Staff Report with Exhibits 1-7.SB9
PREPARED BY: RYAN SAFTY
Associate Planner
Reviewed by: Planning Manager and Community Development Director
110 E. Main Street Los Gatos, CA 95030 ● 406-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
PLANNING COMMISSION
REPORT
MEETING DATE: 09/28/2022
ITEM NO: 3
DATE: September 23, 2022
TO: Planning Commission
FROM: Joel Paulson, Community Development Director
SUBJECT: Consider Amendments to Chapter 29 (Zoning Regulations) of the Town Code
Regarding Permanent Regulations to Comply with the Requirements of
Senate Bill 9. Town Code Amendment Application A-22-002. Location:
Townwide. Applicant: Town of Los Gatos.
RECOMMENDATION:
Consider amendments to Chapter 29 (Zoning Regulations) of the Town Code regarding
permanent regulations to comply with the requirements of Senate Bill 9 (Exhibit 1) and forward
a recommendation to the Town Council.
BACKGROUND:
In September 2021, Governor Newsom signed new State law, Senate Bill 9 (SB 9), which went
into effect on January 1, 2022 (Exhibit 2). SB 9 requires ministerial approval of certain housing
development projects and 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 9
SUBJECT: Senate Bill 9
DATE: September 23, 2022
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 (Exhibit 3) 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
(Exhibit 4), making it valid to the end of the calendar year. The current Urgency Ordinance
2327 is set to expire on December 31, 2022.
On September 21, 2022, the Town hosted a Community Meeting to discuss developing a
permanent SB 9 Ordinance and foster public participation. A summary of topics discussed is
available below.
DISCUSSION:
The Draft Ordinance (Exhibit 1) is based on the Urgency Ordinance adopted by Town Council in
February 2022, and modified based on: State and Regional Agency direction; clarification of
initial standards; and reformatted to integrate it within Chapter 29 of the Town Code (Zoning
Regulations).
A. Amendments per State and Regional Agency Direction
The following is a summary of draft amendments in response to State direction and the
Association of Bay Area Governments (ABAG) SB 9 model ordinance:
• Amended Definitions. The definition of single-family residential zone in the Draft
Ordinance was amended to include Hillside Residential (HR) zones per the California
Department of Housing and Community Development SB 9 Fact Sheet (Exhibit 5).
PAGE 3 OF 9
SUBJECT: Senate Bill 9
DATE: September 23, 2022
DISCUSSION (continued):
• New Definitions. The following definitions were added to the Draft Ordinance to
comply with State law and per the direction of the of the ABAG SB 9 model
ordinance (Exhibit 6):
o Adjacent parcel;
o Car-share vehicle;
o Common ownership or control;
o First residential unit; and
o Sufficient for separate conveyance.
• Hillside Standards. Based on the amended definition (above) to include HR zoned
properties, the following additional standards were added to ensure consistency
with the Hillside Development Standards and Guidelines (HDS&G). No hillside
standards were included in the Urgency Ordinance as the Town was not anticipating
SB 9 projects in these zones.
o Building height: A separate building height limitation of 16 feet has been
included for HR zoned properties. The HDS&G allows buildings to be a
maximum of 18 feet tall when “visible” from the viewing areas or located
along a significant ridgeline. To ensure that this standard is objective, and to
avoid confusion with the existing 16-foot height limitation when a non-
hillside zoned building footprint is located within the required side or rear
setbacks of the applicable zoning district, the Draft Ordinance includes a 16-
foot height limit for all HR zoned properties.
o Driveway width: Consistent with the HDS&G requirements, driveway width
must be a minimum of 12 feet. This standard would also help ensure that
the Santa Clara County Fire Department can approve of the driveway plans
when reviewed at building permit stage.
o Driveway slope: Consistent with the HDS&G requirements, driveways cannot
exceed 15 percent in slope. This standard would also help ensure that the
Santa Clara County Fire Department can approve of the driveway plans when
reviewed at building permit stage.
o Cut and fill depths: The maximum cut and fill table from Chapter III of the
HDS&G was added for applicable SB 9 site elements to ensure that new
construction retains the existing landform of the site and follows the natural
contours.
o Least Restrictive Development Area (LRDA): To ensure construction occurs in
the most appropriate areas on a hillside parcel, the 30 percent slope
restriction for LRDA was added from Chapter II of the HDS&G.
o Retaining walls: Consistent with HDS&G requirements, retaining wall
restrictions were added to ensure the use of retaining walls are limited and
appropriate.
PAGE 4 OF 9
SUBJECT: Senate Bill 9
DATE: September 23, 2022
DISCUSSION (continued):
o Light Reflectivity Value (LRV): Consistent with the HDS&G requirements, the
LRV of materials used on HR zoned parcels would be limited to 30 to ensure
the building colors blend with the natural vegetation of the hillsides.
o Finished floor height: The maximum height that a finished floor can project
above grade has been increased from 18-inches to three feet in all zones for
better consistency with Chapter V of the HDS&G.
• Exclusion Areas. Prime Farmland and Wetlands are included as an area that is
excluded from the SB 9 Ordinance per the ABAG SB 9 model ordinance.
• Utility Connections. Utility connection requirements were added per the ABAG SB 9
model ordinance.
• Replacement Housing. A reference to the replacement housing provisions of
Government Code Section 66300(d) was added, per the ABAG SB 9 model ordinance,
to ensure that existing housing units proposed to be demolished as a part of an SB 9
application will be replaced.
• ADUs. The existing Urgency Ordinance states that new ADUs are not allowed on
parcels that have used either SB 9 application type. Based on State direction, ADUs
must be allowed on parcels that have not undergone an urban lot split. The ADU
references were amended to update this section.
• Owner Attestation. Per the direction of the of the ABAG SB 9 model ordinance, the
owner attestation and recorded covenant requirements have been updated.
B. Draft Amendments to Clarify Existing Standards
The following is a summary of amendments recommended by staff to help clarify existing
standards. These amendments are included in the Draft Ordinance. The majority of these
changes are a result of questions asked by members of the public on the existing Urgency
Ordinance.
• Legal Parcel. The legal parcel requirement was amended to specify that applications
for any SB 9 application type will only be accepted on proposed parcels with either a
recorded parcel map or certificate of compliance. Applicants would no longer be
able to submit both a two-unit housing development and urban lot split application
concurrently, as the two-unit housing development cannot be approved until the
urban lot split is approved and the map is recorded.
PAGE 5 OF 9
SUBJECT: Senate Bill 9
DATE: September 23, 2022
DISCUSSION (continued):
• Floor Area Ratio (FAR). The existing Urgency Ordinance does not specify a cap on
the use of the 10 percent FAR increase and is not clear as to how the 10 percent FAR
increases are allowed for both two-unit housing developments and ADUs.
Clarification was added to specify that the maximum additional floor area allowed
from the 10 percent increase must be used for the first dwelling unit, and is
therefore no more than 1,200 square feet. This language is consistent with the use
of an FAR bonus for ADUs in current Town Code, and also states that the FAR
increase cannot be combined with the increase for an ADU in Town Code Section
29.10.320.
• Trees. Reference to Town Code Chapter 29, Article 1, Division 2 (Tree Protection)
was added to ensure that any proposed work complies with the Town’s existing
protection, removal, and replacement requirements.
• Windows. The existing Urgency Ordinance states that all second-story windows less
than eight feet from rear and interior side property lines shall be clerestory, and that
all other second-story windows shall be limited to the minimum size and number
required for egress. This effectively restricted all second-story windows to be no
more than the minimum needed for egress. The revision increases the distance
requirement from eight feet to 10 feet, and removes the “all other” statement so
that all second-stories within 10 feet from the side property line can have clerestory
windows and larger windows as needed for egress. The intent of this regulation is to
reduce potential privacy impacts from new second story windows, while increasing
flexibility when those windows have at least a 10-foot setback from the property
line.
• Number of Units. A sentence was added to both the two-unit housing development
and urban lot split sections of the Draft Ordinance to specify the maximum number
of units allowed to be built under these regulations as required by State law. Up to
four units (including two primary dwelling units, an ADU, and a JADU) can be built on
parcels that have not undergone an urban lot split ; and two units (regardless of the
unit type) can be built on each of the parcels that result from an urban lot split.
• Intent to Occupy. Clarification to the Intent to Occupy requirement for urban lot
splits has been added to specify when the three-year occupancy requirement
begins, depending on whether an existing residence is retained.
• Lot Merger. A sentence was added to clarify that when an owner or applicant splits
their parcel and builds additional units with the allowed 10 percent FAR increase,
they will then be prohibited from merging the parcels back into a single parcel
unless existing Town Code requirements can be met and no new non -conformities
are created.
PAGE 6 OF 9
SUBJECT: Senate Bill 9
DATE: September 23, 2022
DISCUSSION (continued):
C. Potential Changes from Public Comment
In the public comment and feedback received by staff since the approval of the Urgency
Ordinance (Exhibit 7), there were seven comments that were repeated by several members
of the public, which are discussed below:
• Applicable Zones. Comments received requested that HR zones be included in the
permanent SB 9 Ordinance. As detailed above, per State direction, the Draft Ordinance
has been updated to include HR zones in the single-family residential zone definition. In
addition to inclusion of the HR zone, the Planning Commission could consider allowing
SB 9 permits within other zoning designations, possibilities could include multi -family
zones or in any zone where the existing use is a single-family use.
• Grading Limitation. Comments were received related to the grading limitation. Both
the existing Urgency Ordinance and drafted updates for the Draft Ordinance include the
grading restriction: grading activity shall not exceed the summation of 50 cubic yards,
cut plus fill, or require a Grading Permit per Town Code Chapter 12, Article II. The
reason for this limitation is for consistency with the Town Code where grading in excess
of 50 cubic yards that is not used for building excavation requires a Grading Permit, and
Grading Permits require an Architecture and Site application, which is a discretionary
permit with a public hearing. As SB 9 requires ministerial review and approval of
qualifying applications, the grading restriction was included to ensure SB 9 projects are
processed ministerially. Per the Urgency Ordinance and Draft Ordinance, if over 50
cubic yards of grading is needed to develop the site, excluding building excavation, the
applicant would need approval of a separate, discretionary Grading Permit. The
majority of comments received regarding the grading limitation requested that the
excavation exception be expanded to include any grading necessary for driveway and
Fire access and turnarounds. Additional clarification could be added to state that
lightwells that do not exceed the size required by building code would also be
considered excavation to ensure this requirement is implemented objectively.
• Fire Review. Comments were received requesting that Santa Clara County Fire
Department be included in the review SB 9 ministerial applications. This would not
need to be included in this Ordinance, but could be recommended as part of
implementation of the project review process.
• Windows. Comments were received regarding the second-story window design
standards, requesting that the clerestory and egress minimums be removed for two -
story SB 9 units that meet the underlining zoning setbacks. The standards were
originally included to minimize privacy impacts as State law limits setbacks to four feet
on internal side and rear property lines. As stated above, the Draft Ordinance amends
the window standards to decrease restrictions so that all second stories within 10 feet
from the side and rear property lines can have clerestory windows and larger windows
as needed for egress.
PAGE 7 OF 9
SUBJECT: Senate Bill 9
DATE: September 23, 2022
DISCUSSION (continued):
• Second-Story Step-Back. Similar to the comment above, comments were received
regarding the second-story step-back requirement, requesting that this be removed for
two-story SB 9 units that meet the underlining zoning setbacks. This standard provides
both a reduction in potential privacy impacts, as well as preventing construction of walls
that extend the full height of the new two-story residence. Modification of this
standard or replacement with alternative objective standards could be included in
Planning Commission’s recommendation to Town Council.
• Size Limit. Comments have been received in opposition to the 1,200-square foot size
limitation for the first new SB 9 unit. The original Urgency Ordinance included the
1,200-square foot size limitation for any SB 9 unit. When the Urgency Ordinance was
extended, the Town Council modified this section to only apply to the first new unit.
The 1,200-square foot size limitation is consistent with the maximum sizes of ADUs, and
the second unit is allowed to use the remainder of the floor area allocated based on the
lot’s FAR.
• Frontage Requirement. Comments were received regarding the minimum width
required for the access corridor of a flag/corridor lot, as well as the method of
recordation of this access area. The Urgency Ordinance and Draft Ordinance require a
minimum of 20 feet for the access corridor width, which matches the minimum lot
width requirement. This standard is consistent with the minimum width required for
the “corridor” of corridor lots per Town Code Section 29.10.085. The comments also
raise concerns with the requirement that the access corridor be “in fee” as a part of the
parcel and not as an easement; specifically, the feedback urges that the access corridor
should count towards the proposed lot sizes. The original Urgency Ordinance and Draft
Ordinance both state under the Minimum Lot Size requirement that the minimum lot
area for a flag/corridor lot shall be exclusive of the access corridor. This standard is also
consistent with Town Code Section 29.10.085, which states that the area of the corri dor
may not be applied toward satisfying the minimum lot area requirement. The Planning
Commission could choose to modify these requirements in their recommendation to
Town Council.
D. Public Outreach
Public input has been requested through the following media and social media resources:
• A poster at the Planning counter at Town Hall and the Town Library;
• The Town’s website home page, What’s New;
• The Town’s Facebook page;
• The Town’s Twitter account;
• The Town’s Instagram account; and
• The Town’s Next Door page.
PAGE 8 OF 9
SUBJECT: Senate Bill 9
DATE: September 23, 2022
DISCUSSION (continued):
In addition to the outreach listed above, the Town held a Community Meeting on
September 21, 2022 to foster public participation. Comments received during the meeting
included: concerns regarding the grading limitation; the frontage requirement of
corridor/flag lots; the 16-foot height limitation for HR zones; the 30 percent slope
restriction for building footprints in the HR zones; the three-foot finished floor height
limitation; and the right-angle requirement for new side property lines in the HR zones.
Additionally, Town staff received questions regarding: what applicable zones are allowed to
use SB 9; how the 40/60 lot split requirement is applied; what the minimum and maximum
unit sizes are; whether SB 9 applications are ministerial or discretionary; why the Town was
adopting a SB 9 Ordinance; and how many units could be built on residentially zoned
parcels prior to SB 9.
PUBLIC COMMENTS:
Multiple public comments (Exhibit 7) have been received since Urgency Ordinance 2327 was
adopted at the beginning of 2022. These comments were discussed in the previous section.
ENVIRONMENTAL REVIEW:
This Ordinance is categorically exempt from the California Environmental Quality Act (CEQA)
pursuant to SB 9.
CONCLUSION:
A. Recommendation
Staff recommends that the Planning Commission receive and consider public comments,
review the information included in the staff report, provide input on any additional
recommended modifications to the Draft Ordinance (Exhibit 1), and forward a
recommendation to the Town Council for approval of the amendments to Chapter 29 of the
Town Code in the Draft Ordinance.
B. Alternatives
Alternatively, the Commission can continue the matter to a date certain with specific
direction.
PAGE 9 OF 9
SUBJECT: Senate Bill 9
DATE: September 23, 2022
EXHIBITS:
1. Draft Permanent SB 9 Ordinance
2. SB 9 Legislation
3. SB 9 Urgency Ordinance 2326
4. SB 9 Urgency Ordinance Extension 2327
5. California Department of Housing and Community Development SB 9 Fact Sheet
6. Association of Bay Area Governments SB 9 Model Ordinance
7. Public Comment received prior to 11:00 a.m., Friday, September 23, 2022
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Ordinance XXXX January 1, 2023
DRAFT ORDINANCE XXXX
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
AMENDING CHAPTER 29 (ZONING REGULATIONS) REGARDING TWO-UNIT HOUSING
DEVELOPMENTS AND URBAN LOT SPLITS IN ALL
SINGLE-FAMILY RESIDENTIAL ZONES
WHEREAS, the Town of Los Gatos (Town) has adopted a General Plan to ensure a
well-planned and safe community; and
WHEREAS, protection of public health, safety, and welfare is fully articulated in the
General Plan; and
WHEREAS, State law requires that the Town's Zoning Code conform with the
General Plan's goals and policies; and
WHEREAS, in 2021, the California Legislature approved, and the Governor signed
into law Senate Bill 9 (SB 9), which among other things, adds Government Code Sections
65852.21 and 66411.7 to impose new limits on local authority to regulate two-unit
housing developments and urban lot splits; and
WHEREAS, SB 9 requires the Town to provide for the ministerial (or “by right”)
approval of a housing development containing no more than two residential units of at
least 800 square feet in floor area (two-unit housing development) and a parcel map
dividing one existing lot into two approximately equal parts (urban lot split) within a
single-family residential zone for residential use; and
WHEREAS, SB 9 eliminates discretionary review and public oversight of the
proposed subdivision of one lot into two parcels by removing public notice and hearings
by the Development Review Committee or Planning Commission, by requiring only
administrative review of the project, and by providing ministerial approval of an urban lot
split, and also authorizes local agencies to adopt an ordinance allowing for up to a 24-
month additional map extension, for the use of an approved or conditionally approved
Tentative Parcel Map; and
WHEREAS, SB 9 exempts SB 9 projects from environmental review as required by
the California Environmental Quality Act (CEQA), by establishing a ministerial review
process without discretionary review or a public hearing, thereby undermining
community participation and appropriate environmental impact vetting by local decision
making bodies; and
WHEREAS, SB 9 allows the Town to adopt objective zoning and subdivision
standards for two-unit housing developments and urban lot splits; and
EXHIBIT 1
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Ordinance XXXX January 1, 2023
WHEREAS, the Town desires to amend its local regulatory scheme to comply with
and implement Government Code Sections 65852.21 and 66411.7 and to appropriately
regulate projects under SB 9; and
WHEREAS, this matter was regularly noticed in conformance with State and Town
law and came before the Planning Commission for public hearing on September 28, 2022;
and
WHEREAS, this matter was regularly noticed in conformance with State and Town
law and came before the Town Council for public hearing on ______________, 2022; and
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS FINDS AND
ORDAINS:
Section 1. The Town Council finds and declares that this Ordinance establishes
regulations in the Zoning Code to allow two-unit housing developments and urban lot
splits as specified by California Government Code Sections 66452.6, 65852.21, and
66411.7, as adopted and amended by SB 9.
