CONSENT  

Bill No: SB 773

Author: Skinner (D)

Amended: 1/6/20

Vote: 21

SENATE GOVERNANCE & FIN. COMMITTEE: 7-0, 1/15/20

AYES: McGuire, Moorlach, Beall, Hertzberg, Hurtado, Nielsen, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Land use: accessory dwelling units

SOURCE: Author

DIGEST:

This bill corrects chaptering errors in accessory dwelling unit (ADU) legislation enacted in 2019.

ANALYSIS:

Existing law:

1. Provides that if a locality adopts an ADU ordinance in areas zoned for single-family or multifamily, it must do all of the following, among other requirements:
   1. Designate areas within the jurisdiction where ADUs may be permitted;
   2. Impose zoning standards on ADUs, such as requiring ADUs to be set back from the property line (“setbacks”), within specified limits;
   3. Approve or disapprove an application for an ADU ministerially without discretionary review if the local government does not have an ADU ordinance when it receives a permit application; and
   4. Approve building permits to create an ADU ministerially if the ADU is within an existing residence, has independent exterior access, and meets certain fire safety requirements.
2. Requires ministerial approval of an ADU permit within 60 days.
3. Allows a locality to establish minimum and maximum unit sizes for both attached and detached ADUs, but requires a local ordinance to allow ADUs at least as small as an efficiency unit and at least as large as 850 square feet, or 1,000 square feet if the ADU includes multiple bedrooms.
4. Restricts the parking standards a locality may impose on an ADU.
5. Provides that an ADU shall not be considered by a local agency, special district, or water corporation to be a new residential use for purposes of calculating connection fees or capacity charges for utilities, including water and sewer service.
6. Prohibits, until January 1, 2025, local agencies from requiring owner-occupancy of the ADU or primary residence.
7. Bans mitigation fees on ADUs that are smaller than 750 square feet, and requires mitigation fees on larger units to be charged in proportion to the size of the primary dwelling. Connection fees and capacity charges imposed for water, sewer, or electrical service are exempt from these limitations.
8. Requires a local agency to permit construction of multiple ADUs and junior accessory dwelling units (JADUs) on a single lot within a residential or mixed use zone, notwithstanding local zoning requirements, in any or all of the following configurations:
   1. One ADU and one JADU if the units are in the existing or proposed space of a single family dwelling and meet other requirements;
   2. A detached ADU, subject to certain size limitations; and
   3. Conversions of non-livable space to ADUs within existing multifamily dwellings. A local agency must allow a number of ADUs equal to at least 25 percent of the existing units.
9. Requires a local agency to act on an ADU permit within 60 days and deem the permit approved if the local government fails to act within that timeframe. An applicant may request a delay in the 60-day clock.
10. Establishes a process for review of local ADU ordinances by the California Department of Housing and Community Development.

This bill:

1. Provides that if a local government does not take action on a completed application to create an ADU within 60 days as required by current law, the application is deemed approved.
2. Requires, notwithstanding any local law, a local government to ministerially approve an application for both one ADU and one JADU on each lot, instead of one ADU or one JADU.
3. Makes a technical correction to ensure conformity between the provisions of law that are in effect before and after the owner-occupancy provisions sunset in 2025.

Background

When multiple bills amend the same code section, the bill that’s signed last wipes out the changes made by the bill or bills signed earlier. To prevent this from happening and to ensure that all of the changes from every signed bill make it into the law, Legislative Counsel drafts amendments to ensure that no changes are “chaptered out.” Because of the complexity of the multiple ADU bills enacted by the Legislature last year, there were several errors in the chaptering amendments made to SB 13 (Wieckowski, Chapter 653, Statutes of 2019), AB 68 (Ting, Chapter 655, Statutes of 2019), and AB 881 (Bloom, Chapter 659, Statutes of 2019). The author wants to correct these errors.

Comments

1. Purpose of the bill. According to the author, “Last year, the Legislature took a great step forward in addressing California’s housing crisis by passing a package of bills designed to spur the production of Accessory Dwelling Units (ADUs): AB 68 (Ting), AB 881 (Bloom), and SB 13 (Wieckowski). AB 953 corrects typos made in the chaptering amendments between these bills to provide clarity as they go into effect this year.”
2. Chapter and verse. The 2019 legislative year saw a flurry of activity on ADUs. Because three of last year’s ADU bills amended the same section of code, Legislative Counsel “triple-jointed” SB 13, AB 68, and AB 881 to ensure that, regardless of the order in which they were signed, all of the three bills’ changes would be incorporated into law. The Governor signed all three bills into law, with AB 881 being signed last. However, three errors in the chaptering amendments occurred. First, although SB 13 deemed approved an application that was not acted on by a local agency within 60 days, the chaptering amendments incorporated in AB 881 did not include this provision. Second, AB 68 required a local agency to approve both an ADU and a JADU on the same lot, but the chaptering amendments in AB 881 also did not include this provision. Both of these provisions were approved by both houses of the Legislature and signed by the Governor; however, since AB 881 was signed last, these changes in SB 13 and AB 881 were not enacted into law. Finally, the chaptered version of AB 881 provides that local agencies “shall” allow multiple ADUs in multifamily dwellings in one section of the bill, but elsewhere accidentally includes the word “may,” such that the law incorrectly reads “may shall.” SB 773 corrects this nonsensical phrase to ensure conformity throughout the law. SB 773’s corrections to ADU law fully enact the policy that the Legislature adopted in 2019.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 1/22/20)

