2023 California Legislation – Summer Recess Update

| Justin A. Zucker
bills

The California legislature reconvened yesterday, after taking a summer recess. As previously reported, this year’s legislative session is packed full of pending bills with far reaching changes to land use controls and local controls of such. In this update, I provide the status of bills introduced related to the California Environmental Quality Act (CEQA), the State Density Bonus Law, accessory dwelling units (ADUs), parking, and housing policies. Bills previously reported in 2023 Legislation at a Glance – Part 1 or Part 2 and not discussed below failed to leave their house of origin and advance to their second house.

CEQA:

Many of the previously reported CEQA bills have failed to advance out of their house of origin. There are, however, some CEQA bills advancing through their second house to note, including:

  • AB 1307 (Wicks and Luz Rivas) Residents’ Noise Not A Significant Effect. This bill, which appears to be in response to the University of Berkeley People’s Park project hang up, would amend CEQA to clarify that for residential projects, noise generated by the unamplified voices of residents is not a significant effect on the environment. A mirror bill, AB 1700(Hoover) failed to advance.
  • AB 1449 (Alvarez) 100% Affordable Housing Exemption. This bill would, until January 1, 2033, exempt 100% affordable housing projects from CEQA. While there are other tools available to make 100% affordable housing projects ministerial and not subject to CEQA, e.g., SB 35 (2017, Weiner), there are no workforce standards tethered to AB 1449.
  • AB 356 (Mathis) Aesthetics Not a Significant Effect. This bill would extend the current regulation, set to sunset January 1, 2024, that aesthetic impacts are not considered significant effects on the environment for housing projects involving the refurbishment, conversion, repurposing, or replacement of an existing building.
  • SB 393 (Glazer) CEQA Litigation Underwriting Disclosures. This bill would require, upon request, a petitioner of an action attacking a project’s CEQA compliance to identify every person or entity that contributes in excess of $10,000 to the costs of the action.

State Density Bonus Law:

AB 1287 (Alvarez) Additional Density Bonus. This bill would allow up to an additional 50% density bonus for projects that (1) maximize the very low income, low income, or moderate-income units permitted under the current State Density Bonus Law and (2) provide up to 15% additional moderate-income units. A bonus up to 38.75% can be obtained by providing 10% very low-income units. 100% affordable projects would be eligible to receive five incentives or concessions. Previously, this bill was to modify the State Density Bonus Law to supersede the California Coastal Act of 1976 and up to six incentives or concessions for certain projects, but those provisions were removed.

AB 323 (Holden) Restricting Use of For-Sale Units as Rentals. This bill has progressed intact; it would prohibit a developer from offering a for-sale unit constructed pursuant to a local inclusionary zoning ordinance to a purchaser that intends to rent the unit to families of extremely low, very low, low-, and moderate-income families, unless the developer can prove that none of the applicants for owner-occupancy can qualify for the unit. Any violation would be subject to a civil penalty of not more than $15,000.

ADUs:

All but one of the bills previously reported on pertaining to ADUs (AB 1661) have left their house of origin and are advancing through their respective second house. The bills that advanced include:

  • AB 1033 (Ting) ADU Condominiumization. This bill would allow a local jurisdiction to permit condominiumization and sale of ADUs separate from the primary residence.
  • AB 1332 (Carillo) Pre-Approved ADU Plan Sets. This bill would require jurisdictions, by January 1, 2025, to develop a program for the preapproval of ADUs plans. Initially six sets of preapproved plans were to be prepared, but as amended, no amount to be published is set.
  • AB 976 (Ting) No Owner-Occupancy Requirement. This bill would make permanent an existing prohibition to imposing an owner-occupancy requirement on an ADU that sunsets January 1, 2025.
  • SB 477 (Committee on Housing) ADU Chapter. This bill would create a new Government Code chapter to house state ADU regulations. It has been amended to take effect immediately as an urgency statute.

Parking Controls:

All three bills relaxing parking controls previously reported on have advanced to their second house:

  • AB 1317 (Carrillo) Unbundled Parking for Residential Property. This bill would require landlords to “unbundle” parking costs from rent for leases or rental agreements for residential property in Alameda, Fresno, Los Angeles, Riverside, Sacramento, San Bernardino, San Joaquin, Santa Clara, Shasta, and Ventura counties, commencing or renewed on or after January 1, 2025.
  • AB 1308 (Quirk-Silva) Parking Requirements for Single-Family Homes. This bill would prohibit a local jurisdiction’s ability to increase the applicable minimum parking requirements of a single-family residence as a condition of approval to remodel, renovate, or add to a single-family residence.
  • AB 894 (Friedman) Shared Parking. This bill would provide a pathway to activate underutilized parking (as defined) as shared parking spaces with other users, which would count toward meeting any automobile parking requirement.

Housing Policies:

While several previously reported housing bills have failed to advance, several have made it on to their second house, including:

AB 1485 (Haney) State Intervention in Actions Involving Violations of Housing Laws. This bill would grant the Attorney General an unconditional right to intervene in any lawsuit filed over a potential violation of an enumerated list of state housing laws, including, among others, the Housing Accountability Act, Housing Crisis Act of 2019, and the Density Bonus Law. This bill was amended to allow both the Attorney General and the Department of Housing and Community Development to intervene.

