HomeMy WebLinkAboutStaff Report 2303-1210CITY OF PALO ALTO
CITY COUNCIL
Special Meeting
Monday, May 15, 2023
Council Chambers & Hybrid
5:30 PM
Agenda Item
14.PUBLIC HEARING/LEGISLATIVE: Adopt an Ordinance That Changes Palo Alto Municipal
Code Chapters 18.04, 18.09, 18.10, 18.12, and 18.40 related to Accessory Dwelling Units
and Accessory Structures. 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.
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City Council
Staff Report
From: City Manager
Report Type: ACTION ITEMS
Lead Department: Planning and Development Services
Meeting Date: May 15, 2023
Report #:2303-1210
TITLE
PUBLIC HEARING/LEGISLATIVE: Adopt an Ordinance That Changes Palo Alto Municipal Code
Chapters 18.04, 18.09, 18.10, 18.12, and 18.40 related to Accessory Dwelling Units and Accessory
Structures. 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 City Council:
1. Adopt the attached Ordinance (Attachment A) amending Palo Alto Municipal Code Title
18 (Zoning) to amend regulations for Accessory Dwelling Units (ADUs), Junior Accessory
Dwelling Units (JADUs), and Accessory Structures, including provision to respond to
direction from the Department of Housing and Community Development (HCD).
Background
The Planning and Transportation Commission (PTC) recommends approval of the attached draft
Ordinance (Attachment A). This ordinance updates various sections of Chapter 18 of the Palo Alto
Municipal Code related to Accessory Dwelling Unit and Accessory Structure standards.
The attached draft Ordinance (Attachment A) incorporates:
•PTC-supported and recommended policies
•Necessary revisions to address the State Housing and Community Development (HCD)
department’s December 12, 2022 letter.
The staff reports, meeting minutes, and videos for those hearings can be found online(1)(2).
1 https://www.cityofpaloalto.org/Departments/Planning-Development-Services/Planning-and-Transportation-
Commission-PTC/Previous-PTC-Agendas-Minutes 2021/2 Staff reports, meeting minutes, and videos. Select the
Agenda Item on the following dates: February 10, February 24, and May 26, for 2021. July 13, August 10, and
September 28, 2022 for 2022.
2 https://www.cityofpaloalto.org/Departments/Planning-Development-Services/Planning-and-Transportation-
Commission-PTC/Current-PTC-Agendas-Minutes 2023 Staff reports, meeting minutes, and videos. Select the
Agenda Item on the following dates: February 22, March 8, 2023.
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Discussion
The staff report touches on the following subjects related to changes to Chapter 18:
A. Staff Response to Housing and Community Development (HCD) Letter
i. Application of Daylight Planes for Table 2 Units
ii. Calculating Floor Area for ADUs/JADUs
iii. Noise Producing Equipment Location Standards
iv. Entryways for ADUs/JADUs
v. Parking Attached to ADUs Contributing to the Unit’s Maximum Size
B. Proposed Areas for Regulatory Change
i. Basements
ii. Noise Producing Equipment Location Standards
iii. Parking Provided for an Attached ADU
iv. Privacy
v. Retracting Prior Deed Restrictions
vi. Allowing Reconstruction/Expansion of Non-Conforming Structures
vii. Removing the “Existing” Garage/Carport Requirement for Conversions
viii.Conversion/Relocation of Uncovered Parking Stalls
ix. Alignment of ADU and Tree Ordinances
C. Corner Lot Incentives to Maintain Street-side Setback on Corner Lots
D. Incentives for Affordable ADUs
E. Code Modifications to Definitions, Sanitation Facilities, and Accessory Structures
i. Clarifying How FAR/Lot Coverage is Calculated with Attached Units
ii. Translating Second Units through Demolition/Reconstruction
iii. Clarification on JADU Construction and Sanitation Facilities
iv. Calculating Gross Floor Area
v. Clarification on Accessory Buildings with Covered Porches or Patios (>120 sf)
vi. Allowed Accessory Structure Fixtures (PAMC 18.10, 18.12, 18.040)
A. Staff Response to HCD Letter
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). Five items were included in the revised HCD letter. On January 13,
2023, City staff met with HCD staff to discuss HCD’s comments and concerns again. City staff
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provided detailed responses to the HCD letter on the same day, indicating areas where the City
would incorporate changes to its ordinance (Attachment E). The five items from HCD’s 2022 letter
are summarized below:
i. 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 (sometimes 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. The Daylight Plane did
alter the massing of the unit, to ensure ADUs would more appropriately fit into the context of
Palo Alto neighborhoods and reduce impacts on adjacent properties.
In their response, HCD staff 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. HCD staff asserted 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 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 is this referenced code section has been updated to reflect this
change.
ii. 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
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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.
The City’s existing laws are far more generous the state legislation in this regard and staff does
not believe that additional clarification is needed in the City’s ordinance. Staff will continue to
meet with HCD staff as needed to explain how this provision furthers the state’s interest in
housing production and complies with state law. to ensure that the policies it has been enacting
since 2020 are consistent with the State law.
iii. Noise Producing Equipment 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 JADUs and noise-producing producing equipment to have
a 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 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-producing
equipment, the City has already updated its code to allow for reduced allowances when that
equipment serves an ADU or JADU. As a result, staff does not believe additional modifications to
the City’s ordinance are necessary to address this comment.
iv. 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).
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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.
v. 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. This was agreed to by
the PTC and has been incorporated into the attached ordinance.
Staff met with the PTC in July, August, and September of 2022 to discuss code changes to Chapter
18 as well as February and March of 2023 to discuss the items raised in the HCD letters. After
receiving additional direction from PTC, staff recommends proceeding with the updated draft
ordinance in Attachment A.
B. Proposed Areas for Regulatory Change
The following changes are only in relation to ADU/JADUs that exceed the minimum standards
that the City must approve under state law (“Table 2 units”):
i. Basements
On July 13 and August 10, 2022, the PTC indicated support for allowing basements underneath
ADU/JADUs. In that discussion, the PTC highlighted the following to incorporate into a draft
ordinance:
•The basement cannot encroach into the four-foot ADU/JADU setback, unless a basement
already exists in that area. In this case, the non-conforming area may remain but cannot
be expanded, consistent with other non-conforming provision of City and State law.
•New ADU/JADU lightwells cannot be located closer than four feet to a property line. All
lightwells would need to be screened from view from public rights of way using
landscaping, consistent with the City’s current requirements for lightwells associate with
the main house.
•A new basement must not negatively impact tree roots on adjacent lots such that it would
cause the tree to be removed or fail. Protected trees would continue to be subject to the
City’s tree regulations. Urban Forestry staff identified that roughly 25% of a tree’s
protection zone could be affected without causing it to fail, on a case-by-case basis.
