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Sustainable TamAlmonte's letter to County Planning re: Proposed Amendments for ADUs
Sustainable TamAlmonte's following letter has been sent to the Marin County Planning Commission in anticipation of their meeting on November 30th, regarding proposed Development Code Amendments pertaining to Accessory Dwelling Units (ADUs)
If you are not familiar with this issue, please read my previous article entitled; "Protect Neighborhoods in High Fire Zones From Marin County's Proposed Second Unit Regulations" by clicking HERE.
November 27, 2020
FROM: Sustainable TamAlmonte
TO: Marin County Planning Commission & Planning Manager Jeremy Tejirian
Re: Proposed Development Code Amendments pertaining to Accessory Dwelling Units (ADUs)
Dear Marin County Planning Commission and Planning Manager Tejirian,
We are still very concerned about the proposed Development Code amendments pertaining to Accessory Dwelling Units (ADUs), which will endanger public safety in the event of a fire or other emergency. We were glad that you postponed your discussion of ADU regulations in order to revise the proposed amendments to better balance promoting appropriate ADUs, protecting sensitive areas, and reducing hazards from fire and other disasters. Unfortunately, the revised amendments still do not protect communities in the Wildlands Urban Interface, High Fire Hazard Zones or Sensitive Areas with unsafe evacuation routes.
We wish to clarify our concerns and recommend additional Development Code amendments regarding ADUs that will help to ensure public health and safety. Our recommendations have been instituted by other municipalities.
I. CLARIFICATION OF OUR CONCERNS:
We wish to emphasize the importance of considering the cumulative impacts of ADUs in a community, particularly a community in a hazardous or sensitive area.
About Assembly Bill - 68 “Land Use: Accessory Dwelling Units”:
In Unincorporated areas that are not exempted by Marin County, Accessory Dwelling Unit (ADU) regulations will follow provisions mandated by Assembly Bill - 68 (the worst newly enacted ADU law). AB-68 requires a jurisdiction to "ministerially" approve a permit application for building one Accessory Dwelling Unit (ADU) (which can be detached) and one Junior Accessory Dwelling Unit (JADU) in addition to the primary residence, for a total of 3 housing units per lot in single family zones. It also greatly relaxes ADUs' development standards (E.g. parking, size requirements, setbacks, etc.).
More specifically, the law requires jurisdictions to “ministerially” allow a homeowner, in single family neighborhoods, to build a new detached backyard Accessory Dwelling Unit (ADU) that is at least 800-square-feet, 16-feet-high, with only four-foot side and rear setbacks as well as convert a room within the single-family residence into a third living space (Junior Accessory Dwelling Unit - JADU). The new ADU could also be a converted garage, office or spare room. The size of the new ADU can be over and above the existing allowable square footage (AKA Floor Area Ratio - FAR) for the primary home. (**Please note that the proposed County Development Code Amendments allow a detached ADU to be up to 1200 sq. ft.)
In addition, the law prohibits local governments from imposing any parking requirements for Accessory Dwelling Units that are located within one-half mile of a bus stop or within one block of a car share vehicle, besides other specified instances.
Furthermore, according to AB-68, if a garage is converted to a dwelling unit, then there is no requirement for additional off-street parking to be provided. The result would be absolutely no off-street parking for the ADUs and the main single-family home. All residents would have to park on the street.
Please imagine the cumulative impacts over time if most homes in a community add on one ADU that exceeds the FAR and one Junior ADU and eliminate all off-street parking. As the ADUs, housing density and population increase (potentially more than doubling the population), neighborhoods will become even more congested with vehicles parked on both sides of the streets. Now imagine the community to be in the Wildlands Urban Interface (WUI), a High Fire Hazard Zone and/or Sensitive Area.
Dire consequences could result during an emergency when residents are unable to evacuate and fire trucks/paramedics are unable to reach their destinations.
II. PROHIBIT CATEGORY 2, 3, & 4 ADUs IN THE WILDLANDS URBAN INTERFACE AND HIGH FIRE HAZARD ZONES AND SENSITIVE AREAS WITH UNSAFE EVACUATION ROUTES, UNLESS PROVEN TO BE SAFE
A. AB-68 & Government Code § 65852.2 Allow Jurisdictions To Choose Where Category 2, 3, and 4 ADUs May And May NOT Be Permitted:
Per our previous letter, dated November 10, 2020, and confirmed by the Marin County Staff Report, the following section of AB-68 and Government Code § 65852.2 allow Marin County to choose where ADUs may and may NOT be permitted for Category 2,3, and 4 ADUs.
