TO: PLANNING COMMISSION

FROM: KEVIN BRYANT, ADVANCE PLANNER

SUBJECT: Z 2003-02: TOWN-INITIATED TEXT AMENDMENTS TO THE TIBURON MUNICIPAL CODE, MODIFYING SECTION 16-4.5, SECONDARY DWELLING UNIT USE PERMITS; AND ADOPTION OF RESOLUTION ESTABLISHING STANDARDS FOR SECONDARY DWELLILNG UNITS

MEETING DATE: May 14, 2003

REPORT DATE: May 1, 2003 REVIEWED BY: _________

BACKGROUND

On September 29, 2002, Governor Davis signed Assembly Bill (AB) 1866 (Wright), which changed the state law authorizing local governments to approve secondary dwelling units. Prior to the change, local ordinances were allowed to:

Designate areas where secondary dwelling units may be permitted.

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

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

Establish a conditional use permit for secondary dwelling units.

The change in law has removed the authority to establish a conditional use permit process for the consideration of secondary dwelling units. Besides no longer authorizing use permits, the law now prohibits discretionary review or a hearing for secondary units:

When a local agency receives its first application on or after July 1, 2003, for [the creation of a secondary dwelling 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)) [emphasis added]

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."

AMENDING THE SECONDARY DWELLING UNIT ORDINANCE

Currently, the Town allows secondary dwelling units in single-family residential zones with an approved use permit. The Town’s ordinance gives the Planning Commission the authority to review and approve, deny, or conditionally approve applications for secondary dwelling units. In addition, the ordinance prescribes the findings that are required to grant a conditional use permit for a secondary unit and requires Site Plan and Architectural Review for Secondary Units which will include exterior modifications.

Each of these provisions of the Town’s current ordinance is affected by the changes in state law. Therefore, the Town’s Secondary Dwelling Unit Ordinance needs to be amended to comply with AB 1866.

The Draft Secondary Dwelling Unit Ordinance (Exhibit 1) would repeal the existing ordinance and replace it with the proposed language.

Highlights of the Draft Secondary Dwelling Unit Ordinance

The Draft Secondary Dwelling Unit Ordinance replaces the requirement for a conditional use permit and the required findings to grant a use permit with a new Secondary Dwelling Unit Permit, which:

Shall be acted upon by the Community Development Director or his designee without discretionary review or a public hearing (Draft Section 16-4.5.5), and

Would comply with all of the standards set forth in the currently adopted list of "Standards for Secondary Dwelling Units." (Draft Section 16-4.5.6)

The "Standards for Secondary Dwelling Units", attached as Exhibit 2, would be "established by Resolution of the Town Council, and may be amended from time to time by Resolution of the Town Council." (Draft Section 16-4.5.7) It is recommended that the "Standards" be adopted separately by Resolution because resolutions are easier and faster to adopt and to amend, and this allows the Town to respond more efficiently to needed changes in the standards. Other bills are currently pending in the State Legislature that could, if they become law, potentially require changes to the Standards.

Unlike the current ordinance, the Draft Ordinance has no requirement for Site Plan and Architectural Review of secondary dwelling units, as this process is a discretionary process now prohibited by state law.

Other changes from the existing ordinance include:

changing the definition of Secondary Dwelling Unit, adding definitions for New Construction and Primary Unit (Draft Section 16-4.5.2),

adding a section stating that existing Secondary Units are still subject to their conditions of approval (Draft Section 16-4.5.9), and

making minor changes to the expiration and revocation, yearly update and violations sections (Draft Sections 16-4.5.11, 12, 13, and 14).

STANDARDS FOR SECONDARY DWELLING UNITS

The Draft Secondary Dwelling Unit Permit Ordinance will comply with the provisions of AB 1866 by eliminating the requirement for a conditional use permit and by explicitly stating that applications shall be acted upon without discretionary review or a public hearing.

The Town is still authorized by state law to impose standards on secondary dwelling units which include, but are not limited to, parking, height, setback, lot coverage, architectural review, and maximum size of a unit. It is through the "Standards for Secondary Dwelling Units," adopted by separate Resolution of the Town Council, that the Town will set forth the standards which secondary dwelling units must meet to gain approval.

As described above, a ministerial action requires the exercise of "little or no personal judgment" by a public official. Therefore, the "Standards for Secondary Dwelling Units" must consist of fixed standards or objective measurements, while addressing issues that may be associated with secondary units to the degree possible.

The Draft "Standards for Secondary Dwelling Units" are intended to anticipate and address issues such as noise, privacy, views, and parking; as well as to take those required findings in the current ordinance which are objective criteria and adopt them as "Standards".

New Construction vs. Existing Buildings

There is a consensus forming in the legal community that the intent of AB 1866 is to allow new construction for secondary dwelling units without discretionary review or public hearings. This is in direct conflict with the fact that architectural review, typically a discretionary process, was left by AB 1866 as one of the standards that local governments are authorized to impose on secondary dwelling units.

To address these conflicting provisions of the law, as well as to protect Tiburon’s neighborhoods, the Draft Secondary Dwelling Unit Ordinance makes a distinction between Secondary Dwelling Units which would constitute "new construction" and those which would be located within existing buildings. The distinction is important because the conversion of existing buildings into secondary units will generally have less impact on noise, privacy, and views than new construction.

