Attachment 6 - Public Comment received between 1101 a.m., Wednesday, September 23, 2022, and 1100 a.m., Thursday, October 27, 2022Mr. Ryan, Town Councils and Town Attorney,
Here is my recommendation regarding the draft SB9 ordinance, from a hillside resident.
o Page 4, 1. Building Height:
PROBLEM: 16’ height limitation prohibits 2 story building at hillside.
SOLUTION: Apply the most restrictive town code at 18’ height limitation at hillside.
o Page 5, 5. Floor Area Ratio and Lot Coverage:
PROBLEM: I understand the 1,200 sqft limitation is for affordable house; this is very nice
consideration. However, it does not consider the options of marketable and affordable house
beyond the current 1,200 sqft ADU.
SOLUTION: Please change to 1,400 sqft as maximum size of first SB9 unit. It can still be an
affordable house, as well as differentiate from 1,200 sqft ADU. You can help to provide more
options from 1,200 sqft ADU to 1,400 sqft SB9 in the affordable rental market. The additional
100 - 200 sqft matters for the people who live in the small house.
o Page 5, 8. Building Sites:
PROBLEM: Town Code does not have a 30% slope restriction for Hillside development. Adding
30% slope restriction in the Town’s SB9 ordinance results in a reduction in intensity of the use,
violate state law. Housing Crisis Act (Gov. Code 66300, subd. (b)(1)(A).
I have checked 4 jurisdictions regarding the slope restriction of SB9 ordinances:
Saratoga and Palo Alto simply applied the same standard development restriction to SB9.
Monte Serena does not apply density formula restriction to SB9.
Los Altos Hills has a loosened slope restriction in their SB9 ordinance.
None of them tighten the slope restriction on SB9 developments, because they follow state law
to ensure it does not cause a reduction in the intensity of the use.
SOLUTION: REMOVE “30% slope restriction” in SB9 Ordinance, because page 5 Cut and Fill
table already controls hillside development as defined by Town Code. I expect the Town will
not violate the state law, under the watch of the current Town Council and Town Attorney
Gabrielle Whelan.
ATTACHMENT 6
o Page 7, B. Design Review Standards
PROBLEM: These standards are a nice consideration for privacy concern because SB9 setbacks
are smaller than standard development. However, it does not motivate residents to meet
standard zoning setback for SB9 developments.
SOLUTION: We should encourage residents to meet standard zoning setbacks. These
additional SB9 design standards should only be required for development within the smaller
SB9 setbacks. Please exempt these SB9 privacy related restrictions, if standard zoning setbacks
are met on all 4 sides. See detailed comments below:
§ 1 Balconies/Decks and 8 Windows.
PROBLEM: This restriction is for privacy concern because SB9 setback is smaller.
However, if there is no house around, and we meet all standard zoning setback,
why can’t we have a normal balconies/deck, normal windows?
SOLUTION: Please exempt 1 and 8 restrictions, if meet standard zoning setback
on 4 sides.
§ 5 Step-back:
PROBLEM: At many the hillside locations, the 2nd floor can only be seen from the
public road. The first floor is actually semi-buried, like a basement. In this case,
why is the step-back required?
SOLUTION: Please exempt the step-back if (1) the building can only be seen one
story from public road and (2) meet standard zoning setback on 4 sides.
§ 7 Plate Height:
PROBLEM: The plate height restriction is to ensure that a single-story building is
not 25 feet tall, which is not applied to Hillside.
SOLUTION: Please exempt the plate height restriction from Hillside.
Best Regards,
Ivy
Mr. Ryan, Town Councils and Town Attorney,
Town Code does not have a 30% slope restriction for Hillside development. However, the Town
of Los Gatos includes a 30% slope restriction in the draft SB9 ordinance, which makes SB9
development more restrictive than standard development. This will violate the state law
Housing Crisis Act (Gov. Code 66300, subd. (b)(1)(A).). The Code states that any proposed
modification to an existing development standard applicable in a single-family residential
zone MUST demonstrate that it would NOT result in a reduction in the intensity of the use. (see
SB9 factsheet, page 7)
The draft SB9 ordinance already contains the Cut and Fill table in page 5, item 7, which matches
existing Town Code for standard developments. The 8-foot cut restriction limits house width in
the uphill / downhill direction. For example, on a 30% slope, the 8-foot cut restriction limits the
house width to only 27 feet. Lessor slopes allow a wider house, but steeper slopes result in
much smaller widths, naturally limiting development. Therefore, the 8-foot cut restriction is
sufficient to limit the developments on the Hillside. Please see the attached diagram which
illustrates this.
Further, geotechnical, and geological reports are required for building permit. If the
investigation and engineered confirmed the site is buildable, even it is 31% slope on average
house pad, it is still buildable. I believe it is the reason there is no 30% slope restriction
language in Town Code.
I respectfully request that the Town of Los Gatos remove the 30% slope restriction language in
the SB9 ordinance, to eliminate the conflict with HCA state law. Please keep the Cut and Fill
table in page 5, item 7 in ordinance. The 8-foot cut restriction can well control the hillside
development, as defined in Town Code.
Best Regards,
Scott
A Housing Crisis Act of 2019. (Gov. Code, §66300, subd. (b)(1)(A).) 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. (SB9 factsheet p7)
KEEP -7. Cut and Fill: Sufficient to restrict the hillside
development, matching Town Code.
REMOVE -8. Building Site: 30% restriction. It is NOT in
Town Code, and causes a reduction in the intensity of
use, violating HCA state law.
29% Slope 30% Slope
8’ cut
27’
17’
8’ cut
28’
18’ 5’step back
5’step
back
Why 29% slope is allowed, but 30% slope is not?Draft SB9 Ordinance -Section V
SB9 Recommendation
40% Slope 50% Slope
8’ cut
20’
10’
8’ cut
16’
8’
Town Code 8’ cut restriction is sufficient.
As slope increases, the house width decreases, limiting development.
5’step
back 5’step back
35% Slope
8’ cut
23’
13’
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
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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
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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
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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.