AB 1633 (Ting) Housing Accountability Act Protection Extended to CEQA Review. This bill would expand the Housing Accountability Act’s definition of “disapprove the housing development project” to include any instance when a local agency fails to issue an exemption, fails to adopt a negative declaration or addendum for the project, or certify an environmental impact report or another comparable environmental document. This bill was amended to include a sunset date of January 1, 2031.

SB 423 (Weiner) SB 35 Extension and Expansion. This bill would extend SB 35 (2017, Weiner), which is currently set to expire January 1, 2026, and expand its applicably as previously discussed. While the bill has remained intact, SB 423 has been amended with significant additions as follows:

  • Limited Duration. Initially, SB 423’s extension was to be permanent but has since been limited to sunset January 1, 2036.
  • Labor Standards. Skilled and trained workforce provisions are required for projects having habitable space above 85 feet in height.
  • Local Enforcement. The bill would allow localities to take administrative action or sue a construction contractor for failure to comply with the ordinance’s workforce standards.
  • Community Engagement. In areas designated as either a moderate resource area, low resource area, or an area of high segregation, a public meeting must be held before application submittal to provide an opportunity for the public and local government to comment on the project.

AB 1218 (Lowenthal) SB 330 Amendments. This bill would tweak SB 330 (2019, Skinner) by extending the protected unit demolition and replacement controls, which currently only apply to housing development projects, also to projects that are not considered housing developments. This bill would also place the restrictions on demolition of protected units and replacement requirements into a separate provision that will apply permanently, which otherwise would become inoperative on January 1, 2030.

We will continue to track these import pieces of legislation. September 14, 2023, is the last day for each house to pass bills. October 14, 2023, is the last day for Governor Newson to sign or veto bills timely passed by the legislature. Please stay tuned later this fall for a repeat of last year’s 2022 Housing Legislation Round-Up with a summary of relevant 2023 legislation signed into law. If you have any questions regarding any of the pieces of proposed legislation, please reach out to me.

 

Authored by Reuben, Junius & Rose, LLP Attorney Justin A. Zucker.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

New State Laws Affecting Condo Homeowners Associations

| Jay Drake
HOAs

There are relatively fewer new state laws affecting condominium homeowners associations (“HOAs”) in 2023 than in recent years. However, one particular bill was passed by the California State legislature that includes important changes condominium owners and HOAs should be aware of.  Assembly Bill 1410 made a few significant changes to the Davis-Stirling Common Interest Development Act, which is the primary state law affecting condos and HOAs.  These new laws became effective January 1, 2023.

As we have previously reported over the past few years, the state legislature has been making an effort to increase affordable housing in the state.  To that end, the ability of HOAs to restrict rentals of condo units has been curtailed.  Assembly Bill 3182, passed in 2020, amended Civil Code Section 4740 to limit the power of HOAs to enforce restrictions on a homeowner’s ability to rent his or her unit.  AB 3182 also added new Civil Code Section 4741, which provides that HOAs cannot require a minimum rental term of greater than thirty (30) days.  Section 4741 also states that HOAs cannot enforce a cap on the number of units that may be rented at greater than 25%.  Units that are owner-occupied where only a portion of the unit is rented, or an accessory dwelling unit (ADU) that is part of the unit is rented, do not count towards any such rental cap.  The effect of this is to limit restrictions on rental of ADUs and a unit owner’s ability to rent rooms in his or her unit.

AB 1410 furthers the state legislature’s objective of increasing affordable housing by adding a new section 4739 to the Civil Code.  Section 4739 provides that an HOA’s governing documents cannot prohibit an owner from renting out a portion of his or her unit so long as the owner occupies the unit and the rental term is for more than 30 days.  This has the effect of allowing more short term rentals so long as the rental period is for more than 30 days.

AB 1410 also amends Civil Code Section 4515 to provide that an HOA’s governing documents cannot prohibit a member or resident from exercising free speech by using social media or other online resources to discuss certain matters, even if the content is critical of the HOA or its governance. Such matters include development living, HOA elections, proposed legislation, government elections, and other issues of concern to members and residents of the community.  This does not mean an HOA has to provide any social media or other online resources to its members, and an HOA does not have to allow members to post content on the HOA’s website.  This new law seems to be fixing a problem that is not widespread, but has become an issue in some HOA communities.

Finally, AB 1410 prohibits an HOA from pursuing any enforcement actions for a violation of its governing documents during a declared state or local emergency if the nature of the emergency makes it unsafe or impossible for the owner to either prevent or fix the violation.  The only exception is an enforcement action relating to an owner’s nonpayment of assessments to the HOA.  This rule is clearly intended to give homeowners some leeway to comply with an HOA’s governing documents during government imposed emergency declarations.

 

Authored by Reuben, Junius & Rose, LLP Attorney Jay Drake.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

2023 Legislation at a Glance – Part 2

| Justin A. Zucker and Sabrina Eshaghi
policies

As reported last week, this legislative session is packed full of pending bills with far reaching changes to land use controls and local control of such. In Part 1, we discussed some of the most significant bills introduced impacting the California Environmental Quality Act (CEQA), the State Density Bonus Law, and removal of an only in San Francisco allowance to appeal a building permit after a qualifying residential project receives entitlement. Here, in Part 2, we discuss significant bills introduced related to housing, parking, accessory dwelling units (ADUs), and other land use-related policies.

