Assembly Bill 1866, passed by the state legislature in September 2002, reaffirmed the state’s commitment to second units as a valuable form of housing in California, and imposed further restrictions on cities’ ability to regulate these units. This study issue was ranked as mandatory for compliance with certain timeframes contained in AB 1866. This report summarizes the new law and how it affects current policy for the City of Sunnyvale.

Under the City’s existing ordinances, Accessory Living Units are permitted on lots with a minimum of 9,000 square feet in the R-0 and R-1 Single Family Zones. These units are also allowed in the R-2 Zoning District and certain blocks of the Downtown Specific Plan. Public hearings are held for applications for detached second units; attached units may be reviewed administratively. The intent of accessory living units is to provide additional housing options while maintaining the character and integrity of the neighborhood. Standard development requirements, which ensure adequate parking, landscaping, open space and setbacks, are specified by Municipal Code. Architectural design and compatibility are also regulated by the current ordinance.

Assembly Bill 1866 modified the Government Code to restrict local agencies’ ability to exercise discretion when considering applications for second units. It provides that all applications for an accessory living units filed on or after July 1, 2003, must be "considered ministerially without discretionary review or a hearing.

The Planning Commission reviewed this study issue at a study session on May 12, 2003. City Council will review the item on June 10, 2003.

Staff is recommending a minor change to the current ordinance related to Accessory Living Units. Proposals for detached units shall no longer require a Use Permit and public hearing. All Accessory Living Units shall be considered ministerially through the Miscellaneous Plan Permit procedure. Planning staff shall review new proposals for conformance to current Zoning and Design Review standards. No changes are proposed to current standard development requirements for accessory living units.

In response to legislation passed by the State of California, the City of Sunnyvale first enacted accessory living unit provisions in 1983. This law required all cities to allow accessory living units unless they were able to make a strict finding that a negative effect would result in the community if they were allowed. The City Council did not make this finding and therefore passed an ordinance allowing such units with regulations on design and location. At that time, the City adopted a minimum lot size of 12,000 s.f. for properties in the R-0 and R-1 Zoning Districts. All units were required to be attached to the main home and had to provide two additional covered parking spaces.

In 1990, due to concerns with affordable housing opportunities, City Council revised design and minimum lot size criteria for accessory units. The minimum lot size was reduced from 12,000 to 9,000 s.f. for the R-0 and R-1 neighborhoods. As a result of these changes, approximately 1,865 more units could be built. A Use Permit process was adopted to permit detached accessory living units and one parking space (covered or uncovered) was required.

In 1999, a study was conducted to review the existing development standards to ensure their adequacy. Staff reviewed trends in development of accessory units to determine whether current requirements adequately addressed the need to provide housing and to preserve the character of the neighborhood. Upon review by City Council the following changes were adopted.

The most recent law passed by the State Legislature attempts to streamline development of proposed accessory living units. While many cities currently require a conditional use permit and public hearing for all new accessory living units, Sunnyvale requires public hearings for only detached units. The new law also requires all cities to ensure that areas within its jurisdiction allow accessory living units by right provided they meet certain established development standards.

The following development standards currently apply to accessory living units:

• Accessory Units are allowed on R-1 and R-0 lots of 9,000 s.f. or greater. Units are also allowed in all R-2 lots and Blocks 8, 9, 10, 11, 12 of the Downtown Specific Plan (DSP) that total 5,000 square feet or more.
• All attached units require approval through a Miscellaneous Plan Application at the staff level. All detached units require approval through a Use Permit and public hearing.
• Maximum unit size is 700 square feet.
• The accessory living unit may contain only one bedroom.
• Detached accessory living units may not be located in front of the main residence.
• The primary residence or the accessory living unit must be occupied by at least one property owner for a minimum of 20 years.
• At least one parking space must be provided on-site for the accessory living unit in addition to the two covered and two uncovered parking spaces required for the primary dwelling.
• Lots located in the R-2 Zoning District and DSP must provide a total of 1,000 sq. ft. of usable open space.
• The design of an accessory living unit will be reviewed to ensure it matches the design of the main residence.
• The entrance or stairway to an accessory living unit may not be located on any building side facing a street.
• No more than one accessory living unit may be located on any lot.
• Conversion of covered parking (garage or carport) to an accessory living unit is not allowed unless covered parking can be provided elsewhere on the site and all applicable zoning ordinance requirements can be met.
• Mobile homes and trailers may not be erected as an accessory living unit.
• All other applicable municipal code requirements must be met including, but not limited to: landscaping, irrigation, open space, setbacks, lot coverage, building height and solar access.
• Fire sprinklers are required for attached units that result in a 50% addition of living area to the structure. All detached units require fire sprinklers.

