Accessory Dwelling Units – Oakland Update

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.

Plan Updates in Oakland and SF

Downtown Plan

This week, we discuss Oakland’s most recent status report on its proposed Downtown Specific Plan and San Francisco’s kickoff of its own General Plan update.

Oakland’s Downtown Plan Progresses, with Changes

Oakland’s sixth area plan—and the first to focus exclusively on the downtown area—is moving forward again, but with modifications based on feedback provided on the draft Environmental Impact Report (“Draft EIR”) and in response to Covid’s impacts on urban life, including efforts to address the City’s acute housing shortage and homelessness and affordability crisis. The City now anticipates City Council review of the Plan by the end of the calendar year.

The Downtown Oakland Specific Plan (“DSOP” or “Plan”) has been in the works since the mid-2010s. The Plan and accompanying Draft EIR were published in August 2019; they envisioned and evaluated 29,100 new residential units, approximately 17 million square feet of office, nearly 2.5 million square feet of retail, and over 1 million square feet of “flex” commercial and industrial space. It covers many different neighborhoods and districts in downtown, including Kono, Uptown, San Pablo, the “central core” of Downtown, Lakeside, Old Oakland, Jack London and the surrounding area south of I-880, and Laney College.

The City’s brief summary update a few weeks ago explains that changes to the Plan’s proposed zoning controls will “address the changing nature of retail” presumably brought on (or exacerbated, depending on your perspective) by the pandemic, identify and regulate priority areas for arts and institutional cultural uses, and encourage increased development in exchange for enhanced community benefits. This voluntary “Zoning Incentive Program” as proposed will set clear metrics for public benefits necessary to achieve enhanced density, such as affordable housing, reduced rent for non-profits and arts organizations, and homelessness services.

Oakland is also undertaking a study on options to fund more housing. These include potential new or increased impact fees, an inclusionary housing requirement that could be more robust than the City’s current policies, and infrastructure financing.

The City anticipates three more phases of planning before the Project and accompanying environmental review are considered by Council: first, revising the DSOP, responding to comments on the Draft EIR, drafting new zoning regulations, and analyzing housing funding options in the Winter and Spring of 2021; next, completing the revised DSOP, responding to EIR comments, completing the housing funding analysis and updated zoning regulations in the Spring and Summer of 2021; and finally, holding adoption hearings on the final DSOP, EIR, zoning amendments, and housing funding program in the Fall and Winter of 2021.

Reuben, Junius, & Rose LLP has experience with entitlement projects and land use diligence throughout Oakland, and we are pleased to have worked on some of the largest housing projects approved in the city over the last several years. We will continue to track this significant rezoning and community planning effort as it moves forward.

San Francisco Kicks Off General Plan Update

Later this month, the San Francisco Planning Department will hold a series of virtual public meetings kicking off an update to San Francisco’s General Plan. 12 meetings are scheduled to run from March 15-26. City staff will discuss topics such as housing, transportation, climate resilience, environmental justice, and racial and social equity. The introductory session is set for Monday, March 15, and one or two events per day focusing on a specific aspect of the General Plan will follow. We are monitoring the update closely and will keep you up to speed as the City releases more information.

 

Authored by Reuben, Junius & Rose, LLP Attorney Mark Loper.

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.

Impact Fee Update

Affordable Housing

San Francisco School Fees Expanded

On January 11, 2021, San Francisco issued the 2021 Impact Fee Schedule. One change of note is the calculation of the San Francisco Unified School District Fee (“School Fee”) as applied to multi-unit residential developments. The change would increase the fee on such developments by increasing the space in the building subject to the fee.

The School Fee applies to new residential developments and additions to existing residential properties of greater than 500 square feet. Although the School Fee is collected upon issuance of the first construction document along with the fees paid to the City and County of San Francisco, the School Fee is subject to its own calculation rules under California Government Code Section 65995(b)(1).

Currently, San Francisco applies the School Fee to “total habitable space,” defined as space in a structure used for living, sleeping, eating or cooking. The calculation excludes bathrooms, toilet compartments, closets, halls, storage or utility space, and similar areas.

Effective February 1, 2021, the assessable space for calculation of the School Fee for any new residential development will include all of the square footage within the perimeter of the structure. Space still excluded from the Fee calculation includes any carport, covered or uncovered walkway, garage, overhang, patio, enclosed patio, detached accessory structure, or similar area.

The change is based on a 2018 appeals court decision that settled the long-contested question of whether school district fees should be assessed on interior common areas. 901 First Street Owner, LLC v. Tustin Unified School District held that interior space outside of individual units, such as interior hallways, storage rooms, mechanical rooms, fitness centers, lounges, and other interior common areas should be included in the fee calculation under the language of Government Code Section 65995(b)(1). Based on this, the School Fee was expanded, which could lead to a significant increase in fees for projects anticipating paying the fee on the square-footage of the units only.

Oakland Eyes Increased Affordable Housing Fees

Oakland is currently undertaking a mandatory five-year review of its impact fee program. The focus of the review for many is impact fees for affordable housing. Currently, affordable housing fees are tiered depending on the type of housing proposed and the location of the property in one of three regions of the city based on the level of demand for development in that region. There is debate about whether the tiered system should be eliminated, as well as whether fees should be increased over the tiers.

Affordable housing advocates believe that fees should already have been increased to fund construction of affordable housing during the last several years of strong development. Developers have expressed concern that higher impact fees could stifle further development.

Officials and advocates are also looking at other aspects of the implementation of affordable housing requirements. Discussion is underway about how affordable housing is best produced, whether through construction of on-site affordable units or through funding construction of affordable units with impact fees. Also under review is the policy of collecting 50% of the affordable housing fee at permit issuance and 50% only after a certificate of occupancy is issued.

We will continue to watch the Oakland impact fee review process as it unfolds in 2021. We will also watch for earlier changes to fees spurred by the current debate.

 

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.