“SECTION 65852.2 of the Government Code:
(a) (1) A local agency may, by ordinance, provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily use. The ordinance shall do all of the following:
- Designate areas within the jurisdiction of the local agency where accessory dwelling units may be permitted. The designation of areas may be based on criteria that may include, but are not limited to, the adequacy of water and sewer services and the impact of accessory dwelling units on traffic flow and public safety”
Regarding the revised Marin County Development Code Amendments pertaining to Category 2, 3, and 4 ADUs, the amendments only protect properties on Non-County-Publicly-Maintained streets in the Wildland Urban Interface Zone or Fire Hazard Severity Zones. This is completely unsatisfactory.
There are many County-Publicly-Maintained inadequate streets that are narrow, winding, steep and unsafe for emergency access and evacuation in the event of a fire or other emergency. For safe ingress and egress of a neighborhood in a High Fire Hazard Zone, all the streets in the neighborhood must be passable and safe, not just Non-County-Publicly-Maintained streets.
Moreover, for streets to be safe and passable (after the ADU laws increase housing density, population, & vehicles and decrease or eliminate off-street parking), they must be wide enough for vehicles to park on both sides of the street and still allow enough space for Fire Trucks, Emergency Vehicles, as well as Garbage Trucks to pass through the middle of the parked vehicles. We believe this would require streets to be 24 feet wide or more.
B. Recommendation:
DELETE the following from the Proposed Development Code Amendments re: Category 2, 3, and 4 ADUs:
“If an Accessory Dwelling Unit is to be located on a property in a Wildlands Urban Interface Zone or Fire Hazard Severity Zone, then the property must have direct vehicle access to a publicly maintained street. An exception applies when the property has vehicle access to a publicly maintained street following private streets that meet all applicable road standards contained in Marin County Title 24.”
ADD the following to the Proposed Development Code Amendments re: Category 2, 3, and 4 ADUs:
“Due to the Unincorporated Marin’s unique local climatic, geologic and topographic conditions, Accessory Dwelling Units & Junior Accessory Dwelling Units are not permitted in certain hillside residential areas that are determined to have inadequate roadways to provide adequate ingress and egress for emergency access and evacuation in the event of a fire or other emergency. It is the determination of Marin County that additional dwelling units in these areas would present adverse impacts on traffic flow and public safety.
A. Accessory Dwelling Units & Junior Accessory Dwelling Units are not permitted in the Wildlands Urban Interface (WUI) and in High Fire Hazard Zones, where the primary access to the property is on roadways that are subject to constrained ingress/egress for emergency vehicles and resident evacuation. Areas are subject to constrained ingress/egress if they meet one or more of the following criteria:
- Streets with insufficient roadway width.A minimum twenty-four-foot roadway width is required for emergency access. (The roadway must be wide enough for vehicles to park on both sides of the street plus a fire truck/ emergency vehicle to pass through the middle of the parked vehicles.)
- One-lane roadways allowing two-way traffic.
- Remote areas not served by improved or paved roads.
- Highly congested roadways with Level of Service ‘D’ or ‘F’ ”
B. An owner may apply for a waiver from the restrictions on accessory dwelling units established by this section. The waiver shall be considered for approval or denial by the Zoning Administrator, who shall make such determination after consultation with the Fire Department. In deciding whether or not to grant the requested waiver, the Zoning Administrator shall consider factors related to ingress/egress for emergency vehicles and resident evacuation. These factors may include, but are not limited to, whether there are multiple routes of ingress or egress to the property, the distance from the property to the closest road with unconstrained ingress and egress, and the amount of off-street parking at the site.”
