Title
Report regarding a Planning Commission recommendation to City Council for consideration of California Environmental Quality Act (CEQA) determinations and to adopt amendments to Title 15 (Buildings and Construction) and Title 20 (Zoning) regarding large family daycare homes, accessory dwelling units, and Design Review requirements pertaining to certain residential developments under state law (Claire Lai, Assistant City Attorney and Tony Rozzi, Chief Planner)
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RECOMMENDATION
It is recommended that the City Council waive further reading and introduce an ordinance to modify Title 15 (Buildings and Construction) and Title 20 (Zoning) regarding large family daycare homes, accessory dwelling units, and Design Review requirements pertaining to certain residential developments under state law.
MOTION FOR CITY COUNCIL: Move to waive further reading and introduce the ordinance.
Body
BACKGROUND/DISCUSSION
The proposed Municipal Code amendments would make minor modifications with respect to various regulatory areas in response to changes in state law, as outlined below.
Edits relating to State law changes regulating large family daycare homes (Municipal Code Section 20.350.019)
These edits remove special requirements that are currently applicable to large family daycare homes under the Muni Code that are no longer permitted by new state law.
Recently adopted and signed into law, Senate Bill (“SB”) 234 amended Health and Safety Code (HSC) Section 1597.45 and established that “a local jurisdiction shall not impose a business license, fee, or tax for the privilege of operating a small or large family daycare home.” The amendment to HSC Section 1597.45 further provides that “the use of a home as a small or large family daycare home shall be considered a residential use of property and a use by right for the purposes of all local ordinances, including, but not limited to, zoning ordinances.” “Family daycare home” is defined as a facility that regularly provides care, protection, and supervision for 14 or fewer children, in the provider’s own home, for periods of less than 24 hours per day, while the parents or guardians are away, and is either a large family daycare home or a small family daycare home.” (HSC Section 1596.78(a).)
This new state law would require local governments to remove special requirements for large family daycare homes that are not otherwise imposed upon all other residences with the same zoning designation as the family daycare home. HSC Section 1597.41, et seq. requires that local governments treat both small and large family daycare homes alike, essentially giving large family daycare homes the same status as small family daycare homes and restricting a local government’s ability to impose regulations on either. Any local ordinances currently imposed on family daycare homes, but not on other residential uses, are invalid.
Currently, South San Francisco Municipal Code Section 20.350.019 imposes requirements on large family daycare homes that are no longer authorized under SB 234. The proposed amendment to the zoning ordinance brings Section 20.350.019 into compliance with SB 234. Large day care homes continue to be subject to applicable requirements of the underlying residential district and must comply with all requirements applicable to single-family homes in said district. The ordinance amendments removes special requirements that were previously imposed on large family day care homes but are no longer permitted under the new state law.
Edits relating to state law changes regulating ADUs (Municipal Code Section 20.350.035)
This set of edits makes certain clarifying changes in accordance with state ADU law provisions and also incorporates new ADU states adopted by the Legislature in 2021.
The first set of changes clarify that ADUs must be rented for a period of 31 days or more, which prohibits them from being used for short-term rentals. This is consistent with the requirements of state law. Government Code Section 65852.2 sets requirements for accessory dwelling units (ADUs). Among other requirements, it restricts the separate sale or conveyance of an ADU. Government Code Section 65852.2 also provides that a “local agency may require . . . that the property be used for rentals of terms longer than 30 days.” In other words, the City may prohibit use for rentals of terms less than 31 days. Government Code Section 65852.22, related to junior accessory dwelling units (JADUs), is silent on the short-term rental restriction authorization. Because the Government Code section is silent on the short-term rental restriction of JADUs, but does not prohibit the City from imposing a short-term rental restriction, the City’s municipal code restriction related to use of JADUs as short-term rentals is still authorized.
Next, the proposed ordinance amendment would add a specific exception to the general rule that prohibits ADUs from being sold separately from the primary residence. This edit is prompted by recent state law changes. Specifically, assembly Bill 345 was recently adopted and signed into law, which allows a certain set of ADUs that are constructed by qualified nonprofits, and sold to qualified low-income buyers, to be sold separately from the primary residence. Specifically, the City must allow an ADU to be sold or conveyed separately from the primary residence to a low- or moderate-income buyer if all of the following requirements are met:
(1) The ADU, or the primary dwelling, was developed by a qualified nonprofit corporation (a 501(c)(3) + receives welfare exemption);
(2) The buyer qualifies as low or moderate income individual or household as defined by state law;
(3) There is an enforceable restriction on the use of the property between the low-income buyer and nonprofit that satisfies requirements under the state Revenue and Taxation Code;
(4) The property is subject to a recorded “tenancy in common agreement” that meets certain requirements under state law (including owner-occupant requirements and affordability restrictions); and
(5) The ADU, if requested by a utility providing service to the primary residence, must also have separate utility connections. A grant deed needs to be recorded for the conveyance with the county with a change of ownership report filed concurrently in accordance with the Tax Code requirements. (Gov. Code section 65852.26.)
As written, Section 20.350.035 currently provides that ADUs cannot be used for rentals for terms shorter than 30 days, and cannot be conveyed separately which need to be updated given the requirements of Government Code Sections 65852.2 and the addition of 65852.26. The proposed amendments to the ordinance brings Section 20.350.019 into compliance with Government Code Sections 65852.2 and 65852.26, prohibiting rentals for terms less than 31 consecutive days and authorizing the separate sale or conveyance of ADUs in specific circumstances, as stated above.