Accessory Dwelling Units

Since their introduction into housing nomenclature by former Bay Area lawmaker Senator Bob Wieckowski (D-Fremont) in 2016 with SB 1069 along with companion AB 2299 (Bloom), ADUs have become somewhat of a darling child in the housing production world. Over the years, several bills have passed intended to increase the production of ADUs. A few include a package – AB 68 (Ting), AB 587 (Friedman), AB 670 (Friedman), AB 671 (Friedman), AB 881 (Bloom), and SB 13 (Wieckowski) – enacted in 2019 and another pair of bills from 2022 – AB 2221 (Quirk-Silva) and SB 897 (Wieckowski). This year, we see proposals for further relaxation of controls on ADUs, including:

  • AB 1033 (Ting) would allow a local jurisdiction to permit condominiumization and sale of ADUs separate from the primary residence.
  • AB 1332 (Carillo) would require jurisdictions, by April 2025, to publish six sets of permit ready floor plans (studio, 1-bedroom, and 2-bedroom, in both standard and reverse formats) for detached ADUs.
  • AB 1661 (Bonta) would remove the requirement that an ADU be individually metered for electrical and gas service and allow for an ADU to use existing or upgraded meters on the property.
  • AB 976 (Ting) would make permanent an existing prohibition to imposing an owner-occupancy requirement on an ADU that sunsets January 1, 2025.
  • SB 477 (Committee on Housing) would create a new Government Code chapter to house state ADU regulations.

Constitutional Amendments

There are two noteworthy Constitutional Amendments being proposed this legislative session.

ACA 1 (Aguilar-Curry) Affordable Housing Bond Approval Threshold. Would lower the necessary voter threshold for approving affordable housing bonds from a two-thirds supermajority to 55%. This appears to be a set up for a forthcoming affordable housing bond (AB 1657, Wicks), slated to go before the voters in fall of 2024.

ACA 10 (Haney) Housing a Fundamental Right. Would amend the Constitution to declare that the state recognizes the fundamental human right to adequate housing for everyone in California. The amendment would impose a shared obligation on the state and local jurisdictions to respect, protect, and fulfill this right, by all appropriate means, including legislative action.

Relaxing of Parking Controls

In recent years, there has been an effort to reduce minimum parking controls. Last year, AB 2097 (Friedman) removed a local jurisdiction’s ability to impose any minimum parking requirements on residential or commercial development located within one-half mile of public transit (as defined). This year there is a trio of bills that will further relax parking controls local jurisdictions may impose:

  • AB 1317 (Carrillo) would require landlords to “unbundle” parking costs from rent from leases or rental agreements for residential property commencing or renewed on or after January 1, 2024.
  • AB 1308 (Quirk-Silva) would prohibit a local jurisdiction’s ability to increase the applicable minimum parking requirements of a single-family residence as a condition of approval to remodel, renovate, or add to a single-family residence.
  • AB 894 (Friedman) would allow properties with underutilized parking (as defined) to share spaces with other users, which would count toward meeting any automobile parking requirement.

Housing Policies

AB 1485 (Haney) Attorney General Right To Intervene in Actions Involving Violations of State Housing Laws. This bill would grant the Attorney General an unconditional right to intervene in any lawsuit filed over a potential violation of an enumerated list of state housing laws, including, among others, the Housing Accountability Act, Housing Crisis Act of 2019, and the Density Bonus Law.

AB 1532 (Haney) Streamlined Office to Residential Conversions. This bill would allow by-right, ministerial office to residential conversion projects statewide and limit fees and design requirements that local governments can impose on conversions. It would also allow an applicant to pay applicable impact fees over a ten-year period. It includes a skilled and trained workforce requirement. This bill has been converted to a two-year bill and we will likely not see any movement on it until next year.

AB 1633 (Ting) Housing Accountability Act Protection Extended to CEQA Review. This bill would expand the Housing Accountability Act’s definition of “disapprove the housing development project” to include any instance when a local agency fails to issue an exemption, fails to adopt a negative declaration or addendum for the project, or certify an environmental impact report or another comparable environmental document.

AB 281 (Grayson) Streamlining Post-Entitlement Permits. This bill would extend the post-entitlement permit timelines created by AB 2234 (2022, Rivas) to special districts. AB 2234 imposes the following timelines for review of post-entitlement applications for housing projects: (1) for projects with 25 units or fewer, a local agency shall complete first review and comment within 30 days of an application completion; and (2) for projects with 26 or more units, a local agency shall complete first review and comment within 60 days of an application completion.

AB 821 (Grayson) General Plan Consistency. This bill would provide that, in the event a local jurisdiction fails to amend a zoning ordinance to be consistent with the general plan within 90 days of receiving written notice of the inconsistency, a proposed development project cannot be deemed inconsistent with that zoning ordinance and cannot be required to be rezoned, if there is substantial evidence that (1) the proposed project is consistent with objective general plan standards and (2) the zoning for the project site is inconsistent with the general plan.

AB 919 (Karla) Stable Homes Act – Tenant Opportunity to Purchase. This bill would require a residential property owner, including owners of single-family homes, to (1) provide notice of their intent to sell the residential real property to each tenant and qualified entities and (2) allow each qualified entity ten days to give notice of interest and either 60 or 40 days to submit an offer to purchase to the owner. For a single-family residential property, the qualified entity must provide existing tenants eighteen months to purchase the entire residential property or to purchase improvements if the underlying land is to be retained by a community land trust.