Section 2. A new Division 10, “Two-Unit Housing Developments and Urban Lot
Splits,” is added to Article I, “In General,” of Chapter 29, “Zoning Regulations,” to read
as follows:
“Section 29.10.600. Purpose and Applicability. The Town Council finds and
determines that this Ordinance is applicable only to voluntary applications for two-unit
housing developments and urban lot splits. Owners of real property or their
representatives may continue to exercise rights for property development in
conformance with the Zoning Code and Subdivision Code. Development applications
that do not satisfy the definitions for a two-unit housing development or an urban lot
split provided in Section III (Definitions) shall not be subject to this Ordinance. Any
provision of this Division which is inconsistent with SB 9 shall be interpreted in a
manner which is the most limiting on the ability to create a two-unit housing
development or urban lot split, but which is consistent with State law. The
provisions of this Division shall supersede and take precedence over any
inconsistent provision of the Town Code to the extent necessary to effect the
provisions of this Division.
Section 29.10.610. Definitions. In addition to definitions contained in Chapter 24
(Subdivision Regulations) and Chapter 29 (Zoning Regulations), the following definitions
apply for purposes of this Division. Where a conflict may exist, the definitions in this
Division shall apply.
Acting in concert means persons, as defined by Government Code Section 82047, as
that section existed on January 1, 2022, acting jointly to pursue development of real
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Ordinance XXXX January 1, 2023
property whether or not pursuant to a written agreement and irrespective of individual
financial interest.
Addition means any construction which increases the size of a building or facility in
terms of site coverage, height, length, width, or gross floor area.
Adjacent parcel means any parcel of land that is: touching the parcel at any point;
separated from the parcel at any point only by a public right-of-way, private street or way,
or public or private utility, service, or access easement; or separate from another parcel
only by other real property which is in common ownership or control of the applicant.
Alteration means any construction or physical change in the arrangement of rooms
or the supporting members of a building or structure or change in the relative position of
buildings or structures on a site, or substantial change in appearances of any building or
structure.
Car-share vehicle means a motor vehicle that is operated as part of a regional fleet
by a public or private car sharing company or organization and provides hourly or daily
service.
Common ownership or control means property owned or controlled by the same
person, persons, or entity, or by separate entities in which any shareholder, partner,
member, or family member of an investor of the entity owns ten percent or more of the
interest in the property.
Entry feature means a structural element, which leads to an entry door;
Existing structure means a lawfully constructed building that received final building
permit clearance prior to January 1, 2022, and which has not been expanded on or after
January 1, 2022.
First residential unit means one of two housing units developed under a two-unit
housing development, and can be an existing housing unit if it meets or is modified to meet
the 1,200-square foot floor area limitation on first residential units.
Nonconforming zoning condition means a physical improvement on a property that
does not conform with current zoning standards.
Two-unit housing development means an application proposing no more than two
primary dwelling units on a single parcel located within a single-family residential zone as
authorized by Government Code Section 65852.21. A two-unit housing development shall
consist of either the construction of no more than two new primary dwelling units, one new
primary dwelling unit and retention of one existing primary dwelling unit, or retention of
two existing legal non-conforming primary dwelling units where one or both units are
subject to a proposed addition or alteration.
Public transportation means a high-quality transit corridor, as defined in subdivision
(b) of Public Resources Code Section 21155, or a major transit stop, as defined in Public
Resources Code Section 21064.3.
Single-family residential zone means a “R-1 or Single-Family residential Zone”, “R-1D
or Single-Family Residential Downtown Zone”, or “HR or Hillside Residential Zone” as
specified in Article IV, “Residential Zones,” of the Zoning Code.
Subdivision Code means Chapter 24 of the Los Gatos Town Code.
Sufficient for separate conveyance means that each attached or adjacent dwelling
unit is constructed in a manner adequate to allow for the separate sale of each unit in a
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Ordinance XXXX January 1, 2023
common interest development as defined in Civil Code Section 1351 (including a residential
condominium, planned development, stock cooperative, or community apartment project),
or into any other ownership type in which the dwelling units may be sold individually.
Urban lot split means a ministerial application for a parcel map to subdivide an
existing parcel located within a single-family residential zone into two parcels, as authorized
by Government Code Section 66411.7.
Zoning code means Chapter 29 of the Los Gatos Town Code.
Section 29.10.620. Eligibility. An urban lot split or a two-unit housing
development may only be created on parcels satisfying all of the following general
requirements:
A. Zoning District. A parcel that is located within a single-family residential
zone.
B. Legal Parcel. A parcel which has been legally created in compliance with the
Subdivision Map Act (Government Code Section 66410 et seq.) and the Town’s
Subdivision Regulations in effect at the time the parcel was created. Applications for
an urban lot split or two-unit housing development will only be accepted on proposed
parcels with either a recorded parcel map or certificate of compliance.
C. Excluding Historic Property. A parcel that does not contain a Historic
Structure, as defined Town Code Section 29.10.020, or is not listed on the Town of Los
Gatos Historic Resource Inventory, as defined by Town Code Chapter 29, Article VII,
Division 3, “Historic Preservation and LHP or Landmark and Historic Preservation
Overlay Zone.”
D. Excluding Very High Fire Hazard Severity Zone. A parcel that is not within a
very high fire hazard severity zone, as determined by the Department of Forestry and
Fire Protection pursuant to Government Code Section 51178, or within a high or very
high fire hazard severity zone as indicated on maps adopted by the Department of
Forestry and Fire Protection pursuant to Public Resources Code Section 4202. This
subparagraph does not apply to sites excluded from the specified hazard zones by a
local agency, pursuant to subdivision (b) of Government Code Section 51179, or sites
that have adopted fire hazard mitigation measures pursuant to existing building
standards or State fire mitigation measures applicable to the development.
E. Excluding Hazardous Waste Sites. A parcel that is not identified as a
hazardous waste site pursuant to Government Code Section 65962.5 or a hazardous
waste site designated by the Department of Toxic Substances Control pursuant to
Health and Safety Code Section 25356, unless the State Department of Public Health,
State Water Resources Control Board, or Department of Toxic Substances Control has
cleared the site for residential use.
F. Excluding Earthquake Fault Zone. A parcel that is not located within a
delineated earthquake fault zone as determined by the State Geologist on any official
maps published by the State Geologist, unless the two-unit housing development
complies with applicable seismic protection building code standards adopted by the
California Building Standards Commission under the California Building Standards Law
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Ordinance XXXX January 1, 2023
(Part 2.5 (commencing with Section 18901) of Health and Safety Code Division 13), and
by any local building department under Chapter 12.2 (commencing with Section 8875)
of Division 1 of Title 2.
G. Excluding Flood Zone. A parcel that is not located within a special flood
hazard area subject to inundation by the 1 percent annual chance flood (100-year
flood) on the official maps published by the Federal Emergency Management Agency
unless a Letter of Map Revision prepared by the Federal Emergency Management
Agency has been issued or if the proposed two-unit housing development is
constructed in compliance with the provisions of Town Code Chapter 29, Article XI,
“Floodplain Management,” as determined by the floodplain administrator.
H. Excluding Natural Habitat. A parcel that is not recognized by the Town as a
habitat for protected species identified as a candidate, sensitive, or species of special
status by State or Federal agencies, fully protected species, or species protected by the
Federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California
Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of
the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing
with Section 1900) of Division 2 of the Fish and Game Code).
I. Excluding Prime Farmland and Wetlands. A parcel that contains either prime
farmland or farmland of statewide importance, as defined pursuant to the United
States Department of Agriculture land inventory and monitoring criteria, as modified
for California, and designated on the maps prepared by the Farmland Mapping and
Monitoring Program of the Department of Conservation, or land zoned or designated
for agricultural protection or preservation by a local ballot measure that was approved
by the voters of that jurisdiction; or wetlands, as defined in the United States Fish and
Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).
Section 29.10.630. Requirements. Two-unit housing developments must
comply with the following objective zoning standards, design review standards, and
general requirements and restrictions.
A. Zoning Standards.The following objective zoning standards supersede any
other standards to the contrary that may be provided elsewhere in the Zoning Code, as
they pertain to a two-unit housing development under Government Code Section
65852.21. Two-unit housing developments shall be constructed only in accordance
with the following objective zoning standards, except as provided by Section D,
“Exceptions:”
1. Building Height. Maximum building height shall be as specified by the
applicable zoning district for the main structure. Buildings located within the required
side or rear setbacks of the applicable zoning district, and those located in the Hillside
Residential (HR) zones, shall not exceed 16 feet in height;
2. Driveways. Each parcel shall include a single driveway, and any new
driveway shall satisfy the following requirements:
a. A minimum width of 10 feet up to a maximum width of 18 feet. Driveways in
the Hillside Residential (HR) zones shall have a minimum width of 12 feet;
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Ordinance XXXX January 1, 2023
b. A minimum depth of 25 feet measured from the front property line;
c. Surfacing shall comply with Town Code Section 29.10.155(e);
d. Only a single driveway curb-cut shall be permitted per parcel designed in
accordance with the Town’s Standard Specifications and Plans for Parks and Public
Works Construction; and
e. A maximum slope of 15 percent.
3. Dwelling Unit Type. The primary dwelling units comprising a two-unit
housing development may take the form of detached single-family dwellings, attached
units, and/or duplexes. A duplex may consist of two dwelling units in a side-by-side or
front-to-back configuration within the same structure or one dwelling unit located atop
another dwelling unit within the same structure;
4. Fencing. All new fencing shall comply with the requirements of Section
29.40.030 of the Zoning Code;
5. Floor Area Ratio and Lot Coverage. The maximum floor area ratio and lot
coverage shall be as specified by the applicable zoning regulations. The maximum size
of the first new residential unit shall not exceed 1,200 square feet. When a two-unit
housing development is proposed, a 10 percent increase in the floor area ratio
standards for residential structures is allowed, excluding garages, and this increase in
floor area cannot be combined with a separate increase for an Accessory Dwelling Unit
allowed by Town Code Section 29.10.320. The additional floor area allowed by this
subsection shall not exceed 1,200 square feet. Notwithstanding the floor area ratio
standards in this subsection, a new two-unit housing development with unit sizes of
800 square feet or less shall be permitted;
6. Grading. Grading activity shall not exceed the summation of 50 cubic yards,
cut plus fill, or require a grading permit per Town Code Chapter 12, Article II;
7. Cut and Fill. Two-unit housing developments shall be subject to the cut and
fill requirements specified by Table 1-1 (Cut and Fill Requirements) below:
Table 1-1 – Cut and Fill Requirements
Site Element Cut * Fill *
House and attached garage 8’ ** 3’
Detached accessory building * 4’ 3’
Driveways * 4’ 3’
Other (decks, yards) * 4’ 3’
* Combined depths of cut plus fill for development other
than the main residence shall be limited to 6 feet.
** Excludes below grade square footage pursuant to Section
29.40.072 of the Town Code.
8. Building Sites. The footprint of the proposed residential unit(s) and garage(s)
shall not be located on lands with an average slope exceeding 30 percent;
9. Retaining Walls. Retaining walls shall not exceed five feet in height and shall
not run in a straight continuous direction for more than 50 feet without a break, offset,
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or planting pocket. Retaining walls shall have a five-foot landscaped buffer adjacent to
the street;
10. Light Reflectivity Value. Exterior material colors for primary buildings and
garages in the Hillside Residential (HR) zones shall comply with requirements in
Chapter V, Section I, of the Town’s Hillside Development Standards and Guidelines;
11. Landscaping Requirement. All landscaping shall comply with the California
Model Water Efficient Landscape Ordinance (MWELO);
12. Lighting. New exterior lighting fixtures shall be downward directed and
utilize shields so that no bulb is visible to ensure that the light is directed to the ground
surface and does not spill light onto neighboring parcels consistent with Section
29.10.09015 of the Zoning Code;
13. Trees. Any proposed work shall comply with the protection, removal, and
replacement requirements for protected trees in Chapter 29, Article 1, Division 2, “Tree
Protection,” of Town Code;
14. Minimum Living Area. The minimum living area of a primary dwelling unit
shall be 150 square feet, subject to the restrictions specified by Health and Safety Code
Section 17958.1;
15. Parking. One parking stall per primary dwelling unit shall be required,
except for two-unit housing developments located on parcels within one-half mile
walking distance of public transportation; or where there is a designated parking area
for one or more car-share vehicles within one block of the parcel. Parking stalls may
either be uncovered or covered (garage or carport) in compliance with applicable
developments standards of the Zoning Code, including Chapter 29, Article I, Division 4,
“Parking,” except that uncovered parking spaces may be provided in a front or side
setback abutting a street on a driveway (provided that it is feasible based on specific
site or fire and life safety conditions) or through tandem parking;
16. Setbacks. Two-unit housing developments shall be subject to the setback
and building separation requirements specified by Table 1-2 (Setback Requirements),
below:
Table 1-2 – Setback Requirements
Setback Requirement (2)
Property Line Setbacks (1) Front Per the applicable
zoning district.
Garage Entry 18 feet
Interior Sides 4 feet (3)
Rear
Street Side Per the applicable
zoning district.
Separation Between
Detached Structures (4)
5 feet
Exceptions:
(1) Cornices, eaves, belt courses, sills, canopies, bay windows, chimneys,
or other similar architectural features may extend into required setbacks
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17. Stormwater Management. The development shall comply with the
requirements of the Town's National Pollution Discharge Elimination System Permit as
implemented by Chapter 22 of the Town Code, and as demonstrated by a grading and
drainage plan prepared by a registered civil engineer; and
18. New units shall be designed as individual units, with separate gas, electric
and water utility connections directly between each dwelling unit and the utility.
B. Design Review Standards
The following objective design review standards apply to construction of new
primary dwelling units and to any addition and/or alteration to existing primary
dwelling units as part of a two-unit housing development, except as provided by
Subsection D below, “Exceptions:”
1. Balconies/Decks. Rooftop and second floor terraces and decks are
prohibited. Balconies shall only be permitted on the front- and street-side elevations
of a primary dwelling unit fronting a public street. Such balconies shall be without any
projections beyond the building footprint;
2. Finished Floor. The finished floor of the firststory shall not exceed three feet
in height as measured from finished grade;
3. Front Entryway. A front entryway framing a front door shall have a roof eave
that matches or connects at the level of the adjacent eave line;
4. Front Porch. If proposed, porches shall have a minimum depth of six feet
and a minimum width equal to 25 percent of the linear width of the front elevation;
5. Step-back. All elevations of the secondstory of a two-story primary dwelling
unit shall be recessed by five feet from the first-story, as measured wall to wall;
6. Garages. Street-facing attached garages shall not exceed 50 percent of the
linear width of the front-yard or street-side yard elevation;
7. Plate Height. The plate height of each story shall be limited to a maximum of
10 feet as measured from finished floor, and when above the first floor the plate height
shall be limited to a maximum of eight feet; and
8. Windows. All second-story windows less than 10 feet from rear and interior
side property lines shall be clerestory with the bottom of the glass at least six feet
above the finished floor except as necessary for egress purposes as required by the
Building Code.
as specified Section 29.40.070(b) of the Zoning Code.
(2) No setback shall be required for an existing structure, or a structure
constructed in the same location and to the same dimensions as an
existing structure.
(3) No interior side setback shall be required for two-unit housing
development units constructed as attached units on separate lots,
provided that the structures meet building code safety standards and
are sufficient to allow separate conveyance as a separate fee parcel.
(4) Except for primary dwellings constructed as a duplex or attached
single-family residences.
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C. General Requirements and Restrictions
The following requirements and restrictions apply to all two-unit housing
developments, inclusive of existing and new primary dwelling units, except as provided
by Subsection D below, “Exceptions:”
1. Number of Units. A maximum of four units, with a maximum of two primary
dwelling units, on lots that have not undergone an urban lot split.
2. Accessory Dwelling Units. In addition to the two residential units allowed
under this section, consistent with Chapter 29, Article 1, Division 7, “Accessory Dwelling
Units,” of the Town Code, one accessory dwelling unit and one junior accessory
dwelling unit shall be allowed on lots that have not undergone an urban lot split.
3. Building and Fire Codes. The International Building Code (“Building Code”),
and the California Fire Code and International Fire Code (together, “Fire Code”), as
adopted by Chapter 6 of the Town Code, respectively, apply to all two-unit housing
developments.
4. Encroachment Permits. Separate encroachment permits, issued by the Parks
and Public Works Department, shall be required for the installation of utilities to serve
two-unit housing developments. Applicants shall apply for and pay all necessary fees
for utility permits for sanitary sewer, gas, water, electric, and all other utility work.
5. Restrictions on Demolition. The two-unit housing development shall not
require either demolition of more than 25 percent of the exterior walls or alteration of
any of the following types of housing:
a. Housing that is subject to a recorded covenant, ordinance, or law that
restricts rents to levels affordable to persons and families of moderate, low, or very low
income. This shall be evidenced by an attestation from the property owner;
b. Housing that is subject to any form of rent or price control through a public
entity’s valid exercise of its police power. This shall be evidenced by an attestation
from the property owner; or
c. Housing that has been occupied by a tenant in the last three years. This shall
be evidenced by an attestation from the property owner.
If any existing housing is proposed to be altered or demolished, the owner of
the property proposed for a two-unit housing development shall sign an affidavit,
stating that none of the conditions listed above exist and shall provide a
comprehensive history of the occupancy of the units to be altered or demolished for
the past three years (five years if an existing unit is to be demolished) on a form
prescribed by the Town.
If any existing dwelling unit is proposed to be demolished, the applicant shall
comply with the replacement housing provisions of Government Code Section
66300(d).
6. Recorded Covenant. Prior to building permit issuance, the applicant shall
record a restrictive covenant in the form prescribed by the Town, which shall run with
the land and provide for the following:
a. A limitation restricting the property to residential uses only; and
b. A requirement that any dwelling units on the property may only be
rented for a period longer than thirty (30) days.
