, subdivision (h). HCD has determined that the ordinance does not comply with section 65852.2 in the manner noted below. Under the statute, the City has up to 30 days to respond to these findings. Accordingly, the City must provide a written response to these findings no later than January 23, 2022. HCD will review and consider any written response received from the City before that date in advance of taking further action authorized by Government Code section 65852.2. The adopted ADU ordinance meets many statutory requirements. However, the ordinance must be revised to comply with State ADU Law (Gov. Code, § 65852.2), as follows: • Section 18.09.030(a)(3) Units Exempt from Generally Applicable Local Regulations: The text of this Section and the applicable portion of Table 1 indicate the maximum size of a newly constructed detached ADU is 800 square feet. Although a local agency may establish minimum and maximum size requirements for ADUs pursuant to subdivision (c)(1) of Government Code section 65852.2 within limits, a local agency shall not establish a maximum square footage requirement for either attached or detached ADUs that is less than 850 square feet and 1,000 square feet for an ADU that provides more than one bedroom. (Gov. Code, § 65852.2, subd. (c)(2)(B).) Therefore, all relevant 3 Packet Pg. 78 Jonathan Lait, Planning Director Page 2 sections of the ordinance must be amended to comply with this mandate in State ADU Law. • Section 18.09.030 Units Exempt from Generally Applicable Local Regulations: There appears to be a conflict between the text of this section and Table 1. The number of allowable units are correctly noted in Table 1 as “1 ADU and 1 JADU.” The text of section 18.09.030(a) appears to limit allowable units to “an ADU or JADU.” Government Code section 65852.2, subdivision (e)(1)(A), requires an ordinance to allow “one ADU and one JADU per lot… .” The City must amend the ordinance to correct this inconsistency, clarifying that “one ADU and one JADU” are permitted if all the conditions of section 65852.2, subdivision (e)(1)(A) apply. • Section 18.09.030(b) Application of Development Standards: Local agencies may establish standards for ADUs pursuant to Government Code section 65852.2, subdivision (a); however, these standards do not apply to ADUs constructed pursuant to subdivision (e). Table 1 impermissibly applies “underlying zoning” “for front setback[s]” to subdivision (e) ADUs. (Mun. Code, §18.09.030(b).) Subdivision (e)(1) describes permitted setbacks in full. Unless underlying zoning for all residential areas conforms to subdivision (e) limits, this table must be amended to comply with statute. (Gov. Code, § 65852.2, subd. (e)(1)(A).) • Section 18.09.030(b)(1) ADU Height in Flood Zones: The City has impermissibly restricted the height of ADUs. It appears that the City establishes minimum elevations for the first floor of structures in the flood zone, which is essentially the entire city to varying degrees. To account for this, the zoning code allows most residential structures to exceed otherwise maximum allowable heights for development. The City does not extend this accommodation to ADUs. Currently, Table 1 states that the maximum height for new, detached ADUs is 16 feet, but includes a caveat that “units built in a flood zone are not entitled to any height extension.” (Mun. Code, § 18.09.030(b).) In many instances, this would operate as an impermissible restriction on ADUs. Under State ADU Law, the City must accommodate an ADU of at least 800 square feet and 16 feet in height. Thus, the caveat in Table 1 is potentially confusing and could restrict the height to less than 16 feet. If it would in fact operate to effectively limit the height of ADUs to less than 16 feet, it would operate as an impermissible restriction on ADUs. As such, Table 1 should be revised to clarify that this limitation does not apply where necessary to permit an 800-square foot ADU that it at least 16 feet tall. (Gov. Code, § 65852.2, subds. (c)(2)(C) and (e)(1)(B)(ii).) • Section 18.09.040(b) Daylight Plane and ADU Height Standards: Table 2 states that “daylight plane” acts as a limit on the height of ADUs. In many instances, 3 Packet Pg. 79 Jonathan Lait, Planning Director Page 3 this may not be a problem; however, daylight plane concerns cannot be used to unduly limit the height of an ADU. ADUs are permitted up to 16 feet high. (Gov. Code, § 65852.2, subds. (c)(2)(C), (e)(1)(B)(ii).) Therefore, in considering restrictions that the City is imposing on ADUs for daylight planes, the ordinance should note the 16-foot height allowable for ADUs. This Table must be amended to clarify this point. • Section 18.09.040(b) Units Subject to Local Standards: Table 2 sets out the development standards for ADUs that do not qualify under section 18.09.030. Although the City has more freedom to establish development standards for these ADUs, that is not without limitation. This section, and Table 2, must be amended to clarify that—notwithstanding the development standards—an ADU of at least 800 square feet, 16 feet in height, and with four-foot rear and side- yard setbacks is permitted as required by State ADU Law. (Gov. Code, § 65852.2, subd. (c)(2)(C).) • Section 18.09.040(b) Floor Area and JADUs: Development standards can account for ADUs in their measurement of the floor area restrictions or ratio (FAR). But these standards may not account for or consider JADUs. A JADU may not be included in this calculation, because a JADU is a unit that is contained entirely within a single-family residence. (Gov. Code § 65852.22, subd. (h)(1).) Footnote 4 of Table 2 impermissibly includes JADUs as part of the FAR calculations. This footnote must be amended to clarify this point. • Section 18.09.040(h) Noise-Producing Equipment: Local agencies may impose development standards on ADUs; however, these standards shall not exceed state standards. Section 18.09.040(h) states that noise-producing equipment “shall be located outside of the setbacks.” This section must be revised to only refer to ADUs since setbacks are not required for JADUs. In addition, this setback for noise-producing equipment for ADUs must be revised to make clear that this setback requirement will not impede the minimum state standards of four-foot setbacks. (Gov. Code, § 65852.2, subd. (c)(2)(C).) • Section 18.09.040(i)(2) Setbacks: Currently, this section states, “No basement or other subterranean portion of an ADU/JADU shall encroach into a setback required for the primary dwelling.” Under state law, new attached and detached ADUs have maximum four-foot rear and side-yard setbacks. (Gov. Code, § 65852.2, subds. (a)(1)(D)(vii), (c)(2)(C), (e)(1)(B), and (e)(1)(D).) Local agencies may impose setback requirements if the minimum rear and side-yard setbacks established by state law are not exceeded. This restriction is concerning on a number of grounds. First, setbacks may not be required for JADUs as they are constructed within the walls of the primary dwelling. Second, this requirement imposes excessive restrictions on ADUs converted from an existing area of the primary dwelling or accessory structure with a basement or subterranean space. Again, these 3 Packet Pg. 80 Jonathan Lait, Planning Director Page 4 structures are not subject to setback requirements. Finally, this section would violate State ADU Law if the side or rear setback requirement for an ADU or JADU located in a basement or other subterranean structure exceeded four feet. Requiring ADUs and JADUs to meet the side and rear setbacks for the primary dwellings could exceed the maximum four-foot setbacks set out in State ADU Law. The ordinance must be revised to eliminate these concerns. • Section 18.09.040(j) Design: This section states, “Except on corner lots, the unit shall not have an entranceway facing the same lot line (property line) as the entranceway to the main dwelling unit unless the entranceway to the accessory unit is located in the rear half of the lot. Exterior staircases to second floor units shall be located towards the interior side or rear yard of the property.” These standards appear to apply only to the creation of ADUs and may unduly restrict the placement of an ADU on some lots. Local development standards provided by ordinance pursuant to subdivisions (a) through (d) of Government Code section 65852.2 do not apply to ADUs created under subdivision (e). Please consider eliminating this restriction or modifying it such that it applies “when feasible.” • Section 18.09.040(j)(2)(A) Privacy: The section states, “Second story doors and decks shall not face a neighboring dwelling unit.” This limitation, however, may place an impermissible constraint on an ADU. For example, excessive constraints would be placed on the creation of a second story ADU if residential units were located on all adjacent parcels. In addition, when operating in conjunction with Section 18.09.040(j), noted above, this restriction may prohibit ADUs created under subdivision (e) of Government Code section 65852.2. Accordingly, this provision must be revised to allow for more flexibility. The City could revise the first sentence of this section to state, “Second story doors and decks shall not face a neighboring dwelling unit, where feasible.” • Section 18.09.040(k)(4) Parking: The ordinance indicates if covered parking for a unit is provided in any district, the maximum size of the covered parking area for the accessory dwelling unit is 220 square feet. Further, under this section, the space for the covered parking count towards the total floor area for the site and the ADU if attached to the unit. Covered parking should not count towards the total floor area of the site as if it would unduly limit the allowable size of an ADU established by state law, nor should it directly count toward the area available for the ADU. Although standards within an underlying zone may apply when noted in the adopted ADU ordinance, they may not be more restrictive than those contained in state statute. (See, e.g., Gov. Code, § 65852.2, subs. (a)(1)(B), (a)(1)(D)(vii), (a)(1)(D)(x), (c), and (e).) The portion of this section stating “unit unless attached to the unit” should be deleted, or the section should otherwise be modified to comply with state law. 3 Packet Pg. 81 Jonathan Lait, Planning Director Page 5 In these respects, revisions are necessary to comply with statute. HCD will consider any written response to these findings, such as a revised ordinance or a detailed plan to bring the ordinance into compliance with law by a date certain, before taking further action authorized pursuant to Government Code section 65852.2. Please note that HCD may notify the Attorney General’s Office in the event that the City fails to take appropriate and timely action under section 65852.2, subdivision (h). HCD appreciates the City’s efforts in the preparation and adoption of the ordinance and welcomes the opportunity to assist the City in fully complying with State ADU Law. Please contact Lauren Lajoie of our staff, at (916) 776-7495 or at Lauren.Lajoie@hcd.ca.gov if you have any questions or would like HCD’s technical assistance in these matters. Sincerely, David Zisser Assistant Deputy Director Local Government Relations and Accountability 3 Packet Pg. 82 PLANNING & DEVELOPMENT SERVICES 250 Hamilton Avenue, 5th Floor Palo Alto, CA 94301 (650) 329-2441 February 3, 2022 Lauren Lajoie Housing & Community Development Division of Housing Policy Development 2020 W. El Camino Avenue, Suite 500 Sacramento, CA 95833 Lauren.Lajoie@hcd.ca.gov Dear Ms. Lajoie, This letter represents the City of Palo Alto’s response to your letter dated December 23, 2021 received by email, and received by hard copy on January 27, 2022. The content of the Housing and Community Development’s letter is italicized. The City of Palo Alto’s responses are bolded. 