SB 294 (Weiner) Minimum Floor Area Ratio Limits. This bill would expand the minimum floor area ratio (FAR) standards under state law that currently only apply to projects providing up to 10 units, to apply to all housing projects. The bill would prohibit municipalities from imposing an FAR limit less than 2.5 on housing projects providing 11-20 units. For housing projects over 20 units, it would prohibit an FAR limit less than 1.25 for every ten units.

SB 423 (Weiner) SB 35 Extension and Expansion. This bill would permanently extend SB 35 (2017, Weiner), which is currently set to expire January 1, 2026, and expand its applicably as discussed below:

  • Eligibility. This bill would allow SB 35 projects (1) in the coastal zone and (2) on wetlands or protected habitat if authorized by any other state or federal law. It would also apply in cities that have failed to adopt complaint housing elements as determined by HCD.
  • Labor Standards. This bill would remove the skilled and trained workforce requirement. Instead, the requirement to pay prevailing wages will remain, and on projects over 50 units, contractors would be required to offer apprentices employment and cover health care expenditures.
  • Clarifications. This bill clarifies that the planning director or other equivalent local government staff is required to make determinations about compliance with the objective planning standards, all departments required to weigh in on a project before granting entitlement must do such within SB 35’s time parameters (60 or 90 days depending on project size), prohibits the local government from requiring consultant studies to evaluate consistency with objective planning standards, removes references to public oversight from the design review process, and prohibits requiring compliance with any standards necessary to receive a postentitlement permit for purposes of the SB 35 approval.

SB 450 (Atkins) SB 9 Amendments. This bill would amend SB 9 (2021, Atkins), the fourplex/urban lot split legislation that took effect last year, by:

  • Removing the limitation on demolition of more than 25% of the existing exterior structural walls to be eligible for ministerial approval;
  • Prohibiting a local agency from imposing objective standards that do not apply uniformly to development within the underlying zoning or do not relate to the design or improvements of a parcel;
  • Removing the ability of a local jurisdiction to deny a SB 9 project if the building official makes a written finding that the proposed housing development project would have a specific, adverse impact on the physical environment;
  • Requiring the local agency to approve or deny a SB 9 application within 60 days from receiving a completed application; and
  • Requiring the local agency to provide 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 if it denies an application.

AB 1218 (Lowenthal) SB 330 Amendments. This bill would tweak SB 330 (2019, Skinner) by extending the protected unit demolition and replacement controls, which currently only apply to housing development projects, to projects that are not considered housing developments. This bill would also place the restrictions on demolition of protected units and replacement requirements into a separate provision that will apply permanently, which otherwise would become inoperative on January 1, 2030.

Land Use-Related Policies

SB 466 (Wahab) Rent Control Reform – 15-Year Look Back. This bill would amend Costa Hawkins to allow municipalities to apply rent control to properties that were issued a certificate of occupancy more than 15 years before the date the owner seeks to establish the rental rate. It would also remove the exemptions for properties that are alienable and separate from title to any other dwelling units, meaning rent control could be applied to single family homes and condos.

SB 745 (Cortese) Water Demand Reduction. This bill would require the California Building Standards Commission to propose mandatory building standards to reduce the potable water demand of new buildings by 25% from current mandatory design requirements and to minimize the use of potable water for nonpotable uses. The bill would require the Commission to adopt mandatory building standards for new buildings to be designed to capture graywater and use alternative water sources for nonpotable building and landscaping water uses.

SB 83 (Weiner) Electrical Grid Connection. This bill would require electrical utilities to connect, aka energize, a development project to the electrical grid within 8 weeks of the project being ready for interconnection (previously known as receiving a “green tag”). An alternative time period may be set and applies if an issue specific to the project or project site arises that would prevent the utility from safely completing the interconnection. This bill would further require a utility to compensate a development project applicant for failing to meet either the 8-week or the alternatively-set time period.

 

Authored by Reuben, Junius & Rose, LLP Attorneys Justin A. Zucker and Sabrina Eshaghi.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Oakland ADU Updates: Legalization Amnesty Program

| Justin A. Zucker
Amnesty

As I previously reported, Oakland is in the process of updating its Planning Code regulations pertaining to accessory dwelling units (“ADUs”). On December 21, 2021, the Oakland City Council heard and passed on first reading legislation amending Oakland’s ADU controls (the, “Legislation”). The proposed amendments encourage ADU production by reducing barriers through the adoption of streamlined approval processes consistent with State law. One of the proposed programs by the Legislation is an amnesty program to legalize unpermitted ADUs established and occupied in Oakland prior to January 1, 2021.

The amnesty program consists of two elements that encourage the legalization of existing eligible unpermitted ADUs. First, a property owner may request a waiver from provisions of zoning or development standards, e.g., setbacks, that would preclude the preservation of an eligible unpermitted ADU.