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•All useable3 basement space for ADU/JADUs shall count towards the unit’s gross floor
area.
The PTC did not support requiring basements to be fully subterranean and were willing to allow
any variation of the diagram below provided that all useable basement area contribute to the
unit’s allowable square footage.
Source: ATTACHMENT C
On February 22 and March 8, 2023, staff noted additional basement provisions for the PTC to
consider. Basements in Palo Alto typically do not count towards the floor area, lot coverage, or
maximum house size limitations for single-family homes. Basements are only allowed to be built
underneath the footprint of the first floor. As a result, the size for a basement is inherently tied
to the primary home’s development potential. This can range from 2,550 sf (for a typical 6,000 sf
lot) or less and up to the City’s maximum house size (6,000 sf in the R1 zones). As it is currently
written, the City’s code does not distinguish between the footprint of a primary home or the
footprint of a primary home and an attached second unit for the purposes of determining the
maximum basement size. With new City and state laws, attached ADUs and JADUs can increase
the size of a primary home’s footprint by 500 sf or 800 sf, respectively. This creates an unintended
consequence where a homeowner could build the maximum size house possible on their lot, build
an attached ADU and/or JADU, and propose a basement for the primary home which extends
underneath the attached second unit (right image below). Where a primary unit and basement
would normally be limited to a maximum house size of 6,000 sf each, there could be scenarios
where a primary unit is 6,000 sf and a basement that serves it is up to 6,800 sf.
Staff’s understanding of the intent behind the existing rule is to not allow basements to expand
beyond the footprint of the primary dwelling unit, though it does not make this distinction clear.
Additionally, the purpose of the bonus square footage for ADUs and JADUs is to encourage the
development of additional housing units, not to build an attached second unit and
propose/expand a basement that serves the primary home underneath it. During the February
22 PTC hearing, the Commissioners seemed open to including language to address this issue into
3 Habitable basement is when there is at least seven feet distance between basement floor and basement ceiling
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the draft ordinance and recommend on March 8 to include the suggested language to Chapter
18.10.090(a) and 18.12.090(a) as shown under Sections 10 and 11 in the draft ordinance.
ii. Noise Producing Equipment Location Standards
The draft ordinance reduces the current standard for placement of all noise-producing
equipment associated with an ADU/JADU along the interior side and rear property lines. This
would allow additional development flexibility for homeowners. The current standard requires
noise-producing equipment to follow a 4-foot setback to the property line for second units. The
proposed ordinance would allow this equipment to be located between the property line and 4
feet under circumstances, including compliance with the City’s noise ordinance.
Most municipalities and other agencies specify noise limits in units of dBA, which is intended to
mimic the reduced receptivity of the human ear to Sound Pressure (“LP”) at particularly low or
high frequencies. Sound attenuates over distance. Sound waves are an ever-expanding circle,
moving away from the sound source. The wave starts with an initial amount of energy. That
amount of energy is gradually spread out over a wider and wider area as the wave expands.4
The attenuation of a sound wave's intensity follows an inverse square law. In other words, the
observed intensity of a sound wave decreases depending on the square of the observer's distance
from the source. The intensity of a sound wave will decrease faster and faster the further it gets
from the source. According to the inverse square law, it can be shown that for each doubling of
distance from a point source, the sound pressure level decreases by approximately six dBA.5
Given that most noise-producing equipment that has been provided for ADU/JADU applications
tends to be at or lower than 66 dBA, each successive doubling of distance would bring a unit
further into compliance with the City’s Noise Ordinance.
4 Sound Attenuation – Inverse Square Law: https://bit.ly/3Uc6V9t
5 Attenuation of Sound: https://bit.ly/3dgL54g
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The PTC also asked staff to confirm that reduced setbacks for noise-producing equipment would
not conflict with ingress/egress requirements for the Fire Department. The Fire Department
noted that noise-producing equipment can impact ingress/egress requirements but also noted
that an ADU/JADU can be designed in a way that resolves this issue. In essence, the design of the
building is flexible such that locating noise-producing equipment within a zero-to-four-foot
setback would not create a scenario that is impossible to design around and still provide
adequate life safety access to the unit.
With this additional information, the PTC supported staff’s proposed language changes to the
placement of noise-producing equipment for ADU/JADUs.
iii. Parking Provided for an Attached ADU
PTC considered whether or not an ADU can have an attached garage. Though there is potential
for illegal conversion of a garage to living space without proper permitting, the PTC did not see
these concerns as any more severe than for other attached garage structures. The PTC directed
staff to modify PAMC 18.09.040(iv) (now 18.09.040(k)(v)) to remove the inclusion of an attached
garage counting towards a second unit’s maximum size. This decision occurred prior to HCD’s
December 2022 letter indicating the City needed to modify this policy.
iv. Privacy
The PTC indicated that the City needs to maintain stringent privacy measures for ADU/JADUs as
they can be placed closer to property lines than a typical house. The PTC wanted to focus the
City’s current policies to limit impacts from windows on the first and second floor of a second
unit.
During the July 13, 2022 PTC meeting, two commissioners asked how to best implement the City’s
privacy measures for Table 2 units. They asked whether the City should adopt more stringent
privacy requirements for windows facing adjacent properties, based on a height standard rather
than simply requiring privacy when there is a second floor or equivalent space, as the code
currently requires. At the time, 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.
Since then, staff have been receiving more complaints from neighbors regarding privacy impacts
from larger ADUs built close to their property lines, as State law now allows. Staff noted on
February 22, 2023 a desire to revisit this discussion with the PTC. The below images are provided
to illustrate the issue of views from two different floor levels:
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View with standard finished floor 1.5 ft above grade View if a finished floor were 2.5 ft above grade
There are no privacy measures in place for one-story, single-family homes with taller first-floor
levels, and only building permits are required for one-story homes. However, new primary homes
in the R1 zones are generally located at least 6 to 8 feet from an interior side property line, and
at least 20 feet from a rear property line.
Privacy measures cannot be imposed on ADU or JADU buildings that are set back four feet from
an interior property line, for units that qualify under PAMC 18.09.030 (aka Table 1). This is true
also for units that do not have a second-floor level, even when the ADU height is 16 feet or more.
The City can introduce privacy measures for ADUs and JADUs with higher first-floor levels placed
at four feet from an interior property line into Chapter 18.09; however, staff can only apply such
privacy measures to units that fall under PAMC 18.09.040 (aka Table 2 units). During the February
22nd PTC hearing, the Commissioners supported staff’s proposal to present additional privacy
regulations for ADUs under PAMC 18.09.040(k)(2).