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D. Exceptions
If any of the provided zoning standards or design review standards
would have the effect of physically precluding construction of up to two primary
dwelling units or physically preclude either of the two primary dwelling units from being
at least 800 square feet in floor area, the Community Development Director shall grant
an exception to the applicable standard(s) to the minimum extent necessary as specified
by this section. An exception request shall be explicitly made on the application for a
two-unit housing development.
1. Determination. In order to retain adequate open space to allow for
recreational enjoyment, protection of the urban forest, preservation of the community
character, reduction of the ambient air temperature, and to allow for the percolation of
rainfall into the groundwater system, when considering an exception request, the
Community Development Director shall first determine that a reduction in any other
zoning and/or design review standard(s) will not allow the construction of the two-unit
housing development as specified by this section prior to allowing an exception(s) to the
landscaping requirement, front-yard setback, or street-side setbacks standards.
Section 29.10.640. Application Process for Two-Unit Housing Development.
Applications for two-unit housing developments shall be submitted and
processed in compliance with the following requirements:
1. Application Type. Two-unit housing developments shall be reviewed
ministerially by the Community Development Director for compliance with the
applicable regulations. The permitting provisions of Town Code Sections 29.20.135
through 29.20.160, “Architecture and Site Approval,” shall not be applied;
2. Application Filing. An application for a two-unit housing development,
including the required application materials and fees, shall be filed with the Community
Development Department;
3. Building Permits. Approval of a two-unit housing development application
shall be required prior to acceptance of an application for building permit(s) for the
new and/or modified primary dwelling units comprising the two-unit housing
development;
4. Denial. The Community Development Director may deny a two-unit housing
development project only if the Building Official makes a written finding, based upon a
preponderance of the evidence, that the two-unit housing development would have a
specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d)
of Government Code Section 65589.5, upon public health and safety or the physical
environment and for which there is no feasible method to satisfactorily mitigate or
avoid the specific, adverse impact; and
5. Appeals. Two-unit housing application decisions are ministerial and are not
subject to an appeal.
Section 29.10.050. Subdivision Standards. Urban lot splits shall comply with the
following objective subdivision standards, and general requirements and restrictions:
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A. Subdivision Standards
The following objective subdivision standards supersede any other standards to
the contrary that may be provided in the Zoning Code or Subdivision Code, as they
pertain to creation of an urban lot split under Government Code Section 66411.7:
1. Flag/Corridor Lots. The access corridor of a flag/corridor lot (Town Code
Section 29.10.085) shall be in fee as part of the parcel and not as an easement and shall
be a minimum width of 20 feet;
2. Lot Lines. The new side lines of all lots shall be at right angles to streets or
radial to the centerline of curved streets;
3. Minimum Lot Size. Each new parcel shall be approximately equal in lot area
provided that one parcel shall not be smaller than 40 percent of the lot area of the
original parcel proposed for subdivision. In no event shall a new parcel be less than
1,200 square feet in lot area. The minimum lot area for a flag/corridor lot shall be
exclusive of the access corridor;
4. Minimum Lot Width. Each new parcel shall maintain a minimum lot width of
20 feet;
5. Minimum Public Frontage. Each new parcel shall have frontage upon a street
with a minimum frontage dimension of 20 feet;
6. Number of Lots. The parcel map to subdivide an existing parcel shall result in
no more than two parcels; and
7. Lot Merger. Lots resulting from an urban lot split shall not be merged unless
that lot merger can be done without loss of housing units and without causing a non-
conforming building, lot, or use.
B. General Requirements and Restrictions
The following requirements and restrictions apply to all proposed urban lot
splits:
1. Adjacent Parcels. Neither the owner of the parcel being subdivided nor any
person acting in concert with the owner has previously conducted an urban lot split to
create an adjacent parcel as provided for in this Division;
2. Dedication and Easements. The Town Engineer shall not require dedications
of rights-of-way nor the construction of offsite improvements but may, however,
require recording of easements necessary for the provision of private services,
facilities, and future public improvements or future public services, facilities, and future
public improvements;
3. Existing Structures. Existing structures located on a parcel subject to an
urban lot split shall not be subject to a setback requirement. However, any such
existing structures shall not be located across the shared property line resulting from
an urban lot split, unless the structure is converted to an attached unit as provided for
in Table 1-2 (Setback Requirements, Exception No. 3). All other existing structures shall
be modified, demolished, or relocated prior to recordation of a parcel map;
4. Intent to Occupy. The applicant shall submit a signed affidavit to the
Community Development Director attesting that the applicant intends to occupy one of
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the housing units on the newly created parcels as their principal residence for a
minimum of three years from either:
a. The date of the approval of the urban lot split when the intent is to live
in an existing residence; or
b. Certificate of occupancy when the intent is to occupy a newly
constructed residential unit.
This requirement shall not apply to an applicant that is a "community land
trust," as defined in clause (ii) of subparagraph (C) of paragraph (11) of subdivision (a)
of Section 402.1 of the Revenue and Taxation Code, or a "qualified nonprofit
corporation" as described in Section 214.15 of the Revenue and Taxation Code;
5. Non-Conforming Conditions. The Town shall not require, as a condition of
approval, the correction of nonconforming zoning conditions. However, no new
nonconforming conditions may result from the urban lot split other than interior side
and rear setbacks as specified by Table 1-2 (Setback Requirements, Exception No. 2);
6. Number of Units. No more than two dwelling units may be located on any
lot created through an urban lot split, including primary dwelling units, accessory
dwelling units, junior accessory dwelling units, density bonus units, and units created as
two-unit developments. Any excess dwelling units that do not meet these
requirements shall be relocated, demolished, or otherwise removed prior to approval
of a parcel map;
7. Prior Subdivision. A parcel created through a prior urban lot split may not be
further subdivided. The subdivider shall submit a signed deed restriction to the
Community Development Director documenting this restriction. The deed restriction
shall be recorded on the title of each parcel concurrent with recordation of the parcel
map;
8. Restrictions on Demolition. The proposed urban lot split shall not require
either the demolition of more than 25 percent of the exterior walls or alteration of any
of the following types of housing:
a. Housing that is subject to a recorded covenant, ordinance, or law that
restricts rents to levels affordable to persons and families of moderate, low, or
very low income. This shall be evidenced by an attestation from the property
owner;
b. Housing that is subject to any form of rent or price control through a
public entity’s valid exercise of its police power. This shall be evidenced by an
attestation from the property owner; or
c. Housing that has been occupied by a tenant in the last three years.
This shall be evidenced by an attestation from the property owner;
If any existing housing is proposed to be altered or demolished, the owner of
the property proposed for an urban lot split shall sign an affidavit, stating that none of
the conditions listed above exist and shall provide a comprehensive history of the
occupancy of the units to be altered or demolished for the past three years (five years
if an existing unit is to be demolished) on a form prescribed by the Town. The owner
and applicant shall also sign an affidavit stating that neither the owner nor applicant,
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nor any person acting in concert with the owner or applicant, has previously
subdivided an adjacent parcel using and urban lot split;
9. Replacement Units. If any existing dwelling unit is proposed to be
demolished, the applicant will comply with the replacement housing provisions of
Government Code Section 66300(d);
10. Recorded Covenant. Prior to approval and recordation of the parcel map,
the applicant shall record a restrictive covenant and agreement in the form prescribed
by the Town, which shall run with the land and provide for the following:
a. A prohibition against further subdivision of the parcel using the urban
lot split procedures as provided for in this section;
b. A limitation restricting the properties to residential uses only; and
c. A requirement that any dwelling units on the property may not be
rented for a period longer than thirty (30) days.
11. Stormwater Management. The subdivision shall comply with the
requirements of the Town's National Pollution Discharge Elimination System Permit as
implemented by Chapter 22 of the Town Code, and as demonstrated by a grading and
drainage plan prepared by a registered civil engineer;
12. Utility Providers. The requirements of the parcel’s utility providers shall be
satisfied prior to recordation of a parcel map; and
13. Compliance with Subdivision Map Act. The urban lot split shall conform to
all applicable objective requirements of the Subdivision Map Act (commencing with
Government Code Section 66410), except as otherwise expressly provided in
Government Code Section 66411.7.
Section 29.10.060. Application Process for Urban Lot Splits.
Applications for urban lot splits shall be submitted and processed in compliance
with the following requirements:
1. Application Type. Urban lot splits shall be reviewed ministerially by the
Community Development Director for compliance with the applicable regulations. A
tentative parcel map shall not be required;
2. Application Filing. An urban lot split application, including the required
application materials and fees, shall be filed with the Community Development
Department;
3. Parcel Map. Approval of an urban lot split permit shall be required prior to
acceptance of an application for a parcel map for an urban lot split. Applicants shall
apply for an Urban Lot Split Parcel Map and pay all fees;
4. Development. Development on the resulting parcels is limited to a project
approved by the two-unit housing development process or through the Town’s
standard discretionary process;
5. Denial. The Community Development Director may deny an urban lot split
only if the Building Official makes a written finding, based upon a preponderance of the
evidence, that an urban lot split or two-unit housing development located on the
proposed new parcels would have a specific, adverse impact, as defined and
determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health
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Ordinance XXXX January 1, 2023
and safety or the physical environment and for which there is no feasible method to
satisfactorily mitigate or avoid the specific, adverse impact; and
6. Appeals. Urban lot split application decisions are ministerial and are not
subject to an appeal.”
Section 29.10.070. Sunset Clause. If SB 9 is repealed or otherwise rescinded by
the California State Legislature or by the People of the State of California, this Division
shall be repealed.”
Section 3. CEQA. The Council finds and declares that this Ordinance is not
subject to environmental review under the California Environmental Quality Act
("CEQA"). SB 9 (Atkins) states that an ordinance adopted to implement the rules of SB
9 is not considered a project under Public Resources Code Division 13 (commencing
with Section 21000) (See Government Code Sections 65858.210 and 66411.7(n)).
Section 4. Severability Clause. If any section, subsection, sentence, clause,
phrase, or portion of this Ordinance is for any reason held to be unconstitutional or
otherwise invalid by the decision of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of this Ordinance. The Town
Council hereby declares that it would have adopted the remainder of this Ordinance,
including each section, subsection, sentence, clause, phrase, or portion irrespective of the
invalidity of any other article, section, subsection, sentence, clause, phrase, or portion.
Section 5. Publication. The Town Clerk is directed to publish this Ordinance in a
newspaper of general circulation as required by State law. In lieu of publication of the full text
of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be
published at lest five (5) days prior to and fifteen (15) days after adoption by the Town Council
and a certified copy shall be posted in the office of the Town Clerk, pursuant to GC 36933(c)(1).
Section 6. Effective Date. This ordinance takes effect 30 days after adoption.
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COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: __________________
ATTEST:
TOWN CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: __________________
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EXHIBIT 2
EXHIBIT 3
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EXHIBIT 4
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California Department of Housing and Community Development
SB 9 Fact Sheet
On the Implementation of Senate Bill 9 (Chapter 162, Statutes
of 2021)
Housing Policy Development Division
March 2022
EXHIBIT 5
California Department of Housing and Community Development – SB 9 Fact Sheet
1
This Fact Sheet is for informational purposes only and is not intended to implement or
interpret SB 9. HCD does not have authority to enforce SB 9, although violations of SB 9
may concurrently violate other housing laws where HCD does have enforcement
authority, including but not limited to the laws addressed in this document. As local
jurisdictions implement SB 9, including adopting local ordinances, it is important to keep
these and other housing laws in mind. The Attorney General may also take independent
action to enforce SB 9. For a full list of statutes over which HCD has enforcement
authority, visit HCD’s Accountability and Enforcement webpage.
Executive Summary of SB 9
Senate Bill (SB) 9 (Chapter 162, Statutes of 2021) requires ministerial approval of a
housing development with no more than two primary units in a single-family zone, the
subdivision of a parcel in a single-family zone into two parcels, or both. SB 9 facilitates
the creation of up to four housing units in the lot area typically used for one single-family
home. SB 9 contains eligibility criteria addressing environmental site constraints (e.g.,
wetlands, wildfire risk, etc.), anti-displacement measures for renters and low-income
households, and the protection of historic structures and districts. Key provisions of the
law require a local agency to modify or eliminate objective development standards on a
project-by-project basis if they would prevent an otherwise eligible lot from being split or
prevent the construction of up to two units at least 800 square feet in size. For the
purposes of this document, the terms “unit,” “housing unit,” “residential unit,” and “housing
development” mean primary unit(s) unless specifically identified as an accessory dwelling
unit (ADU) or junior ADU or otherwise defined.
Single-Family Residential Zones Only
(Reference: Gov. Code, §§ 65852.21, subd. (a); 66411.7 subd. (a)(3)(A))
The parcel that will contain the proposed housing development or that will be subject to
the lot split must be located in a single-family residential zone. Parcels located in multi-
family residential, commercial, agricultural, mixed-use zones, etc., are not subject to SB
9 mandates even if they allow single-family residential uses as a permitted use. While
some zones are readily identifiable as single-family residential zones (e.g., R-1 “Single-
Family Residential”), others may not be so obvious. Some local agencies have multiple
single-family zones with subtle distinctions between them relating to minimum lot sizes or
allowable uses. In communities where there may be more than one single-family
residential zone, the local agency should carefully review the zone district descriptions in
the zoning code and the land use designation descriptions in the Land Use Element of
the General Plan. This review will enable the local agency to identify zones whose primary
purpose is single-family residential uses and which are therefore subject to SB 9.
Considerations such as minimum lot sizes, natural features such as hillsides, or the
permissibility of keeping horses should not factor into the determination.
California Department of Housing and Community Development – SB 9 Fact Sheet
2
Residential Uses Only
(Reference: Gov. Code, §§ 65852.21, subd. (a))
SB 9 concerns only proposed housing developments containing no more than two
residential units (i.e., one or two). The law does not otherwise change the allowable land
uses in the local agency’s single-family residential zone(s). For example, if the local
agency’s single-family zone(s) does not currently allow commercial uses such as hotels
or restaurants, SB 9 would not allow such uses.
Ministerial Review
(Reference: Gov. Code, §§ 65852.21, subd. (a); 66411.7, subds. (a), (b)(1))
An application made under SB 9 must be considered ministerially, without discretionary
review or a hearing. Ministerial review means a process for development approval
involving no personal judgment by the public official as to the wisdom of carrying out the
project. The public official merely ensures that the proposed development meets all the
applicable objective standards for the proposed action but uses no special discretion or
judgment in reaching a decision. A ministerial review is nearly always a “staff-level
review.” This means that a staff person at the local agency reviews the application, often
using a checklist, and compares the application materials (e.g., site plan, project
description, etc.) with the objective development standards, objective subdivision
standards, and objective design standards.
Objective Standards
(Reference: Gov. Code, §§ 65852.21, subd. (b); 66411.7, subd. (c))
The local agency may apply objective development standards (e.g., front setbacks and
heights), objective subdivision standards (e.g., minimum lot depths), and objective design
standards (e.g., roof pitch, eave projections, façade materials, etc.) as long as they would
not physically preclude either of the following:
Up to Two Primary Units. The local agency must allow up to two primary units
(i.e., one or two) on the subject parcel or, in the case of a lot split, up to two primary
units on each of the resulting parcels.
Units at least 800 square feet in size. The local agency must allow each primary
unit to be at least 800 square feet in size.
The terms “objective zoning standards,” “objective subdivision standards,” and “objective
design review standards” mean 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 prior to submittal. Any objective standard that would
physically preclude either or both of the two objectives noted above must be modified or
California Department of Housing and Community Development – SB 9 Fact Sheet
3
waived by the local agency in order to facilitate the development of the project, with the
following two exceptions:
Setbacks for Existing Structures. The local agency may not require a setback
for an existing structure or for a structure constructed in the same location and to
the same dimensions as an existing structure (i.e., a building reconstructed on the
same footprint).
Four-Foot Side and Rear Setbacks. SB 9 establishes an across-the-board
maximum four-foot side and rear setbacks. The local agency may choose to apply
a lesser setback (e.g., 0-4 feet), but it cannot apply a setback greater than four
feet. The local agency cannot apply existing side and rear setbacks applicable in
the single-family residential zone(s). Additionally, the four-foot side and rear
setback standards are not subject to modification. (Gov. Code, §§ 65852.21, subd.
(b)(2)(B); 66411.7, subdivision (c)(3).)
One-Unit Development
(Reference: Gov. Code, §§ 65852.21, subd. (a); 65852.21, subd. (b)(2)(A))
SB 9 requires the ministerial approval of either one or two residential units. Government
Code section 65852.21 indicates that the development of just one single-family home was
indeed contemplated and expected. For example, the terms “no more than two residential
units” and “up to two units” appear in the first line of the housing development-related
portion of SB 9 (Gov. Code, § 65852.21, subd. (a)) and in the line obligating local agencies
to modify development standards to facilitate a housing development. (Gov. Code, §
65852.21, subd. (b)(2)(A).)
Findings of Denial
(Reference: Gov. Code, §§ 65852.21, subd. (d); 66411.7, subd. (d))
SB 9 establishes a high threshold for the denial of a proposed housing development or
lot split. Specifically, a local agency’s building official must make a written finding, based
upon a preponderance of the evidence, that the proposed housing development would
have a specific, adverse impact, as defined in Government Code section 65589.5,
subdivision (d)(2), upon public health and safety or the physical environment and for
which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse
impact. “Specific, adverse impact” means a significant, quantifiable, direct, and
unavoidable impact, based on objective, identified written public health or safety
standards, policies, or conditions as they existed on the date the application was deemed
complete. (Gov. Code, § 65589.5, subd. (d)(2).)