1. ADU Size - Section 18.09.030(a)(3) Units Exempt from Generally Applicable Local Regulations: The text of this Section and the applicable portion of Table 1 indicate the maximum size of a newly constructed detached ADU is 800 square feet. Although a local agency may establish minimum and maximum size requirements for ADUs pursuant to subdivision (c)(1) of Government Code section 65852.2 within limits, a local agency shall not establish a maximum square footage requirement for either attached or detached ADUs that is less than 850 square feet and 1,000 square feet for an ADU that provides more than one bedroom. (Gov. Code, § 65852.2, subd. (c)(2)(B).) Therefore, all relevant sections of the ordinance must be amended to comply with this mandate in State ADU Law. PAMC Section 18.09.030 is intended to describe the requirements for ADUs built under Gov. Code 65852.2, subdivision (e). This is not intended to create any limitation on ADUs built under subdivisions (a)-(d), which are governed by PAMC Section 18.09.040. The City will add clarifying language to this effect at the top of PAMC Section 18.09.030. 2. ADU & JADU - Section 18.09.030 Units Exempt from Generally Applicable Local Regulations: There appears to be a conflict between the text of this section and Table 1. The number of allowable units are correctly noted in Table 1 as “1 ADU and 1 JADU.” The text of section 18.09.030(a) appears to limit allowable units to “an ADU or JADU.” Government Code section 65852.2, subdivision (e)(1)(A), requires an ordinance to allow “one ADU and one JADU per lot… .” The City must amend the ordinance to correct this inconsistency, clarifying that “one ADU and one JADU” are permitted if all the conditions of section 65852.2, subdivision (e)(1)(A) apply. The City will update its ordinance to reflect the changes made by AB 3182 with respect to 1 ADU and 1 JADU. 3. Front Setback - Section 18.09.030(b) Application of Development Standards: Local agencies may establish standards for ADUs pursuant to Government Code section 65852.2, subdivision (a); however, these standards do not apply to ADUs constructed pursuant to subdivision (e). Table 1 impermissibly applies “underlying zoning” “for front setback[s]” to subdivision (e) ADUs. (Mun. Code, §18.09.030(b).) Subdivision (e)(1) describes permitted setbacks in full. Unless underlying zoning for DocuSign Envelope ID: 26247F48-AB81-46DC-AE75-91A87A8EE538 3 Packet Pg. 83 CITY OF PALO ALTO | 250 HAMILTON AVENUE, PALO ALTO, CA. 94301 | 650-329-2441 all residential areas conforms to subdivision (e) limits, this table must be amended to comply with statute. (Gov. Code, § 65852.2, subd. (e)(1)(A).) During our conversation on February 2, 2022, you explained that local rules may apply for front setbacks, including ADUs built under subdivision (e), and that it is not HCD’s position that subdivision (e) ADUs must be allowed at the front lot line. You explained that the issue with the current City ordinance is that it does not make clear that “underlying zoning” is only for front setbacks. The City will clarify this point in its ordinance. 4. Height - Section 18.09.030(b)(1) ADU Height in Flood Zones: The City has impermissibly restricted the height of ADUs. It appears that the City establishes minimum elevations for the first floor of structures in the flood zone, which is essentially the entire city to varying degrees. To account for this, the zoning code allows most residential structures to exceed otherwise maximum allowable heights for development. The City does not extend this accommodation to ADUs. Currently, Table 1 states that the maximum height for new, detached ADUs is 16 feet, but includes a caveat that “units built in a flood zone are not entitled to any height extension.” (Mun. Code, § 18.09.030(b).) In many instances, this would operate as an impermissible restriction on ADUs. Under State ADU Law, the City must accommodate an ADU of at least 800 square feet and 16 feet in height. Thus, the caveat in Table 1 is potentially confusing and could restrict the height to less than 16 feet. If it would in fact operate to effectively limit the height of ADUs to less than 16 feet, it would operate as an impermissible restriction on ADUs. As such, Table 1 should be revised to clarify that this limitation does not apply where necessary to permit an 800-square foot ADU that it at least 16 feet tall. (Gov. Code, § 65852.2, subds. (c)(2)(C) and (e)(1)(B)(ii).) For purposes of health and safety, the City of Palo Alto requires structures built in a flood zone to have a minimum finished floor height based on FEMA regulations. For a primary residence, the City provides an extra height allowance of 50% the minimum finished floor height. The City does not provide this allowance for any accessory structures, including ADUs. Nevertheless, ADUs in the flood zone can still be built to a height of 16 feet. It is unclear to the City how the failure to provide additional height above 16 feet represents an impermissible restriction on ADUs. During our conversation, you related that HCD prefers to have as few restrictions as possible on ADU production. The only restriction here is on finished floor height in the flood zone, which cannot be waived or relaxed without impacts on health and safety. Even in areas requiring the most extreme height above the base flood elevation, an ADU remains feasible within the 16 foot height limit. 5. Daylight Plane - Section 18.09.040(b) Daylight Plane and ADU Height Standards: Table 2 states that “daylight plane” acts as a limit on the height of ADUs. In many instances, this may not be a problem; however, daylight plane concerns cannot be used to unduly limit the height of an ADU. ADUs are permitted up to 16 feet high. (Gov. Code, § 65852.2, subds. (c)(2)(C), (e)(1)(B)(ii).) Therefore, in considering restrictions that the City is imposing on ADUs for daylight planes, the ordinance should note the 16-foot height allowable for ADUs. This Table must be amended to clarify this point. Please note that the City’s daylight plane regulations do not apply to subdivision (e) ADUs, which are governed by PAMC Section 18.09.030. The City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. In addition, the City will add a clarifying statement that the regulations in PAMC 18.09.040 are not intended to limit the conversion of existing structures to ADUs or JADUs. For all other ADUs, however, the City has requested clarity on HCD’s position on daylight plane on numerous occasions, most recently by email dated August 8, 2021. Please see this email, which is DocuSign Envelope ID: 26247F48-AB81-46DC-AE75-91A87A8EE538 3 Packet Pg. 84 CITY OF PALO ALTO | 250 HAMILTON AVENUE, PALO ALTO, CA. 94301 | 650-329-2441 attached, for an explanation of the City’s position. The City looks forward to continued discussion of this topic. 6. Clarify - Section 18.09.040(b) Units Subject to Local Standards: Table 2 sets out the development standards for ADUs that do not qualify under section 18.09.030. Although the City has more freedom to establish development standards for these ADUs, that is not without limitation. This section, and Table 2, must be amended to clarify that—notwithstanding the development standards—an ADU of at least 800 square feet, 16 feet in height, and with four-foot rear and side- yard setbacks is permitted as required by State ADU Law. (Gov. Code, § 65852.2, subd. (c)(2)(C).) The City will add a clarifying statement to this effect. 7. Floor Area & JADUs - Section 18.09.040(b) Floor Area and JADUs: Development standards can account for ADUs in their measurement of the floor area restrictions or ratio (FAR). But these standards may not account for or consider JADUs. A JADU may not be included in this calculation, because a JADU is a unit that is contained entirely within a single-family residence. (Gov. Code § 65852.22, subd. (h)(1).) Footnote 4 of Table 2 impermissibly includes JADUs as part of the FAR calculations. This footnote must be amended to clarify this point. Footnote 4 of Table 2 provides additional FAR on a site for ADUs and JADUs. This is an incentive to promote production of such units without limiting the development potential of a primary unit. Because a JADU is contained entirely within the space of a single-family residence, it would normally be included in the floor area of the primary unit. Footnote 4 provides an opportunity for a property owner to exempt all JADU square footage from the calculation of floor area for the primary unit. The removal of JADUs from footnote 4 would only serve to restrict the development of JADUs. The City will attempt to clarify the language of this footnote. 8. Noise-Producing Equipment - Section 18.09.040(h) Noise-Producing Equipment: Local agencies may impose development standards on ADUs; however, these standards shall not exceed state standards. Section 18.09.040(h) states that noise-producing equipment “shall be located outside of the setbacks.” This section must be revised to only refer to ADUs since setbacks are not required for JADUs. In addition, this setback for noise-producing equipment for ADUs must be revised to make clear that this setback requirement will not impede the minimum state standards of four-foot setbacks. (Gov. Code, § 65852.2, subd. (c)(2)(C)). As noted above, the City will add a clarifying statement that the regulations in PAMC 18.09.040 are not intended to limit the conversion of existing structures to ADUs or JADUs. For new construction, however, the City permits JADUs to build at a lesser setback than a single-family home normally would. Therefore, the removal of JADUs from this section will only serve to restrict the development of JADUs. Additionally, the City’s ordinance states that noise producing equipment needs to be placed outside the setback for an ADU or JADU. This means that the noise producing equipment itself cannot be placed closer than four-feet to a property line for either type of structure; not that the ADU or JADU cannot be placed at those locations. This is consistent with the state setback requirements for an ADU. 9. Basements - Section 18.09.040(i)(2) Setbacks: Currently, this section states, “No basement or other subterranean portion of an ADU/JADU shall encroach into a setback required for the primary dwelling.” Under state law, new attached and detached ADUs have maximum four-foot rear and side- yard setbacks. (Gov. Code, § 65852.2, subds. (a)(1)(D)(vii), (c)(2)(C), (e)(1)(B), and (e)(1)(D).) Local DocuSign Envelope ID: 26247F48-AB81-46DC-AE75-91A87A8EE538 3 Packet Pg. 85 CITY OF PALO ALTO | 250 HAMILTON AVENUE, PALO ALTO, CA. 94301 | 650-329-2441 agencies may impose setback requirements if the minimum rear and side-yard setbacks established by state law are not exceeded. This restriction is concerning on a number of grounds. First, setbacks may not be required for JADUs as they are constructed within the walls of the primary dwelling. Second, this requirement imposes excessive restrictions on ADUs converted from an existing area of the primary dwelling or accessory structure with a basement or subterranean space. Again, these structures are not subject to setback requirements. Finally, this section would violate State ADU Law if the side or rear setback requirement for an ADU or JADU located in a basement or other subterranean structure exceeded four feet. Requiring ADUs and JADUs to meet the side and rear setbacks for the primary dwellings could exceed the maximum four-foot