SUBJECT: AB 1866 Regarding Second Units and Tiburon’s Second Unit Ordinance

As the housing crisis throughout California becomes more acute, the state legislature is aggressively trying to reduce institutional barriers to the construction of housing. During the 2002 session the legislature considered three bills to make substantial changes in housing and housing element law.

Senate Bill (SB) 910 (Dunn), which did not make it out of the Assembly Rules Committee, would have imposed financial penalties on jurisdictions which do not have a housing element approved by the State Department of Housing and Community Development (HCD). A similar bill is expected to be introduced early in the 2003-2004 session.

Assembly Bill (AB) 2292 (Dutra), which was signed into law by Governor Davis, prohibits a jurisdiction from reducing, requiring, or permitting the reduction of the density for any parcel below the density used by HCD in determining compliance with housing element law unless specific findings are made. It is unclear at this time how this new law will be implemented or enforced.

Prior to the passage of AB 1866, Government Code Section 65852.2 authorized local governments to adopt an ordinance which would allow for the creation of second units in single-family and multi-family residential zones. Local ordinances were allowed to:

Designate areas where second units may be permitted.

Impose standards on second units which include, but are not limited to, parking, height, setback, lot coverage, architectural review, and maximum size of a unit.

Provide that second units do not exceed the allowable density for the lot upon which the unit is located.

Establish a conditional use permit process for second units.

AB 1866 has removed the authorization to establish a conditional use permit process for the consideration of second units. The bill goes further by prohibiting any kind of discretionary review or public hearing process:

When a local agency receives its first application on or after July 1, 2003, for [the creation of a second unit], the application shall be considered ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 [relating to use permits and variances] or any local ordinance regulating the issuance of variances or special use permits. (Government Code Section 65852.2(a)(3))

According to CEQA Guidelines Section 15369, a ministerial action is one "involving little or no personal judgment by a public official. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out." This is distinct from discretionary review, which "requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity."

While prohibiting a discretionary review process and public hearings for proposed second units, AB 1866 did not remove the authority of local governments to impose standards on second units.

The Town’s secondary dwelling unit ordinance will need to be amended to comply with AB 1866, including eliminating the need for a conditional use permit and adopting appropriate criteria for the evaluation of new applications for second units. Below is a preliminary analysis of those parts of the ordinance that will need to be changed.

Sections 4.05.03 and 4.05.04 of the Tiburon Zoning Ordinance permit secondary dwelling units as conditional uses in the R-1, R-1-B, RO-1, RO-2, and RPD residential zoning districts. The conditional use permit requirement will need to be eliminated. There are no provisions in AB 1866 that would prevent the Town from changing or reducing the areas where secondary dwelling units are permitted.

Section 4.05.05 of the Zoning Ordinance requires that several findings be made to grant a conditional use permit. While the conditional use permit process will no longer be authorized, several of these findings can remain in the ordinance as standards to be applied objectively through a ministerial process. These findings follow:

The secondary dwelling unit is located on the same lot or parcel on which the owner of record maintains his or her principal place of residence.

The secondary dwelling unit meets all current property development standards of the residential zoning district in which it is located.

The secondary dwelling unit meets the current building codes adopted by the Town.

Only one additional unit shall be allowed for each single family parcel.

Adequate sanitary service for the additional increment of effluent resulting from the secondary dwelling unit is available.

The secondary dwelling unit is a maximum of 1/3 of the allowable floor area for the property, or 1,000 square feet, whichever is less, and no floor area ratio exception is required.

The secondary dwelling unit is structurally attached to the main single family dwelling (or is an existing detached structure built prior to January 4, 1984), and is located on a lot not less than 10,000 square feet in area.

The secondary dwelling unit is to be occupied by no more than three persons.

Principal access to the secondary dwelling unit is through an entrance other than the entrance to the primary unit.

Other findings found in Section 4.05.05 would need to be deleted or modified to contain objective criteria which could be evaluated in a ministerial process. These findings follow:

The secondary dwelling unit does not cause excessive noise, traffic congestion, parking congestion or overloading of public facilities nor does it unduly interfere with existing privacy or views of neighboring homeowners.

The Planning Commission may make an exception to the 10,000 square footage or attachment requirements based upon the terrain of the site or other good cause.

The Planning Commission may make an exception to the separate entrance requirement if the terrain and/or design of the primary residence would not reasonably permit such separate entrance to the proposed secondary dwelling unit.

Government Code Section 65852.2(e), which limits parking requirements for second units to one parking space per unit or per bedroom, and requires parking to be permitted in setback areas or through tandem parking unless site specific findings are made, remains unchanged by AB 1866. Section 4.05.05 of the Zoning Ordinance requires that secondary dwelling units provide two on-site non-tandem parking spaces unless an exception is granted by the Planning Commission and appears to be inconsistent with state law. However, it may be possible to keep the parking requirement by adopting appropriate findings at the time changes to the ordinance are adopted.