California Department of Housing and Community Development – SB 9 Fact Sheet
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Environmental Site Constraints
(Reference: Gov. Code, §§ 65852.21, subd. (a)(2) and (a)(6); 66411.7, subd. (a)(3)(C) and (a)(3)(E))
A proposed housing development or lot split is not eligible under SB 9 if the parcel
contains any of the site conditions listed in Government Code section 65913.4,
subdivision (a)(6)(B-K). Examples of conditions that may disqualify a project from using
SB 9 include the presence of farmland, wetlands, fire hazard areas, earthquake hazard
areas, flood risk areas, conservation areas, wildlife habitat areas, or conservation
easements. SB 9 incorporates by reference these environmental site constraint
categories that were established with the passing of the Streamlined Ministerial Approval
Process (SB 35, Chapter 366, Statutes of 2017). Local agencies may consult HCD’s
Streamlined Ministerial Approval Process Guidelines for additional detail on how to
interpret these environmental site constraints.
Additionally, a project is not eligible under SB 9 if it is located in a historic district or
property included on the State Historic Resources Inventory or within a site that is
designated or listed as a city or county landmark or as a historic property or district
pursuant to a city or county ordinance.
California Environmental Quality Act (CEQA)
Reference: Gov. Code, §§ 65852.21, subd. (j); 66411.7, subd. (n))
Because the approval of a qualifying project under SB 9 is deemed a ministerial action,
CEQA does not apply to the decision to grant an application for a housing development
or a lot split, or both. (Pub. Resources Code, § 21080, subd. (b)(1) [CEQA does not apply
to ministerial actions]; CEQA Guidelines, § 15268.) For this reason, a local agency must
not require an applicant to perform environmental impact analysis under CEQA for
applications made under SB 9. Additionally, if a local agency chooses to adopt a local
ordinance to implement SB 9 (instead of implementing the law directly from statute), the
preparation and adoption of the ordinance is not considered a project under CEQA. In
other words, the preparation and adoption of the ordinance is statutorily exempt from
CEQA.
Anti-Displacement Measures
(Reference: Gov. Code, §§ 65852.21, subd. (a)(3); 66411.7, subd. (a)(3)(D))
A site is not eligible for a proposed housing development or lot split if the project would
require demolition or alteration of any of the following types of housing: (1) housing that
is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable
to persons and families of moderate, low, or very low income; (2) housing that is subject
to any form of rent or price control through a public entity’s valid exercise of its police
power; or (3) housing that has been occupied by a tenant in the last three years.
California Department of Housing and Community Development – SB 9 Fact Sheet
5
Lot Split Requirements
(Reference: Gov. Code, § 66411.7)
SB 9 does not require a local agency to approve a parcel map that would result in the
creation of more than two lots and more than two units on a lot resulting from a lot split
under Government Code section 66411.7. A local agency may choose to allow more than
two units, but it is not required to under the law. A parcel may only be subdivided once
under Government Code section 66411.7. This provision prevents an applicant from
pursuing multiple lot splits over time for the purpose of creating more than two lots. SB 9
also does not require a local agency to approve a lot split if an adjacent lot has been
subject to a lot split in the past by the same property owner or a person working in concert
with that same property owner.
Accessory Dwelling Units
(Reference: Gov. Code, §§ 65852.21, subd. (j); 66411.7, subd. (f))
SB 9 and ADU Law (Gov. Code, §§ 65852.2 and 65858.22) are complementary. The
requirements of each can be implemented in ways that result in developments with both
“SB 9 Units” and ADUs. However, specific provisions of SB 9 typically overlap with State
ADU Law only to a limited extent on a relatively small number of topics. Treating the
provisions of these two laws as identical or substantially similar may lead a local agency
to implement the laws in an overly restrictive or otherwise inaccurate way.
“Units” Defined. The three types of housing units that are described in SB 9 and related
ADU Law are presented below to clarify which development scenarios are (and are not)
made possible by SB 9. The definitions provided are intended to be read within the context
of this document and for the narrow purpose of implementing SB 9.
Primary Unit. A primary unit (also called a residential dwelling unit or residential
unit) is typically a single-family residence or a residential unit within a multi-family
residential development. A primary unit is distinct from an ADU or a Junior ADU.
Examples of primary units include a single-family residence (i.e., one primary unit),
a duplex (i.e., two primary units), a four-plex (i.e., four primary units), etc.
Accessory Dwelling Unit. An ADU is an attached or a detached residential dwelling
unit that provides complete independent living facilities for one or more persons
and is located on a lot with a proposed or existing primary residence. It includes
permanent provisions for living, sleeping, eating, cooking, and sanitation on the
same parcel on which the single-family or multifamily dwelling is or will be situated.
Junior Accessory Dwelling Unit. A Junior ADU is a unit that is no more than 500
square feet in size and contained entirely within a single-family residence. A Junior
ADU may include separate sanitation facilities or may share sanitation facilities
with the existing structure.
California Department of Housing and Community Development – SB 9 Fact Sheet
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The terms “unit,” “housing unit,” “residential unit,” and “housing development” mean
primary unit(s) unless specifically identified as an ADU or Junior ADU or otherwise
defined. This distinction is critical to successfully implementing SB 9 because state law
applies different requirements (and provides certain benefits) to ADUs and Junior ADUs
that do not apply to primary units.
Number of ADUs Allowed. ADUs can be combined with primary units in a variety of
ways to achieve the maximum unit counts provided for under SB 9. SB 9 allows for up to
four units to be built in the same lot area typically used for a single-family home. The
calculation varies slightly depending on whether a lot split is involved, but the outcomes
regarding total maximum unit counts are identical.
Lot Split. When a lot split occurs, the local agency must allow up to two units on
each lot resulting from the lot split. In this situation, all three unit types (i.e., primary
unit, ADU, and Junior ADU) count toward this two-unit limit. For example, the limit
could be reached on each lot by creating two primary units, or a primary unit and
an ADU, or a primary unit and a Junior ADU. By building two units on each lot, the
overall maximum of four units required under SB 9 is achieved. (Gov. Code, §
66411.7, subd. (j).) Note that the local agency may choose to allow more than two
units per lot if desired.
No Lot Split. When a lot split has not occurred, the lot is eligible to receive ADUs
and/or Junior ADUs as it ordinarily would under ADU law. Unlike when a project is
proposed following a lot split, the local agency must allow, in addition to one or two
primary units under SB 9, ADUs and/or JADUs under ADU Law. It is beyond the
scope of this document to identify every combination of primary units, ADUs, and
Junior ADUs possible under SB 9 and ADU Law. However, in no case does SB 9
require a local agency to allow more than four units on a single lot, in any
combination of primary units, ADUs, and Junior ADUs.
See HCD’s ADU and JADU webpage for more information and resources.
Relationship to Other State Housing Laws
SB 9 is one housing law among many that have been adopted to encourage the
production of homes across California. The following represent some, but not necessarily
all, of the housing laws that intersect with SB 9 and that may be impacted as SB 9 is
implemented locally.
Housing Element Law. To utilize projections based on SB 9 toward a jurisdiction’s
regional housing need allocation, the housing element must: 1) include a site-specific
inventory of sites where SB 9 projections are being applied, 2) include a nonvacant sites
analysis demonstrating the likelihood of redevelopment and that the existing use will not
constitute an impediment for additional residential use, 3) identify any governmental
constraints to the use of SB 9 in the creation of units (including land use controls, fees,
California Department of Housing and Community Development – SB 9 Fact Sheet
7
and other exactions, as well as locally adopted ordinances that impact the cost and supply
of residential development), and 4) include programs and policies that establish zoning
and development standards early in the planning period and implement incentives to
encourage and facilitate development. The element should support this analysis with local
information such as local developer or owner interest to utilize zoning and incentives
established through SB 9. Learn more on HCD’s Housing Elements webpage.
Housing Crisis Act of 2019. An affected city or county is limited in its ability to amend
its general plan, specific plans, or zoning code in a way that would improperly reduce the
intensity of residential uses. (Gov. Code, § 66300, subd. (b)(1)(A).) This limitation applies
to residential uses in all zones, including single-family residential zones. “Reducing the
intensity of land use” includes, but is not limited to, reductions to height, density, or floor
area ratio, new or increased open space or lot size requirements, new or increased
setback requirements, minimum frontage requirements, or maximum lot coverage
limitations, or any other action that would individually or cumulatively reduce the site’s
residential development capacity. (Gov. Code, § 66300, subd. (b)(1)(A).)
A local agency should proceed with caution when adopting a local ordinance that would
impose unique development standards on units proposed under SB 9 (but that would not
apply to other developments). Any proposed modification to an existing development
standard applicable in the single-family residential zone must demonstrate that it would
not result in a reduction in the intensity of the use. HCD recommends that local agencies
rely on the existing objective development, subdivision, and design standards of its single-
family residential zone(s) to the extent possible. Learn more about Designated
Jurisdictions Prohibited from Certain Zoning-Related Actions on HCD’s website.
Housing Accountability Act. Protections contained in the Housing Accountability Act
(HAA) and the Permit Streaming Act (PSA) apply to housing developments pursued under
SB 9. (Gov. Code, §§ 65589.5; 65905.5; 65913.10; 65940 et seq.) The definition of
“housing development project” includes projects that involve no discretionary approvals
and projects that include a proposal to construct a single dwelling unit. (Gov. Code, §
65905.5, subd. (b)(3).) For additional information about the HAA and PSA, see HCD’s
Housing Accountability Act Technical Assistance Advisory.
Rental Inclusionary Housing. Government Code section 65850, subdivision (g),
authorizes local agencies to adopt an inclusionary housing ordinance that includes
residential rental units affordable to lower- and moderate-income households. In certain
circumstances, HCD may request the submittal of an economic feasibility study to ensure
the ordinance does not unduly constrain housing production. For additional information,
see HCD’s Rental Inclusionary Housing Memorandum.
SB 9 Model Ordinance
Note: Unless otherwise noted, provisions in this document reflect the provisions in SB 9.
“Recommended” Provisions are recommended to clarify ambiguities in the statute or assist in
enforcement. “Policy” Provisions are optional provisions for local agencies to consider.
ORDINANCE NO. XXXX 1
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF _________ AMENDING SECTIONS ___ AND
ADDING SECTIONS ___ TO THE CITY OF __________
MUNICIPAL CODE TO COMPLY WITH SENATE BILL 9
WHEREAS, on September 16, 2021, Senate Bill 9 (Chapter 162, Statutes of 2021) was
approved by the Governor of the State of California and filed with the Secretary of State,
amending Section 66452.6 of the California Government Code and adding to the Government
Code Sections 65852.21 and 66411.7, allowing additional housing units on properties within
single-family zones and providing for parcel map approval of an Urban Lot Split; and
WHEREAS, the changes made to the Government Code by Senate Bill 9 go into effect
on January 1, 2022; and
WHEREAS, state law allows a local agency to adopt an ordinance to implement the
provisions in Senate Bill 9; and
WHEREAS, the [City/County of _________ (the “City”/the “County”)] has implemented
land use policies based on the [City’s/County’s General Plan], which provide an overall vision
for the community and balance important community needs, and the [City/County] seeks to
ensure that Senate Bill 9 projects are consistent with those policies; and
WHEREAS, the proposed amendments to the [City of _______ Municipal Code/County
of ______ County Code] implement requirements of state law and add local policies that are
consistent with the state law and implement the [City’s/County’s General Plan]; and
1 Local agencies should consult with their legal counsel prior to the use or implementation of this model ordinance,
conformance with standard ordinance formats, and any provisions outlined herein. This ordinance is drafted as a
regular ordinance, not an urgency ordinance, includes only substantive provisions to be considered, and does not
include standard provisions such as a severability clause, publication, dates of introduction and adoption, and votes,
which vary from agency to agency,
EXHIBIT 6
SB 9 Model Ordinance
2
WHEREAS, the [City Council/Board of Supervisors] has found that the provisions of this
ordinance are consistent with the goals and policies of the [City’s/County’s General Plan]; and
WHEREAS, the proposed code amendments are intended to implement Senate Bill 9 and
are not considered a project under Division 13 (commencing with Section 21000) of the Public
Resources Code, as provided in Government Code Sections 65852.21(j) and 66511.7(n).2
NOW, THEREFORE, THE [CITY COUNCIL OF THE CITY OF ________ /the
BOARD OF SUPERVISORS OF THE COUNTY OF ________] DOES ORDAIN AS
FOLLOWS:
Section 1. Purpose.
The purpose of this chapter is to provide objective zoning standards for Two-Unit Developments
and Urban Lot Splits within single-family residential zones, to implement the provisions of state
law as reflected in Government Code Section 65852.21 et seq. and Section 66411.7 et seq., and
to facilitate the development of new residential housing units consistent with the
[City’s/County’s General Plan] and ensure sound standards of public health and safety.
Section 2. Authority.
The City Council enacts this ordinance under the authority granted to cities by Article XI,
Section 7 of the California Constitution and Government Code Sections 65852.21 et seq. and
66411.7 et seq. [If a city.]
Section 3. Definitions.
A. [Recommended provision] A person “acting in concert with the owner,” as
used in Section 4(B)(8) below, means a person that has common ownership or control of the
subject parcel with the owner of the adjacent parcel, a person acting on behalf of, acting for the
predominant benefit of, acting on the instructions of, or actively cooperating with, the owner of
the parcel being subdivided.
B. [Recommended provision] “Adjacent parcel” means any parcel of land
that is (1) touching the parcel at any point; (2) separated from the parcel at any point only by a
2 Note that these Government Code Sections are not effective until January 1, 2022. Cities and counties adopting
ordinances before that date should include additional exemptions. For instance, in urbanized areas, the proposed
code amendments may be found to be categorically exempt from CEQA under Guidelines Section 15303, New
Construction or Conversion of Small Structures, which provides an exemption for up to three single-family homes
and to duplexes and apartments containing no more than six units.
SB 9 Model Ordinance
3
public right-of-way, private street or way, or public or private utility, service, or access
easement; or (3) separated from another parcel only by other real property which is in common
ownership or control of the applicant.
C. [Recommended provision] “Car share vehicle” means a motor vehicle that
is operated as part of a regional fleet by a public or private care sharing company or organization
and provides hourly or daily service.
D. [Recommended provision] “Common ownership or control” means
property owned or controlled by the same person, persons, or entity, or by separate entities in
which any shareholder, partner, member, or family member of an investor of the entity owns
ten percent or more of the interest in the property.
E. [Recommended provision] “Lower income household” has the meaning
set forth in Health & Safety Code Section 50079.5.
F. [Recommended provision] “Moderate income household” has the meaning
set forth in Health & Safety Code Section 50093.
G. [Recommended provision] “Sufficient for separate conveyance,” as used
in Sections 4(B)(11) and 5(B)(8) below, means that each attached or adjacent dwelling unit is
constructed in a manner adequate to allow for the separate sale of each unit in a common interest
development as defined in Civil Code Section 1351 (including a residential condominium,
planned development, stock cooperative, or community apartment project), or into any other
ownership type in which the dwelling units may be sold individually.
H. “Two-Unit Development” means a development that proposes no more
than two new units or proposes to add one new unit to one existing unit.
I. “Urban Lot Split” means a subdivision of an existing parcel into no more
than two separate parcels that meets all the criteria and standards set forth in this chapter.
J. [Recommended provision] “Very low income household” has the meaning
set forth in Health & Safety Code Section 50105.
SB 9 Model Ordinance
4
Section 4. Urban Lot Split.3
A. The [--] Official 4 shall ministerially review an application for a parcel map
that subdivides an existing parcel to create no more than two new parcels in an Urban Lot Split,
and shall approve the application if the criteria in Government Code Section 66411.7 and this
section are satisfied.
B. Qualifying Criteria. Within the time required by the Subdivision Map
Act, the [] shall determine if the parcel map for the Urban Lot Split meets all the following
requirements:
1. The parcel is located within one of the following single-family
residential zones: ______________.
2. The parcel being subdivided is not located on a site that is any of
the following:
i. Either prime farmland or farmland of statewide importance, as
defined pursuant to United States Department of Agriculture land
inventory and monitoring criteria, as modified for California, and
designated on the maps prepared by the Farmland Mapping and
Monitoring Program of the Department of Conservation, or land
zoned or designated for agricultural protection or preservation by a
local ballot measure that was approved by the voters of that
jurisdiction.
ii. Wetlands, as defined in the United States Fish and Wildlife Service
Manual, Part 660 FW 2 (June 21, 1993).
iii. Within a very high fire hazard severity zone, as determined by the
Department of Forestry and Fire Protection pursuant to Section
51178 of the Government Code, or within a high or very high fire
hazard severity zone as indicated on maps adopted by the
Department of Forestry and Fire Protection pursuant to Section
4202 of the Public Resources Code. This subparagraph does not
3 Local agencies may wish to change their use provisions in addition to, or as an alternative to, listing the zoning
districts in the text.
4 Counties may also wish to designate the specific areas that are designated as urbanized areas or urban clusters, in
addition to designating the applicable zoning districts.
SB 9 Model Ordinance
5
apply to sites excluded from the specified hazard zones by the
[city/county], pursuant to subdivision (b) of Section 51179 of the
Government Code, or sites that have adopted fire hazard mitigation
measures pursuant to existing building standards or state fire
mitigation measures applicable to the development.5
iv. A hazardous waste site that is listed pursuant to Section 65962.5 of
the Government Code or a hazardous waste site designated by the
Department of Toxic Substances Control pursuant to Section
25356 of the Health and Safety Code, unless the State Department
of Public Health, State Water Resources Control Board, or
Department of Toxic Substances Control has cleared the site for
residential use or residential mixed uses.
v. Within a delineated earthquake fault zone as determined by the
State Geologist in any official maps published by the State
Geologist, unless the development complies with applicable
seismic protection building code standards adopted by the
California Building Standards Commission under the California
Building Standards Law (Part 2.5 (commencing with Section
18901) of Division 13 of the Health and Safety Code), and by the
building department under Chapter 12.2 (commencing with
Section 8875) of Division 1 of Title 2 of the Government Code.
vi. Within a special flood hazard area subject to inundation by the 1
percent annual chance flood (100-year flood) as determined by the
Federal Emergency Management Agency in any official maps
published by the Federal Emergency Management Agency. If a
development proponent is able to satisfy all applicable federal
qualifying criteria in order to provide that the site satisfies this
subparagraph, the [city/county] shall not deny the application on
the basis that the development proponent did not comply with any
additional permit requirement, standard, or action adopted by the
[city/county] that is applicable to that site. A development may be
located on a site described in this subparagraph if either of the
following are met (1) the site has been subject to a Letter of Map
Revision prepared by the Federal Emergency Management Agency
and issued to the [city/county]; or (2) the site meets Federal
5 The local agency may wish to specify the relevant standards for very high fire hazard areas, hazardous waste sites,
earthquake fault zones, flood hazard areas and floodways.