setbacks set out in State ADU Law. The ordinance must be revised to eliminate these concerns. As noted above, the City will add a clarifying statement that the regulations in PAMC 18.09.040 are not intended to limit the conversion of existing structures to ADUs or JADUs. In addition, as with the previous section, the inclusion of JADUs here only serves to increase flexibility of JADU production. As noted above, the City will add a clarifying statement an ADU of at least 800 square feet, 16 feet in height, and with four-foot rear and side- yard setbacks is permitted as required by State ADU Law. With these clarifications the City does not believe it would violate State ADU Law to require that a newly constructed ADU limit any below-grade space to a setback greater than 4 feet. It is the City’s understanding that it could simply state that basements are not permitted for ADUs built under subdivisions (a)-(d), so long as it was still feasible to construct an ADU of at least 800 square feet. If this is the case, the City should have the lesser authority to direc t the placement of below-grade development. The City has significant concerns about basements in general, and those concerns extend to basements constructed as part of ADUs. Due to a high water table throughout most of Palo Alto, the construction of basements requires dewatering (pumping water from the construction site). While this is allowed, there are significant restrictions on timing and procedures taken during the dewatering process. Secondly, development of homes in Palo Alto often includes requirements for the planting and maintenance of trees used to enhance privacy between properties. Placing ADUs with basements as close as 4 feet from the property line may jeopardize the health of these trees on the subject property as well as trees on adjacent properties. The trees could fail, which would both diminish the tree canopy—important for our environment and adaptation to climate change—and diminish the privacy between properties. Building below ground is not required in order to achieve a unit which f ollows the requirements in Section 65852.2 and can lead to potential impacts on adjacent lots, such as to large stature trees on adjacent lots which is a common occurrence in Palo Alto. Building a basement in these scenarios may cause the tree to fail which is a life, safety, and health hazard which would unduly affect both homeowners as a result of the action by one individual. There are construction methods which can be implemented for above ground construction to help limit root damage caused by this construction to preserve trees but that is not possible for below ground construction and can lead to significant impacts as noted above. DocuSign Envelope ID: 26247F48-AB81-46DC-AE75-91A87A8EE538 3 Packet Pg. 86 CITY OF PALO ALTO | 250 HAMILTON AVENUE, PALO ALTO, CA. 94301 | 650-329-2441 10. Corner Lots - Section 18.09.040(j) Design: This section states, “Except on corner lots, the unit shall not have an entranceway facing the same lot line (property line) as the entranceway to the main dwelling unit unless the entranceway to the accessory unit is located in the rear half of the lot. Exterior staircases to second floor units shall be located towards the interior side or rear yard of the property.” These standards appear to apply only to the creation of ADUs and may unduly restrict the placement of an ADU on some lots. Local development standards provided by ordinance pursuant to subdivisions (a) through (d) of Government Code section 65852.2 do not apply to ADUs created under subdivision (e). Please consider eliminating this restriction or modifying it such that it applies “when feasible.” As noted above, the City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. The City will clarify this is not applicable for subsection (e) ADUs. We are not aware of any evidence that this simple design requirement creates an excessive constraint on ADU production and that has not been our experience. 11. Privacy - Section 18.09.040(j)(2)(A) Privacy: The section states, “Second story doors and decks shall not face a neighboring dwelling unit.” This limitation, however, may place an impermissible constraint on an ADU. For example, excessive constraints would be placed on the creation of a second story ADU if residential units were located on all adjacent parcels. In addition, when operating in conjunction with Section 18.09.040(j), noted above, this restriction may prohibit ADUs created under subdivision (e) of Government Code section 65852.2. Accordingly, this provision must be revised to allow for more flexibility. The City could revise the first sentence of this section to state, “Second story doors and decks shall not face a neighboring dwelling unit, where feasible.” As noted above, the City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. We are not aware of any evidence that this simple design requirement creates an excessive constraint on ADU production and that has not been our experience. The City will clarify this is not applicable for subsection (e) ADUs. We are not aware of any evidence that this creates an excessive constraint and that has not been our experience. 12. Parking - Section 18.09.040(k)(4) Parking: The ordinance indicates if covered parking for a unit is provided in any district, the maximum size of the covered parking area for the accessory dwelling unit is 220 square feet. Further, under this section, the space for the covered parking count towards the total floor area for the site and the ADU if attached to the unit. Covered parking should not count towards the total floor area of the site as if it would unduly limit the allowable size of an ADU established by state law, nor should it directly count toward the area available for the ADU. Although standards within an underlying zone may apply when noted in the adopted ADU ordinance, they may not be more restrictive than those contained in state statute. (See, e.g., Gov. Code, § 65852.2, subs. (a)(1)(B), (a)(1)(D)(vii), (a)(1)(D)(x), (c), and (e).) The portion of this section stating “unit unless attached to the unit” should be deleted, or the section should otherwise be modified to comply with state law. As noted above, the City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. Currently, all covered parking in the single-family zones counts towards floor area for the site and dwelling unit. The City does not understand how this creates a standard that is more restrictive than that contained in state statute; none of the subsections cited in your letter speak to whether a garage for an ADU must be exempted from the unit size for the ADU. Moreover, this provision does DocuSign Envelope ID: 26247F48-AB81-46DC-AE75-91A87A8EE538 3 Packet Pg. 87 CITY OF PALO ALTO | 250 HAMILTON AVENUE, PALO ALTO, CA. 94301 | 650-329-2441 not create a constraint on ADU production, as a property owner may always choose to provide a detached garage, uncovered parking, or no parking at all for the ADU. The City has concerns that allowing attached garages onto these structures will incentivize individuals to illegally expand the unit into the garage, which would both exceed the City’s ordinance, contain unpermitted construction, and potentially place the health and safety of the occupants at risk. Sincerely, Jonathan Lait Director of Planning and Development Services DocuSign Envelope ID: 26247F48-AB81-46DC-AE75-91A87A8EE538 3 Packet Pg. 88 Certificate Of Completion Envelope Id: 26247F48AB8146DCAE7591A87A8EE538 Status: Completed Subject: Please DocuSign: 2022-02-02 Draft HCD ADU Letter response.docx Source Envelope: Document Pages: 6 Signatures: 1 Envelope Originator: Certificate Pages: 2 Initials: 0 Madina Klicheva AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 250 Hamilton Ave Palo Alto , CA 94301 Madina.Klicheva@CityofPaloAlto.org IP Address: 199.33.32.254 Record Tracking Status: Original 2/3/2022 4:39:53 PM Holder: Madina Klicheva Madina.Klicheva@CityofPaloAlto.org Location: DocuSign Security Appliance Status: Connected Pool: StateLocal Storage Appliance Status: Connected Pool: City of Palo Alto Location: DocuSign Signer Events Signature Timestamp Jonathan Lait Jonathan.Lait@CityofPaloAlto.org Interim Director Planning and Community Environment City of Palo Alto Security Level: Email, Account Authentication (None) Signature Adoption: Uploaded Signature Image Using IP Address: 99.88.42.180 Sent: 2/3/2022 4:42:20 PM Viewed: 2/3/2022 4:42:59 PM Signed: 2/3/2022 4:43:06 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Garrett Sauls Garrett.Sauls@CityofPaloAlto.org Associate Planner Security Level: Email, Account Authentication (None) Sent: 2/3/2022 4:43:08 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Rachael Tanner Rachael.Tanner@CityofPaloAlto.org Assistant Director of Planning and Development Services Security Level: Email, Account Authentication (None) Sent: 2/3/2022 4:43:08 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign 3 Packet Pg. 89 Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 2/3/2022 4:42:20 PM Certified Delivered Security Checked 2/3/2022 4:42:59 PM Signing Complete Security Checked 2/3/2022 4:43:06 PM Completed Security Checked 2/3/2022 4:43:08 PM Payment Events Status Timestamps 3 Packet Pg. 90 STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT DIVISION OF HOUSING POLICY DEVELOPMENT 2020 W. El Camino Avenue, Suite 500 Sacramento, CA 95833 (916) 263-2911 / FAX (916) 263-7453 www.hcd.ca.gov December 21, 2022 Jonathan Lait, Director Planning and Development Services City of Palo Alto 250 Hamilton Avenue, 5th Floor Palo Alto, CA 94301 Dear Jonathan Lait: RE: City of Palo Alto Accessory Dwelling Unit (ADU) Ordinance – Letter of Technical Assistance The California Department of Housing and Community Development (HCD) thanks the City of Palo Alto (City) for submitting accessory dwelling unit (ADU) Ordinance Number 5507 (Ordinance) and for its response to HCD’s December 23, 2021, written findings of non-compliance. HCD appreciates the time and effort the City took in crafting its February 3, 2022, response, and for the conversation between City staff and HCD Analyst Lauren Lajoie on February 2, 2022. Nevertheless, HCD has concerns with the City’s response as it fails to address identified inconsistencies between the City’s ADU ordinance and State ADU Law, as outlined in this letter. HCD requests that the City respond to this letter no later than January 20, 2023, with a detailed plan of action and timeline, to bring its Ordinance into compliance pursuant to Government Code section 65852.2, subdivision (h)(2)(B). Background and Summary of Issues In its December 23, 2021, findings, HCD detailed where it found the Ordinance violates Government Code section 65852.2. In its February 3, 2022, letter, the City responded point by point to the findings as they were presented in the HCD letter. While the responses indicate a willingness to come into compliance with state law, HCD remains concerned that the proposed changes to the City’s Ordinance are insufficient. This letter will address HCD’s findings for which the City’s response and/or commitment to correct was not satisfactory and where HCD still considers an inconsistency between the Ordinance and State ADU Law. 1) HCD’s Original Finding Daylight Plane - Section 18.09.040(b): Table 2 states that "daylight plane" acts as a limit on the height of ADUs. In many instances, this may not be a problem; however, daylight plane concerns cannot be used to unduly limit the height of an ADU. ADUs 3 Packet Pg. 91 Jonathan Lait, Director of Planning and Development Services Page 2 are permitted up to 16 feet