Staff Report.SB9 Permanent Ordinance - 3 month review
Reviewed by: Town Manager, Community Development Director, and Planning Manager
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 03/07/2023 ITEM NO: 8
DATE: March 2, 2023
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Discuss and Provide Direction on Possible Modifications to Regulations
Adopted in Response to Senate Bill 9 for Urban Lot Split and Two-Unit
Housing Development Applications. Location: Town-wide. Applicant: Town of
Los Gatos.
RECOMMENDATION:
Discuss and provide direction on possible modifications to regulations adopted in response to
Senate Bill 9 for urban lot split and two-unit housing development applications.
BACKGROUND:
In September 2021, Governor Newsom signed new State law, Senate Bill 9 (SB 9), which went
into effect on January 1, 2022. SB 9 requires ministerial approval of two-unit housing
development projects and urban lot splits on a single-family zoned parcel, with the intent to
increase residential densities within single-family neighborhoods across the State.
The law allows for two new types of development activities that must be reviewed ministerially
without any discretionary action or public input:
• Two-unit housing development – Two homes on an eligible single-family residential
parcel (whether the proposal adds up to two new housing units or adds one new unit on
a parcel with an existing single-family residence).
• Urban lot split – A one-time subdivision of an existing single-family residential parcel
into two parcels. This would allow up to four units (two units on each new parcel).
PAGE 2 OF 5 SUBJECT: Senate Bill 9 Discussion DATE: March 2, 2023
BACKGROUND (continued):
In most circumstances, SB 9 will result in the potential creation of four dwelling units on an
existing single-family zoned parcel. Single-family zoned parcels are currently permitted three
units throughout the State: a primary single-family dwelling; an Accessory Dwelling Unit (ADU);
and a Junior ADU (JADU).
SB 9 also outlines how jurisdictions may regulate SB 9 projects. Jurisdictions may only apply
objective zoning, subdivision, and design standards to these projects, and these standards may
not preclude the construction of up to two units of at least 800 square feet each. Jurisdictions
can conduct objective design review, but may not have hearings for units that meet the State
rules (with limited exceptions).
On December 21, 2021, Town Council adopted an Urgency Ordinance to implement local
objective standards for SB 9 applications. This Urgency Ordinance was valid for a period of 45
days. On February 1, 2022, Town Council adopted an extension of the Urgency Ordinance,
making it valid to the end of the calendar year.
On November 1, 2022, the Town Council introduced the permanent SB 9 Ordinance, by title
only, as recommended by the Planning Commission with modifications related to flag lot
setbacks, driveway requirements, owner occupancy affidavits, and the second-story step-back
requirement (Attachment 1). The permanent SB 9 Ordinance was adopted by the Council on
November 15, 2022 (Attachment 2). The Town Council also directed staff to return to the
Council in three months with options to address Fire Hazard Areas, affordability models, and
information regarding owner occupancy requirements.
DISCUSSION:
Per Town Council direction, staff researched 19 jurisdictions in early February 2023 to analyze
how each jurisdiction addresses Fire Hazard Areas, affordability models, and owner occupancy
requirements for SB 9 Urban Lot Splits. The jurisdictions include: Town of Atherton, City of
Berkeley, City of Campbell, City of Cupertino, City of Gilroy, City of Los Altos, Town of Los Altos
Hills, City of Millbrae, City of Milpitas, City of Monte Sereno, City of Morgan Hill, City of
Mountain View, City of Oakland, City of Palo Alto, City of San Jose, City of Santa Barbara, Santa
Clara County, City of Saratoga, and City of Sunnyvale. As with any research effort, staff was not
able to determine answers to all the three questions for each of the 19 jurisdictions surveyed as
their Ordinance and website are not clear, and many of the jurisdictions have not responded to
staff’s outreach efforts at the time of publication of this staff report.
PAGE 3 OF 5 SUBJECT: Senate Bill 9 Discussion DATE: March 2, 2023
DISCUSSION (continued):
A. Fire Hazard Area
The Town Council asked staff to return with information regarding the extent to which the
Town can prohibit and/or regulate SB 9 units in Very High Fire Hazard Severity Zones.
Government Code Section 65852.21 provides that SB 9 applications are to be considered
ministerially so long as they meet the standards set forth in Government Code Section
65913.4(a)(6)(B)-(K). Government Code Section 65913.4(a)(6)(D) exempts the following
properties from streamlined review: “[properties] within a very high fire hazard severity
zone, as determined by the Department of Forestry and Fire Protection . . . or within a high
or very high fire hazard severity zone as indicated on maps adopted by the Department of
Forestry and Fire Protection . . . .” In other words, properties within a Very High Fire Hazard
Severity Zone are subject to discretionary review.
However, Section 65913.4(a)(6) goes on to state, “This subparagraph does not apply to …
sites that have adopted fire hazard mitigation measures pursuant to existing building
standards or state fire mitigation measures applicable to the development.” With the
adoption of the current Building and Fire Codes the Town has fire hazard mitigation
measures in place for all properties in the Very High Fire Hazard Severity Zone. As a result,
under existing law, the Town cannot prohibit SB 9 units in the Very High Fire Hazard Severity
Zone.