SB 9 Model Ordinance
6
Emergency Management Agency requirements necessary to meet
minimum flood plain management criteria of the National Flood
Insurance Program pursuant to Part 59 (commencing with Section
59.1) and Part 60 (commencing with Section 60.1) of Subchapter B
of Chapter I of Title 44 of the Code of Federal Regulations.
vii. Within a regulatory floodway as determined by the Federal
Emergency Management Agency in any official maps published by
the Federal Emergency Management Agency, unless the
development has received a no-rise certification in accordance with
Section 60.3(d)(3) of Title 44 of the Code of Federal Regulations.
If a development proponent is able to satisfy all applicable federal
qualifying criteria in order to provide that the site satisfies this
subparagraph and is otherwise eligible for streamlined approval
under this section, the [city/county] shall not deny the application
on the basis that the development proponent did not comply with
any additional permit requirement, standard, or action adopted by
the [city/county] that is applicable to that site.
viii. Lands identified for conservation in an adopted natural community
conservation plan pursuant to the Natural Community
Conservation Planning Act (Chapter 10 (commencing with Section
2800) of Division 3 of the Fish and Game Code), habitat
conservation plan pursuant to the federal Endangered Species Act
of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural
resource protection plan.
ix. Habitat for protected species identified as candidate, sensitive, or
species of special status by state or federal agencies, fully
protected species, or species protected by the federal Endangered
Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California
Endangered Species Act (Chapter 1.5 (commencing with Section
2050) of Division 3 of the Fish and Game Code), or the Native
Plant Protection Act (Chapter 10 (commencing with Section 1900)
of Division 2 of the Fish and Game Code).
x. Lands under conservation easement.
SB 9 Model Ordinance
7
3. Both resulting parcels are no smaller than 1,200 square feet.6
4. Neither resulting parcel shall be smaller than 40 percent of the lot
area of the parcel proposed for the subdivision.
5. The proposed lot split would not require demolition or alteration of
any of the following types of housing:
i. Housing that is subject to a recorded covenant, ordinance, or law
that restricts rents to levels affordable to persons and families of
moderate, low- or very low-income.
ii. Housing that is subject to any form of rent or price control through
a public entity’s valid exercise of its police power.
iii. A parcel or parcels on which an owner of residential real property
has exercised the owner’s rights under Chapter 12.75
(commencing with Section 7060) of Division 7 of Title 1 of the
Government Code to withdraw accommodations from rent or lease
within 15 years before the date that the development proponent
submits an application.
iv. Housing that has been occupied by a tenant in the last three years.
6. The parcel is not located within a historic district or property
included on the State Historic Resources Inventory, as defined in Public Resources Code Section
5020.1, or within a site that is designated or listed as a [city/county] landmark or historic
property or historic district pursuant to a [city/county] ordinance.7
7. The parcel being subdivided was not created by an Urban Lot Split
as provided in this section.
8. Neither the owner of the parcel being subdivided nor any person
acting in concert with the owner has previously subdivided an adjacent parcel using an Urban
Lot Split as provided in this section.
9. The development proposed on the parcels complies with all
objective zoning standards, objective subdivision standards, and objective design review
6 Agencies may allow smaller lots if desired.
7 Local agencies may wish to specify which ordinance or code section designates historic properties.
SB 9 Model Ordinance
8
standards applicable to the parcel as provided in the zoning district in which the parcel is
located 8; provided, however, that:
i. The [--] Official, or their designee, shall waive or modify any
standard if the standard would have the effect of physically
precluding the construction of two units on either of the resulting
parcels created pursuant to this chapter or would result in a unit
size of less than 800 square feet. Any modifications of
development standards shall be the minimum modification
necessary to avoid physically precluding two units of 800 square
feet each on each parcel.
ii. Notwithstanding subsection (9)(i) above, required rear and side
yard setbacks shall equal four feet,9 except that no setback shall be
required for an existing legally created structure or a structure
constructed in the same location and to the same dimensions as an
existing legally created structure.
10. Each resulting parcel shall have access to, provide access to, or
adjoin the public right-of-way.10
11. Proposed adjacent or connected dwelling units shall be permitted if
they meet building code safety standards and are designed sufficient to allow separate
conveyance. [Recommended provision] The proposed dwelling units shall provide a separate
gas, electric and water utility connection directly between each dwelling unit and the utility.
12. Parking. One parking space 11 shall be required per unit
constructed on a parcel created pursuant to the procedures in this section, except that no parking
may be required where:
i. The parcel is located within one-half mile walking distance of
either a stop located in a high-quality transit corridor, as defined in
Public Resources Code Section 21155(b), or a major transit stop,
as defined in Public Resources Code Section 21064.3; or
ii. There is a designated parking area for one or more car-share
vehicles within one block of the parcel.
8 Local agencies may wish to specify which ordinance(s) or code section(s) designate these objective standards.
9 Localities may allow a smaller setback if desired.
10 Local agencies may wish to impose frontage requirements or requirements for access to the public right of way,
such as the required width of a driveway.
11 Agencies may reduce parking standards if desired.
SB 9 Model Ordinance
9
13. Compliance with Subdivision Map Act. The Urban Lot Split
shall conform to all applicable objective requirements of the Subdivision Map Act (commencing
with Government Code Section 66410)), except as otherwise expressly provided in Government
Code Section 66411.7. Notwithstanding Government Code Section 66411.1, no dedications of
rights-of-way or the construction of offsite improvements may be required as a condition of
approval for an Urban Lot Split, although easements may be required for the provision of public
services and facilities.
14. The correction of nonconforming zoning conditions may not be
required as a condition of approval.
15. Parcels created by an Urban Lot Split may be used for residential
uses only and may not be used for rentals of less than 30 days.
16. [Recommended provision] If any existing dwelling unit is
proposed to be demolished, the applicant will comply with the replacement housing provisions of
Government Code Section 66300(d).
C. Owner-Occupancy Affidavit. The applicant for an Urban Lot Split shall
sign an affidavit, in the form approved by the [city attorney/county counsel], stating that the
applicant intends to occupy one of the housing units on the newly created lots as its principal
residence for a minimum of three years from the date of the approval of the Urban Lot Split. This
subsection shall not apply to an applicant that is a “community land trust,” as defined in clause
(ii) of subparagraph (C) of paragraph (11) of subdivision (a) of Section 402.1 of the Revenue and
Taxation Code or is a “qualified nonprofit corporation” as described in Section 214.15 of the
Revenue and Taxation Code.
D. [Recommended provision] Additional Affidavit 12. If any existing housing
is proposed to be altered or demolished, the owner of the property proposed for an Urban Lot
Split shall sign an affidavit, in the form approved by the [city attorney/county counsel], stating
that none of the conditions listed in Section (4)(B)(5) above exist and shall provide a
comprehensive history of the occupancy of the units to be altered or demolished for the past
three years (five years if an existing unit is to be demolished) on a form prescribed by [ ]. The
owner and applicant shall also sign an affidavit stating that neither the owner nor applicant, nor
any person acting in concert with the owner or applicant, has previously subdivided an adjacent
parcel using an Urban Lot Split.
12 Local agencies may want to include a provision that indicates enforcement/legal remedies where there is evidence
of fraudulent intent. misrepresentation, etc.
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10
E. [Recommended provision] Recorded Covenant. Prior to the approval and
recordation of the parcel map, the applicant shall record a restrictive covenant and agreement in
the form prescribed by the [city attorney/county counsel], which shall run with the land and
provide for the following:
1. A prohibition against further subdivision of the parcel using the
Urban Lot Split procedures as provided for in this section;
2. A limitation restricting the property to residential uses only; and
3. A requirement that any dwelling units on the property may be
rented or leased only for a period longer than thirty (30) days.
The City Manager/County Administrator or designee is authorized to enter into the covenant and
agreement on behalf of the City/County and to deliver any approvals or consents required by the
covenant.
F. Specific Adverse Impacts. In addition to the criteria listed in this section,
a proposed Urban Lot Split may be denied if the building official makes a written finding, based
on a preponderance of the evidence, that the proposed housing development project would have
a specific, adverse impact upon public health and safety or the physical environment, for which
there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. A
“specific adverse impact” is a significant, quantifiable, direct, and unavoidable impact, based on
objective, identified written public health or safety standards, policies, or conditions as they
existed on the date the application was deemed complete. Inconsistency with the zoning
ordinance or general plan land use designation and eligibility to claim a welfare exemption are
not specific health or safety impacts.
G. Enforcement. The City Attorney/County Counsel shall be authorized to
abate violations of this chapter and to enforce the provisions of this chapter and all implementing
agreements and affidavits by civil action, injunctive relief, and any other proceeding or method
permitted by law. Remedies provided for in this chapter shall not preclude the City/County from
any other remedy or relief to which it otherwise would be entitled under law or equity.
[POLICY CONSIDERATIONS]
1. Number of units to be allowed on each parcel. If a parcel uses the Urban Lot
Split provision, a local agency does not need to allow more than two units on each
lot, including ADUs, JADUs, density bonus units, and two-unit developments. If
an agency desires to take advantage of this provision, it should adopt the
following:
SB 9 Model Ordinance
11
No more than two dwelling units may be located on any lot created
through an Urban Lot Split, including primary dwelling units, accessory
dwelling units, junior accessory dwelling units, density bonus units, and
units created as a two-unit development.
Jurisdictions do have the option of allowing additional units, likely ADUs or
JADUs, on these lots. Agencies may wish to consider this for large lots, or in
exchange for the applicant’s agreement to record a covenant restricting sale or
rental of the ADU to moderate- or lower-income households.
Another alternative is to consider allowing an ADU and JADU with a primary
dwelling unit on one lot, rather than two primary dwelling units.
2. Design standards, such as standards for building size, height, materials, roof
forms, etc. Standards considered by some agencies include limits on dwelling
unit size and height, distance between structures, and design requirements such as
roof slope and materials matching existing structures.
These standards cannot be imposed, however, if they would prevent the
construction of units totaling 800 sf each. In addition, the Housing Crisis Act of
2019 (Government Code Section 66300) does not permit reductions in height,
floor area ratio, lot coverage, or any other change that would reduce a site’s
residential development capacity below that existing on January 1, 2018.
Consequently, height, size, and similar restrictions on units created through Urban
Lot Splits should be limited to units that do not meet existing zoning standards.
Affordable units. There is nothing in SB 9 that expressly prohibits the
imposition of affordability requirements. One consideration prior to the
imposition of such requirements would be whether the Urban Lot Splits would
still be economically feasible if affordability were required. Ultimately, local
agencies should consult with their legal counsel prior to imposing such
requirements.
SB 9 Model Ordinance
12
Section 5. Two-Unit Development.
A. The [--] Official 13 shall ministerially review without a hearing an
application for an application for a Two-Unit Development, and shall approve the application if
all the criteria in Government Code Section 65852.21 and this section are satisfied.
B. Qualifying Criteria. The [] shall determine if the Two-Unit Development
meets all the following requirements:
1. The Two-Unit Development is located within one of the following
single-family residential zones: ______________.[for counties: also must be located within the
boundaries of an urbanized area or urban cluster].
2. The Two-Unit Development is not located on a site that is any of
the following
i. Either prime farmland or farmland of statewide importance, as
defined pursuant to United States Department of Agriculture land
inventory and monitoring criteria, as modified for California, and
designated on the maps prepared by the Farmland Mapping and
Monitoring Program of the Department of Conservation, or land
zoned or designated for agricultural protection or preservation by a
local ballot measure that was approved by the voters of that
jurisdiction.14
ii. Wetlands, as defined in the United States Fish and Wildlife Service
Manual, Part 660 FW 2 (June 21, 1993).
iii. Within a very high fire hazard severity zone, as determined by the
Department of Forestry and Fire Protection pursuant to Section
51178 of the Government Code, or within a high or very high fire
hazard severity zone as indicated on maps adopted by the
Department of Forestry and Fire Protection pursuant to Section
4202 of the Public Resources Code. This subparagraph does not
13 Local agencies may wish to change their use provisions in addition to, or as an alternative to, listing the zoning
districts in the text. Counties may also wish to designate the specific areas that are designated as urbanized areas or
urban clusters, or reference a website showing those areas, in addition to designating the applicable zoning districts.
14 Would be best to specify the local ballot measure.
SB 9 Model Ordinance
13
apply to sites excluded from the specified hazard zones by
the[city/county], pursuant to subdivision (b) of Section 51179 of
the Government Code, or sites that have adopted fire hazard
mitigation measures pursuant to existing building standards or state
fire mitigation measures applicable to the development.15
iv. A hazardous waste site that is listed pursuant to Section 65962.5 of
the Government Code or a hazardous waste site designated by the
Department of Toxic Substances Control pursuant to Section
25356 of the Health and Safety Code, unless the State Department
of Public Health, State Water Resources Control Board, or
Department of Toxic Substances Control has cleared the site for
residential use or residential mixed uses.
v. Within a delineated earthquake fault zone as determined by the
State Geologist in any official maps published by the State
Geologist, unless the development complies with applicable
seismic protection building code standards adopted by the
California Building Standards Commission under the California
Building Standards Law (Part 2.5 (commencing with Section
18901) of Division 13 of the Health and Safety Code), and by any
local building department under Chapter 12.2 (commencing with
Section 8875) of Division 1 of Title 2 of the Government Code.
vi. Within a special flood hazard area subject to inundation by the 1
percent annual chance flood (100-year flood) as determined by the
Federal Emergency Management Agency in any official maps
published by the Federal Emergency Management Agency. If a
development proponent is able to satisfy all applicable federal
qualifying criteria in order to provide that the site satisfies this
subparagraph, the [city/county] shall not deny the application on
the basis that the development proponent did not comply with any
additional permit requirement, standard, or action adopted by the
[city/county] that is applicable to that site. A development may be
located on a site described in this subparagraph if either of the
following are met (1) the site has been subject to a Letter of Map
Revision prepared by the Federal Emergency Management Agency
and issued to the [city/county]; or (2) the site meets Federal
15 The local agency may wish to specify the relevant standards for very high fire hazard areas, hazardous waste sites,
earthquake fault zones, flood hazard areas and floodways.
SB 9 Model Ordinance
14
Emergency Management Agency requirements necessary to meet
minimum flood plain management criteria of the National Flood
Insurance Program pursuant to Part 59 (commencing with Section
59.1) and Part 60 (commencing with Section 60.1) of Subchapter B
of Chapter I of Title 44 of the Code of Federal Regulations.
vii. Within a regulatory floodway as determined by the Federal
Emergency Management Agency in any official maps published by
the Federal Emergency Management Agency, unless the
development has received a no-rise certification in accordance with
Section 60.3(d)(3) of Title 44 of the Code of Federal Regulations.
If a development proponent is able to satisfy all applicable federal
qualifying criteria in order to provide that the site satisfies this
subparagraph and is otherwise eligible for streamlined approval
under this section, the [city/county] shall not deny the application
on the basis that the development proponent did not comply with
any additional permit requirement, standard, or action adopted by
the [city/county] that is applicable to that site.
viii. Lands identified for conservation in an adopted natural community
conservation plan pursuant to the Natural Community
Conservation Planning Act (Chapter 10 (commencing with Section
2800) of Division 3 of the Fish and Game Code), habitat
conservation plan pursuant to the federal Endangered Species Act
of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural
resource protection plan.
ix. Habitat for protected species identified as candidate, sensitive, or
species of special status by state or federal agencies, fully
protected species, or species protected by the federal Endangered
Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California
Endangered Species Act (Chapter 1.5 (commencing with Section
2050) of Division 3 of the Fish and Game Code), or the Native
Plant Protection Act (Chapter 10 (commencing with Section 1900)
of Division 2 of the Fish and Game Code).
x. Lands under conservation easement.
SB 9 Model Ordinance
15
3. Notwithstanding any provision of this section or any local law, the
proposed Two-Unit Development would not require the demolition or alteration of any of the
following types of housing:
i. Housing that is subject to recorded covenant, ordinance, or law that
restricts rents to levels affordable to persons and families of
moderate-, low-, or very low-income.
ii. Housing that is subject to any form of rent or price control through
a public entity’s valid exercise of its police power.
iii. Housing that has been occupied by a tenant in the last three years.
4. The parcel is not a parcel on which an owner of residential real
property has exercised the owner’s right under Chapter 12.75 (commencing with Section 7060)
of Division 7 of Title 1 of the Government Code to withdraw accommodations from rent or lease
within the last 15 years before the date that the development proponent submits an application.
5. The proposed Two-Unit Development does not include the
demolition of more than 25 percent of the existing exterior structural walls unless the site has not
been occupied by a tenant in the last three years.
6. The proposed Two-Unit Development is not located within a
historic district or property included on the State Historic Resources Inventory, as defined in
Section 5020.1 of the Public Resources Code, or within a site that is designated or listed as a
[city/county] landmark or historic property or historic district pursuant to a [city/county]
ordinance.16
7. The proposed Two-Unit Development complies with all objective
zoning standards, objective subdivision standards, and objective design review standards
applicable to the parcel as provided in the zoning district in which the parcel is located 17;
provided, however, that:
i. The [--] Official, or their designee, shall modify or waive any
standard if the standard would have the effect of physically
precluding the construction of two units on either of the resulting
parcels created pursuant to this chapter or would result in a unit
size of less than 800 square feet. Any modifications of
16 Local agencies may wish to specify which ordinance or code section designates historic properties.
17 Local agencies may wish to specify which ordinance(s) or code section(s) designate these objective standards.
SB 9 Model Ordinance
16
development standards shall be the minimum modification
necessary to avoid physically precluding two units of 800 square
feet each on each parcel.
ii. Notwithstanding subsection (7)(i) above, required rear and side
yard setbacks shall equal four feet, except that no setback shall be
required for an existing legally created structure or a structure
constructed in the same location and to the same dimensions as an
existing legally created structure.
iii. For a Two-Unit Development connected to an onsite wastewater
treatment system, the applicant must provide a percolation test
completed within the last 5 years, or if the percolation test has been
recertified, within the last 10 years.18
8. Proposed adjacent or connected dwelling units shall be permitted if
they meet building code safety standards and are designed sufficient to allow separate
conveyance. [Recommended provision] The proposed Two-Unit Development shall provide a
separate gas, electric and water utility connection directly between each dwelling unit and the
utility.