Second, a property owner may request a five year delay in enforcement of Building Code requirements if the unpermitted ADU was built prior to the effective date of the Legislation. The ability to request a five year enforcement delay is available until January 1, 2030. Property owners would be allowed to bring their existing, eligible, unpermitted ADU into compliance with current Building Code standards without incurring any enforcement penalties or fines. This amnesty would last up to five years from the date the enforcement delay is granted, meaning the latest the five-year enforcement delay can be in effect for a specific ADU is December 31, 2034. Amnesty  does not apply to structures that pose an immediate risk to public health and safety.

In addition to creating an amnesty program for legalizing existing unpermitted ADUs, the Legislation makes several changes to the existing ADU development controls, including:

  • Category Three ADU. The Legislation establishes a new attached ADU category that may combine both converted space within an existing envelope of a multifamily building and a newly built addition to a building footprint.
  • Height Increase. Exceeding State law, the Legislation allows two-story ADUs up to a maximum height of 20 feet, as compared to 16 feet, if an ADU complies with the minimum four-foot side and rear setbacks required for detached ADUs.
  • Envelope Expansion. The Legislation permits additional envelope expansion as part of the conversion or replacement of an existing accessory structure on a small lot to allow construction of one internal conversion ADU. The ADU must have a total structural footprint no greater than 800 square feet, with the height of the addition no more than 16 feet. A “small lot” is defined as those no greater than 3,000 square feet or no greater than 35 feet in lot width mean.
  • Trees. The Legislation calls for project sponsors to plant one new tree on the subject lot or within the public right of way fronting the subject lot per every 500 square feet of detached ADU floor area.
  • ADUs in Front Setback. Consistent with State law, the Legislation permits one ADU of a minimum size of 800 square feet, up to 16 feet in height, in the front setback if the lot’s configuration precludes creation of the ADU anywhere else on the lot.
  • Multifamily Internal Conversion ADUs. The Legislation clarifies that multifamily properties are permitted one internal conversion ADU or up to a number equal to 25% of the existing units per multifamily building (not per lot). This clarification addresses situations where more than one multifamily building is located on a single lot. In which case, each multifamily building on the lot would be allowed to add internal conversion ADUs up to a number equal to 25% of existing units.

The Legislation is scheduled to return to the Oakland City Council for the second and final hearing for passage. Having been unanimously passed at the December 2021 Council meeting, it is anticipated that the Legislation will be finally passed by the Council next week. We will continue to monitor the Legislation and keep readers updated.

 

Authored by Reuben, Junius & Rose, LLP Attorney Justin A. Zucker.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Building Department and ADU Update

| Gillian Allen
ADU

The Code Advisory Committee of the San Francisco Department of Building Inspection (“Building Department”) held a discussion with the public and with Building Department officials on December 8, 2021 to discuss concerns about the impact of suspending Information Sheet EG-02, which allowed a local equivalency for Emergency Escape and Rescue Openings (EEROs), opening into a yard with a minimum 25-foot depth. While the conversation did not result in an immediate solution, and the Building Department is unable to reinstate the equivalency because it is in direct violation of the building and fire codes, the Building Department stated their priority is to keep working with projects to try and find an alternate design. A recommendation was made that the Building Department work to create a task force to address this issue.

Ordinance 208-21: Additional Required Noticing for ADUs Now In Effect

On December 12, 2021, Ordinance No. 208-21, amending the Planning Code to clarify the requirements for applications to construct Accessory Dwelling Units (“ADU”) under the City’s local Accessory Dwelling Unit approval process, went into effect.

This Ordinance is intended, in part, to clarify the existing rules in the Rent Ordinance as to housing services. The term housing services refers to services provided by the landlord connected with the use or occupancy of a rental unit, including, but not limited to, access to areas such as garages, driveways, storage spaces, laundry rooms, decks, patios, gardens on the same lot, and kitchen facilities or lobbies in single room occupancy (SRO) hotels. This Ordinance clarifies that landlords may not sever, remove, or reduce housing services without just Notification.

Prior to submitting an ADU application, an owner must file a declaration with the Rent Board demonstrating the project will comply with the requirements of the Rent Control & Eviction Ordinance.

The declaration is to include: (1) a description of housing services supplied in connection with the use or occupancy of any units on the property that are located in the area of the property or building where the ADU would be constructed; (2) whether construction of the ADU would result in the severance, substantial reduction, or removal of any such housing services; and (3) whether any just causes for eviction would apply.

An owner must also mail or deliver notice to each unit (including unauthorized units) at the subject property at least 15 calendar days prior to submitting the application. The property owner shall submit proof of these notices to the Planning Department as part of the application to construct an ADU. These notices shall have a format and content determined by the Zoning Administrator, and shall generally describe the project, including the number and location of the proposed ADU(s), and shall include a copy of the written declaration required.

Tenants may contest the information in the declaration by petition to the Rent Board within 30 days after notice. The Rent Board will make determination and send to Planning within 90 days of receipt of petition.

 

Authored by Reuben, Junius & Rose, LLP Manager, Post Entitlement Division Gillian Allen.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Accessory Dwelling Units – Oakland Update

| Justin A. Zucker
ADUs

As previously reported, a slate of new California State laws became effective on January 1, 2020, that encourage the construction of Accessory Dwelling Units (“ADUs”). State law holds that until a city adopts an ordinance that complies with State law, a city’s existing ADU regulations are null and void and only State standards may be applied. Currently, the City of Oakland’s ADU regulations are not in line with State law. In response to this inconsistency, Planning Department staff is proposing amendments to its ADU regulations to bring them in line with State law.