high. (Gov. Code, § 65852.2, subds. (c)(2)(C), (e)(1)(B)(ii).) Therefore, in considering restrictions that the City is imposing on ADUs for daylight planes, the ordinance should note the 16-foot height allowable for ADUs. This Table must be amended to clarify this point. Palo Alto’s Response “Please note that the City’s daylight plane regulations do not apply to subdivision (e) ADUs, which are governed by PAMC Section 18.09.030. The City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. In addition, the City will add a clarifying statement that the regulations in PAMC 18.09.040 are not intended to limit the conversion of existing structures to ADUs or JADUs. For all other ADUs; however, the City has requested clarity on HCD’s position on daylight plane on numerous occasions, most recently by email dated August 8, 2021. Please see this email, which is attached, for an explanation of the City’s position. The City looks forward to continued discussion of this topic.” HCD’s Follow-up Response On February 23, 2022, HCD received a copy of an email from Assistant City Attorney (ACA) Albert Yang dated August 30, 2021. ACA Yang sought clarification on behalf of the City on whether local government could enforce a development standard that would require that any portion of an ADU fall below 16 feet in height. The email states: ”Subdivision (c)(2)(C) provides that a local agency may not establish “[1] any other minimum or maximum size for an accessory dwelling unit, [2] size based upon a percentage of the proposed or existing primary dwelling, or [3] limits on lot coverage, [4] floor area ratio, [5] open space, and [6] minimum lot size [. . .] that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.” ACA Yang argues that the law is very specific regarding the development standards addressed and it (the subdivision) specifically recognizes that the list does not encompass all development standards. ACA Yang states, “The specific development standards addressed in subdivision (c)(2)(C) do not include daylight plane standards.” ACA Yang impliedly concludes that because the development standards, which ACA Yang numbered from [1] through [6], do not list daylight plane standards, the City may impose daylight plane standards over the minimum 16-foot height requirement. However, the City incorrectly cited subdivision (c)(2)(C) above; thereby, creating a list of “development standards” from portions of (c)(2)(A) and (c)(2)(B)(i) and (ii) and conflated these with “other local development standards” found in subdivision (c)(2)(C). Accurately cited, subdivision (c)(2)(C) states: (C) Any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot 3 Packet Pg. 92 Jonathan Lait, Director of Planning and Development Services Page 3 coverage, floor area ratio, open space, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards. State ADU Law authorizes a local agency to establish the minimum and maximum size requirements for ADUs in subdivision (c)(1), but any such size requirement must allow for a minimum height of 16 feet while being constructed in compliance with all other local development standards. This height requirement is meant to be in harmony with local development standards. Because the subdivision has set the minimum height, authorized by statute, local design standards set in the ordinance cannot invalidate this provision, pursuant to Government Code section 65852.2 (a)(5). Therefore, the minimum height of all proposed ADUs is 16 feet and cannot be limited by Daylight Plane restrictions. Table 2 must be amended to clarify this point. Please note that SB 897 (2022), effective January 1, 2023, amends this subdivision, and adds provisions regarding the minimum height for detached and attached ADUs. 2) HCD’s Original Finding Floor Area & JADUs - Section 18.09.040(b): Development standards can account for ADUs in their measurement of the floor area restrictions or ratio (FAR). But these standards may not account for or consider JADUs. A JADU may not be included in this calculation, because a JADU is a unit that is contained entirely within a single- family residence. (Gov. Code § 65852.22, subd. (h)(1).) Footnote 4 of Table 2 impermissibly includes JADUs as part of the FAR calculations. This footnote must be amended to clarify this point. Palo Alto’s Response “Footnote 4 of Table 2 provides additional FAR on a site for ADUs and JADUs. This is an incentive to promote production of such units without limiting the development potential of a primary unit. Because a JADU is contained entirely within the space of a single-family residence, it would normally be included in the floor area of the primary unit. Footnote 4 provides an opportunity for a property owner to exempt all JADU square footage from the calculation of floor area for the primary unit. The removal of JADUs from footnote 4 would only serve to restrict the development of JADUs. The City will attempt to clarify the language of this footnote.” HCD’s Follow-up Response HCD supports the City’s attempt to add clarifying language. Converting an area within an existing home should not be counted. To clarify footnote 4 in Table 2, the City could include, for example, "This provision applies to JADUs in proposed single-family dwellings, or remodels that increase the square footage of a single- family dwelling.” 3 Packet Pg. 93 Jonathan Lait, Director of Planning and Development Services Page 4 3) HCD’s Original Finding Noise-Producing Equipment - Section 18.09.040(h): Local agencies may impose development standards on ADUs; however, these standards shall not exceed state standards. Section 18.09.040(h) states that noise-producing equipment “shall be located outside of the setbacks.” This section must be revised to only refer to ADUs since setbacks are not required for JADUs. In addition, this setback for noise- producing equipment for ADUs must be revised to make clear that this setback requirement will not impede the minimum state standards of four-foot setbacks. (Gov. Code, § 65852.2, subd. (c)(2)(C)). Palo Alto’s Response “As noted above, the City will add a clarifying statement that the regulations in PAMC 18.09.040 are not intended to limit the conversion of existing structures to ADUs or JADUs. For new construction; however, the City permits JADUs to build at a lesser setback than a single-family home normally would. Therefore, the removal of JADUs from this section will only serve to restrict the development of JADUs. “Additionally, the City’s ordinance states that noise producing equipment needs to be placed outside the setback for an ADU or JADU. This means that the noise producing equipment itself cannot be placed closer than four feet to a property line for either type of structure; not that the ADU or JADU cannot be placed at those locations. This is consistent with the state setback requirements for an ADU.” HCD’s Follow-up Response JADUs are entirely within the walls of a proposed or existing single-family dwelling and as such not subject to any setback requirements. Therefore, the City should remove the reference to JADU from Section 18.09.040(h). The City writes, “For new construction; however, the City permits JADUs to be built at a lesser setback than a single-family home normally would.” Please clarify this statement for us. HCD applauds the City’s intention to promote JADUs by relaxing setback requirements. However, since setbacks do not apply to JADUs, the City would have to relax the setback requirements for the primary single-family dwelling to achieve the desired effect. 4) HCD’s Original Finding Corner Lots - Section 18.09.040(j) Design: This section states, “Except on corner lots, the unit shall not have an entranceway facing the same lot line (property line) as the entranceway to the main dwelling unit unless the entranceway to the accessory unit is located in the rear half of the lot. Exterior staircases to second floor units shall be located towards the interior side or rear yard of the property.” These standards appear to apply only to the creation of ADUs and may unduly restrict the placement of an ADU on some lots. Local development standards provided by ordinance pursuant to subdivisions (a) through (d) of Government Code section 65852.2 do not apply to ADUs created under subdivision (e). Please consider eliminating this restriction or modifying it such that it applies “when feasible.” 3 Packet Pg. 94 Jonathan Lait, Director of Planning and Development Services Page 5 Palo Alto’s Response “As noted above, the City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. The City will clarify this is not applicable for subsection (e) ADUs. We are not aware of any evidence that this simple design requirement creates an excessive constraint on ADU production and that has not been our experience.” HCD’s Follow-Up Response Requirements such as stipulating the facing of entranceways or the location of stairways may unduly restrict the creation of ADUs on some lots. Statute for both ADUs (Gov. Code, § 65852.2, subd. (e)(1)(A)(ii)) and JADUs (Gov. Code, § 65852.22, subd. (a)(5)) require independent entry into the unit, and a constraint on the location of an entry door may prohibit the creation of an additional housing unit. In addition, this requirement could add significant expense if entry doors must be installed in an exterior wall instead of utilizing an existing doorway facing the same direction as the entryway to the primary dwelling. The City must either eliminate this restriction or modify it such that it applies “when feasible.” 5) HCD’s Original Finding Parking - Section 18.09.040(k)(iv) Parking: The ordinance indicates if covered parking for a unit is provided in any district, the maximum size of the covered parking area for the accessory dwelling unit is 220 square feet. Further, under this section, the space for the covered parking count towards the total floor area for the site and the ADU if attached to the unit. Covered parking should not count towards the total floor area of the site as if it would unduly limit the allowable size of an ADU established by state law, nor should it directly count toward the area available for the ADU. Although standards within an underlying zone may apply when noted in the adopted ADU ordinance, they may not be more restrictive than those contained in state statute. (See, e.g., Gov. Code, § 65852.2, subs. (a)(1)(B), (a)(1)(D)(vii), (a)(1)(D)(x), (c), and (e).) The portion of this section stating “unit unless attached to the unit” should be deleted, or the section should otherwise be modified to comply with state law. Palo Alto’s Response “As noted above, the City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. “Currently, all covered parking in the single-family zones counts towards floor area for the site and dwelling unit. The City does not understand how this creates a standard that is more restrictive than that contained in state statute; none of the subsections cited in your letter speak to whether a garage for an ADU must be 3 Packet Pg. 95 Jonathan Lait, Director of Planning and Development Services Page 6 exempted from the unit size for the ADU. Moreover, this provision does not create a constraint on ADU production, as a property owner may always choose to provide a detached garage, uncovered parking, or no parking at all for the ADU. “The City has concerns that allowing attached garages onto these structures will incentivize individuals to illegally expand the unit into the garage, which would both exceed the City's ordinance, contain unpermitted construction, and potentially place the health and safety of the occupants at risk.” HCD’s Follow-up Response Covered parking does not count