As a result, staff updated section 18.09.040(k)(2) in the attached draft ordinance, to incorporate
the following provisions:
•Clarification that privacy measures will only be applied when there are second floors,
lofts, or equivalent spaces.
•Egress windows shall not be located on walls which face adjacent property lines, when
feasible. When infeasible, these windows shall utilize opaque glazing on the whole
window.
•If the first finished floor of an ADU or JADU is two feet or more above grade, then first
floor windows shall include the following:
a. Non-egress, operable windows facing an adjacent interior property line shall have
a windowsill(s) that start five feet above the first finished floor for the unit;
b. Non-egress, non-operable windows facing an adjacent interior property line shall
have the lower half of window(s) (minimum of five feet above the first finished
floor) utilize opaque glazing.
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•Where feasible, requiring the use of skylights in bathrooms and other spaces where
windows could be considered optional.
•No exterior lighting mounted above seven feet and lighting must be directed downwards
to prevent light spillover onto adjacent properties.
These added measures would provide guidance for applicants and additional protections for
neighbors from the potential privacy impacts from new second units.
v. Retracting Prior Deed Restrictions
The PTC directed staff to review the appropriate process to allow homeowners to remove the
prior owner-occupancy deed restrictions placed on units built prior to 2020. Removing these
restrictions would allow residents who built ADUs before 2022 to rent a primary dwelling unit
and ADU separately. In order to remove deed restrictions that the City has already approved for
ADUs, staff will create a new document that can be recorded with the Santa Clara County
Recorder’s Office to supersede the prior deed restriction noting that the restrictions no longer
apply.
vi. Allowing Reconstruction/Expansion of Non-Conforming Structures
The PTC indicated support for allowing owners to expand legal, non-conforming walls in order to
allow a converted structure to provide a better living unit and better meet insulation and energy
requirements for modern habitable buildings. Several commissioners also expressed concerns
with how close some non-conforming buildings can be to adjacent property lines and fences and
how conflicts can come up when work needs to occur in those spaces.
In the draft ordinance, staff sought to address this
concern by limiting when and where a non-conforming
wall can be expanded. Specifically, the proposed language
in section 18.09.060(c)(ii) states that walls that do not
currently have a one-foot separation from the property
line would not be able to benefit from this provision. For
walls that currently have this separation, they could be
expanded up to a maximum of six inches in width
depending on whether or not they would encroach closer
than one foot to a property line. Staff believes this
captures the support, and concerns, raised by the PTC.
The PTC also supported allowing legal, non-conforming
structures to increase in height. Section 18.09.060(c)(i)
indicates that an applicant may modify the height of a
legal, non-conforming structure by up to 12 inches or to a
maximum of 12 feet, whichever is less. Staff anticipates
that most owners that would seek to utilize this process
will most likely be able to use the full one-foot extension.
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However, it would be important to limit how tall these structures can be given their closer
proximity to adjacent neighbors.
For example, if an existing structure was 11 feet and two inches tall, then the height could be
increased by only 10 inches, rather than one foot. This section also would require retention of
the existing roof line and style. For example, a structure with a shed roof cannot be converted to
a gabled roof. Staff believes that this will help to mitigate potential massing and aesthetic impacts
upon adjacent neighbors. Neighbors will already be familiar with the existing structure’s outline,
albeit slightly taller and closer to their property (see example roofline images below).
Source: Google Images
vii. Removing the “Existing” Garage/Carport Requirement for Conversions
Staff included in the draft ordinance section 18.09.060(d), which follows the PTC’s direction to
eliminate the need to have an existing garage/carport when applying to convert a garage to an
ADU/JADU when a new home is also proposed on site. This would eliminate the current two-step
process that prevents homeowners from proposing a new home and ADU with no covered
parking on site.
viii.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 located beyond the front yard setback, and one of which must be a covered parking
space. Over time, staff has recognized a disconnect between requirements for single-car garages with
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adjacent uncovered parking spaces converted to an ADU, and two-car garages converted to an ADU.
Namely, PAMC Chapter 18.09 and state law do not require the replacement of covered parking spaces lost
through the conversion of a garage to an ADU, but also do not provide direction on what should occur for
uncovered parking spaces. Staff’s current application of the law reflects an interpretation that there is no
such relaxed replacement allowance for uncovered parking spaces and such spaces must comply with the
typical siting requirements – i.e., that these spaces 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 left-most 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 a final occupancy permit is issued for that building permit, 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 whereas,
under a different existing configuration, an owner 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 in the driveway as uncovered spaces.
On February 22, 2023, Commissioners expressed support for eliminating this two- step process.
The attached draft ordinance captures this new policy under PAMC 18.09.040(l)(2).
ix. Alignment of ADU and Tree Ordinances
Following the PTC review of the ADU ordinance, staff engaged with several applicants seeking to build
ADUs but struggling with the Tree Disclosure Statement required in the new Tree Ordinance. The new
Tree Ordinance, adopted in June 2022, requires all applicants to complete a Tree Disclosure Statement
prepared by a licensed arborist. In reviewing this requirement as it applies to ADUs, staff determined that
the licensed arborist requirement could represent an undue burden on ADU construction. Accordingly,
for projects that solely involve an ADU, the attached ordinance proposes to permit a property owner,
rather than an arborist, complete the Tree Disclosure Statement.
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C. Corner Lot Incentives
Corner lots can be difficult to develop due to their more limiting setback requirements. Draft
ordinance section 18.09.040(j) captures the PTC’s direction to allow reduced setbacks for the
primary house when ADU/JADUs are built in tandem. The draft ordinance allows for a primary
home to be placed at a 10-foot street-side setback and a 16-foot front yard setback, provided the
ADU/JADU follows these same setbacks. The PTC felt that this will serve as a strong incentive for
homeowners on a corner lot to build an ADU at a greater setback than allowed by state law which
will help to maintain the City’s desired aesthetic character for single-family neighborhoods.
Staff noted to the PTC that this policy may create the opportunity for a homeowner to abuse the
City’s provisions through a two-step process given the authority state law provides to
homeowners when building ADU/JADUs. That is, an owner could build a house and ADU at a 10-
foot setback, then after the final occupancy permit is issued, propose an ADU that conforms with
state law requirements. While that would be a significant financial burden to overcome for a
homeowner and is not likely, it is not an impossible situation to occur later at the site or if the
property were sold to another individual whose interests did not align with the City’s policy. Staff
suggested to the PTC that a deed restriction could be enacted on the property which serves as
an agreement between the City and homeowner which prevents this from occurring; however,
it could be fraught with legal and practical implementation challenges should a current or future
homeowner contest it conflicts with state law. As a result, the PTC suggested that no restriction
be recorded against the property and floated the question to City Council to decide whether this
concern would be worthwhile to protect against.