Additionally, the proposed zoning text amendments would make certain clean-up changes to the regulations of ADUs, and in particular would provide that applicants of multiple-unit residential lots would be able to construct either: (1) up to two detached ADUs or conversion ADUs of existing non-livable space; or (2) one attached ADU that is connected to one of the single-unit dwellings. This is consistent with state ADU law which requires cities to permit at least one ADU (attached, detached, or conversions) on single- and multi-family lots. This also provides applicants seeking to build ADUs on multi-unit lots the opportunity construct an ADU in compliance with the City’s development standards.
Edits to Design Review Exceptions
This set of edits are made to reflect state law changes that require the City to ministerially review certain residential projects and exempting them from the discretionary design review/public hearing process.
Specifically, Senate Bill 9 added California Government Code Sections 65852.21 and 66411.7, to require a proposed housing development containing no more than 2 residential units within a single-family residential zone to be considered ministerially, without discretionary review or hearing, if the proposed housing development meets certain requirements, including, but not limited to, that the proposed housing development would not require demolition or alteration of 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, that the proposed housing development does not allow for the demolition of more than 25% of the existing exterior structural walls, except as provided, and that the development is not located within a historic district, is not included on the State Historic Resources Inventory, or is not within a site that is legally designated or listed as a city or county landmark or historic property or district.
Senate Bill 9 also requires a local agency to ministerially approve a parcel map for an urban lot split that meets certain requirements, including, but not limited to, that the urban lot split would not require the demolition or alteration of 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, that the parcel is located within a single-family residential zone, and that the parcel is not located within a historic district, is not included on the State Historic Resources Inventory, or is not within a site that is legally designated or listed as a city or county landmark or historic property or district.
By state law, SB 9 projects cannot be subject to a discretionary design review process and cannot be considered through public hearings. Pursuant to Municipal Code Section 20.350.035, ADUs are also not currently subject to design review.
Currently, Section 20.480.002 of the Municipal Code requires Design Review for projects, with limited exceptions. These exceptions do not currently include Senate Bill 9 projects and ADUs. The draft amendment to the ordinance adds Senate Bill 9 projects and ADUs to the list of items exempt from design review, consistent with Government Code Sections 65852.21 and 66411.7 and Municipal Code Section 20.350.035. The proposed amendment is meant to incorporate the requirement under SB 9, eliminating public hearing and discretionary review requirements for SB 9 projects, and also to provide internal consistency with the ADU ordinance (20.350.035) as ADUs are currently not subject to design review.
Further, the proposed amendments include a “catch all” provision that would exempt all projects for which state law specifically prohibits a discretionary design review process. This revision is included to capture any potential state law changes that would require additional types of projects to be exempted from the City’s design review process. The applicability of any such future state law would be confirmed by the Chief Planner and the City Attorney’s Office before any project is determined to be exempt from design review based on this catch-all provision.
CEQA REVIEW
The modifications to regulations pertaining to large family daycare homes are statutorily exempt from CEQA because they are implementing the provisions of Health and Safety Code Section 1597.41, et seq. The modifications to regulations pertaining to ADUs are statutorily exempt from CEQA pursuant to Section 21080.17 of the Public Resources Code because they are implementing the provisions of Government Code Section 65852.2. Further, the proposed modifications to design review regulations pertaining to certain residential development projects under Senate Bill 9 (2021) would be statutorily exempt from CEQA pursuant to Government Code Sections 65852.21 and 66411.7 as implementation of those state law provisions.
In addition, the City Council in 2010 adopted an Initial Study/Negative Declaration (“IS/ND”) in accordance with the California Environmental Quality Act, Public Resources Code Sections 21000, et seq. (“CEQA”), which analyzed the environmental impacts of adopting the Zoning Ordinance and concluded that adoption of the Zoning Ordinance could not have a significant effect on the environment because none of the impacts required to be analyzed under CEQA would exceed established thresholds of significance. The modifications proposed in this Ordinance are minor in nature, the adoption of which would not result in any new significant environmental effects or a substantial increase in the severity of any previously identified effects beyond those disclosed and analyzed in the IS/ND prepared and circulated for the 2010 Zoning Ordinance, nor do the refinements, clarifications, and/or corrections constitute a change in the project or change in circumstances that would require additional environmental review.
Finally, the modifications to regulations pertaining to design review exceptions are exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15061(b)(3) and 15378 of the CEQA Guidelines, as the proposed modification are minor, with no expansion in use or creating new uses, and has no potential for resulting in direct or indirect physical changes to the environment, and thus would not have any significant effects on the environment.
PLANNING COMMISSION
This item was considered by the Planning Commission on March 17, 2022 and recommended for City Council adoption by a vote of 7-0-0. The resolution is included as Attachment 1 to this report.
FISCAL IMPACT
There is no fiscal impact with adoption of this zoning text amendment.
RELATIONSHIP TO STRATEGIC PLAN
The General Plan and companion zoning ordinance shall be updated from time to time to comply with state regulations and best practices to ensure orderly development throughout the City, as prioritized in the Strategic Plan.
CONCLUSION
It is recommended that the City Council waive further reading and introduce an ordinance to modify Title 15 (Buildings and Construction) and Title 20 (Zoning) regarding large family daycare homes, accessory dwelling units, and Design Review requirements pertaining to certain residential developments under state law.
Attachments:
1. 2878-2022 PC Reso - Family Day Care and ADU ZTA
Associated Legistar Files:
1. Item 22-284 - Ordinance