towards the total floor area of the ADU. An ADU is defined in Government Code section 65852.2, subdivision (j)(1), as “complete independent living facilities,” and subdivision (j)(4) further specifies that the living area for the ADU “does not include a garage...” Thus, a covered parking space or garage, whether or not attached to a unit, would be considered “non-livable” space. Therefore, as stated in our original finding, covered parking should not count towards the total floor area of the site as it would unduly limit the allowable size of an ADU established by state law. Similarly, it should not directly count toward the area available for the ADU, as this could also restrict the size of the ADU. The addition of garage space to the ADUs livable space would violate ADU size requirements found in Government Code section 65852.2, subdivisions (a)(1)(D)(iv) and (v), and (c). While the City raises concerns of potential illegal expansion, the City may not adopt an ordinance that would violate State ADU Law. The City may rely on its enforcement of codes and standards to mitigate its concerns. The City should remove the portion of this section stating “unless attached to the unit” or otherwise modify the section to comply with State ADU Law. Conclusion Given the deficiencies described above and in HCD’s December 23, 2021, letter, the City’s Ordinance is inconsistent with State ADU Law. HCD requests that the City respond to this letter no later than January 20, 2023, with a detailed plan of action and timeline, to bring its Ordinance into compliance pursuant to Government Code section 65852.2, subdivision (h)(2)(B). Specifically, to bring its ADU ordinance into compliance, the City must either amend the Ordinance according to HCD’s findings to comply with State ADU Law (Gov. Code, § 65852.2, subd. (h)(2)(B)(i)) or readopt the Ordinance without changes. Should the City choose to readopt the Ordinance without the changes specified by HCD, the City must include findings in its resolution that explain the reasons the City finds that the Ordinance complies with State ADU Law despite the findings made by HCD. (Gov. Code, § 65852.2, subd. (h)(2)(B)(ii), (h)(3)(A).) 3 Packet Pg. 96 Jonathan Lait, Director of Planning and Development Services Page 7 HCD will review and consider any plan of action and timeline received from the City before January 20, 2023, in advance of taking further action authorized by Government Code section 65852.2. HCD appreciates the City’s efforts provided in the preparation and adoption of the Ordinance and welcomes the opportunity to assist the City in fully complying with State ADU Law. Please feel free to contact Mike Van Gorder, of our staff, at (916) 776-7541 or at mike.vangorder@hcd.ca.gov. Sincerely, Shannan West Housing Accountability Unit Chief 3 Packet Pg. 97 January 13, 2023 Mike Van Gorder Housing & Community Development Division of Housing Policy Development 2020 W. El Camino Avenue, Suite 500 Sacramento, CA 95833 Mike.VanGorder@hcd.ca.gov Dear Mr. Van Gorder, Thank you for the telephone call today regarding HCD’s letter dated December 21, 2022, which is attached to and referenced in this response. Staff appreciates HCD’s thorough review of the City’s ADU ordinance and consideration of the City’s prior comments in response to HCD compliance concerns. There are five outstanding issues referenced in the letter related to various development standards. City staff responses to each topic area is provided below; in short, staff will recommend that the City’s ordinance be updated in accordance with HCD’s comments. 1. Daylight Plane. Staff understands HCD’s response to mean that all portions of an ADU must be permitted at the heights now provided Government Code section 65852.2(c)(2)(D). City staff will recommend to its legislative body updating the ordinance to reflect that daylight plane does not limit ADU heights below the heights provided in the Government Code. 2. Floor Area and JADUs. The City’s intention with respect to JADUs has always been that they will not impact the development potential for single-family dwelling, whether through floor area, lot coverage, or any other development standard. The City believes this is consistent with HCD’s direction and will ensure that its ordinance reflects this intention in a manner that makes sense in the context and structure of the City’s other zoning regulations. 3. Noise Producing Equipment/JADU setbacks. The City does not believe there is a substantive disagreement in this area. Typically, in Palo Alto, new construction related to a single-family residence requires a six-foot side yard and 20-foot rear yard setback. However, as an incentive for JADU production, the City’s zoning regulations provide a more lenient four-foot setback for new construction that is proposed to contain a JADU. While, it may be technically more accurate to call this this four-foot setback a “setback for the new construction portion of a single-family home that is dedicated to a JADU,” we DocuSign Envelope ID: 4E99A082-32FD-4318-B448-A9330E581F35 3 Packet Pg. 98 believe it is easier for applicants and staff to refer to this as a “setback for a new construction JADU.” Nevertheless, staff will explore whether there are clearer ways to express this in the upcoming ADU code amendment. With respect to the topic of noise producing equipment, the City’s municipal regulations prohibit such freestanding or attached appurtenances from being located closer to the property line than is already allowed by state law for the ADU/JADU structure. The City is currently working on amendments to the regulations pertaining to certain noise producing equipment to allow greater flexibility for the primary unit in an effort to advance the City’s carbon reduction goals. 4. Corner Lots. The City continues to be unaware of any evidence that a simple objective design requirement related to entryways creates an excessive constraint on ADU production – that has certainly not been our experience processing over 527 ADU permits since 2018. Nevertheless, City staff will recommend an additional clarifying statement to the effect of “when feasible,” or removal of this provision altogether. 5. Parking. The City was not able to find a relationship in state law between the term “living area” and minimum or maximum sizes for an ADU. Indeed, the term “living area” is only used in Gov. Code 65852.2(a)(1)(D)(vii) with respect to conversion of existing structures. Nonetheless, the City understands HCD’s position that garage area should not count toward the “size” of an ADU. City staff will recommend removal of the phrase “unless attached to the unit”, as suggested by HCD. City staff intends to propose amendments to the City’s ADU ordinance consistent with HCD direction at the earliest practical opportunity. At this time, staff anticipates a hearing before the Planning and Transportation Commission (PTC) by the end of March to discuss and address the requested changes from HCD. Following the PTC’s recommendation, staff will then place the ordinance on the City Council’s agenda for adoption; anticipated for May, if not sooner. If the City deviates from this schedule, staff will contact HCD and provide relevant updates. Thank you again for reviewing our response letters, if you have any questions, please contact me at (650) 329-2676 or by email at jonathan.lait@cityofpaloalto.org. Sincerely, Jonathan Lait Director of Planning and Development Services Attachment: HCD Letter, dated December 21, 2022 DocuSign Envelope ID: 4E99A082-32FD-4318-B448-A9330E581F35 3 Packet Pg. 99 STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT DIVISION OF HOUSING POLICY DEVELOPMENT 2020 W. El Camino Avenue, Suite 500 Sacramento, CA 95833 (916) 263-2911 / FAX (916) 263-7453 www.hcd.ca.gov December 21, 2022 Jonathan Lait, Director Planning and Development Services City of Palo Alto 250 Hamilton Avenue, 5th Floor Palo Alto, CA 94301 Dear Jonathan Lait: RE: City of Palo Alto Accessory Dwelling Unit (ADU) Ordinance – Letter of Technical Assistance The California Department of Housing and Community Development (HCD) thanks the City of Palo Alto (City) for submitting accessory dwelling unit (ADU) Ordinance Number 5507 (Ordinance) and for its response to HCD’s December 23, 2021, written findings of non-compliance. HCD appreciates the time and effort the City took in crafting its February 3, 2022, response, and for the conversation between City staff and HCD Analyst Lauren Lajoie on February 2, 2022. Nevertheless, HCD has concerns with the City’s response as it fails to address identified inconsistencies between the City’s ADU ordinance and State ADU Law, as outlined in this letter. HCD requests that the City respond to this letter no later than January 20, 2023, with a detailed plan of action and timeline, to bring its Ordinance into compliance pursuant to Government Code section 65852.2, subdivision (h)(2)(B). Background and Summary of Issues In its December 23, 2021, findings, HCD detailed where it found the Ordinance violates Government Code section 65852.2. In its February 3, 2022, letter, the City responded point by point to the findings as they were presented in the HCD letter. While the responses indicate a willingness to come into compliance with state law, HCD remains concerned that the proposed changes to the City’s Ordinance are insufficient. This letter will address HCD’s findings for which the City’s response and/or commitment to correct was not satisfactory and where HCD still considers an inconsistency between the Ordinance and State ADU Law. 1) HCD’s Original Finding Daylight Plane - Section 18.09.040(b): Table 2 states that "daylight plane" acts as a limit on the height of ADUs. In many instances, this may not be a problem; however, daylight plane concerns cannot be used to unduly limit the height of an ADU. ADUs DocuSign Envelope ID: 4E99A082-32FD-4318-B448-A9330E581F35 3 Packet Pg. 100 Jonathan Lait, Director of Planning and Development Services Page 2 are permitted up to 16 feet high. (Gov. Code, § 65852.2, subds. (c)(2)(C), (e)(1)(B)(ii).) Therefore, in considering restrictions that the City is imposing on ADUs for daylight planes, the ordinance should note the 16-foot height allowable for ADUs. This Table must be amended to clarify this point. Palo Alto’s Response “Please note that the City’s daylight plane regulations do not apply to subdivision (e) ADUs, which are governed by PAMC Section 18.09.030. The City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. In addition, the City will add a clarifying statement that the regulations in PAMC 18.09.040 are not intended to limit the conversion of existing structures to ADUs or JADUs. For all other ADUs; however, the City has requested clarity on HCD’s position on daylight plane on numerous occasions, most recently by email dated August 8, 2021. Please see this email, which is attached, for an explanation of the City’s position. The City looks forward to continued discussion of this topic.” HCD’s Follow-up Response On February 23, 2022, HCD received a copy of an email from Assistant City Attorney (ACA) Albert Yang dated August 30, 2021. ACA Yang sought clarification on behalf of the City on whether local government could enforce a development standard that would require that any portion of an ADU fall below 16 feet in height. The email states: ”Subdivision (c)(2)(C) provides that a local agency may not establish “[1] any other minimum or maximum size for an accessory dwelling unit, [2] size based upon a percentage of the proposed or existing primary dwelling, or [3] limits on lot coverage, [4] floor area ratio, [5] open space, and [6] minimum lot