9. Parking. One parking space shall be required 19 per unit
constructed via the procedures set forth in this section, except that the City shall not require any
parking where:
i. The parcel is located within one-half mile walking distance of
either a stop located in a high-quality transit corridor, as defined in
Public Resources Code Section 21155(b), or a major transit stop,
as defined in Public Resources Code Section 21064.3; or
ii. There is a designated parking area for one or more car-share
vehicles within one block of the parcel.
10. Dwelling units created by a Two-Unit Development may be used
for residential uses only and may not be used for rentals of less than 30 days.
18 A local agency may waive this requirement if desired.
19 Agencies may elect to require fewer parking spaces.
SB 9 Model Ordinance
17
11. [Recommended provision] If any existing dwelling unit is
proposed to be demolished, the applicant will comply with the replacement housing provisions of
Government Code Section 66300(d).
C. [Recommended provision] Declaration of Prior Tenancies. If any
existing housing is proposed to be altered or demolished, the owner of the property proposed for
an Urban Lot Split shall sign an affidavit, in the form approved by the [city attorney/county
counsel], stating that none of the conditions listed in Section (5)(B)(3) and (B)(4) above exist and
shall provide a comprehensive history of the occupancy of the units to be altered or demolished
for the past three years (five years if an existing unit is to be demolished) on a form approved by
[].
D. [Recommended provision] Recorded Covenant. Prior to the issuance of a
building permit, the applicant shall record a restrictive covenant and agreement in the form
prescribed by the [city attorney/county counsel], which shall run with the land and provide for
the following:
1. A limitation restricting the property to residential uses only; and
2. A requirement that any dwelling units on the property may be
rented or leased only for a period of longer than thirty (30) days.
The City Manager/County Administrator or designee is authorized to enter into the covenant and
agreement on behalf of the City/County and to deliver any approvals or consents required by the
covenant.
E. Specific Adverse Impacts. In addition to the criteria listed in this section,
a proposed Urban Lot Split may be denied if the building official makes a written finding, based
on a preponderance of the evidence, that the proposed housing development project would have
a specific, adverse impact upon public health and safety or the physical environment, for which
there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. A
“specific adverse impact” is a significant, quantifiable, direct, and unavoidable impact, based on
objective, identified written public health or safety standards, policies, or conditions as they
existed on the date the application was deemed complete. Inconsistency with the zoning
ordinance or general plan land use designation and eligibility to claim a welfare exemption are
not specific health or safety impacts.
F. Enforcement. The City Attorney/County Counsel shall be authorized to
abate violations of this chapter and to enforce the provisions of this chapter and all implementing
agreements and affidavits by civil action, injunctive relief, and any other proceeding or method
SB 9 Model Ordinance
18
permitted by law. Remedies provided for in this chapter shall not preclude the City/County from
any other remedy or relief to which it otherwise would be entitled under law or equity.
[POLICY CONSIDERATIONS]
1. Number of units to be allowed on each parcel. Local agencies are not required
to allow ADUs or JADUs on parcels that utilize both the Urban Lot Split
provision and the Two-Unit Development provision. If agencies desire to utilize
this provision, they should adopt the following:
Two primary dwelling units only may be located on any lot created
through an Urban Lot Split that utilized the Two-Unit Development
provision. Accessory dwelling units and junior accessory dwelling units
are not permitted on these lots.
Jurisdictions do have the option of allowing additional units, likely ADUs or
JADUs, on these lots. Agencies may wish to consider this for large lots, or in
exchange for the applicant’s agreement to record a covenant restricting sale or
rental of the ADU to moderate- or lower-income households.
Where a lot was not created through an Urban Lot Split, there is no limitation on
the construction of ADUs and JADUs except that provided by existing ADU law.
2. Owner-occupancy requirement. Where there is no Urban Lot Split, the
jurisdiction may adopt a provision requiring that one unit in a Two-Unit
Development be owner-occupied, including a requirement to record a covenant
notifying future owners of the owner-occupancy requirements.
3. Design standards, such as standards for building size, height, materials, roof
forms, etc. Standards considered by some agencies include limits on dwelling
unit size and height, distance between structures, and design requirements such as
roof slope and materials matching existing structures.
These standards cannot be imposed, however, if they would prevent the
construction of units totaling 800 sf each. In addition, the Housing Crisis Act of
2019 (Government Code Section 66300) does not permit reductions in height,
floor area ratio, lot coverage, or any other change that would reduce a site’s
residential development capacity below that existing on January 1, 2018.
SB 9 Model Ordinance
19
Consequently, height, size, and similar restrictions on units created as Two-Unit
Developments should be limited to units that do not meet existing zoning
standards.
4. Affordable units. There is nothing in SB 9 that expressly prohibits the imposition
of affordability requirements. One consideration prior to the imposition of such
requirements would be whether the Urban Lot Splits would still be economically
feasible if affordability were required. Ultimately, local agencies should consult
with their legal counsel prior to imposing such requirements.
5. Fire sprinklers. If not already required, agencies may wish to consider requiring
that units created through Two-Unit Developments be fire-sprinklered.
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Joel/Jennifer:
Please find attached for your review and discussion:
1.A marked-up version of HCD’s recent SB-9 FactSheet with a couple of points noted. The key one in it
that I would like to bring to your attention is: HR. It Is Single Family. You have to fix that one.
2.Please also remove the 20 ft Street Frontage requirement. SB-9 specifically allows easements and a
20 ft width is ridiculous. I have attached San Jose’s way of dealing with it - although it could be
simplified. Monte Sereno, and Saratoga also allow easements. Los Gatos got this one wrong.
3.Please also remove the 50 yd grading limitation. Grading (> 50 yds) for an Urban Lot Split can be
reviewed by engineering simply from a safety/zoning regs standpoint. If you want to maintain it, then
simply allow the exemption for the building pad to also include the driveway. Then you can stop
gratuitous grading while still allowing a house to be built.
4.A marked-up version of Your Urban Lot Split Application checklist crossing out most of the items that
are not needed for an initial CDD review. I am preparing an application for an Urban Lot Split in the
R1:10 zoning district and when I reviewed what the “Simplified Planning Application” is asking for it is
Way Overkill and requires a homeowner to spend tens of thousands of dollars up front, before getting a
yes/no from CDD. Please look seriously at this. I do not want to instruct the Civil Engineer to do all this
unnecessary work.
If you approve an Urban Lot Split. And the Parcel Map is recorded. And a residential development unit is
proposed. Then you will need some of this for house construction. But don’t hit the homeowner up
front with all this. It is busy work and not useful in any decision being made.
For the Site Plan I will try to give you as much information as possible to let you know what we might
intend to do [eventually], but more often than not, this information is not known at such an early stage.
As to the project that I am preparing to submit, I only plan to have the Survey crew complete what is
needed for a realistic CDD evaluation. If I am missing something that is fundamental in the decision
process, then we will add it. I plan to put "N/A” on the line items that are not needed.
For example:
I do not plan to ask a Title company for the Record Info for the names of all the neighbors.
I do not plan to do a arborist report, but will identify all large trees.
I do not think that you need lot area coverage details at this stage in the application. It is not part of the
decision process.
Hope this helps let you know how I really feel.
Thanks
Tony
EXHIBIT 7
California Department of Housing and Community Development
SB 9 Fact Sheet
On the Implementation of Senate Bill 9 (Chapter 162, Statutes
of 2021)
Housing Policy Development Division
March 2022
California Department of Housing and Community Development – SB 9 Fact Sheet
1
This Fact Sheet is for informational purposes only and is not intended to implement or
interpret SB 9. HCD does not have authority to enforce SB 9, although violations of SB 9
may concurrently violate other housing laws where HCD does have enforcement
authority, including but not limited to the laws addressed in this document. As local
jurisdictions implement SB 9, including adopting local ordinances, it is important to keep
these and other housing laws in mind. The Attorney General may also take independent
action to enforce SB 9. For a full list of statutes over which HCD has enforcement
authority, visit HCD’s Accountability and Enforcement webpage.
Executive Summary of SB 9
Senate Bill (SB) 9 (Chapter 162, Statutes of 2021) requires ministerial approval of a
housing development with no more than two primary units in a single-family zone, the
subdivision of a parcel in a single-family zone into two parcels, or both. SB 9 facilitates
the creation of up to four housing units in the lot area typically used for one single-family
home. SB 9 contains eligibility criteria addressing environmental site constraints (e.g.,
wetlands, wildfire risk, etc.), anti-displacement measures for renters and low-income
households, and the protection of historic structures and districts. Key provisions of the
law require a local agency to modify or eliminate objective development standards on a
project-by-project basis if they would prevent an otherwise eligible lot from being split or
prevent the construction of up to two units at least 800 square feet in size. For the
purposes of this document, the terms “unit,” “housing unit,” “residential unit,” and “housing
development” mean primary unit(s) unless specifically identified as an accessory dwelling
unit (ADU) or junior ADU or otherwise defined.
Single-Family Residential Zones Only
(Reference: Gov. Code, §§ 65852.21, subd. (a); 66411.7 subd. (a)(3)(A))
The parcel that will contain the proposed housing development or that will be subject to
the lot split must be located in a single-family residential zone. Parcels located in multi-
family residential, commercial, agricultural, mixed-use zones, etc., are not subject to SB
9 mandates even if they allow single-family residential uses as a permitted use. While
some zones are readily identifiable as single-family residential zones (e.g., R-1 “Single-
Family Residential”), others may not be so obvious. Some local agencies have multiple
single-family zones with subtle distinctions between them relating to minimum lot sizes or
allowable uses. In communities where there may be more than one single-family
residential zone, the local agency should carefully review the zone district descriptions in
the zoning code and the land use designation descriptions in the Land Use Element of
the General Plan. This review will enable the local agency to identify zones whose primary
purpose is single-family residential uses and which are therefore subject to SB 9.
Considerations such as minimum lot sizes, natural features such as hillsides, or the
permissibility of keeping horses should not factor into the determination.
California Department of Housing and Community Development – SB 9 Fact Sheet
2
Residential Uses Only
(Reference: Gov. Code, §§ 65852.21, subd. (a))
SB 9 concerns only proposed housing developments containing no more than two
residential units (i.e., one or two). The law does not otherwise change the allowable land
uses in the local agency’s single-family residential zone(s). For example, if the local
agency’s single-family zone(s) does not currently allow commercial uses such as hotels
or restaurants, SB 9 would not allow such uses.
Ministerial Review
(Reference: Gov. Code, §§ 65852.21, subd. (a); 66411.7, subds. (a), (b)(1))
An application made under SB 9 must be considered ministerially, without discretionary
review or a hearing. Ministerial review means a process for development approval
involving no personal judgment by the public official as to the wisdom of carrying out the
project. The public official merely ensures that the proposed development meets all the
applicable objective standards for the proposed action but uses no special discretion or
judgment in reaching a decision. A ministerial review is nearly always a “staff-level
review.” This means that a staff person at the local agency reviews the application, often
using a checklist, and compares the application materials (e.g., site plan, project
description, etc.) with the objective development standards, objective subdivision
standards, and objective design standards.
Objective Standards
(Reference: Gov. Code, §§ 65852.21, subd. (b); 66411.7, subd. (c))
The local agency may apply objective development standards (e.g., front setbacks and
heights), objective subdivision standards (e.g., minimum lot depths), and objective design
standards (e.g., roof pitch, eave projections, façade materials, etc.) as long as they would
not physically preclude either of the following:
Up to Two Primary Units. The local agency must allow up to two primary units
(i.e., one or two) on the subject parcel or, in the case of a lot split, up to two primary
units on each of the resulting parcels.
Units at least 800 square feet in size. The local agency must allow each primary
unit to be at least 800 square feet in size.
The terms “objective zoning standards,” “objective subdivision standards,” and “objective
design review standards” mean 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 prior to submittal. Any objective standard that would
physically preclude either or both of the two objectives noted above must be modified or
California Department of Housing and Community Development – SB 9 Fact Sheet
3
waived by the local agency in order to facilitate the development of the project, with the
following two exceptions:
Setbacks for Existing Structures. The local agency may not require a setback
for an existing structure or for a structure constructed in the same location and to
the same dimensions as an existing structure (i.e., a building reconstructed on the
same footprint).
Four-Foot Side and Rear Setbacks. SB 9 establishes an across-the-board
maximum four-foot side and rear setbacks. The local agency may choose to apply
a lesser setback (e.g., 0-4 feet), but it cannot apply a setback greater than four
feet. The local agency cannot apply existing side and rear setbacks applicable in
the single-family residential zone(s). Additionally, the four-foot side and rear
setback standards are not subject to modification. (Gov. Code, §§ 65852.21, subd.
(b)(2)(B); 66411.7, subdivision (c)(3).)
One-Unit Development
(Reference: Gov. Code, §§ 65852.21, subd. (a); 65852.21, subd. (b)(2)(A))
SB 9 requires the ministerial approval of either one or two residential units. Government
Code section 65852.21 indicates that the development of just one single-family home was
indeed contemplated and expected. For example, the terms “no more than two residential
units” and “up to two units” appear in the first line of the housing development-related
portion of SB 9 (Gov. Code, § 65852.21, subd. (a)) and in the line obligating local agencies
to modify development standards to facilitate a housing development. (Gov. Code, §
65852.21, subd. (b)(2)(A).)
Findings of Denial
(Reference: Gov. Code, §§ 65852.21, subd. (d); 66411.7, subd. (d))
SB 9 establishes a high threshold for the denial of a proposed housing
development or lot split. Specifically, a local agency’s building official must make a
written finding, based upon a preponderance of the evidence, that the proposed housing
development would have a specific, adverse impact, as defined in Government Code
section 65589.5, subdivision (d)(2), upon public health and safety or the physical
environment and for which there is no feasible method to satisfactorily mitigate or avoid
the specific, adverse impact. “Specific, adverse impact” means a significant,
quantifiable, direct, and unavoidable impact, based on objective, identified written public
health or safety standards, policies, or conditions as they existed on the date the
application was deemed complete. (Gov. Code, § 65589.5, subd. (d)(2).)
California Department of Housing and Community Development – SB 9 Fact Sheet
4
Environmental Site Constraints
(Reference: Gov. Code, §§ 65852.21, subd. (a)(2) and (a)(6); 66411.7, subd. (a)(3)(C) and (a)(3)(E))
A proposed housing development or lot split is not eligible under SB 9 if the parcel
contains any of the site conditions listed in Government Code section 65913.4,
subdivision (a)(6)(B-K). Examples of conditions that may disqualify a project from using
SB 9 include the presence of farmland, wetlands, fire hazard areas, earthquake hazard
areas, flood risk areas, conservation areas, wildlife habitat areas, or conservation
easements. SB 9 incorporates by reference these environmental site constraint
categories that were established with the passing of the Streamlined Ministerial Approval
Process (SB 35, Chapter 366, Statutes of 2017). Local agencies may consult HCD’s
Streamlined Ministerial Approval Process Guidelines for additional detail on how to
interpret these environmental site constraints.
Additionally, a project is not eligible under SB 9 if it is located in a historic district or
property included on the State Historic Resources Inventory or within a site that is
designated or listed as a city or county landmark or as a historic property or district
pursuant to a city or county ordinance.
California Environmental Quality Act (CEQA)
Reference: Gov. Code, §§ 65852.21, subd. (j); 66411.7, subd. (n))
Because the approval of a qualifying project under SB 9 is deemed a ministerial action,
CEQA does not apply to the decision to grant an application for a housing development
or a lot split, or both. (Pub. Resources Code, § 21080, subd. (b)(1) [CEQA does not apply
to ministerial actions]; CEQA Guidelines, § 15268.) For this reason, a local agency must
not require an applicant to perform environmental impact analysis under CEQA for
applications made under SB 9. Additionally, if a local agency chooses to adopt a local
ordinance to implement SB 9 (instead of implementing the law directly from statute), the
preparation and adoption of the ordinance is not considered a project under CEQA. In
other words, the preparation and adoption of the ordinance is statutorily exempt from
CEQA.
Anti-Displacement Measures
(Reference: Gov. Code, §§ 65852.21, subd. (a)(3); 66411.7, subd. (a)(3)(D))
A site is not eligible for a proposed housing development or lot split if the project would
require demolition or alteration of any of the following types of housing: (1) housing that
is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable
to persons and families of moderate, low, or very low income; (2) housing that is subject
to any form of rent or price control through a public entity’s valid exercise of its police
power; or (3) housing that has been occupied by a tenant in the last three years.
California Department of Housing and Community Development – SB 9 Fact Sheet
5
Lot Split Requirements
(Reference: Gov. Code, § 66411.7)
SB 9 does not require a local agency to approve a parcel map that would result in the
creation of more than two lots and more than two units on a lot resulting from a lot split
under Government Code section 66411.7. A local agency may choose to allow more than
two units, but it is not required to under the law. A parcel may only be subdivided once
under Government Code section 66411.7. This provision prevents an applicant from
pursuing multiple lot splits over time for the purpose of creating more than two lots. SB 9
also does not require a local agency to approve a lot split if an adjacent lot has been
subject to a lot split in the past by the same property owner or a person working in concert
with that same property owner.
