HomeMy WebLinkAboutItem 05.03 - HandoutMEMORANDUM
Date: April 25, 2023
To: Chair Radich and Commission Members
From: David Crompton, Chief of Planning
Subject: Agenda Item 5.3, ADU Ordinance
This afternoon, the Town received a letter from the California Department of Housing
and Community Development (HCD) pertaining to the adequacy of the Towri s existing
ADU Ordinance, which was adopted on March 21, 2021. The Ordinance was submitted
to the State after approval, and the Town did not receive a response within the prescribed
60 day time limit.
Most of the comments are minor or covered in the recommended new ADU Ordinance.
However, one comment (below) requires a recommended revision to the ordinance to
allow both a converted JADU, ADU, and a detached ADU along with the primary
residence.
Staff is recommending the Planning Commission include this revision into any motion
recommending the Town Council approve the revised ADU Ordinance.
Section 32-76.10 —Junior Accessory Dwelling Units (JADUs) — The Ordinance
states: "One Junior Accessory Dwelling Unit is allowed in addition to an Accessory
Dwelling Unit on a residential lot. A Junior Accessory Dwelling Unit may be
constructed within the walls of a proposed or existing single-family residence." This
indicates that constituents are only allowed one ADU and JADU on a residential lot.
However, Government Code section 65852.2, subdivision (e)(1)(A) permits one
interior conversion ADU and one JADU, which may in turn be combined with one
new construction detached up to 800 square feet, subject to subdivision (e)(1)(B).
Additionally, Government Code 65852.22, subdivision (a)(4) clarifies that enclosed
uses with the residence, such as attached garages, are considered part of a proposed
residence. Therefore, the City must amend statute to comply with State ADU Law.
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SIAML-DE-CALIFORMA-%3JS.INESS_-C_0N5UMER SERVICES AND I IQU.S1NG A—GLNGY _ G V1i LNLM0M. Gaver_wi
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500 0 ° ..,� �;; •.
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
vJww hcd.c�i.gov
April 25, 2023
David Crompton
Chief of Planning
City of Danville
510 La Gonda Way
Danville, CA 94526
Dear David Crompton:
RE: Review of Danville's Accessory Dwelling Unit (ADU) Ordinance under State
ADU Law (Gov. Code, § 65852.2)
Thank you for submitting the City of Danville (City) accessory dwelling unit (ADU)
Ordinance No. 2021-01 (Ordinance), adopted March 2, 2021, to the California
Department of Housing and Community Development (HCD). HCD has reviewed the
Ordinance and submits these written findings pursuant to Government Code section
65852.2, subdivision (h). HCD finds that the Ordinance does not comply with sections
65852.2, 65852.22, and 65852.26 in the manner noted below. Under that 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 May 24, 2023.
The Ordinance addresses many statutory requirements; however, HCD finds that the
Ordinance does not comply with State ADU Law in the following respects:
Section 32-76.2(f) — Conversions — The Ordinance states, "Conversions shall be
defined as the modification of an existing enclosed detached structure or the
modification of a portion of an existing residence into an Accessory Dwelling Unit."
(emphasis added). However, enclosure of a structure is not a prerequisite for the
creation of a converted ADU. Government Code section 65852.2, subdivision
(a)(1)(D)(iii), states that "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." Furthermore,
Government Code section 65852.2, subdivision (a)(1)(D)(xi), begins with "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..." These illustrate that accessory and non -enclosed structures, such as
David Crompton, Chief of Planning
Page 2
carports, may be converted into ADUs, along with attached structures. Therefore,
the City must remove the word "enclosed" from the Ordinance.
Section 32-76.2 j. —Ministerial Review Process —The Ordinance defines the ministerial
review process "as the review process conducted as part of the building permit review
to ensure that a proposed Accessory Dwelling Unit is consistent with the provision of
this section." Please note that effective January 1, 2023, Government Code section
65852.2, subdivision (a)(3), was amended and requires that a permit for an ADU or
JADU shall be considered and approved ministerially without discretionary hearing or
review and that "the permitting agency shall approve or deny the application... within 60
days from the date a permitting agency receives a completed application..." The City
should amend their Ordinance to comply with recent changes in State ADU Law.
Section 32-76.8(b), 32-76.7(b), 32-76.6(b), 32-76.9(c) — Front Yard and
Secondary Front Yard — The Ordinance requires ADUs to maintain front and
secondary front yard setbacks. However, Government Code section 65852.2,
subdivision (c)(2)(C), prohibits a local agency from establishing "Any
requirement... based upon ... front setbacks... that does not permit at least an
800 square foot accessory dwelling unit..." Further, ADUs created pursuant to
subdivision (e), must be approved ministerially notwithstanding standards
imposed under subdivisions (a) to (d). Therefore, the City must amend the
Ordinance to allow for these exceptions to front yard setbacks.
Section 32-76.10 — Junior Accessory Dwelling Units (JADUs) — The Ordinance
states: "One Junior Accessory Dwelling Unit is allowed in addition to an
Accessory Dwelling Unit on a residential lot. A Junior Accessory Dwelling Unit
may be constructed within the walls of a proposed or existing single-family
residence." This indicates that constituents are only allowed one ADU and
JADU on a residential lot. However, Government Code section 65852.2,
subdivision (e)(1)(A) permits one interior conversion ADU and one JADU,
which may in turn be combined with one new construction detached up to 800
square feet, subject to subdivision (e)(1)(B). Additionally, Government Code
65852.22, subdivision (a)(4) clarifies that enclosed uses with the residence,
such as attached garages, are considered part of a proposed residence.
Therefore, the City must amend statute to comply with State ADU Law.
Section 32-76.20 — Ownership Requirements — The Ordinance prohibits
separate sale of an ADU or JADU from its respective primary dwelling.
However, as of January 1, 2022, Government Code section 65852.26,
subdivision (a)(1), creates a narrow exception to allow separate conveyance of
ADUs with the involvement of qualified nonprofit housing organizations. The
Ordinance must provide for such an exception.
David Crompton, Chief of Planning
Page 3
Sections 32-76.6 (c); 32-76.7 (c); 32-76.8 (c); 32-76.9 (d) — Height — The
Ordinance imposes height requirements of 16 feet on attached and detached
ADUs in single-family and multi -family residential districts. However,
Government Code section 65852.2, subdivision (c)(2)(D), prohibits ADU height
limitations below 16, 18, 20 or 25 feet as applicable pursuant to the subdivision.
Therefore, the City must amend its Ordinance to note these height limits.
In response to the findings in this letter, and pursuant to Government Code section
65852.2, subdivision (h)(2)(B), the City must either amend the Ordinance to comply with
State ADU Law or adopt the Ordinance without changes. Should the City choose to
adopt 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. Accordingly, the City's
response should provide a plan and timeline to bring the Ordinance into compliance.
Please note that, pursuant to Government Code section 65852.2, subdivision (h)(3)(A),
if the City fails to take either course of action and bring the Ordinance into compliance
with State ADU Law, HCD may notify the City and the California Office of the Attorney
General that the City is in violation of State ADU Law.
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 Nick Green, of our staff, at (916) 841-6665 or at
N icholas. Greener hcd.ca,gov.
Sincerely,
Shannan West
Housing Accountability Unit Chief