size [. . .] that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.” ACA Yang argues that the law is very specific regarding the development standards addressed and it (the subdivision) specifically recognizes that the list does not encompass all development standards. ACA Yang states, “The specific development standards addressed in subdivision (c)(2)(C) do not include daylight plane standards.” ACA Yang impliedly concludes that because the development standards, which ACA Yang numbered from [1] through [6], do not list daylight plane standards, the City may impose daylight plane standards over the minimum 16-foot height requirement. However, the City incorrectly cited subdivision (c)(2)(C) above; thereby, creating a list of “development standards” from portions of (c)(2)(A) and (c)(2)(B)(i) and (ii) and conflated these with “other local development standards” found in subdivision (c)(2)(C). Accurately cited, subdivision (c)(2)(C) states: (C) Any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot DocuSign Envelope ID: 4E99A082-32FD-4318-B448-A9330E581F35 3 Packet Pg. 101 Jonathan Lait, Director of Planning and Development Services Page 3 coverage, floor area ratio, open space, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards. State ADU Law authorizes a local agency to establish the minimum and maximum size requirements for ADUs in subdivision (c)(1), but any such size requirement must allow for a minimum height of 16 feet while being constructed in compliance with all other local development standards. This height requirement is meant to be in harmony with local development standards. Because the subdivision has set the minimum height, authorized by statute, local design standards set in the ordinance cannot invalidate this provision, pursuant to Government Code section 65852.2 (a)(5). Therefore, the minimum height of all proposed ADUs is 16 feet and cannot be limited by Daylight Plane restrictions. Table 2 must be amended to clarify this point. Please note that SB 897 (2022), effective January 1, 2023, amends this subdivision, and adds provisions regarding the minimum height for detached and attached ADUs. 2) HCD’s Original Finding Floor Area & JADUs - Section 18.09.040(b): Development standards can account for ADUs in their measurement of the floor area restrictions or ratio (FAR). But these standards may not account for or consider JADUs. A JADU may not be included in this calculation, because a JADU is a unit that is contained entirely within a single- family residence. (Gov. Code § 65852.22, subd. (h)(1).) Footnote 4 of Table 2 impermissibly includes JADUs as part of the FAR calculations. This footnote must be amended to clarify this point. Palo Alto’s Response “Footnote 4 of Table 2 provides additional FAR on a site for ADUs and JADUs. This is an incentive to promote production of such units without limiting the development potential of a primary unit. Because a JADU is contained entirely within the space of a single-family residence, it would normally be included in the floor area of the primary unit. Footnote 4 provides an opportunity for a property owner to exempt all JADU square footage from the calculation of floor area for the primary unit. The removal of JADUs from footnote 4 would only serve to restrict the development of JADUs. The City will attempt to clarify the language of this footnote.” HCD’s Follow-up Response HCD supports the City’s attempt to add clarifying language. Converting an area within an existing home should not be counted. To clarify footnote 4 in Table 2, the City could include, for example, "This provision applies to JADUs in proposed single-family dwellings, or remodels that increase the square footage of a single- family dwelling.” DocuSign Envelope ID: 4E99A082-32FD-4318-B448-A9330E581F35 3 Packet Pg. 102 Jonathan Lait, Director of Planning and Development Services Page 4 3) HCD’s Original Finding Noise-Producing Equipment - Section 18.09.040(h): Local agencies may impose development standards on ADUs; however, these standards shall not exceed state standards. Section 18.09.040(h) states that noise-producing equipment “shall be located outside of the setbacks.” This section must be revised to only refer to ADUs since setbacks are not required for JADUs. In addition, this setback for noise- producing equipment for ADUs must be revised to make clear that this setback requirement will not impede the minimum state standards of four-foot setbacks. (Gov. Code, § 65852.2, subd. (c)(2)(C)). Palo Alto’s Response “As noted above, the City will add a clarifying statement that the regulations in PAMC 18.09.040 are not intended to limit the conversion of existing structures to ADUs or JADUs. For new construction; however, the City permits JADUs to build at a lesser setback than a single-family home normally would. Therefore, the removal of JADUs from this section will only serve to restrict the development of JADUs. “Additionally, the City’s ordinance states that noise producing equipment needs to be placed outside the setback for an ADU or JADU. This means that the noise producing equipment itself cannot be placed closer than four feet to a property line for either type of structure; not that the ADU or JADU cannot be placed at those locations. This is consistent with the state setback requirements for an ADU.” HCD’s Follow-up Response JADUs are entirely within the walls of a proposed or existing single-family dwelling and as such not subject to any setback requirements. Therefore, the City should remove the reference to JADU from Section 18.09.040(h). The City writes, “For new construction; however, the City permits JADUs to be built at a lesser setback than a single-family home normally would.” Please clarify this statement for us. HCD applauds the City’s intention to promote JADUs by relaxing setback requirements. However, since setbacks do not apply to JADUs, the City would have to relax the setback requirements for the primary single-family dwelling to achieve the desired effect. 4) HCD’s Original Finding Corner Lots - Section 18.09.040(j) Design: This section states, “Except on corner lots, the unit shall not have an entranceway facing the same lot line (property line) as the entranceway to the main dwelling unit unless the entranceway to the accessory unit is located in the rear half of the lot. Exterior staircases to second floor units shall be located towards the interior side or rear yard of the property.” These standards appear to apply only to the creation of ADUs and may unduly restrict the placement of an ADU on some lots. Local development standards provided by ordinance pursuant to subdivisions (a) through (d) of Government Code section 65852.2 do not apply to ADUs created under subdivision (e). Please consider eliminating this restriction or modifying it such that it applies “when feasible.” DocuSign Envelope ID: 4E99A082-32FD-4318-B448-A9330E581F35 3 Packet Pg. 103 Jonathan Lait, Director of Planning and Development Services Page 5 Palo Alto’s Response “As noted above, the City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. The City will clarify this is not applicable for subsection (e) ADUs. We are not aware of any evidence that this simple design requirement creates an excessive constraint on ADU production and that has not been our experience.” HCD’s Follow-Up Response Requirements such as stipulating the facing of entranceways or the location of stairways may unduly restrict the creation of ADUs on some lots. Statute for both ADUs (Gov. Code, § 65852.2, subd. (e)(1)(A)(ii)) and JADUs (Gov. Code, § 65852.22, subd. (a)(5)) require independent entry into the unit, and a constraint on the location of an entry door may prohibit the creation of an additional housing unit. In addition, this requirement could add significant expense if entry doors must be installed in an exterior wall instead of utilizing an existing doorway facing the same direction as the entryway to the primary dwelling. The City must either eliminate this restriction or modify it such that it applies “when feasible.” 5) HCD’s Original Finding Parking - Section 18.09.040(k)(iv) Parking: The ordinance indicates if covered parking for a unit is provided in any district, the maximum size of the covered parking area for the accessory dwelling unit is 220 square feet. Further, under this section, the space for the covered parking count towards the total floor area for the site and the ADU if attached to the unit. Covered parking should not count towards the total floor area of the site as if it would unduly limit the allowable size of an ADU established by state law, nor should it directly count toward the area available for the ADU. Although standards within an underlying zone may apply when noted in the adopted ADU ordinance, they may not be more restrictive than those contained in state statute. (See, e.g., Gov. Code, § 65852.2, subs. (a)(1)(B), (a)(1)(D)(vii), (a)(1)(D)(x), (c), and (e).) The portion of this section stating “unit unless attached to the unit” should be deleted, or the section should otherwise be modified to comply with state law. Palo Alto’s Response “As noted above, the City will add a clarifying sentence at the top of Section 18.09.040 explaining that none of the regulations in PAMC 18.09.040 apply to subdivision (e) ADUs. “Currently, all covered parking in the single-family zones counts towards floor area for the site and dwelling unit. The City does not understand how this creates a standard that is more restrictive than that contained in state statute; none of the subsections cited in your letter speak to whether a garage for an ADU must be DocuSign Envelope ID: 4E99A082-32FD-4318-B448-A9330E581F35 3 Packet Pg. 104 Jonathan Lait, Director of Planning and Development Services Page 6 exempted from the unit size for the ADU. Moreover, this provision does not create a constraint on ADU production, as a property owner may always choose to provide a detached garage, uncovered parking, or no parking at all for the ADU. “The City has concerns that allowing attached garages onto these structures will incentivize individuals to illegally expand the unit into the garage, which would both exceed the City's ordinance, contain unpermitted construction, and potentially place the health and safety of the occupants at risk.” HCD’s Follow-up Response Covered parking does not count towards the total floor area of the ADU. An ADU is defined in Government Code section 65852.2, subdivision (j)(1), as “complete independent living facilities,” and subdivision (j)(4) further specifies that the living area for the ADU “does not include a garage...” Thus, a covered parking space or garage, whether or not attached to a unit, would be considered “non-livable” space. Therefore, as stated in our original finding, covered parking should not count towards the total floor area of the site as it would unduly limit the allowable size of an ADU established by state law. Similarly, it should not directly count toward the area available for the ADU, as this could also restrict the size of the ADU. The addition of garage space to the ADUs livable space would violate ADU size requirements found in Government Code section 65852.2, subdivisions (a)(1)(D)(iv) and (v), and (c). While the City raises concerns of potential illegal expansion, the City may not adopt an ordinance that would violate State ADU Law. The City may rely on its enforcement of codes and standards to mitigate its concerns. The City should remove the portion of this section stating “unless attached to the unit” or otherwise modify the section to comply with State ADU Law. Conclusion Given the deficiencies described above