D. Incentives for Affordable ADUs
i. Exempting Affordable Units from Impact Fees and Plan Review Fees
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
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.
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•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 additional 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, there are currently several 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. With this
additional information, the PTC recommended at the February 22, 2023 hearing to not proceed
with this program.
E. Code Modifications to Definitions, Sanitation Facilities, and Accessory Structures
The PTC voted unanimously to approve staff’s recommended changes to the following sections
of the City’s municipal code.
i. Clarifying How FAR/Lot Coverage is Calculated with Attached Units
The City provided a uniform bonus for ADU/JADU development in accordance with state law
requirements. As a result, there have been challenges presented regarding how to calculate floor
area for the main home versus the floor area ratios (FAR) with respect to attached units.
Overall, the City’s definitions guide how staff calculates these allowed ratios on residential and
commercial lots. However, when it comes to an attached ADU/JADU in an RE, R-1, R-2, and RMD
district, the code states that: “Gross floor area means the total covered area of all floors of a main
structure and accessory structures greater than one hundred and twenty square feet in area,
including covered parking and stairways, measured to the outside of stud walls” (PAMC
18.04.030(a)(65)(C)). When there is an attached unit, there is a shared wall between the two
structures and it is unclear to applicants and staff how this area should be counted between the
units as it is not technically an “exterior wall” (see image below). If the shared wall spans a large
portion of the two units, it can add up to a significant amount of square feet.
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Staff suggests adding language in sections 18.09.030(c) as well as 18.09.040(e) that states that
FAR, Lot Coverage, and Maximum House size should be related to the exterior stud of the primary
unit’s shared wall. Staff believes this mirrors the existing policy in PAMC 18.04.030(a)(65)(C) and
in the event a second unit is built, this would provide clear direction on how to calculate these
spaces. The PTC supported staff’s approach and voted to incorporate this policy in the draft
ordinance as they felt it would be more accommodating for ADU/JADU development.
Source: Kohler Architects
ii. Relocating Second Units through Demolition/Reconstruction
PAMC section 18.09.030(k) identifies that replacement parking is no longer required when a
garage or carport are demolished “in conjunction with the construction of an ADU.” Staff
understands this to mean that an applicant may choose to demolish a structure and replace it
“in-kind”, as noted in PAMC section 18.09.030(h), or they may relocate it elsewhere on the
property and still not replace parking on site.
Demolishing and replacing an accessory structure in kind to create an ADU was protected in the
City’s ordinance prior to 2020 when the updated state law incorporated a similar framework.
However, state law and the City’s ordinance were not entirely specific on what may happen
should an applicant seek to relocate a structure elsewhere on site and what policies (either Table
1 or 2) would apply.
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Generally, staff and applicants have agreed that one would not be able to relocate a legal, non-
conforming structure from one side of a property to another and establish a new non-conforming
situation on site. Staff propose to clearly codify this practice and understanding with the
suggested language in 18.09.040(j)(v). This language directly captures an instance like the
example below and succinctly identifies that an applicant must follow the regulations in Table 2.
Staff believes this will clarify that any type of construction that occurs in this manner must follow
the City’s local regulations outlined in Table 2 rather than the state policies outlined in Table 1.
The PTC supported staff’s interpretation and application of this rule in the draft ordinance.
Source: FG Architects
iii. Clarification on Type of JADU Construction and Sanitation Facilities
Staff has received multiple questions from applicants and the public since the adoption of the
City’s ordinance last year as to whether JADUs can be developed through new construction or
only through the conversion of existing spaces. PAMC 18.09.050(a) currently states: “A junior
accessory dwelling unit shall be created within the walls of an existing or proposed primary
dwelling.”
Through the implementation of the City’s ordinance, the intention was to encourage the creation
of more JADUs by allowing JADUs to also benefit from the bonus FAR/Lot Coverage/House Size
provisions as well as allowing attached garages to be converted to JADUs and benefit from the
replacement parking policies identified in 18.09.040(k). With this understanding, staff indicated
to applicants and the public that new construction involving the creation of a JADU would be in
keeping with the intent behind the policies adopted by City Council, rather than limiting a JADU
to existing within the walls of an existing or new structure. Staff suggests modifying section
18.09.050(a) to align with staff’s implementation of the City’s ordinance and provide clarity to
the public.
Additionally, staff has included a new policy that seeks to clarify an already established practice
for JADUs that was not apparent in the previously adopted ordinance. Section 18.09.050(b)(iii)
seeks to clarify that sanitation facilities are required for JADUs but that they may be shared with
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the primary unit. This policy has been in place since the establishment of JADUs in the 2017 state
and City codes. The practice, however, was not codified.
Adding this clarification will provide an easier reference point for staff, the public, and applicants
as it relates to the City’s requirements for sanitation facilities for JADUs.
iv. Calculating Gross Floor Area
Applicants have provided many ways of calculating floor area by representing it in whole
numbers, to the tenths, hundredth, and thousandth decimal places. General mathematical
principals indicate that expressing a number to a thousandth decimal or greater is technically
more accurate; however, going beyond the thousands place is not necessarily appropriate when
converting between inches and decimals, which often end in hundreds and thousandths decimal
numbers (e.g. 4½ inches is expressed as 0.375, 11 inches is expressed as 0.92).
Over time, staff has not established a consistent policy for how floor area should be captured to
maintain consistency and accuracy of construction. This is especially important when certain
“triggers” occur. Two such triggers are when a building exceeds its allowable floor area/lot
coverage allowances, or when a second unit is subject to payment of development impact fees.
Some applicants have proposed 749.99 square foot structures and successfully argued they are
not be required to pay development impact fees. In speaking with the Chief Building Official, a
contractor would not realistically build a 749.99 square feet structure; it would be built to 750
square feet or slightly larger, given the nature of the construction methods and materials
available today.
Staff believes the suggested language in 18.04.030(65)(E) of the draft ordinance would address
these issues. It would set a clearer standard for how floor area needs to be expressed in block
area diagrams on a plan set. It would also establish a clear and consistent policy for staff and
applicants to implement when determining whether a project exceeds a trigger point, as
described above. Any ADU equal to or greater than 749.995 square feet would be associated with
payment of development impact fees.
v. Clarification on Accessory Buildings with Covered Porches or Patios (>120 sf)
In the last few years, there have been a greater number of proposals for 120 square foot
accessory buildings with covered porches or patios. PAMC 18.04.030(C) identifies that accessory
buildings which exceed 120 square feet in area are included in the overall gross floor area
calculations for a site. The use of the term “square feet” is non-specific to the terms “floor area”
and “lot coverage” staff commonly use to determine size allowances. The code requires that any
addition to this structure beyond 120 square feet immediately triggers an accessory building to
count as floor area. This is regardless of whether that specific addition would traditionally count
as lot coverage based on its design.