Below are some of the key changes to Oakland’s ADU regulations:

  • ADU permit approval within 60 days of application submittal.
  • Ministerial approval for one interior, attached, or detached ADU and one Junior ADU (“JADU”), which are a type of ADU no more than 500 sf with an efficiency kitchen, but do not require a private bathroom, per single-family lot.
  • Ministerial approval of a detached ADU, provided it is up to 800 sf, 16 feet in height, and maintains 4-feet rear and side setbacks.
  • Ministerial approval of at least one interior ADU on multifamily lots, up to a number equal to 25% of the existing units, that involves conversion of non-habitable space, and no more than two detached ADUs.
  • Conversion of existing accessory structures, such as carports and garages, into ADUs without requiring off-street parking replacement if the parcel is within half a mile walking distance of public transit.
  • Continued prohibition on all new ADUs and JADUs within the S-9 Fire Safety Protection Combining Zone Overlay (basically, the Oakland Hills) and now on streets with a width less than 20 feet or cul-de-sacs greater than 600 feet in length, due to the limited space for cars to escape in an emergency, such as a fire, natural disaster, or a health crisis.
  • Consultation with Historic Preservation Staff is required for ADUs proposed on a Local or California Register property visible from the public right-of-way. Placement of an ADU in front of a main building on a Local or California Register property is only allowed if the lot conditions or requirements preclude an ADU of minimum allowed size anywhere else on the lot.

In addition, the proposed Planning Code amendments introduce objective development standards consistent with State law:

  • Same roof pitch, visually similar exterior wall material, and predominant door and window trim, sill, recess and style as the primary dwelling structure for ADUs located in front of a primary structure, attached to it, or visible from the public right-of-way. Applicants may pursue approval of different finishes or styles through the Small Project Design Review process.
  • Regulation of balconies, decks, or rooftop terraces per established standards of the underlying zone.
  • Requiring at least one tree per every 500 sf of new ADU floor area, with tree(s) allowed anywhere on the lot or within the public right-of-way in front of the site.
  • ADUs that do not comply with the objective standards may go through the Small Project Design Review process.

These proposed Planning Code amendments are anticipated to be reviewed and considered by the Planning Commission later this spring with adoption by the City Council this summer. We will continue to monitor this proposed legislation and keep you updated.

 

Authored by Reuben, Junius & Rose, LLP Attorney Justin A. Zucker.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

Proposition H and New Processing for ADUs

| Thomas P. Tunny
Save Our Small Businesses Initiative

Proposition H Adopted by Voters

Proposition H was adopted by the voters at this November’s election.  Titled, “Save Our Small Businesses Initiative”, the initiative ordinance gives existing businesses more flexibility in their operations and speeds approvals for new businesses in the City’s Neighborhood Commercial (“NC”) Zoning Districts.  The initiative reduces the approval requirement for many uses from a conditional use authorization from the Planning Commission to an over-the-counter administrative approval.  Restrictions on office uses are relaxed.  The initiative eliminates neighborhood notification for changes to a principally permitted use and provides existing businesses with greater flexibility to adapt their operations in response to the COVID-19 pandemic and shifting retail landscape.  The initiative calls upon the City to streamline the approval for small businesses to 30 days.

In particular, the initiative provides as follows:

Neighborhood Notification

  • Eliminates neighborhood notification for new principally permitted uses in Neighborhood Commercial Districts, for Limited Commercial Uses, and for Limited Corner Commercial Uses. These change of use permits can now be approved over-the-counter.

Permitted Uses

  • In all NC Districts except for the Mission Street NC, 24th Street-Mission NC, and SOMA NC, more principally permitted and conditionally permitted uses are now allowed:
    • Non-Retail Sales and Services (e.g., office uses) are principally permitted on upper floors and permitted with a conditional use authorization on the ground floor.
    • General Entertainment, Movie Theaters, Community Facilities, Restaurants, Limited Restaurants, Animal Hospitals, and Retail Professional Services (e.g., realtors, accountants, insurance agents) are now principally permitted where currently permitted with a conditional use authorization, and conditionally permitted where currently not permitted. Restaurant controls were not changed in the North Beach Special Use District, where a conditional use authorization is required and any new restaurant may only occupy a space where the last use was a restaurant.
    • Arts Activities and Social Service or Philanthropic Facilities are now principally permitted on all floors.
    • Formula retail controls (conditional use authorization required) were not changed by the initiative.

Approval Process

  • Requires the creation of a streamlined review and inspection process for principally permitted storefront uses in NC Districts with a target approval in 30 days or less. The City is in the process of implementing these new procedures;
  • Requires that in cases of City error, permits to remedy that error be prioritized and have fees waived;
  • Establishes policy to allow restaurant table service within parklets in addition to the existing use of parklets by any member of the public; and
  • Locks-in the initiative’s provisions for 3 years from passage, except to further relax restrictions.

Processing ADU Applications Moves to Planning

In an effort to ease the administrative burden on DBI and hasten the approval of ADUs, the City has shifted the intake and processing of ADU applications from DBI to the Planning Department.  This includes new applications for ADUs and work related to ADU construction, such as expansions required for an ADU, excavations required for an ADU, new construction for a detached ADU, and interior remodel work to create independent access to the ADU.