and in HCD’s December 23, 2021, letter, the City’s Ordinance is inconsistent with State ADU Law. HCD requests that the City respond to this letter no later than January 20, 2023, with a detailed plan of action and timeline, to bring its Ordinance into compliance pursuant to Government Code section 65852.2, subdivision (h)(2)(B). Specifically, to bring its ADU ordinance into compliance, the City must either amend the Ordinance according to HCD’s findings to comply with State ADU Law (Gov. Code, § 65852.2, subd. (h)(2)(B)(i)) or readopt the Ordinance without changes. Should the City choose to readopt the Ordinance without the changes specified by HCD, the City must include findings in its resolution that explain the reasons the City finds that the Ordinance complies with State ADU Law despite the findings made by HCD. (Gov. Code, § 65852.2, subd. (h)(2)(B)(ii), (h)(3)(A).) DocuSign Envelope ID: 4E99A082-32FD-4318-B448-A9330E581F35 3 Packet Pg. 105 Jonathan Lait, Director of Planning and Development Services Page 7 HCD will review and consider any plan of action and timeline received from the City before January 20, 2023, in advance of taking further action authorized by Government Code section 65852.2. HCD appreciates the City’s efforts provided in the preparation and adoption of the Ordinance and welcomes the opportunity to assist the City in fully complying with State ADU Law. Please feel free to contact Mike Van Gorder, of our staff, at (916) 776-7541 or at mike.vangorder@hcd.ca.gov. Sincerely, Shannan West Housing Accountability Unit Chief DocuSign Envelope ID: 4E99A082-32FD-4318-B448-A9330E581F35 3 Packet Pg. 106 State of California GOVERNMENT CODE Section 65852.2 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 permitted. The designation of areas may be based on the adequacy of water and sewer services and the impact of accessory dwelling units on traffic flow and public safety. A local agency that does not provide water or sewer services shall consult with the local water or sewer service provider regarding the adequacy of water and sewer services before designating an area where accessory dwelling units may be permitted. (B) (i) Impose objective 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 Historical Resources. These standards shall not include requirements on minimum lot size. (ii) Notwithstanding clause (i), a local agency may reduce or eliminate parking requirements for any accessory dwelling unit located within its jurisdiction. (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. (D) Require the accessory dwelling units to comply with all of the following: (i) Except as provided in Section 65852.26, the accessory dwelling 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 is zoned to allow single-family or multifamily dwelling residential use and includes a proposed or existing dwelling. (iii) The accessory dwelling unit is either attached to, or located within, the proposed or existing primary dwelling, including attached garages, storage areas or similar uses, or an accessory structure or detached from the proposed or existing primary dwelling and located on the same lot as the proposed or existing primary dwelling, including detached garages. (iv) If there is an existing primary dwelling, the total floor area of an attached accessory dwelling unit shall not exceed 50 percent of the existing primary dwelling. (v) The total floor area for a detached accessory dwelling unit shall not exceed 1,200 square feet. STATE OF CALIFORNIA AUTHENTICATED ELECTRONIC LEGAL MATERIAL 3 Packet Pg. 107 (vi) No passageway shall be required in conjunction with the construction of an accessory dwelling unit. (vii) No setback shall be required for an existing living area or accessory structure or a structure constructed in the same location and to the same dimensions as an existing structure that is converted to an accessory dwelling unit or to a portion of an accessory dwelling unit, and a setback of no more than four feet from the side and rear lot lines shall be required for an accessory dwelling unit that is not converted from an existing structure or a new structure constructed in the same location and to the same dimensions as an existing structure. (viii) Local building code requirements that apply to detached dwellings, except that the construction of an accessory dwelling unit shall not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code (Title 24 of the California Code of Regulations), unless the building official or enforcement agency of the local agency makes a written finding based on substantial evidence in the record that the construction of the accessory dwelling unit could have a specific, adverse impact on public health and safety. Nothing in this clause shall be interpreted to prevent a local agency from changing the occupancy code of a space that was unhabitable space or was only permitted for nonresidential use and was subsequently converted for residential use pursuant to this section. (ix) Approval by the local health officer where a private sewage disposal system is being used, if required. (x) (I) Parking requirements for accessory dwelling units shall not exceed one parking space per accessory dwelling 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 an accessory dwelling 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, the local agency shall not require that those offstreet parking spaces be replaced. (xii) Accessory dwelling units shall not be required to provide fire sprinklers if they are not required for the primary residence. The construction of an accessory dwelling unit shall not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling. (2) The ordinance shall not be considered in the application of any local ordinance, policy, or program to limit residential growth. (3) (A) A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance 3 Packet Pg. 108 regulating the issuance of variances or special use permits. The permitting agency shall either approve or deny the application to create or serve an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the permitting agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot. If the permit application to create or serve an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family or multifamily dwelling on the lot, the permitting agency may delay approving or denying the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency approves or denies the permit application to create the new single-family or multifamily dwelling, but the application to create or serve the accessory dwelling unit or junior accessory dwelling unit shall be considered without discretionary review or hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not approved or denied the completed application within 60 days, the application shall be deemed approved. A local agency may charge a fee to reimburse it for costs incurred to implement this paragraph, including the costs of adopting or amending any ordinance that provides for the creation of an accessory dwelling unit. (B) If a permitting agency denies an application for an accessory dwelling unit or junior accessory dwelling unit pursuant to subparagraph (A), the permitting agency shall, within the time period described in subparagraph (A), return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant. (4) The ordinance shall require that a demolition permit for a detached garage that is to be replaced with an accessory dwelling unit be reviewed with the application for the accessory dwelling unit and issued at the same time. (5) The ordinance shall not require, and the applicant shall not be otherwise required, to provide written notice or post a placard for the demolition of a detached garage that is to be replaced with an accessory dwelling unit, unless the property is located within an architecturally and historically significant historic district. (6) 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. If 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. (7) 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. (8) (A) This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot that includes a 3 Packet Pg. 109 proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be used or imposed, except that, subject to subparagraphs (B) and (C), a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant. (B) (i) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit before January 1, 2025. (ii) Notwithstanding subparagraph (A), a local agency shall not impose an owner-occupant requirement on an accessory dwelling unit that was permitted between January 1, 2020, and January 1, 2025. (C) Notwithstanding subparagraphs (A) and (B), a local agency may require that an accessory dwelling unit be used for rentals of terms longer than 30 days. (9) 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. (10) 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. (b) (1) 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 or serve 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). The permitting agency shall either approve or deny the application to create or serve an accessory dwelling unit or a junior accessory dwelling unit within 60 days from the date the permitting agency receives a completed application if there is an existing single-family or multifamily dwelling on the lot. If the permit application to create or serve an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create or serve a new single-family or multifamily dwelling on the lot, the permitting agency may delay approving or denying the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency approves or denies the permit application to create or serve the new single-family or multifamily dwelling, but the application to create or serve the accessory dwelling unit or junior accessory dwelling unit shall still be considered ministerially without discretionary review or a hearing. If the applicant requests a delay, the 60-day time period shall be tolled for the period of the delay. If the local agency has not approved or denied the completed application within 60 days, the application shall be deemed approved. (2) If a permitting agency denies an application for an accessory dwelling unit or junior accessory dwelling unit pursuant to paragraph (1), the permitting agency shall, within the time period described in paragraph (1), return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant. 3 Packet Pg. 110 (c) (1) Subject to paragraph (2), a local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units. (2) Notwithstanding paragraph (1), a local agency shall not establish by ordinance any of the following: (A) A minimum square footage requirement for either an attached or detached accessory dwelling unit that prohibits an efficiency unit. (B) A maximum square footage requirement for either an attached or detached accessory dwelling unit that is less than either of the following: (i) 850 square feet. (ii) 1,000 square feet for an accessory dwelling unit that provides more than one bedroom. (C) Any requirement for a zoning clearance or separate zoning review or any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards. (D) Any height limitation that does not allow at least the following, as applicable: (i) A height of 16 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit. (ii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed single family or multifamily dwelling unit that is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. A local agency shall also allow an additional two feet in height to accommodate a roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the primary dwelling unit. (iii) A height of 18 feet for a detached accessory dwelling unit on a lot with an existing or proposed multifamily, multistory dwelling. (iv) A height of 25 feet or the height limitation in the local zoning ordinance that applies to the primary dwelling, whichever is lower, for an accessory dwelling unit that is attached to a primary dwelling. This clause shall not require a local agency to allow an accessory dwelling unit to exceed two stories. (d) Notwithstanding any other law, and whether or not the local agency has adopted an ordinance governing accessory dwelling units in accordance with subdivision (a), all of the following shall apply: (1) The local agency shall not impose any parking standards for an accessory dwelling unit in any of the following instances: (A) Where the accessory dwelling unit is located within one-half mile walking distance of public transit. (B) Where the accessory dwelling unit is located within an architecturally and historically significant historic district. 