Based on this, an accessory building with a substantially open covered porch or patio would
automatically count towards floor area for the site, even though these would be excluded from
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floor area for the primary house if it is substantially open (see Attachment C for substantially
open criteria).
Source: Kohler Architects
Due to this conflict, 120 square foot accessory buildings with covered porches or patios that are
substantially open are currently only counted as lot coverage rather than floor area. This
interpretation provides a consistent approach for including these spaces as floor area when they
are not substantially open. Staff propose codifying this as an exclusion under the Low-Density
Residential Exclusions portion of the Definitions (proposed as 18.04.030(a)(65)(D)(ix)).
vi. Allowed Accessory Structure Fixtures (PAMC 18.10, 18.12, 18.040)
As ADU/JADUs have become more commonplace applications due to relaxed regulations at the
state and local level, staff has also recognized an increase in permits for accessory structures.
Some of these structures have started including additional fixtures such as showers (indoor and
outdoor), utility lines, washers/dryers, and other facilities that seek to provide the framework for
a second unit to be created on site but without committing to creating one.
PAMC 18.12 and 18.40 currently limit accessory structures to only two plumbing fixtures. Some
districts, like the RE, R-2, and RMD districts, allow more fixtures for buildings that are less than
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200 square feet or outside of setbacks for the property. As staff has typically relied on the building
code’s definition of a plumbing fixture, it does not always capture fixtures such as a gas line or
other appurtenance.
Staff is frequently limited to negotiating with applicants to remove fixtures using vague
comparisons of proposals to “something equivalent to an ADU/JADU” as the code does not give
more clear direction. Staff is concerned this will encourage individuals to use an accessory
building as a housing unit even when a structure is not designed for human habitation.
Due to this, staff propose to better distinguish what are acceptable plumbing fixtures in accessory
buildings. The purpose of this language is to target features that may lead to unsafe conditions
for human habitation. Staff suggests limiting accessory buildings from having certain plumbing
fixtures like a shower and/or bathtub. These will be more challenging and costly to place in a
building than a sink and toilet. While approving this code change will make a significant number
of previously permitted structures non-conforming, staff believes this will help to reduce the
number of illegally constructed units going forward.
ALTERNATIVE ACTIONS
In addition to the recommended action, the City Council 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.
ENVIRONMENTAL REVIEW
The adoption of the Ordinance is 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.
ATTACHMENTS
Attachment A: Draft ADU Ordinance
Attachment B - Task Force Letter
Attachment C - Substantially Open Porches
Attachment D - HCD Letter on ADU Ordinance (2021)
Attachment E - Staff Response to HCD (2022)
Attachment F - HCD Letter on ADU Ordinance (2022)
Attachment G - Staff Response to HCD (2023)
Attachment H - Government Code Section 65852.2
APPROVED BY:
Jonathan Lait, Planning and Development Services Director
*NOT YET APPROVED*
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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).
*NOT YET APPROVED*
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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
*NOT YET APPROVED*
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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 stud 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.
Commented [YA1]: Previously recommended by PTC in
July 2022
*NOT YET APPROVED*
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(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
Commented [YA2]: Previously recommended by PTC in
July 2022
*NOT YET APPROVED*
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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.
Commented [YA3]: Response to change in state law and
HCD direction re daylight plane
Commented [YA4]: Response to HCD direction re
daylight plane
Commented [YA5]: Response to HCD direction re JADUs
Commented [YA6]: Previously recommended by PTC in
July 2022
*NOT YET APPROVED*
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(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 stud 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
Commented [YA7]: Previously recommended by PTC in
July 2022
Commented [YA8]: Previously recommended by PTC in
September 2022
*NOT YET APPROVED*
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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 interior 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 protected tree to die.
(D) Habitable ADU/JADU basements shall contribute toward the unit’s
total allowable floor area. Any floor area 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
Commented [YA9]: Previously recommended by PTC in
July/August 2022
Commented [YA10]: Previously recommended by PTC in
July/August 2022
Commented [YA11]: Previously recommended by PTC in
July 2022
*NOT YET APPROVED*
8
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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 and configuration, as
measured to exterior surface of the material, to provide for greater
insulation and energy requirements provided that a minimum of one
foot is maintained between the addition and an adjacent interior
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, it shall be encouraged but not required that 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 towards an adjacent interior
property lineies. These barriers shall provide be a minimum five-foot,
six-inch height, 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-
Commented [YA12]: Previously recommended by PTC in
July/August 2022
Commented [YA13]: Response to HCD direction
Commented [SG14]: PTC Recommended language from
February 20233
Commented [YA15]: Previously recommended by PTC in
2022/23
*NOT YET APPROVED*
9
20232215_ay16
foot sill height as measured from the second-finished floor level, or
utilize obscured opaque glazing on the entirety of the window when
facing any window that faces an adjacent interior property lineies.
Second story e Egress windows shall utilize obscured opaque glazing
on the entirety of the windows which face that face adjacent interior
properties.
(C) Second story w Windows on a second finished floor, loft, or
equivalent elevated space, shall be offset from neighbor’s windows to
maximize privacy.
(D) Where feasible, egress windows on the first and second finished floor
of an ADU or JADU shall not face towards an adjacent interior
property line. If this is not feasible, then these windows shall utilize
opaque glazing on the whole window.
(E) If the first finished floor of an ADU or JADU is two feet or more above
grade, then first floor windows shall include the following:
i. Non-egress, operable windows facing an adjacent interior
property line shall have a windowsill(s) that start five feet
above the first finished floor for the unit;
ii. Non-egress, non-operable windows facing an adjacent interior
property line shall have the lower half of window(s) (minimum
of five feet above the first finished floor) utilize opaque
glazing.
(F) Where feasible, the use of skylights (whether operable or not) shall
be used in lieu of operable windows that face adjacent interior
properties
(G) 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 interior 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 or when a required,
existing, uncovered parking space is expanded into by an ADU. 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.
Commented [SG16]: Recommended by PTC in March
2023
Commented [SG17]: Suggested PTC language from
2022/23
*NOT YET APPROVED*
10
20232215_ay16
(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
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
Commented [YA18]: Previously recommended by PTC in
July 2022
Commented [YA19]: Previously recommended by PTC
Also responsive to HCD direction July/August 2022
*NOT YET APPROVED*
11
20232215_ay16
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.