Bay Area Council
California Association of Realtors
California YIMBY
Casita Coalition
Non-profit Housing Association of Northern California
Silicon Valley At Home
Silicon Valley Community Foundation
SPUR
TMG Partners

OPPOSITION: (Verified 1/22/20)

None received

Prepared by: Anton Favorini-Csorba / GOV. & F. / (916) 651-4119

1/22/20 15:23:51

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SENATE COMMITTEE ON GOVERNANCE AND FINANCE

Senator Mike McGuire, Chair

2019 - 2020 Regular

Land use: accessory dwelling units

Corrects chaptering errors in accessory dwelling unit legislation enacted in 2019.

Background

The Legislature has long identified accessory dwelling units (ADUs), also known as second units, in-law apartments, or “granny flats,” as a valuable form of housing for family members, students, the elderly, in-home health care providers, the disabled, and others, often at below market prices within existing neighborhoods. In 1982, the Legislature first provided a framework for local governments to enact ordinances that permit the construction of ADUs, while preserving local government flexibility to regulate the units as necessary. Subsequently, when fewer ADUs than anticipated were developed, the Legislature significantly amended ADU law to address some of the barriers that property owners encountered while trying to develop them, including major revisions in 2002, 2016, and 2019.

The first major revision to ADU laws occurred in 2002 (AB 1866, Wright, 2002). Among other provisions, AB 1866 allowed local governments to adopt an ordinance that allows the creation of ADUs in single-family and multi-family residential zones and to set standards on the units regarding parking, height, setback, maximum size, and potential adverse impacts on historic places. AB 1866 also prohibited local agencies from adopting an ordinance that entirely prohibits ADUs unless it made specific findings regarding adverse impacts from the units. Some local governments continued to impose onerous requirements or prohibit ADUs entirely.

The Legislature again revised ADU law in 2016 to address some of the barriers to ADU creation that had been adopted by local governments (SB 1069,Wieckowski and AB 2299, Bloom). These laws prohibited local ordinances that entirely ban ADUs and required a local agency to, among other provisions:

• Designate areas within the jurisdiction where ADUs may be permitted;
• Impose standards on ADUs, including minimum lot sizes and requiring ADUs to be set back from the property line (“setbacks”);
• Consider permit applications within 120 days;
• Approve or disapprove an application for an ADU ministerially without discretionary review if the local government does not have an ADU ordinance when it receives a permit application; and
• Approve building permits to create an ADU ministerially if the ADU is within an existing residence, has independent exterior access, and meets certain fire safety requirements.

These bills also limited the cases when local agencies could require new utility connections for water and sewer, and limited the fees to be proportionate to the burden created by the ADU.

AB 2408 (Thurmond, 2016) allowed local agencies to adopt an ordinance regulating Junior ADUs (JADUs), which are smaller ADUs that are under 500 square feet and are contained entirely within an existing single-family structure. In 2017, the Legislature made further changes to ADU law to clarify portions of the law (SB 229, Wieckowski and AB 494, Bloom).

2019 ADU legislation. Despite the changes to ADU laws enacted in 2016, some local agencies continued to impose restrictions on ADUs that make them more difficult to build, including developer fees, different types of zoning restrictions, or requirements that the owner live on the property (“owner-occupancy requirements”). The Legislature approved several bills in 2019 that made numerous additional changes to the requirements that local agencies can impose on ADUs, most notably SB 13 (Wieckowski), AB 68 (Ting), and AB 881 (Bloom). Among other provisions, these bills:

• Prohibit, until January 1, 2025, local agencies from requiring owner-occupancy of the ADU or primary residence;
• Ban mitigation fees on ADUs that are smaller than 750 square feet, and requires mitigation fees on larger units to be charged in proportion to the size of the primary dwelling. Connection fees and capacity charges imposed for water, sewer, or electrical service are exempt from these limitations;
• Require a local agency to permit construction of multiple ADUs and JADUs on a single lot within a residential or mixed use zone, notwithstanding local zoning requirements, in any or all of the following configurations:
  • One ADU and one JADU if the units are in the existing or proposed space of a single family dwelling and meet other requirements;
  • A detached ADU, subject to certain size limitations; and
  • Conversions of non-livable space to ADUs within existing multifamily dwellings. A local agency must allow a number of ADUs equal to at least 25 percent of the existing units.
• Require those ADUs that are permitted notwithstanding local zoning requirements to be rented for terms longer than 30 days.
• Prohibit minimum lot size requirements or requirements for the replacement of off-street parking spaces that are demolished to build an ADU;
• Require a local ordinance to allow ADUs at least as small as an efficiency unit and at least as large as 850 square feet, or 1,000 square feet if the ADU includes multiple bedrooms; and
• Require a local agency to act on an ADU permit within 60 days and deem the permit approved if the local government fails to act within that timeframe. An applicant may request a delay in the 60-day clock;