Applications consist of the standard Planning Department Project Application, the ADU checklist form, the ADU screening form, a fixture count form for the PUC, and a pdf of the project plans.  Applications are submitted online at a new, easy-to-use website just for ADUs.  The application can be a full building permit or a site permit with addenda.

Once the application is submitted, Planning will send the applicant a confirmation email with the planning application number.  Planning’s Property Information Map (PIM) will provide updates about the application.  It will take one day for the record to appear in the PIM.  A planner will email the applicant about next steps within 14 business days.  The application still will be routed as before to other City agencies having jurisdiction over the proposed work for review, including DBI.

Once the permit is approved, Planning will coordinate with the applicant to verify their licensed contractor information and pay the fees.  Planning will email the job card to start construction.

For questions or assistance, email the Planning Department.

 

 

Authored by Reuben, Junius & Rose, LLP Attorney Thomas P. Tunny.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

San Francisco Expands ADUs and Electronic Permitting

| Jody Knight
ADUs

State Law Changes to ADUs Incorporated into Planning Code

Early this year, state law changed to allow additional flexibility in adding Accessory Dwelling Units (“ADUs”) to existing and proposed housing. In May, some of those changes were incorporated into Planning Code Section 207. Additional changes to align the Planning Code with state law are expected soon.

The changes to the ADU program include an allowance for construction of ADUs in single family homes or detached auxiliary structures on the same lot. The Code changes allow for single-family “no waiver” ADUs under Section 207(c)(6), but limit expansion of the envelope of the single-family home or auxiliary structure for the ADU to 1,200 square-feet. State law also allows a Junior ADU (“JADU”) of no greater than 500 square-feet to be developed within the existing or proposed primary residence in addition to an ADU. Therefore, under the new state law, every lot can have at least three units. Single-family ADUs will require posted notice at the site, even if the ADU is built entirely within the envelope of an existing building.

“Waiver” ADUs for single family homes and ADUs in multifamily buildings are regulated by Section 207(c)(4). For lots that have four or fewer existing dwelling units or where the zoning would permit the construction of four or fewer dwelling units, one ADU is permitted. For lots that have more than four existing dwelling units or are undergoing seismic retrofitting, or where the zoning would permit the construction of more than four dwelling units, there is no limit on the number of total ADUs permitted, subject to restrictions for prior evictions. No minimum lot size is required for construction of an ADU.

Under Section 207, ADUs may be constructed in the buildable area of a lot, be converted from auxiliary structures, or be built within the envelope of an existing residential building. For auxiliary structures, dormers may be added even if the structure is within the required rear yard. The new state law also allows construction of a new detached unit, not otherwise subject to local development standards, if it is not more than 800 square feet, no more than 16 feet in height, and provides four-foot side and rear setbacks. In San Francisco, ADUs are not to be constructed from space within an existing dwelling unit, except that an ADU may expand into habitable space on the ground or basement floors if it does not exceed 25% of the gross square footage of the space. This limitation may be waived by the Zoning Administrator if waiver helps with the layout of the proposed ADU.

In an effort to incentivize creation of new units, ADUs of up to 750 square feet are now exempt from impact fees by state law. ADUs of 750 square feet or larger are only subject to impact fees proportional to the size relationship of the ADU to the primary dwelling. In addition, ADUs are not required to be sprinklered where the main unit is not required to be sprinklered.

Finally, state law now requires processing of ADU applications within 60 days. However, many property owners have experienced delay based on when the City deems a project application “complete.” The Planning Department continues to refine its procedures for ADUs, and we hope that property owners will encounter less red tape than they did in the past.

DBI (Department of Building Inspection) Implements Electronic Processing and Over-the-Counter Permits

COVID-19 has pushed DBI to implement its long-planned transition to electronic processing of permits. Electronic Plan Review (“EPR”) has a new online portal for building permit submittals that allows EPR through Bluebeam. For permits previously started in paper, DBI is evaluating the need to convert to EPR on a permit-by-permit basis. Conversion to EPR has resulted in delays as electronic submittals are processed, but should allow more efficient simultaneous review once permits move forward.

DBI has also restarted processing Over-the-Counter (“OTC”) permits. On June 24, DBI began offering OTC curbside services in coordination with its permitting agency partners (Public Works, Planning, Fire, and the Public Utilities Commission). Curbside services are offered from 7:30 a.m. to 4:30 p.m. Monday through Friday, including the following:

• Drop-in service for OTC without plans for up to two permits is available for up to 30 people per day between 7:30 a.m. and 9:30 a.m. Starting at noon on Fridays, Eventbrite tickets are available for the following week’s slots.
• Previously submitted electronic OTC permits with plans are being processed by appointment between 9:30 a.m. and 3:30 p.m., with appointments prioritized by length of time in the queue. Currently, DBI is processing permits submitted electronically between 6/1/2020 and 6/14/2020; new applications for OTC permits with plans are to be submitted electronically and added to the queue.
• Drop-in permit pick-up will be available throughout the day after DBI alerts a customer that a permit is ready. To use these OTC services, customers must arrive with forms complete and must wear face masks and stay six feet apart.