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)
Commented [YA20]: Previously recommended by PTC
Also responsive to HCD direction
Commented [YA21]: Previously recommended by PTC
*NOT YET APPROVED*
12
20232215_ay16
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
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 single-family 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:
[. . .]
Commented [YA22]: Previously recommended by PTC
Commented [SG23R23]: Removed due to February 2023
PTC motion
Commented [YA24]: Previously recommended by PTC
Commented [SG25R25]: Removed due to February
2023 PTC motion
Commented [YA26]: Previously recommended by PTC in
July 2022
*NOT YET APPROVED*
13
20232215_ay16
(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 and rounded on plans to the nearest 100th decimal point
(e.g. 123.456 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
Commented [YA27]: Previously recommended by PTC in
July 2022
Commented [YA28]: Previously recommended by PTC in
July 2022
Commented [YA29]: Previously recommended by PTC in
July 2022
*NOT YET APPROVED*
14
20232215_ay16
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
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. Subsection (a) of Section 18.10.090 (Basements) of Chapter 18.10 (Low Density
Residential) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to read:
[. . .]
(a) Permitted Basement Area
Basements may not extend beyond the building footprint and basements are not allowed
below any portion of a structure that extends into required setbacks, except to the
extent that the main residence is permitted to extend into the rear yard setback by other
provisions of this code. Basements which serve the primary unit may not extend under
an attached ADU or JADU to the extent those secondary units utilize the bonus floor
area, lot coverage, and/or maximum house size exemptions identified in Section 18.09.
[. . .]
SECTION 8. Subsection (a) of Section 18.12.090 (Basements) of Chapter 18.13 (Single-Family
Residential District) of Title 18 (Zoning) of the Palo Alto Municipal Code (“PAMC”) is amended to
read:
[. . .]
(a) Permitted Basement Area
Commented [YA30]: Previously recommended by PTC in
July 2022
*NOT YET APPROVED*
15
20232215_ay16
Basements may not extend beyond the building footprint and basements are not allowed
below any portion of a structure that extends into required setbacks, except to the
extent that the main residence is permitted to extend into the rear yard setback by other
provisions of this code. Basements which serve the primary unit may not extend under
an attached ADU or JADU to the extent those secondary units utilize the bonus floor
area, lot coverage, and/or maximum house size exemptions identified in Section 18.09.
[. . .]
SECTION 9. 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 affect the provisions of this Ordinance.
SECTION 10. 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 11. 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
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 12. This ordinance shall be effective on the thirty-first date after the date of its
adoption.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSENT:
Commented [SG31]: Previously recommended by PTC in
March 2023
*NOT YET APPROVED*
16
20232215_ay16
ABSTENTIONS:
ATTEST:
____________________________ ____________________________
City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
____________________________ ____________________________
Assistant City Attorney City Manager
____________________________
Director of Planning and
Development Services
City Of Palo Alto ADU Ordinance, First Reading, Meeting Date 10/5/2020 Agenda Item #8
To the Members of The Palo Alto City Council:
We want to begin by expressing commendation for what has been done to date by Council and PTC but
particularly by Staff. This is a complex political and technical topic and we consider the ordinance to be
mostly in alignment with the State Statutes. We applaud the effort where choices have been made to
exceed limitations in a reasonable way, and understand clearly the boundaries established by State
legislation.
What we need to remember is that the State is promoting this legislation to incentivize and streamline the
creation of ADUs. We should also remember to view all of this through the local lens of prioritizing
residential development as a clearly stated Palo Alto goal. As professionals, we seek a clear and precise
set of rules we can rely on in the design process to achieve a predictable result for our clients.
A number of individuals spoke in warning when we came before Council in January, and we have been
proven correct in stating Palo Alto's urgency ordinance was seriously flawed. Many elements did not
properly conform to State legislation. Since then, Staff has adjusted their interpretations, in some cases
after being challenged by the professional community, and partly when influenced by input from HCD.
The updated document before you makes good progress toward alignment, but we still fall short in some
important areas.
The Palo Alto ADU Task Force (PAADUTF), now approximately 20 individuals and growing, was created
out of a grassroots desire for peer communication between professionals who are active in ADU
development. Sharing information regarding regulatory interpretations, design methodology, and
construction strategy, this group came together to evaluate the August 17 staff report and associated
ordinance language. Unfortunately, we were not aware of the May 27 PTC hearing and recognize this
was a missed opportunity to interact with staff. Over the course of five meetings conducted during August
and September, the group developed a narrative along with an annotated review of the proposed
ordinance. As indicated, two additional meetings were conducted with staff included to review and discuss
the information. Several significant points from that discussion have been captured in your staff report.
There are others that were not, that we nonetheless feel are critical to implement as part of this update.
Through direct and frequent interaction with HCD and supported by other experts active in ADU
regulatory action, The PAADUTF has identified several specific areas where the proposed local ordinance
departs from the State intent. We recognize Staff feels they have rigorously evaluated the language
presented to you tonight, but we do not believe they are entirely correct. The HCD ADU Handbook,
released just last week, seems to confirm a few areas where the proposed language is in conflict with
HCD’s guidance. As you have heard, if inconsistency is not corrected, there is a significant possibility the
ordinance will be challenged and potentially deemed invalid.
The most significant issue is the approach taken in the ordinance regarding the Statewide Exemption
ADU and how that language relates to all other units, particularly those exceeding 800 square feet.
Gov. Code, § 65852.2, subd. (c)(2)(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 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.”
Staff's interpretation of this section includes a vision that the Exemption Unit is an isolated obligation. In
fact, the Statute language says clearly “at least”, so we have been told any attempt at creating limitations
for units which are larger (daylight plane restrictions, placement on the lot, a limitation for subterranean
construction, or basement construction) is simply inconsistent with the State Statute.
Another significant departure is the approach taken in regard to 2-story construction. Staff is seeking to
create limits on the basis of privacy, but the restrictions they have offered are inconsistent with the
statutes. It is important to remember that the State put these new rules in place to shake up the norms,
and we need to understand and align with that intent. As an example, HCD has described a scenario
where if a lot is so small that 800 sf cannot be accommodated on one level, then 2-stories can be the only
option. Because of this, HCD has confirmed there can be no restriction against 2-story units, under any
condition. Whether in conformance with an Exemption ADU or larger, 2-story construction must be
embraced. We would offer that Santa Cruz has done an excellent job in this area and has elected to allow
22’ of height with additional restrictions for distance from the property line once beyond 16’ of height.