The 2019 ADU measures also enhanced the process by which the California Department of Housing and Community Development (HCD) reviews and comments on local ADU ordinances. They also established a mechanism, until January 1, 2030, for an owner of an ADU to request a 5-year delay in enforcement of violations of building standards if the enforcement agency determines that correcting the violation is not necessary to protect health and safety.

Chaptering amendments. When multiple bills amend the same code section, the bill that’s signed last wipes out the changes made by the bill or bills signed earlier. To prevent this from happening and to ensure that all of the changes from every signed bill make it into the law, Legislative Counsel drafts amendments to ensure that no changes are “chaptered out.” Because of the complexity of the multiple ADU bills enacted by the Legislature last year, there were several errors in the chaptering amendments made to SB 13, AB 68, and AB 881. The author wants to correct these errors.

Proposed Law

Senate Bill 773 provides that if a local government does not take action on a completed application to create an ADU within 60 days as required by current law, the application is deemed approved. SB 773 also requires, notwithstanding any local law, a local government to ministerially approve an application for both one ADU and one JADU on each lot, instead of one ADU or one JADU. Finally, SB 773 makes a technical correction to ensure conformity between the provisions of law that are in effect before and after the owner-occupancy provisions sunset in 2025.

State Revenue Impact

No estimate.

Comments

1. Purpose of the bill. According to the author, “Last year, the Legislature took a great step forward in addressing California’s housing crisis by passing a package of bills designed to spur the production of Accessory Dwelling Units (ADUs): AB 68 (Ting), AB 881 (Bloom), and SB 13 (Wieckowski). AB 953 corrects typos made in the chaptering amendments between these bills to provide clarity as they go into effect this year.”

2. Chapter and verse. The 2019 legislative year saw a flurry of activity on ADUs. Because three of last year’s ADU bills amended the same section of code, Legislative Counsel “triple-jointed” SB 13, AB 68, and AB 881 to ensure that, regardless of the order in which they were signed, all of the three bills’ changes would be incorporated into law. The Governor signed all three bills into law, with AB 881 being signed last. However, three errors in the chaptering amendments occurred. First, although SB 13 deemed approved an application that was not acted on by a local agency within 60 days, the chaptering amendments incorporated in AB 881 did not include this provision. Second, AB 68 required a local agency to approve both an ADU and a JADU on the same lot, but the chaptering amendments in AB 881 also did not include this provision. Both of these provisions were approved by both houses of the Legislature and signed by the Governor; however, since AB 881 was signed last, these changes in SB 13 and AB 881 were not enacted into law. Finally, the chaptered version of AB 881 provides that local agencies “shall” allow multiple ADUs in multifamily dwellings in one section of the bill, but elsewhere accidentally includes the word “may,” such that the law incorrectly reads “may shall.” SB 773 corrects this nonsensical phrase to ensure conformity throughout the law. SB 773’s corrections to ADU law fully enact the policy that the Legislature adopted in 2019.

3. Charter city. The California Constitution allows cities that adopt charters to control their own “municipal affairs.” In all other matters, charter cities must follow the general, statewide laws. Because the Constitution doesn't define "municipal affairs," the courts determine whether a topic is a municipal affair or whether it's an issue of statewide concern. SB 773 says that its statutory provisions apply to charter cities. To support this assertion, the bill includes a legislative finding that the bill addresses a matter of statewide concern.

4. Mandate. The California Constitution requires the state to reimburse local governments for the costs of new or expanded state mandated local programs. Because SB 773 requires local governments to perform new activities related to land use regulation, Legislative Counsel says that it imposes a new state mandate. But the bill disclaims the state's responsibility for reimbursing local agencies by including findings and declarations that local agencies may levy fees to cover the costs of the program.

5. See Spot Run. The introduced version of SB 773 would have made nonsubstantive changes to the Public Utilities Code relating to energy efficiency. That version of the bill was never referred to a committee. On January 6^th, the author amended SB 773 to delete those provisions and insert the measure’s current provisions to clean up ADU law.

6. Related legislation. AB 953 (Ting) makes the same changes to ADU law as SB 773. AB 953 is scheduled to be heard on January 15^th in the Assembly Housing and Community Development Committee and the Assembly Local Government Committee.

Support and Opposition

(1/10/20)

Support: California Association of Realtors; California YIMBY; Non-Profit-Housing Association of Northern California.

Opposition: Unknown.

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