The following types of permits may be processed OTC:

Over-the-Counter without Plans

• Re-roofing
• Repair decks and stairs (less than 50%)
• Replacement windows (same size and same locations)
• Replacement garage doors
• Minor dry rot repairs
• Exterior siding repairs or replacement
• In-kind kitchen remodel (no changes to floor plan or walls)
• In-kind bathroom remodel (no changes to floor plan or walls)

Over-the-Counter with Plans

• Kitchen remodel (changing floor plans/walls)
• Bathroom remodel (changing floor plans/walls)
• Residential interior remodel (changing floor plans/walls)
• New windows and exterior doors
• Decks less than 10 feet above grade that meet Planning Code setbacks
• Sign permits
• Commercial tenant improvement projects
• Office or other B occupancy remodels
• Power door operators
• Permits to comply with the Accessible Business Entrance (“ABE”) program
• Voluntary seismic upgrades
• Disability access barrier removal
• Projects that do not require Planning Department neighborhood notification

Expect delays. DBI is currently processing permits submitted more than a month ago and will be closed to OTC permit processing for several days during the next few weeks while it moves its offices. Also, this is a pilot program that is subject to change as DBI continues to adapt to electronic filing and limited in-person services in the COVID-19 era. Check DBI’s website for the latest information about OTC processing.

 

Authored by Reuben, Junius & Rose, LLP Attorney Jody Knight.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.

New California ADU Laws Aim to Remove Barriers and Boost Development

| Tiffany Kats

While campaigning for Governor, Gavin Newsom pledged to build 3.5 million new units by 2025 to combat California’s housing crisis. One way to meet this ambitious goal is through the construction of accessory dwelling units (“ADUs”). Since 2017, California lawmakers have passed several bills to streamline the ADU approval process. However, exorbitant fees and strict local requirements in some cities have continued to hinder the development of new ADUs. In response, Governor Newsom recently signed into law five bills that aim to further remove local barriers to ADU development, as well as to incentivize owners of both single-family and multi-family homes to add much-needed additional units to their properties.

AB 68 & AB 881 – Streamlining ADU Approvals

AB 68 and AB 881, introduced by Assemblymembers Philip Ting and Richard Bloom, were consolidated and enacted as one bill because the fundamental goal of the two bills was essentially the same—to streamline and improve the ADU process in order to facilitate the development and construction of ADUs. Effective January 1, 2020 these bills will:

  • Require permits for ADUs and junior ADUs added to existing single-family and multi-family homes to be ministerially approved or denied within 60 days, rather than the 120 days allotted by existing law;
  • Allow the approval of ADUs in proposed housing to be delayed until the new construction is approved, but the ADU permit must still be issued ministerially;
  • Allow cities and counties to establish minimum and maximum ADU size requirements, provided that the maximum floor area is not less than 850 square feet or 1,000 square feet if the ADU has more than one bedroom;
  • Prohibit any lot coverage, floor area ratio, open space, and minimum lot size requirements that would impact or deny ADU production; and
  • Prohibit municipalities from requiring that existing nonconforming zoning conditions be corrected as a condition for ADU permit approval.

Perhaps most importantly, subject to certain requirements, the consolidated bill will require ministerial approval for projects in residential and mixed-use zoning districts that propose to create the following:

  • One ADU (attached or detached) and one junior ADU on a lot with either an existing or proposed single-family home;
  • Multiple ADUs within an existing multi-family building; or
  • Up to two detached ADUs on a lot with an existing multi-family building.

Note that if a garage is converted or demolished to construct a new ADU, the off-street parking spaces do not have to be replaced. Furthermore municipalities will be prohibited from enforcing parking standards for ADUs located within ½ mile of public transit.

SB 13 – Owner Occupancy and Fees

Similar to the consolidated bill made up of AB 68 and AB 881, SB 13 prohibits the enforcement of parking standards for ADUs within ½ mile of public transit, requires ministerial approval of ADU permits within 60 days, and allows the construction of ADUs in garages and detached accessory structures. However, SB 13, introduced by Senator Bob Wieckowski, goes a step further by tackling two key issues: (1) the owner-occupancy requirement and (2) expensive fees.

First, as a condition of approval, local agencies can currently require that an applicant for an ADU permit occupy either the primary residence or the proposed ADU. Until January 1, 2025, SB 13 will exempt all ADUs from such owner-occupancy requirements.

Second, one of the biggest barriers to constructing ADUs in California are the fees associated with getting them approved and developed. To further incentivize owners to construct ADUs, SB 13 will implement a tiered fee structure based on the ADU’s size and location. Specifically, no impact fees can be imposed on ADUs smaller than 750 square feet, and any impact fees assessed for larger ADUs must be proportional to the square footage of the primary residence.

AB 670 & AB 671 – HOA and General Plans

Finally, AB 670 prevents homeowners’ associations from banning or unreasonably restricting the construction of ADUs on single-family residential lots. Meanwhile, AB 671 will require local General Plan housing elements to incentivize and promote the construction of affordable ADUs that can be rented to very low, low, and moderate-income households. The California Department of Housing and Community Development must also draft a list of “existing state grants and financial incentives” for ADU owners and developers by December 31, 2020.

Together, this package of ADU laws hope to ease local restrictions in order to incentivize the development of “affordable by design” ADUs. In the midst of California’s housing shortage, it remains to be seen what impacts these bills will have on ADU construction when they take effect next year.

 

Authored by Reuben, Junius & Rose, LLP Attorney Tiffany Kats

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.