The following General Plan policies and goals apply to the subject discussion.

The State Legislature passed the AB1866 in an effort to combat the existing housing shortage in the state of California. The new law requires that all accessory living units be considered ministerially rather than through a discretionary process. These provisions go into effect July 1, 2003.

Under the new law, a hearing officer or legislative body may no longer have the discretion to determine whether the unit is suitable for the lot or consider its effect to the neighborhood. This new State mandate prohibits public hearings for accessory units.

The law directs cities to designate areas within the jurisdiction to allow second units. Currently, Sunnyvale complies with this regulation by allowing units on lots that meet minimum lot size criteria. The City may also impose standards on accessory units which "include, but are not limited to parking, height, setback, lot coverage, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Places." Current Sunnyvale Zoning regulates such standards for accessory units; therefore, the new law imposes no change to current practice in this regard.

Current Sunnyvale Municipal Code requires that any addition to the home or accessory unit shall not exceed the allowable density for the Zoning District. Any application that conflicts with this requirement may be processed through a Variance application. This new law doe not affect this practice, and does not prohibit public hearings for applications that do not meet established standard development requirements that are prescribed by the local agency.

Staff researched past applications to determine trends of development for such units. Planning staff processed five applications for accessory living units since January of 2002. In past years, staff processed eight applications in 2001 and ten in 2000. It is apparent that there has been a slight decrease in the number of these applications. It can be further noted that attached and detached units are being proposed at almost an equal rate. Approximately 51% of the applications for accessory living units are attached to the main structure.

The purpose of the Wright Bill is to aid the development of affordable housing. Staff believes that current zoning regulations and standards allow for adequate development of such housing. Currently, only detached units are processed in a discretionary manner. Therefore, the only required change in the current procedures would be to allow all proposals for accessory living units to be reviewed at staff level through a Miscellaneous Plan Permit application. Adoption of the ordinance will ensure compliance with state law.

Although the adopted change of the current regulations will not increase or decrease the requirements for property owners to develop accessory units, the process for new proposals will be streamlined considerably for detached units. The most significant impact of this ordinance change will be a decrease in public notification and participation for these proposals. Nonetheless, staff would be able to review these applications based on set criteria. Additionally, State Law enables cities to allow staff review of such applications for architectural compatibility. Any two-story component of a proposed project requires noticing of adjacent neighbors as specified by Design Review procedures set forth by Municipal Code 19.80.030. Staff may also ensure that new units do not impede on the privacy of neighboring properties or structures.

If the City of Sunnyvale does not adopt an ordinance that allows ministerial review of accessory units, all new applications for accessory units shall be considered ministerially for compliance to state regulations, which among other items, provide that accessory units could be built as large as 1,200 square feet on lots zoned for single family and multi-family use. These state standards are listed in Attachment 3, page 6. The adoption of the ordinance would allow the City to maintain its existing framework of regulations.

The Sunnyvale Municipal Code currently requires all single-family residential projects that result in a 45% Floor Area Ratio (F.A.R.) to be reviewed at Planning Commission. Under the proposed ordinance, accessory living unit applications that result in an F.A.R greater than 45% may no longer be reviewed at a public hearing. Since January of 2001, Sunnyvale has reviewed two applications for accessory units that resulted in a 45% F.A.R. or greater. However, subsequent additions to the home that are greater than 45% F.A.R. may be considered through a public hearing.

This action is statutorily exempt from California Environmental Quality Act (CEQA), per Public Resources Code section 21080.17. This section states that CEQA does not apply to the adoption of an ordinance by a city or county to implement the provisions of Section 65852.1 or Section 65852.2 of the Government Code (Secondary Dwelling Unit Legislation).

There would be slight decrease in revenues for reviewing detached accessory living units at staff level. However, the fees would be more than offset by a reduction in staff time needed for processing.

1. Introduce an Ordinance to the Municipal Code amending sections of 19.12 and 19.18 concerning accessory living units:

Alternative 1.

Prepared by

Ryan Kuchenig
Project Planner

Reviewed by:

Fred Bell
Principal Planner

Reviewed by:

Trudi Ryan
Planning Officer

Reviewed by:

Robert Paternoster
Director, Community Development

Approved by:

Robert S. LaSala
City Manager