(https://www.cityofsantacruz.com/government/city-departments/planning-and-community-development/ac
cessory-dwelling-units-adus)
Again, there are a number of specific areas of improvement in the proposed ordinance, and we applaud
that. What we ask of you tonight is the consideration of 15 areas of concern we identify below, some of
which have already been described by Staff. We believe all of these are important and nuanced topics
that are truly necessary to implement. Some are changes only included to simplify the development of
ADUs, but others are very technical responses to costly or avoidably complex limitations. We ask that you
remember our pace is 1,000 units short of our RHNA requirement and that we need to do better and
move faster. This set of considerations provides an easy way to encourage the development of additional
units with minimal collateral impact when compared to larger, more dense projects with their significant
timelines and approval hurdles.
15 Suggestions for Consideration:
1.Alignment with Gov. Code, § 65852.2, subd. (c)(2)(C)
a.Remove language that improperly restricts daylight plane, placement on the lot, limitation for
subterranean construction, or basement construction.
2.Two-Story
a.Provide definition for subterranean 1st level construction. (1st level partially recessed in the
ground)
i.Clarify how deep this can be without being interpreted as a ‘basement’
1.Suggest 36” max below existing natural grade as the threshold
b.Confirm Staff’s recommendations for privacy management
i.Windows obscured when sills are below 5’ above adjacent finish floor on walls parallel to
property lines when the structure is within 8’ of a property line
ii.Set sills at 5’ above adjacent finish floor on walls parallel to property lines when the structure
is within 8’ of a property line
iii.Sleeping rooms endeavor to have egress windows located on walls non-adjacent to property
lines
iv.Use of (operable) skylights in bathrooms and other spaces where windows could be
considered optional
v.No exterior lighting mounted above 7’ on walls adjacent to property lines to keep it at or
below maximum fence height
c.Consider adopting language similar to that used in Santa Cruz:
Page 2
i.ADUs higher than one story may be up to 22’ tall at the peak, measured from average
grade, and any portion of the structure that exceeds 16’ in height must be set back a
minimum of 5’ from the side yard property line and 10’ from the rear yard property line.
ii.Exception: An ADU that faces an alley or street can be up to 22’ tall and any portion of the
structure that exceeds 16’ in height must be set back 5’ from the side and rear property
lines.
iii.Detached New Construction ADUs higher than one story shall limit the major access stairs,
decks, entry doors, and windows to the interior of the lot or an alley if applicable. Windows
that impact the privacy of the neighboring side or rear yards should be minimized or
otherwise restricted as in (b.) above
3.Fees
a.Significant cost is incurred relative to fees for Plan Check, Building Permit, Planning Impacts,
Specialty Consultants, School Fees, etc. They are not always levied in a relative fashion.
i.Why not just charge a flat fee based on ADU floor area?
ii.Included in that methodology, remove some of the fees to further incentivize ADU
construction.
b.It is important to note that the proportionate language in regard to Planning Impact Fees for units
>750 sf contained in Gov. Code, § 65852.2, subd. (f)(3)(A) creates a significant disincentive for
individuals with existing small homes. Please note the following examples:
i.Project #1, Demolish an existing detached garage and replace it with a new conforming
detached ADU.
1.Main house at 3,427 sf and new ADU at 800 sf = 23.3% = $4,511.47
ii.Project #2, Convert an existing detached garage and construct an addition to create a new
detached ADU.
1.Main house at 1,209.6 sf and new ADU at 882 sf = 73.0% = $14,101.46
c.Both are roughly the same scope but because of the more modest house on Project #2, the
weighted ratio pushes the fee to be $10k more.
d.Add to this about $9,000 for: School Impact Fees ($3,000), Plan Check Fees ($2,800) and
Building Permit Fees ($3,300) - That puts the fees for Project #2 at around $23k, or almost 11%
of the total anticipated project construction cost!
4.Subterranean/Basement Construction
a.Without some flexibility in this, floor to ceiling heights are substandard (+/- 7’-0”). Codifying this in
a thoughtful way can provide tangible improvements in privacy management and enhancement to
overall massing.
b.Partially subterranean 1st floor lowers 2nd floor and allows 8’ ceilings with a reasonable roof slope
Page 3
c.Adding a basement could reduce an entire floor of height/massing
1.Reduce impact to neighbors
2.Required exclusionary excavation techniques remove any concerns related to
dewatering
ii.Tree root impacts could be conditioned since the 800 sf exemption ADU is not obligated in
regard to underground space
iii.Add clarifying language requiring the interior basement FA to count toward the 800 sf
exemption triggering the additional area beyond 800 sf to be deducted from overall site FA
iv.No further encroachment other than that required for emergency egress.
v.Consider, as an additional incentive, allowing a 1200 sf max ADU if 50% of FA is below
grade?
5.Minimal increase to non-conforming structures
a.Create an allowance to avoid complete demolition or unnecessary
complexity due to energy or structural upgrades
i.Clarify that it can only be accessed for compliance with energy or
structural obligations
1.Grant an additional 12” of height – increase framing depth
above top plate rather than hanging, which is structurally
complex and reduces ceiling heights.
2.Note that the structure height will still be restricted by the 16’
height limit.
3.Grant an additional 6” in plan on any side for structural
seismic sheathing, exterior insulation, or replacement siding,
so long as no portion of the structure encroaches beyond
the property line.
ii.Add a clarification regarding structures with existing
parapets. A non-conforming portion of the structure
may be modified up to the height of the existing
parapet. This can be done without creating an
increased impact to neighbors. Previous interpretation
of ‘shrink-wrap’ rules should not apply to recessed roof
areas below the top of the parapet. This flexibility will
allow the interior to be a reasonable residential height.
6.Utility Connections
a.Separate meters placed only at the owner’s discretion
b.The requirement to provide a separate sewer line for detached ADUs has been directed by the
Chief Building Official.
i. There is an exception in the Plumbing Code recognized in many jurisdictions to avoid the
significant cost this causes (often greater than $9,000) CPC 311.1 Exception: Where one
building stands in the rear of another building on an interior lot, and no private sewer is
available or can be constructed to the rear building through an adjoining court, yard, or
driveway, the building drain from the front building shall be permitted to be extended to the
rear building.
1.Recognize that the high cost can be viewed as the basis for applying the exception
2.Question - If no separate line is required for an attached ADU, why obligate the cost
and complexity for a detached ADU. The outcome is the same so why regulate
differently?
3.An alternative to this might be a study performed by experts under CPC 301.3
“Alternate Materials and Methods of Construction Equivalency” with the establishment
Page 4
of standards for equipment (backflow prevention) and cleaning/inspection schedules.