 The most important proposed standards may be the following:

The proposed Secondary Dwelling Unit, if any portion thereof constitutes New Construction, would not exceed a maximum Floor Area of 400 square feet.

The proposed Secondary Dwelling Unit, if located in an existing Building (including a lawfully existing detached accessory building), or if proposed as an integral part of a new single family residence, would not exceed one-third (1/3) of the maximum Floor Area of the property (as prescribed in Section 16-4.2.8 of the Municipal Code), or 1,000 square feet of Floor Area, whichever is less.

These standards allow for the construction of small secondary dwelling units without discretionary review, consistent with the intent of AB 1866, and allow larger secondary units in existing buildings, where they would have potentially fewer negative impacts on adjacent properties.

Noise/Privacy/Views

The existing ordinance for secondary units has a required finding that a unit not cause excessive noise or unduly interfere with existing privacy or views. These are difficult issues to address through objective standards, as they are inherently subjective in nature and require the exercise of judgment by a public official.

Building height, required yards, and building envelopes are tools for ensuring that properties have adequate air, light, and privacy. These tools, particulary height limits, can also be used to preserve views on adjacent properties. The following standards are objective and will help minimize the noise, privacy, and view impacts of secondary units by ensuring that new buildings are small and that there is sufficient separation between secondary units and adjacent properties.

The proposed Secondary Dwelling Unit, if it constitutes New Construction, would conform to all required Yards or Building Envelope restrictions for the Zone or Planned Development in which it is located.

The proposed Secondary Dwelling Unit, if it constitutes New Construction, would be single story and would not exceed fifteen (15) feet in Height, as defined in Section 16-5.6.7 of the Municipal Code.

The proposed Secondary Dwelling Unit, if located in a Primary Unit, would be limited to portions of the Primary Unit that conform to the required Yards or Building Envelope restrictions for the Zone or Planned Development in which it is located.

To further address the privacy issue, the following additional standard is proposed:

Any window or door which faces a side yard would utilize techniques to lessen the privacy impacts on adjacent properties. These techniques may include, but are not limited to, use of obscured glazing, window placement above eye level, windows and doors located toward the existing on-site residence or screening treatments.

Parking

In 1994, state law was changed to establish maximum parking requirements for secondary units. Government Code Section 65852.2(e) states that "parking requirements for secondary dwelling units shall not exceed one parking space per unit or per bedroom." The section further states that parking "be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made…that it is not permitted anywhere else in the jurisdiction."

The Parking and Loading section of the Zoning Ordinance prescribes the requirements for parking layout. The Town is authorized to require the same parking layout requirements for secondary units as for other uses, but no additional requirements.

The following proposed standard is, therefore, the most stringent allowed by law.

The proposed Secondary Dwelling Unit would provide one (1) off-street, non-tandem Parking Space for each bedroom within the Secondary Dwelling Unit. The Parking Spaces would comply with all Town standards and regulations regarding Parking Spaces.

To reduce the visual impact of additional parking spaces on adjacent properties, and to limit the impact on street parking by prohibiting additional curb cuts, these other standards are proposed:

Adequate landscaping, including trees and shrubs for shading and visual buffering, is shown as part of the parking layout and would be provided.

The required Parking Spaces for the proposed Secondary Dwelling Unit would be served by the same driveway access to the street as the Primary Unit.

Other New "Standards"

Other standards that are proposed primarily make it clear to applicants and Staff that, even without design review, architectural harmony is required and that there are other agencies which will still need to review applications and apply conditions. These are as follows:

The proposed Secondary Dwelling Unit would incorporate the same architectural features, building materials, and colors as the Primary Unit.

The Secondary Dwelling Unit would comply with all Fire District regulations and all Water District regulations.

"Standards" from Current Required Findings

In addition to the new standards described above, a number of the current findings required to approve a use permit are objective criteria and are proposed for adoption as part of the "Standards for Secondary Dwelling Units". These are as follows:

The proposed Secondary Dwelling Unit would be located in one of the following residential Zones: R-1, R-1-B, RO-1, RO-2, or RPD.

The proposed Secondary Dwelling Unit would be the only Secondary Dwelling Unit on the Lot.

The proposed Secondary Dwelling Unit would be located on a Lot with a Lot Area of not less than 10,000 square feet.

The proposed Secondary Dwelling Unit would be located on the same Lot on which the Owner of Record maintains his or her Principal Place of Residence.

The Secondary Dwelling Unit would be in conformance with the current building codes adopted by the Town.

Adequate sanitary service capacity for the additional increment of effluent resulting from the Secondary Dwelling Unit would be available.

RECOMMENDATION

Hold a public hearing on the item. Discuss and make any desired changes or refinements to the municipal code amendments or the "Standards for Secondary Dwelling Units", and adopt the Resolutions recommending approval to the Town Council.

EXHIBITS

1.    Resolution Recommending Adoption of Ordinance Amending Chapter 16 (Zoning) of the Tiburon Municipal Code.

2.    Resolution Recommending Adoption of Resolution Establishing Standards for Secondary Dwelling Units.

3.    Assembly Bill 1866 (portion).