Therefore, projects both inside and outside of a Very High Fire Hazard Severity Zone are
subject to ministerial review. Even when a project is subject to ministerial review, the Town
can apply “objective zoning standards.” “Objective zoning standards” are defined as
“standards that involve no personal or subjective judgment by a public official and are
uniformly verifiable by reference to an external and uniform benchmark or criterion
available and knowable by both the development applicant or proponent and the public
official before submittal.” (Gov. Code Section 65913.4(o).) Therefore, the Town can adopt
objective zoning standards that apply to properties within a Very High Fire Hazard Severity
Zone. Any objective zoning standard applied needs to allow at least two primary units of
800 square feet each in a two-unit project, and must allow the lot to be subdivided with two
primary units of 800 square feet each on each resulting lot.
Most other jurisdictions are adopting fire mitigation measures as part of their Safety
Elements. The measures apply to all development projects and not specifically to SB 9
projects, which is recommended.
Staff’s research found that of the 13 jurisdictions that have responded to staff and that have
Very High Fire Hazard Severity Zones within their jurisdiction, five do not have exceptions or
have not adopted fire hazard mitigation measures for these zones. In other words, five of
PAGE 4 OF 5 SUBJECT: Senate Bill 9 Discussion DATE: March 2, 2023
DISCUSSION (continued):
13 jurisdictions surveyed do not allow SB 9 application on properties located within Very
High Fire Hazard Severity Zones. These jurisdictions include the City of Oakland, City of
Santa Barbara, Town of Los Altos Hills, City of Morgan Hill, and City of Sunnyvale. Staff also
spoke with the California Department of Housing and Community Development (HCD) on
this topic. HCD mentioned that this specific topic has not been resolved and will most likely
be addressed in the next few years via amendments to the Senate Bill.
B. Affordability Models
While SB 9 does not expressly authorize the imposition of affordability requirements, it also
does not expressly prohibit them. In the key California Supreme Court inclusionary zoning
case (BIA v. City of San Jose, 351 P.3d 974 (2015)), the court stated that such requirements
are legal so long as they are not “confiscatory” and allow a reasonable rate of return.
The Town’s existing inclusionary ordinance only applies to projects of five units or more. If
the Council is interested in amending the Town’s inclusionary ordinance to include housing
projects of fewer than five units, staff recommends that the Town obtain an economic
feasibility study. Staff recommends that any inclusionary requirement be imposed on both
SB 9 units and other housing units.
Staff’s research found that of the 17 jurisdictions that have responded to staff on this
particular question, two have affordability requirements applicable to SB 9 applications.
The City of Millbrae is requiring at least one unit to be made affordable when more than
two SB 9 units are created; and the City of Santa Barbara requires that at least one unit in
each two-unit development, or at least one unit on any lot created through an urban lot
split, must be made affordable. Staff spoke with the HCD on this topic, who mentioned that
this specific topic has not been resolved and will most likely be addressed in the next few
years via amendments to the Senate Bill.
C. Owner Occupancy Requirements
SB 9 requires that property owners using SB 9 for urban lot splits sign affidavits stating that
they “intend to occupy” one of the housing units as their primary residence for a minimum
of three years from the date of approval of the lot split. (Gov. Code Section 66411.7(g)(1).)
A member of the public asked that the affidavit be revised to state that the owner “will”
occupy one of the units as their primary residence. Government Code Section 66411.7(g)(3)
prohibits a local agency from imposing any owner occupancy requirements on urban lot
splits beyond the owner occupancy requirement set forth in the statute. In other words,
the Town is prohibited from requiring anything other than an “intent to occupy.”
PAGE 5 OF 5 SUBJECT: Senate Bill 9 Discussion DATE: March 2, 2023
DISCUSSION (continued):
Staff’s research found that of the 19 jurisdictions surveyed, one requires the intent
statement to be recorded against the property as a deed restriction: the City of Campbell.
Staff spoke with the HCD on this topic, who directed staff that, per the language of SB 9,
deed restrictions for owner occupancy are not allowed.
In the November 1, 2022, Town Council motion, the Town Council directed staff to conform
the Town’s owner occupancy affidavits with affidavits used by the Town of Atherton and
Santa Clara County. Staff has reviewed the affidavits used by the Town of Atherton and
Santa Clara County (Attachment 3). Those affidavits require property owners to attest that
they “intend to occupy” one of the units as their primary residence. Staff confirmed with
each jurisdiction that they do not require this affidavit to be recorded against the property.
This language comports with State law and Town staff recommends using this language on
the owner affidavits.
CONCLUSION:
Staff recommends that the Town Council receive the information provided by staff and provide
direction.
FISCAL IMPACT:
Discussion of this item has no fiscal impact.
PUBLIC COMMENT:
Public comments received on this item are provided in Attachment 4.
ENVIRONMENTAL ASSESSMENT:
Because this is an informational report, the Town Council is not taking action at this meeting
and this agenda item is not subject to CEQA. In addition, in accordance with Government Code
Section 66411.7(n) and 66452.21(g), SB 9 ordinances are not a project subject to CEQA.
Attachments:
1. November 1, 2022 Town Council Meeting Minutes
2. Senate Bill 9 Town Ordinance 2334
3. Town of Atherton and Santa Clara County Owner Occupancy Affidavits
4. Public Comments received prior to 11:00 a.m., Thursday, March 2, 2023
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