Once established in the City, this could be relied on as an alternate approach.
c.Routing of utilities at the discretion of property
owner (rear alley or another alternate to avoid
disruption to landscape or trees)
i.This graphic compares three lots with an
alley behind. Parcel 3 has an attached
ADU and the sewer may connect to the
main house line. There is no impact to the
site. Parcels1 and 2 have detached ADUs
and are currently required to run their
sewer line shown as ‘A’, around the main
house, and out to the street at the front
yard. This is highly problematic, especially
if there are protected trees on site. A
reasonable option would be to allow the
sewer line placement shown by the ‘B’ or
‘C’ routing.
7.Garage replacement associated with Detached ADU
a.When replacement covered parking is provided, and attached to an ADU, that area should not
count against the 800 sf ‘bonus’
i.Staff has not indicated agreement with this.
ii.It represents a significant disincentive toward the creation of covered parking spaces.
iii.The space designated as a garage should count against the overall FA and not be allowed if
the FAL or Lot Coverage will be exceeded as a result.
8.Retroactive Actions for all ADUs in process after 1/1/2020 (for projects without Building Final)
a.Retract all enacted Deed Restrictions which are not in compliance with the updated regulations
i.Require new Deed Restrictions in conformance with the updated requirements
b.Refund any overpayment of fees for all projects in process (between approvals and Building
Final) since January 1, 2020 for:
i.Proportionate Impact Fees, if they remain in place
ii.Other fees as adjusted by the revised ordinance
iii.Council could elect to refund the full amount or an adjusted amount according to
16.06.110/R108.5 at 80%?
9.Green Building
a.The current detached ADU regulations require Tier 2 with exceptions
i.Tier 2 obligates requirements for third party preparation of documents and site evaluation
which comes at significant cost
b.If a homeowner proposes an addition/alteration to their home under 1,000sf, a third party is not
required and the project is only required to meet CALGreen Mandatory measures
c.To streamline the ADU permitting and construction process, detached ADUs under 1,000 sf
should only be required to comply with CALGreen Mandatory for consistency
10.Noise producing equipment
a.Allow placement at any location on the property as long as documentation is provided which
confirms noise level will be below the 66 decibel limit at the property line. What should be codified
for these issues are rules that direct the desired result. Don’t overcomplicate what can be
achieved simply.
i.Equipment should be <66 dB without accessories such as blankets (can fail/degrade over
time)
Page 5
ii.Asking for site-specific studies creates an additional unreasonable cost burden and must be
avoided
11.Doorway between ADU and Primary Unit
a.This really should be allowed as long as it is a hotel style communicating door. Note that it is
allowed for a JADU so why not for an ADU?
i.Provides indoor access to care for or interact with the occupant but can be closed if privacy
or separation is needed
b.Don’t create rules people will routinely circumvent - just remove the unnecessary regulation -
Some may take advantage but there is little stopping them anyway
12.60-day Processing
a.Sets unrealistic expectations without clear narrative
b.Explain how this will be interpreted/implemented
c.Note that HCD has indicated the State says once an application is submitted, the City must
approve within 60 days or it is automatically approved.
i.It is assumed that the clock is stopped when waiting for applicant response to comments,
but there is nowhere this is codified and creates frustration for homeowners
13.Sprinkler requirements
a.Clarify rules relative to the California State Fire Marshal Information Bulletin 17-001 (1/24/17)
i.Current PA implementation is not in alignment with Senate Bill 1069
ii.Safety concerns and physical constraints must be balanced against compliance with the
State language
14.Flood Zone
a.Better articulate requirements and permitted exceptions
i.Consider an example of the Exemption 800 sf ADU in the flood zone on a small lot – if
reconstructing a non-conforming structure, it must be allowed to go higher than the 16 foot
limitation by the delta between existing grade and the project site base flood elevation to
raise the first floor level.
15.Remove requirement to convert “existing” garage/carport
a.Only applies to projects where a new home is constructed with the intent of the garage or carport
being converted to an ADU as a second ‘step’ after final inspection.
b.Allow for a one-phase process
i.Offer incentive for streamlining
1.Cannot be setbacks, height, etc. as these are enshrined in Gov. Code, § 65852.2,
subd. (c)(2)(C)
2.Could offer an additional fee reduction for saved staff time or something similar
While we recognize the Ordinance before you has been in process for the better part of a year, your
action tonight will set the tone for what is possible until the next iteration of this language evolves. We are
hopeful the commitment you have voiced toward incentivizing residential development, aligned with a
stated goal of streamlining the approval of ADUs, will lead you to adopt some version of the 15 points we
have presented. As professionals serving as guides to those who wish to construct an ADU, and being
tasked with implementing the regulations, we want you to understand how important we believe these
items are. If anything, we hope you might consider this as a starting point. We welcome your willingness
to perhaps go further and, as many other cities have done, consider the adoption of additional language
which will make ADUs more livable, desirable, and affordable.
Respectfully submitted,
Page 6
Jessica Resmini, Architect Randy Popp, Architect
8
Roofed porches on the 1st fl oor
Roofed porches on the 1st fl oor do NOT count toward the gross fl oor area if at least 50% of the perimeter
is at least 50% open.
Fig 5 Roofed 1st fl oor porch
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Step 1: Determine the perimeter of the porch and divide it into
segments that will allow a comparison of closed and
open segments.
The perimeter of the porch in Fig 5 is shown below. It is the sum of
segments A throug A throug A G. It is 70 linear feet.
How to determine if a porch is at least 50% open (using Fig 5 as an example)
9
In Fig 5 sides A, B, & C abut the house walls.
These are considered to be closed segments.
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Step 2: Determine which perimeter segments abut the house walls. These are closed segments, or sides.
Step 3: Determine the status (open/closed) of the remaining segments based on the design. If at least 50% of the facade area is
open, then the segment or side is considered open.
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For purposes of assessing the openess of the facade:
• The height of the segment facades is measured from the top of the porch fl oor to the the point where the
segment facade intersects with the top of the roof material.
• The widths of the segment facades are measured from the same plane. Allowances may be made for
structural supports that are not excessive.
10
Step 4: Finalize the determination of which segments are closed and which are open, total the linear feet in each
category, and compare the totals.
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Conclusion: The perimeter of the porch in Fig 5 is 50% open and so the porch would NOT count toward gross fl oor area
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Note: If a porch fl oor is more than 30” above
grade, the porch sides may need to be 36” high for
safety reasons. This may cause the porch facade
to be considered closed. Possible solutions to make
sure the porch sides are considered open are
illustrated to the right:
• Railings (ballisters) instead of solid half walls.
• A single safety rail above lower, solid half walls.
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
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,
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
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.
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
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
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
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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
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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.
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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
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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
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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
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
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.”
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.”
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
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).)
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
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
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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
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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
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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
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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.”
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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.”
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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
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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).)
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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
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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
(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
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
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.
(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.
(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.
(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
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
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.
(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.)