3 Packet Pg. 111 (C) Where the accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure. (D) When onstreet parking permits are required but not offered to the occupant of the accessory dwelling unit. (E) When there is a car share vehicle located within one block of the accessory dwelling unit. (F) When a permit application for an accessory dwelling unit is submitted with a permit application to create a new single-family dwelling or a new multifamily dwelling on the same lot, provided that the accessory dwelling unit or the parcel satisfies any other criteria listed in this paragraph. (2) The local agency shall not deny an application for a permit to create an accessory dwelling unit due to the correction of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit. (e) (1) Notwithstanding subdivisions (a) to (d), inclusive, 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: (A) One accessory dwelling unit and one junior accessory dwelling unit per lot with a proposed or existing single-family dwelling if all of the following apply: (i) The accessory dwelling unit or junior accessory dwelling unit is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress. (ii) The space has exterior access from the proposed or existing single-family dwelling. (iii) The side and rear setbacks are sufficient for fire and safety. (iv) The junior accessory dwelling unit complies with the requirements of Section 65852.22. (B) One detached, new construction, accessory dwelling unit that does not exceed four-foot side and rear yard setbacks for a lot with a proposed or existing single-family dwelling. The accessory dwelling unit may be combined with a junior accessory dwelling unit described in subparagraph (A). A local agency may impose the following conditions on the accessory dwelling unit: (i) A total floor area limitation of not more than 800 square feet. (ii) A height limitation as provided in clause (i), (ii), or (iii) as applicable, of subparagraph (D) of paragraph (2) of subdivision (c). (C) (i) 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, basements, or garages, if each unit complies with state building standards for dwellings. 3 Packet Pg. 112 (ii) A local agency shall allow at least one accessory dwelling unit within an existing multifamily dwelling and shall allow up to 25 percent of the existing multifamily dwelling units. (D) (i) Not more than two accessory dwelling units that are located on a lot that has an existing or proposed multifamily dwelling, but are detached from that multifamily dwelling and are subject to a height limitation in clause (i), (ii), or (iii), as applicable, of subparagraph (D) of paragraph (2) of subdivision (c) and rear yard and side setbacks of no more than four feet. (ii) If the existing multifamily dwelling has a rear or side setback of less than four feet, the local agency shall not require any modification of the existing multifamily dwelling as a condition of approving the application to construct an accessory dwelling unit that satisfies the requirements of this subparagraph. (2) A local agency shall not require, as a condition for ministerial approval of a permit application for the creation of an accessory dwelling unit or a junior accessory dwelling unit, the correction of nonconforming zoning conditions. (3) The installation of fire sprinklers shall not be required in an accessory dwelling unit if sprinklers are not required for the primary residence. The construction of an accessory dwelling unit shall not trigger a requirement for fire sprinklers to be installed in the existing multifamily dwelling. (4) A local agency may require owner-occupancy for either the primary dwelling or the accessory dwelling unit on a single-family lot, subject to the requirements of paragraph (8) of subdivision (a). (5) A local agency shall require that a rental of the accessory dwelling unit created pursuant to this subdivision be for a term longer than 30 days. (6) A local agency may require, as part of the application for a permit to create an accessory dwelling unit connected to an onsite wastewater treatment system, a percolation test completed within the last five years, or, if the percolation test has been recertified, within the last 10 years. (7) Notwithstanding subdivision (c) and paragraph (1) a local agency that has adopted an ordinance by July 1, 2018, providing for the approval of accessory dwelling units in multifamily dwelling structures shall ministerially consider a permit application to construct an accessory dwelling unit that is described in paragraph (1), and may impose objective standards including, but not limited to, design, development, and historic standards on said accessory dwelling units. These standards shall not include requirements on minimum lot size. (f) (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 purposes of calculating connection fees or capacity charges for utilities, including water and sewer service, unless the accessory dwelling unit was constructed with a new single-family dwelling. (3) (A) A local agency, special district, or water corporation shall not impose any impact fee upon the development of an accessory dwelling unit less than 750 square 3 Packet Pg. 113 feet. Any impact fees charged for an accessory dwelling unit of 750 square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit. (B) For purposes of this paragraph, “impact fee” has the same meaning as the term “fee” is defined in subdivision (b) of Section 66000, except that it also includes fees specified in Section 66477. “Impact fee” does not include any connection fee or capacity charge charged by a local agency, special district, or water corporation. (4) For an accessory dwelling unit described in subparagraph (A) of paragraph (1) of 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, unless the accessory dwelling unit was constructed with a new single-family dwelling. (5) For an accessory dwelling unit that is not described in subparagraph (A) of paragraph (1) of 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 square feet or the number of its drainage fixture unit (DFU) values, as defined in the Uniform Plumbing Code adopted and published by the International Association of Plumbing and Mechanical Officials, upon the water or sewer system. This fee or charge shall not exceed the reasonable cost of providing this service. (g) This section shall supersede a conflicting local ordinance. This section does not limit the authority of local agencies to adopt less restrictive requirements for the creation of an accessory dwelling unit. (h) (1) 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. (2) (A) If the department finds that the local agency’s ordinance does not comply with this section, the department shall notify the local agency and shall provide the local agency with a reasonable time, no longer than 30 days, to respond to the findings before taking any other action authorized by this section. (B) The local agency shall consider the findings made by the department pursuant to subparagraph (A) and shall do one of the following: (i) Amend the ordinance to comply with this section. (ii) 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. (3) (A) If the local agency does not amend its ordinance in response to the department’s findings or does not adopt a resolution with findings explaining the 3 Packet Pg. 114 reason the ordinance complies with this section and addressing the department’s findings, the department shall notify the local agency and may notify the Attorney General that the local agency is in violation of state law. (B) Before notifying the Attorney General that the local agency is in violation of state law, the department may consider whether a local agency adopted an ordinance in compliance with this section between January 1, 2017, and January 1, 2020. (i) 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. (j) As used in this section, the following terms mean: (1) “Accessory dwelling unit” means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated. An accessory dwelling unit also includes the following: (A) An efficiency unit. (B) A manufactured home, as defined in Section 18007 of the Health and Safety Code. (2) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot. (3) “Efficiency unit” has the same meaning as defined in Section 17958.1 of the Health and Safety Code. (4) “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. (5) “Local agency” means a city, county, or city and county, whether general law or chartered. (6) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards. (7) “Objective standards” means standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. (8) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one entrance of the accessory dwelling unit. (9) “Permitting agency” means any entity that is involved in the review of a permit for an accessory dwelling unit or junior accessory dwelling unit and for which there is no substitute, including, but not limited to, applicable planning departments, building departments, utilities, and special districts. (10) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting. 3 Packet Pg. 115 (11) “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. (12) “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. (k) A local agency shall not issue a certificate of occupancy for an accessory dwelling unit before the local agency issues a certificate of occupancy for the primary dwelling. (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. (m) A local agency may count an accessory dwelling unit for purposes of identifying adequate sites for housing, as specified in subdivision (a) of Section 65583.1, subject to authorization by the department and compliance with this division. (n) In enforcing building standards pursuant to Article 1 (commencing with Section 17960) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code for an accessory dwelling unit described in paragraph (1) or (2), a local agency, upon request of an owner of an accessory dwelling unit for a delay in enforcement, shall delay enforcement of a building standard, subject to compliance with Section 17980.12 of the Health and Safety Code: (1) The accessory dwelling unit was built before January 1, 2020. (2) The accessory dwelling unit was built on or after January 1, 2020, in a local jurisdiction that, at the time the accessory dwelling unit was built, had a noncompliant accessory dwelling unit ordinance, but the ordinance is compliant at the time the request is made. (Amended (as amended by Stats. 2021, Ch. 343, Sec. 1) by Stats. 2022, Ch. 664, Sec. 2.5. (SB 897) Effective January 1, 2023.) 3 Packet Pg. 116