Accessory Dwelling Units
(Reference: Gov. Code, §§ 65852.21, subd. (j); 66411.7, subd. (f))
SB 9 and ADU Law (Gov. Code, §§ 65852.2 and 65858.22) are complementary. The
requirements of each can be implemented in ways that result in developments with both
“SB 9 Units” and ADUs. However, specific provisions of SB 9 typically overlap with State
ADU Law only to a limited extent on a relatively small number of topics. Treating the
provisions of these two laws as identical or substantially similar may lead a local agency
to implement the laws in an overly restrictive or otherwise inaccurate way.
“Units” Defined. The three types of housing units that are described in SB 9 and related
ADU Law are presented below to clarify which development scenarios are (and are not)
made possible by SB 9. The definitions provided are intended to be read within the context
of this document and for the narrow purpose of implementing SB 9.
Primary Unit. A primary unit (also called a residential dwelling unit or residential
unit) is typically a single-family residence or a residential unit within a multi-family
residential development. A primary unit is distinct from an ADU or a Junior ADU.
Examples of primary units include a single-family residence (i.e., one primary unit),
a duplex (i.e., two primary units), a four-plex (i.e., four primary units), etc.
Accessory Dwelling Unit. An ADU is an attached or a detached residential dwelling
unit that provides complete independent living facilities for one or more persons
and is located on a lot with a proposed or existing primary residence. It includes
permanent provisions for living, sleeping, eating, cooking, and sanitation on the
same parcel on which the single-family or multifamily dwelling is or will be situated.
Junior Accessory Dwelling Unit. A Junior ADU is a unit that is no more than 500
square feet in size and contained entirely within a single-family residence. A Junior
ADU may include separate sanitation facilities or may share sanitation facilities
with the existing structure.
California Department of Housing and Community Development – SB 9 Fact Sheet
6
The terms “unit,” “housing unit,” “residential unit,” and “housing development” mean
primary unit(s) unless specifically identified as an ADU or Junior ADU or otherwise
defined. This distinction is critical to successfully implementing SB 9 because state law
applies different requirements (and provides certain benefits) to ADUs and Junior ADUs
that do not apply to primary units.
Number of ADUs Allowed. ADUs can be combined with primary units in a variety of
ways to achieve the maximum unit counts provided for under SB 9. SB 9 allows for up to
four units to be built in the same lot area typically used for a single-family home. The
calculation varies slightly depending on whether a lot split is involved, but the outcomes
regarding total maximum unit counts are identical.
Lot Split. When a lot split occurs, the local agency must allow up to two units on
each lot resulting from the lot split. In this situation, all three unit types (i.e., primary
unit, ADU, and Junior ADU) count toward this two-unit limit. For example, the limit
could be reached on each lot by creating two primary units, or a primary unit and
an ADU, or a primary unit and a Junior ADU. By building two units on each lot, the
overall maximum of four units required under SB 9 is achieved. (Gov. Code, §
66411.7, subd. (j).) Note that the local agency may choose to allow more than two
units per lot if desired.
No Lot Split. When a lot split has not occurred, the lot is eligible to receive ADUs
and/or Junior ADUs as it ordinarily would under ADU law. Unlike when a project is
proposed following a lot split, the local agency must allow, in addition to one or two
primary units under SB 9, ADUs and/or JADUs under ADU Law. It is beyond the
scope of this document to identify every combination of primary units, ADUs, and
Junior ADUs possible under SB 9 and ADU Law. However, in no case does SB 9
require a local agency to allow more than four units on a single lot, in any
combination of primary units, ADUs, and Junior ADUs.
See HCD’s ADU and JADU webpage for more information and resources.
Relationship to Other State Housing Laws
SB 9 is one housing law among many that have been adopted to encourage the
production of homes across California. The following represent some, but not necessarily
all, of the housing laws that intersect with SB 9 and that may be impacted as SB 9 is
implemented locally.
Housing Element Law. To utilize projections based on SB 9 toward a jurisdiction’s
regional housing need allocation, the housing element must: 1) include a site-specific
inventory of sites where SB 9 projections are being applied, 2) include a nonvacant sites
analysis demonstrating the likelihood of redevelopment and that the existing use will not
constitute an impediment for additional residential use, 3) identify any governmental
constraints to the use of SB 9 in the creation of units (including land use controls, fees,
California Department of Housing and Community Development – SB 9 Fact Sheet
7
and other exactions, as well as locally adopted ordinances that impact the cost and supply
of residential development), and 4) include programs and policies that establish zoning
and development standards early in the planning period and implement incentives to
encourage and facilitate development. The element should support this analysis with local
information such as local developer or owner interest to utilize zoning and incentives
established through SB 9. Learn more on HCD’s Housing Elements webpage.
Housing Crisis Act of 2019. An affected city or county is limited in its ability to amend
its general plan, specific plans, or zoning code in a way that would improperly reduce the
intensity of residential uses. (Gov. Code, § 66300, subd. (b)(1)(A).) This limitation applies
to residential uses in all zones, including single-family residential zones. “Reducing the
intensity of land use” includes, but is not limited to, reductions to height, density, or floor
area ratio, new or increased open space or lot size requirements, new or increased
setback requirements, minimum frontage requirements, or maximum lot coverage
limitations, or any other action that would individually or cumulatively reduce the site’s
residential development capacity. (Gov. Code, § 66300, subd. (b)(1)(A).)
A local agency should proceed with caution when adopting a local ordinance that would
impose unique development standards on units proposed under SB 9 (but that would not
apply to other developments). Any proposed modification to an existing development
standard applicable in the single-family residential zone must demonstrate that it would
not result in a reduction in the intensity of the use. HCD recommends that local agencies
rely on the existing objective development, subdivision, and design standards of its single-
family residential zone(s) to the extent possible. Learn more about Designated
Jurisdictions Prohibited from Certain Zoning-Related ActionsnoHCD’s website.
Housing Accountability Act. Protections contained in the Housing Accountability Act
(HAA) and the Permit Streaming Act (PSA) apply to housing developments pursued under
SB 9. (Gov. Code, §§ 65589.5; 65905.5; 65913.10; 65940 et seq.) The definition of
“housing development project” includes projects that involve no discretionary approvals
and projects that include a proposal to construct a single dwelling unit. (Gov. Code, §
65905.5, subd. (b)(3).) For additional information about the HAA and PSA, see HCD’s
Housing Accountability Act Technical Assistance Advisory.
Rental Inclusionary Housing. Government Code section 65850, subdivision (g),
authorizes local agencies to adopt an inclusionary housing ordinance that includes
residential rental units affordable to lower- and moderate-income households. In certain
circumstances, HCD may request the submittal of an economic feasibility study to ensure
the ordinance does not unduly constrain housing production. For additional information,
see HCD’s Rental Inclusionary Housing Memorandum.
SAN JOSE: ORD. NO. 30706
1
20.30.810 Urban Lot Split Standards
A. Lot design requirements:
1. Lot frontage:
a. Where 55 feet of frontage on a public right-of-way is not proposed
for both lots created by an Urban Lot Split, pursuant to
Government Code Section 66411.7, each lot shall have a minimum
of 30 feet of frontage on a public right-of-way and an average width
of 30 feet, or
b. Where 30 feet of frontage on a public right-of-way is not proposed
for both lots created by an Urban Lot Split, one of the lots shall be
provided with access by a corridor with at least 12 feet but no more
than 15 feet of frontage on a public street.
i. Said access corridor shall maintain a width of at least 12 feet
but no more than 15 feet for the entire length of the corridor.
ii. The length of said access corridor shall be at minimum the
required front setback of the zoning district in which the lot is
situated.
iii. The access corridor shall be kept free and clear of building
or structures of any kind except for lawful fences and
underground or overhead utilities.
c. Where one of the lots created by an Urban Lot Split does not
propose frontage on a public right-of-way, direct access to the
public right of way must be provided through an easement for
ingress and egress and emergency access.
SAN JOSE: ORD. NO. 30706
2
i. Said easement shall be a minimum 12 feet but no more than
15 feet in width for the entire length of the easement.
ii. The length of said easement shall be at minimum the length
of the required front setback of the zoning district in which
the lot is situated.
iii. Said easement shall be recorded as a Covenant of
Easement on the Parcel Map for the Urban Lot Split.
2. Maximum lot depth, as required by Section 19.36.230 of this Code, shall
be waived for lots created by an Urban Lot Split.
B. Property line and setbacks:
1. For lots accessed by a corridor of 12 feet to 15 feet in width:
a. Front property line is the property line that abuts the public street.
b. The front setback area is the is the entire length of the 12 foot to 15
foot wide access corridor.
c. The rear property line is any property line that is generally parallel
to the public right of way from which the lot gains access, and that
abuts properties that are not a part of the Urban Lot Split.
d. The remaining property lines shall be considered side property
lines.
2. For lots that do not abut a public street that are accessed by an easement:
a. There shall be no front property line.
b. The rear property line is any property line that is generally parallel
to the public right of way from which the lot gains access, and that
abuts properties that are not a part of the Urban Lot Split.
THIS SHOWS ONLY WHAT IS REALLY NEEDED
A. GENERAL REQUIREMENTS:
□ 1. Scale on each sheet.
□ 2. North arrow on each sheet as applicable.
□ 3. Sheet size not to exceed 24” x 36” size.
□ 4. Plans fully dimensioned.
□ 5. Address on each sheet.
□ 6. Zoning Designation on cover sheet.
B. PLAT OR SITE PLAN WITH THE FOLLOWING MINIMUM INFORMATION:
□ 1. All property lines (existing and proposed).
□ 2. All building setbacks (existing) and proposed).
□ 3. Use of all existing buildings.
□ 4. Table including the following:
a. Lot area (existing and proposed);
b. Gross floor area of existing buildings;
c. Lot area coverage (existing and proposed);
d. Lot width (existing and proposed);
e. Lot depth (existing and proposed); and
f. Lot frontage (existing and proposed).
□ 5. Conceptual Grading and drainage plan with grading quantities.
The 50 yard Limit is Bogus and should not stop a project. See
HCA for Grounds for Denial.
C. TENTATIVE MAP REQUIREMENTS:
□ 1. Tract name or designation and property address.
□ 2. Name and address of owner, subdivider, and registered civil engineer or
licensed surveyor.
□ 3. Locations, names, and widths of all adjoining highways, streets or ways,
the names of adjacent subdivisions, and the names of all owners of
properties adjacent to proposed tract.
□ 4. Widths and locations of all existing or
proposed easements, whether public or private.
□ 5. Radius of all street curves.
□ 6. Total size of property before and after street and right-of-way dedication
(gross and net land area calculation). No Dedication – See 4a.
□ 7. Lot layout, including the dimension of each lot line, and exact square footage
of each lot. Repeat of 4a.
□ 8. Location of all water courses and natural drainage channels, locations of
all areas covered by water or subject to inundation, and existing and
proposed storm drain facilities.
□ 9. Source of water supply, including conceptual design.
□ 10. Method of sewage disposal, including conceptual design.
□ 11. Location of all buildings in close proximity to the proposed tract.
□ 12. Contour lines (existing and proposed) showing one (1) foot contours for
ground slopes of less than five (5) percent, and five (5) feet horizontal
distance, and five foot contours for ground slopes in excess thereof.
(This information can typically be obtained from PPW in PDF form – and
the level of detail is sufficient for CDD to approve/deny based on this.)
□ 13. Location or vicinity map, date, north arrow, and scale. Requested A1,A2
□ 14. Number or letter identification for each lot.
□ 15. Location and outline of each existing building and an accompanying note as
to whether or not it is to be removed.
□ 16. Each street shown by its actual street name or by a temporary name or
symbol for the purpose of identification.
□ 17. L o c a t I o n o f all trees shall be accurately identified and plotted with base
grade data, dripline, and finished grades within the dripline.
□ 18. All fire hydrant locations.
□ 19. Required yards.
□ 20. Name of utility providers and location of closest existing services shown,
including water, gas, electricity, telephone, cable television, sewage
disposal and storm drain.
Roadways will not be required for SB-9
□ 21. If in the Hillside Area, show grading required for roadway construction,
including location of all cuts and fills, volumes, retaining walls or reinforced
earth slopes (with top and base elevations), and existing and proposed
contours.
You will be required to add HR to the allowable zones so this can stay.
□ 22. If hillside, show conceptual driveways, building sites, drainage, and
sanitary sewers.
□ 23. Interim erosion control measures.
□ 24. If it is impossible or impracticable to place upon the tentative map any
of the information required above, such information shall be furnished on a
separate document, which shall be submitted with the map.
Jennifer [Joel]:
I understand that you are working on a revision to the SB-9 Ordinance to be debated on September
21st. On the whole - with the February revision to the Ordinance I think you got it pretty much right. I
do, however, have a couple of questions/comments.
Question 1: The 20 ft Fee Title Corridor.
SB-9 does not really allow you to restrict a flag lot access corridor to being ‘Fee Title’. No other
Jurisdiction does so - all allow easements to a rear parcel. Additionally it should be in the 12-15 ft width
range so as to allow IEE for fire requirements to be met - but no more.
Please look carefully at the attached example. From the existing Ordinance [Section VI.3] the corridor
does not count in the 60/40 rule, but it diminishes the rear parcel in net lot size. So you can get some
really stupid lots [not intended by SB-9]. This is your chance to fix it.
Question 2: HR Zoning
I assume that this has been fixed - and that you now are accepting HR applications [subject to Fire
Access]. Can you confirm this?
Question 3: 50 Yards of Grading
Please tell me you have a better solution for this! Either up the quantities OR Allow the driveway and
turnaround area to be ‘exempted’ in the same way that the area under the house is now.
Question 4: Objective Deign Standards
These should be pared back so that Front Elevation and Side-abutting-street elevations are not
encumbered by the ‘Privacy’ window/deck/balcony restrictions. Additionally you should consider
eliminating/easing these restrictions where the house placement is compliant with the setbacks for the
zoning district. I do not want to design by ‘paint by numbers’ for Single Family Homes - in the same way
there was concern for Multi-Family developments.
Question 5: The Discretionary Process
Please make it much more clear that this can be used as an alternative to the administrative review
process for a lot that has been created by an ULS. I will use it to design a better home, because I do not
like the Objective Design Standards in the Ordinance. Please consider eliminating the ‘Tech Review’ step
in the discretionary process to allow me to ‘sell’ the discretionary process to my clients. This will shave
weeks, if not months, off the process. Ray Davis is not with us any more. Also - please clarify whether
the discretionary process can be used to bypass the ‘1,200 max sq ft first unit regulation’. This regulation
does not concern me personally, but clarification would be useful.
I will have other comments, I am sure, when I see the Proposed new ordinance.
Thanks
Tony
Gm Ryan,
Thanks for your time yesterday.
As discussed, please help to clarify with city attorney on the SB9 guideline - ''Intent to Occupy'
requirement for a SB9 lot split".
After the SB9 urban lot split, we will end up with an existing home on one lot and the second is a
vacant lot.
Can we sell the original residence and keep the newly split vacant lot for three years to meet the
SB9 requirement?
or do we have to build a new home on the vacant lot and keep it for three years?
Please help us clarify the 'Intent to Occupy' requirement for a SB9 lot split.
Thank you,
Satya
All:
Now that I have remained unscathed from my first SB-9/HPC dichotomy [16405 Kennedy - a pre-1941
house with no redeeming architectural or historic values], I would wonder whether there might be a
way to allow HPC to consider the impact of the reduction in property size of an older/historic home. Not
that it mattered here.
I guess it just depends on whether you need/want SB-9 projects to contribute to the housing element -
because you do have a 2 for 1 rule?
If they feel that the yard and landscaping are not instrumental to the historic nature of a property then
perhaps there might be a path to allowing a lot split while still retaining a home on the historic register?
When do you expect to go back for another bite at the SB-9 apple? [Hillside/50 yards/Easement
access/anything else]?
Tony
Jocelyn [Joel/Jennifer added]:
Fire will not talk with applicants other than through a routed application from the Town. [Per Rob
Campbell - see below]
Can we either route to fire or require them to talk to applicants once you feel an application is
reasonably complete? I sent them exactly the plans you have but below is the response I received.
I specifically do not want to go too far [on any project] and spend client’s money only to be turned down
later.
Saratoga - for example - has routed a similar submission of mine to various entities [including fire]. They
go too far - including routing to Caltrans and WVSD, plus requiring a geotechnical report - which should
come later, because - why waste everyone's time before a project is realistic. San Jose also routes to Fire
for comments - but they want the entire application complete [including the Parcel Map]. Planning just
checks it for the obvious [a pre-screen] and then it is a PPW project. But most of their lots are simpler
[and they allow 12-15 ft easements to a back lot, like most other jurisdictions so they screen for that
too]
Los Gatos’ staff has the knowledge and expertise to look at this and make a reasonable decision as to
the best sequencing. I understand Rob’s desire not to be inundated with scraps of paper with scribbles
on them, so he might be right from that standpoint - but if you can talk with him again to resolve this
disconnect, it would be helpful.
Tony
Tony,
I am not available today. I recommend discussing the SB -9 requirements with the
city/town planning departments before coming to us. As you know SB-9 is primarily
zoning focused legislation. My discussion with Los Gatos planning is that they will be
the lead in any such decisions. Where fire concerns arise (e.g. VHFHSZ parcels) they
will coordinate with us for requirements. If you have specific questions, please put those
in writing so we can be clear on the information you seek.
Thank you,
Rob.
Robert L. Campbell, PE
Sr. Fire Protection Engineer
Santa Clara County Fire Department
Ryan,
I had previously provided public comment / input toward the next draft of Ord 2327. I have two further
comments:
1)
a) Ord 2327 says that if SB9-reduced setbacks are used then windows must be clerestory. I think this is
fine as in usual suburban neighborhoods you don't want them looking into a neighbor's yard, however
clerestory window requirements should only apply to exterior walls that are closer to the property line
than the usual (non-SB9, base zoning) setbacks. For the rest of the 2nd story walls, they are no closer to
the property line as is already allowed today with the base zoning rules, so these walls should be
allowed to have whatever window size and arrangement the base zoning district allows today.
b) Where an applicant is not using reduced SB9 setbacks but just respecting the base zoning's setbacks,
Ord 2327 says that second story windows must be of the minimum number and size necessary for
egress. That means one small window per room. This does not make sense to apply since it is more
restrictive than most (or all?) base zoning districts. At least here in the hillside, without SB9 I could build
a second story and put larger windows than that, but if I attempt to use SB9 then my window size and
number are restricted -- even if I still respect the base zoning's setbacks. This doesn't make sense to me
and I would request we just remove this entirely from Ord 2327 and rely on the base zoning's window
requirements if the base zoning's setbacks are respected.
2) Ord 2327 says that if there's a roof over the entryway that its roofline must meet the adjacent
roofline. This doesn't make sense to me, since today in most (or all?) base zoning districts as far as I
know there is no restriction on how a roof over the entryway is supposed to look. Indeed, many high-
value homes have a beautiful entryway with a high arch and roof. This can take many forms but here are
two examples:
This tall entryway can be a beautiful architectural feature designed to bring value to the home and
neighborhood, and as far as I know this entryway is not restricted other than in Ord 2327 (assuming
other requirements like overall height are respected). Therefore I would request that we remove this
from Ord 2327 and just rely on the base zoning's rules regarding roofs over entryways.
David
Ryan,
Thanks for our discussion today. For two of my questions you said the first step at providing input into a
permanent ordinance was to email you.
1)
Ord. 2327 has two restrictions on architectural design: (a) No balconies/terraces on top of 1st floor.
(b) 2nd stories must be stepped back 5' from 1st stories.
The restrictions are presumably intended to protect neighbor's privacy when SB9's reduced (4-foot)
setbacks are used. Nobody wants a neighbor's 2nd story window or terrace/balcony looking over their
fence.
However it is my feeling that the restriction should be waived if the regular zoning setbacks on that side
of the house are respected.
To not do so violates state law and strongly limits architectural options. According to HCD's fact sheet on
the implementation of SB9, "HCD recommends that local agencies rely on the existing objective
development, subdivision, and design standards of its single-family residential zone(s) to the extent
possible." Accordingly, it is reasonable for the Town to require a 5' step-back from 1st story elevations if
the proposed house is utilizing reduced SB9 setbacks, but no such architectural design restriction should
be required if the proposed house utilizes the original zone's setbacks. This to me seems to resolve the
concern in a way that leans on existing zoning guidelines.
Leaning on existing zoning guidelines wherever possible is more desirable, since these zoning guidelines
are developed over decades of time and well-understood by everyone in the community.
2)
In Ord. 2327 Sec. V B 2, "The finished floor of the first-story shall not exceed 18 inches in height as
measured from the finished grade."
Inasmuch as SB9 is (or will) apply to hillside zones, and inasmuch as basements in the hillsides are to be
encouraged and incentivized (since they reduce massing), this restriction is overly restrictive and does
not incentivize basements in the hillside zone. (For comparison, non-inclusion of basement floor area in
FAR does correctly incentivize them.)
On flat land this restriction makes sense -- you don't want your first floor to be 4' out of the ground. On
sloping land, very quickly your 18" protruding basement becomes 0" and then your 1st floor becomes
below grade, and your original basement ends up buried very deep in the earth, which is expensive and
not incentivizing, and the basement becomes very small or very expensive or both.
I think it makes sense to modify this to 4' at least in the hillsides, consistent with the existing definition
of basement.
Ryan,
I understand Fire Dept doesn't review my ULS/TUD application until Building Permit phase.
I also understand that Fire will very likely reject my application based on 4290 since I'm in VHFSZ. Talking
to friends who are working through this right now, a rejection letter is expected and an important step,
as a starting point to petition for exemption from 4290 or discuss alternative methods and means.
So, if fire is going to reject my application I'd like to get to that phase before the Parcel is even split
(since at that point there is a permanent change and I can no longer back-pedal on my plans).
I asked SCCFD, and they said they won't review my plans until they come across their desk through the
regular procedure.
Can we (a) have Fire do a full review at the Planning stage, or (b) have Fire review at the Building Permit
stage as usual, but I start the Building permit phase (submit my Building plans to Town of Los Gatos)
even before the Parcel Map is fully recorded, with an at-risk letter saying the Building Permit won't be
considered final until the parcels are fully created?
I'd prefer to do (b).
If we did (a) then I lose the advantages of SB9 ministerial review (it turns into a non-ministerial review,
which I don't think is allowed).
If we do (b) then it follows the regular procedure, and allows us to finalize all other Planning details and
get Planning approval before taking the plan to Fire. But the down-side is that my plans will be further
along in time and money before getting the rejection letter -- but that's ok with me.
Thanks,
David
Hi Ryan,
Thanks for your time this afternoon. I'm summarizing below what we discussed along
with a follow up question:
What are we looking for?
• To build a 2000-2400 sq feet dwelling at the back of our property.
• We do not want to go with public hearing given the experience in the recent past
with our neighbors. Given this we have to go through SB9.
Options:
1. With Split (Not desired but solved our problem wrt building what we want)
a. In the new lot above we can build a new Primary unit up to 5000 sq feet and an
ADU on top (up to 1200 sq feet)
b. Lot once split cannot be merged back later as there cannot be two Primary units
in a Single-family Lot (@Ryan but with SB9 it is supported so that argument may not
be valid)
2. Without Split, the Emergency Ordinance on SB9 from the Town of Los Gatos only
supports the scenario of building up to 1200 sq feet ADU/Primary Unit. This is too restrictive
IMO.
While our ideal and preferred scenario is to go with Option 2 (without split) and build
a 2000-2400 sq feet dwelling, it is currently not supported by the Town of Los
Gatos. Ryan can you please confirm this again. Based on the FAR ratio that we looked
at this afternoon, my property (62000 sq feet with 17% grade) is allowed to have
6200 sq feet without a garage included (and not including 10% increase when you
have 2 units). Just based on this I should be allowed to build up to 2700 sq feet for
the 2nd unit (6200x1.1 = 6820, subtract existing unit 4120 which leaves 2700 sq
feet). Ideally if Planning department can support this scenario as part of SB9 then our
problem would be solved ☺
Thanks
Ani
Ryan, Our feedback is pretty simple:
1) Please remove the silly grading disqualification, and
2) The California Legislature did not intend the first unit size restriction to be under 1200 SF as adopted
by the Town.
Otherwise, Town Staff has done a good job implementing SB9.
Best regards, Terry
Terence J. Szewczyk. P.E.
Hi Ryan - For the single family residences, I am opposed to the 2nd story setback as written as well as
the window regs for the second story.
The regs as written will lead dreadful cookie cutter houses and dismal living spaces upstairs.
-Jay
Ryan,
Thanks for the email. I have to say that I agree with Terry, the grading requirement is in clear violation
of the State's intent on these projects, it is an arbitrary restriction. That is a clear no-no. And the Town
knows darn well that in even the mildest of sloped sites there will be more than 50 CY of dirt moved. If
this is brought to the state it will surely be slapped down. It is a rather clumsy attempt to knock down
the number of lots that would be eligible for a split.
It is a mystery to me why the town does not simply adopt the State standards and call it a day. Any
number of developers in the town and in the surrounding area are much better funded than the town is
and will surely bring provisions like this grading restriction to court or to the office of the State
architect. They are not going to be able to just sneak this in.
I get that this is simply another case of 'the Town being the Town' and at some point, it just gets
ridiculous. Anyway, thanks for the email and I will try to make the meeting. If nothing else it will be
entertaining...
Regards,
David
Ryan,
Our request is the following three aspects of the Ordinance that violate state law:
(1) The Ordinance’s exclusion of the Hillside Residential (HR) zoning district from the definition of a
“single-family residential zone”;
(2) Limitations on grading in connection with the development of residential units under SB 9; and (3) A
1,200 square foot size limitation on the first residential unit constructed on a lot pursuant to SB 9.
Thanks,
Arvin Khosravi
Subject: SB 9 comment from a long-time Los Gatos renter.
EXTERNAL SENDER
As someone who has been renting in Los Gatos for the last 7 years, I hope that SB9 will increase the
acceptable amount of "family" housing available to families like mine (a single parent household with
two children attending Los Gatos schools). We would love the option to live in a duplex or ADU and
have some access to a backyard, instead of being restricted to apartments and townhouses.
To that end, the 1200 sqft MAXIMUM on the size of the ADU is too small for small families. I can
understand not wanting to have a large ADU/Duplex on a lot that is too small, but there are many large
homes/lots in this area that can indeed accomodate a larger 1600 sqft unit. So the max size of a
detached ADU should be based on a percentage of the main house/lot size's area with a minimum of
1200sqft.
I hope that Los Gatos makes special outreach to the tenant/renter community with regard to this
proposal, as well as to the land owners who seem to dominate town government meetings (probably
because they have more time and are not working second jobs or caring for children during town
meeting hours).
--------------------
Sue Raisty
, Los Gatos, CA 95032
EXTERNAL SENDER
I have been a resident of Los Gatos for many years. I have watched the changes to the housing
landscape change & not for the better. Take The North 40 development as
an example. If that isn’t the ugliest over developed housing you ever seen, then I’m sorry for you. The
only reason The Town is pushing this is because it needs more funds to handle the mismanaged Town
budget that is in dire need of funds. Funds that would be gained from building permits, inspection fees
and additional taxes on the land & buildings involved.
I vote no on the SB9 Ordinance.
Melanie Allen
Los Gatos Resident
EXTERNAL SENDER
Hi Los Gatos planning
I’d Like to have the issue of VHFHSZ addressed tonight
I am the first house of the hillside zone at 15 Highland at Jackson at the base of the hill.
I have a fire hydrant in front of my house and I’m about a block up from Main Street.
Is there any way to ask for a variance regarding being removed from the hillside one and high fire zone
in order to do a sub division of my property?
If you could address the VHSHSZ tonight that would be very helpful.
Is it be possible to ask for a variance to be moved to a different zone and move out of the hillside high
fire zone?
Thank you so much,
Teresa Spalding
Sent from my iPhone
To whom it may concern:
In general most of my concerns with the draft revolve around rules that are more restrictive than the
base zone's rules.
• Page 4, V, A, 1, Building height … in HR zone <16’. This practically prohibits 2-story buildings in
HR. Two-story buildings are often required in hillside, to keep the house footprint small so as
not to spread across steep or difficult slopes. This is severely and unnecessarily limiting; there is
no reason to effectively prohibit 2-story buildings in HR zones, and this is not consistent with
State Law. (Limiting a building to 16' if it's located inside the setbacks of the base zone, however,
is reasonable.)
• Page 5, 5, Max size of first new res unit <1200 sf. This is unnecessarily limiting and not consistent
with State Law.
• Page 5, 5, Grading 50 c.y. Many members of the public are not happy with this since it is
extremely limiting in HR zones. It's my understanding that grading > 50 c.y. will not only trigger a
grading permit but also a full Architectural and Site Review and hearings. I understand that it's
meant to avoid someone skipping comprehensive grading review via TUD process. Surely there
can be a compromise wherein grading >50 c.y. only triggers a standalone grading permit and
not a full ASA.
• Page 5, 8, Building sites, not on lands with avg slope exceeding 30 percent. It is not clear
whether this applies to lots with average slope (over the whole lot) of 30%, or whether it means
that a particular house that has some portion of its footprint on a 30% slope, is prohibited. In
any case, this restriction is unnecessarily limiting and not consistent with State Law. If a
geologist has done the investigation and engineered plans have been prepared, then a site can
be buildable even if it is >30% slope in places or on average.
• Page 7, B, 2, Finished floor: 1st story FF can’t exceed 3’ in height. This is unnecessarily limiting in
HR zones. On sloping ground you need to bury one side and have the other side of the house
protrude, often by more than 3'. This also limits basement options since the basement will be
super deep on the former side, in order to have the latter side <3' out of the ground. May I
suggest to just remove this; this has already been given consideration in other Town Code, for
example in Town Code a story and a basement are adequately defined. As written, Page 7, B, 2,
Finished Floor, is unnecessarily limiting and not consistent with State Law or with the realities of
building a reasonably-sized house on even slightly sloped ground.
• Page 7, B, 3, Front Entryway…shall have a roof eave that matches or connects at the level of the
adjacent eave line. This unnecessarily limits architectural options. Often a raised roof over the
entryway can be an elegant detail, and raise the value of the neighborhood.
• Page 7, B, 4, Front Porch >=6’ and width >=25% of linear width of front elevation. This is
unnecessarily limiting. Please just apply the porch restrictions (if any) of the base zone.
• Page 7, B, 5, Step-back. ALL elevations of 2nd story must be stepped back 5'. In my opinion this is
the most architecturally limiting of any of the new TUD ordinance draft. This makes houses look
like wedding cakes -- larger on 1st floor, smaller on 2nd floor. Please modify this to make a step-
back only necessary on walls that are closer to the property line than the base zoning district will
allow. I believe this will resolve concerns of people building tall 2-story buildings right up near a
neighbor's fence. And it would not limit architectural options more than the base zone, if the
applicant did not attempt to use reduced SB9 setbacks.
• Page 7, B, 6, Garages. Street-facing attached garages not exceed 50% of linear width of front-
/side-yard elevation. This doesn't work well on all lots; I'm particularly thinking of irregular lots
such as in HR zone. Please do not limit the architectural options more than the base zone, unless
the applicant is proposing to take advantage of reduced SB9 setbacks.
• Page 10, A, 2, Lot Lines. New side lines of all lots shall be at right angles to streets. This doesn't
work on all lots; I'm particularly thinking of irregular lots such as in HR zone. Please do not
institute a rule that cannot be followed by everyone.
• Page 10, A, 5, Min Public Frontage, each new parcel shall have min frontage on street of 20’.
Again, this doesn't work on all lots, not only irregular lots, but lots that are on private streets.
Putting into effect new rules that not every lot can follow will just lead to more work for
Planning, as you will have to consider a number of exceptions, slowing down the permitting
process.
To repeat the most important two points:
1) Please, do not limit Los Gatans' options more than the base zone, unless that Los Gatan is taking
advantage of the reduced SB9 setbacks. Otherwise please just let us use the base zone's rules.
2) Please, do not institute laws that not every lot can follow (such as Page 10, A, 2)
David Hutchison
Ryan/Jennifer/Joel:
I am not exactly sure who is running ‘point’ on this, nor whether this meeting is a ‘planning fact-
finding’ meeting or something more significant - such as a ‘recommendation to the
Council’. Can you you please enlighten me?
I read the new proposed ‘draft SB-9 Ordinance’ and you have made some good improvements
which make sense - as well as a few that don’t. But if I ignore those, I do have a couple of questions
on items which are unclear. Could you please respond prior to the webinar so that I do not need to
wast my time on these.
1A. Section V.A.6. - Grading: This is ambiguous.
"Grading activity shall not exceed the summation of 50 cubic yards, cut plus fill, or [shall/shall
not] require a grading permit. . . .” Does this mean if you need more than 50 yds that you have to
get a grading permit OR that the project is not allowed a grading permit to exceed 50 yds?
This could be clarified by re-phrasing: Any Grading activity in excess of 50 yds, cut plus fill, shall
require a grading permit. Would this grading permit be administrative if you follow paragraphs 7,8,9?
1B. Section V.A.7/8/9 - Cut and Fill, etc
Now that you have added these paragraphs do clarify allowable grading activities, Section V.A.6 is
not longer needed.
2. Section VI.1/5. [and 3] - 20 ft frontage and 20 ft corridor.
I see that you have not modified this section. It is clearly in violation of the text of SB-9 which
allows an ULS parcel to either “adjoin” or “have access to” the public right of way.
The problem I have with the way it is written is that moderately long and narrow lots [where a flag-lot
would make sense] are pretty much eliminated [because so much of the rear lot is contained in the 20
ft wide flag-pole]. Just do the math on a 60 ft wide lot!
An IEE easement [as required by SCCFD of 12-15 ft would make more sense, in addition to being
legal [SB-9], and would make the 40/60 split more reasonable in terms of lot configurations. An
easement is probably going to be required by SCCFD anyway for EV access to the rear lot.
Why are you not addressing this issue?
3. Will it be possible to share a screen, or show a slide in some way at the webinar?
Thanks
Tony
T.H.I.S. DESIGN & DEVELOPMENT P.O.Box 1518, Los Gatos, CA 95031
Tel: 408.354.1863 Fax: 408.350.1823
Town of Los Gatos
110 E Main St
Los Gatos, CA 95030
Attn: Planning Commission
September 23rd, 2022
SB-9 DRAFT ORDINANCE
Commissioners:
I understand that you are reviewing the Draft [Permanent] SB-9 Ordinance which will
subsequently be recommended to the Town Council for Adoption. I have been
working with this Ordinance over the last year and have encountered several issues.
Luckily, staff has already proposed changes to the original Emergency Ordinance
and, for the most part, these changes would appear to be going in the right direction.
There are a few items that could be improved, but because the discretionary process
[DRC/Planning Commission, etc] is retained as an option for the design of any
house(s) on a resulting ULS parcel, I am less concerned about the objective design
standards for a ‘two residential housing unit’ development of SB-9.
I do, however, want to draw your attention to the one aspect of the Urban Lot Split
portion of SB-9, which I fear will result in very bad neighborhood design and which
can easily be avoided if it is considered seriously.
The 20 ft Fee Title Corridor for a Flag Lot.
SB-9 does not really allow a jurisdiction to restrict a flag lot access corridor to being
‘Fee Title’, which the current ordinance does, so there will always be a risk of a legal
challenge. All other local jurisdictions make provisions for an ingress/egress
easement alternate access the rear parcel. Just because there is a “20 FT Street
Frontage Rule” in the code now does not mean that is must stay for SB-9.
With the existing Ordinance you can get some really stupid lot configurations, not
intended by SB-9 and not desirable in the Town. This is your chance to correct it.
THE EXAMPLE shows what a homeowner could ask for “AS IS” and how you could
“FIX IT” – 2 vastly different approaches to the same lot.
Thanks
Tony Jeans