III. PROHIBIT CATEGORY 1 ADUs IN THE WILDLANDS URBAN INTERFACE AND HIGH FIRE HAZARD ZONES AND SENSITIVE AREAS WITH UNSAFE EVACUATION ROUTES, UNLESS PROVEN TO BE SAFE
A. Marin County is Legally Required To Protect Public Health And Safety, Including Providing Fire Safety:
The revised Marin County Development Code Amendments pertaining to Category 1 ADUs, provide absolutely no protections for communities in the Wildlands Urban Interface (WUI) or High Fire Hazard Zones or Sensitive Areas with inadequate roadways and unsafe ingress and egress for emergency access and evacuation in the event of a fire or other emergency. This is completely unacceptable.
Category 1 ADUs, with a subsequent increase in housing density, population and vehicles but a lack of off-street parking, are just as perilous as Category 2, 3, and 4 ADUs, as described in Section I and Section II of this letter.
Marin County’s government is legally required to protect public health and safety. Even though Government Code § 65852.2 (e) does not allow the County to establish additional standards for Category 1 ADUs, we do not believe that it is legal for Marin County’s government to knowingly endanger residents by allowing unsafe development and development standards.
We beseech you to ask Marin County’s legal counsel to search for other State laws regarding public health and safety as well as fire protection that have as much weight as the new 2019 ADU legislation. Then, follow the other safety laws instead of Government Code § 65852.2 (e).
For example:
A local agency may disapprove a housing development project when it finds that the development “would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households. As used in this paragraph, a ‘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(d)(2).)
The 2007 Marin Countywide Plan and its EIR provide plenty of information regarding hazardous areas (hazard maps) and unsafe, overly congested roadways in the County. Unincorporated Marin fire districts (E.g. the Southern Marin Fire District) can provide maps of the Wildlands Urban Interface and High Fire Hazard Zones.
B. Other Jurisdictions Have Limited and/or Prohibited new ADUs or JADUs In Specified Areas:
There are a number of jurisdictions that limit and/or prohibit new Accessory Dwelling Units (ADUs) and Junior ADUs in specified areas. (**Please see the below table, which was included in the Staff Report for the November 16, 2020 Mill Valley City Council Meeting.)
Marin County should also prohibit ADUs and JADUs in hazardous/sensitive areas with unsafe evacuation routes.If other jurisdictions, like Los Angeles County, can protect their residents, then so can Unincorporated Marin. (Los Angeles should have a very competent legal team.) When there are gray areas in the State law or conflicting State laws, Marin County must put safety above development.
Click on chart to enlarge
C. Recommendation:
Add the following to Marin County’s “A. Category 1 ADU” section:
A. Category 1. Accessory Dwelling Units in this category shall comply with the criteria listed below.
“Due to the Unincorporated Marin’s unique local climatic, geologic and topographic conditions, Accessory Dwelling Units & Junior Accessory Dwelling Units are not permitted in certain hillside residential areas that are determined to have inadequate roadways to provide adequate ingress and egress for emergency access and evacuation in the event of a fire or other emergency. It is the determination of Marin County that additional dwelling units in these areas would present adverse impacts on traffic flow and public safety.
A. Accessory Dwelling Units & Junior Accessory Dwelling Units are not permitted in the Wildlands Urban Interface (WUI) and in High Fire Hazard Zones, where the primary access to the property is on roadways that are subject to constrained ingress/egress for emergency vehicles and resident evacuation. Areas are subject to constrained ingress/egress if they meet one or more of the following criteria:
- Streets with insufficient roadway width. A minimum twenty-four-foot roadway width is required for emergency access. (The roadway must be wide enough for vehicles to park on both sides of the street plus a fire truck/ emergency vehicle to pass through the middle of the parked vehicles.)
- One-lane roadways allowing two-way traffic.
- Remote areas not served by improved or paved roads.
- Highly congested roadways with Level of Service ‘D’ or ‘F’ ”
B. An owner may apply for a waiver from the restrictions on accessory dwelling units established by this section. The waiver shall be considered for approval or denial by the Zoning Administrator, who shall make such determination after consultation with the Fire Department. In deciding whether or not to grant the requested waiver, the Zoning Administrator shall consider factors related to ingress/egress for emergency vehicles and resident evacuation. These factors may include, but are not limited to, whether there are multiple routes of ingress or egress to the property, the distance from the property to the closest road with unconstrained ingress and egress, and the amount of off-street parking at the site.”
IV. ADD A NEW AMENDMENT TO THE DEVELOPMENT CODE THAT INTERPRETS “GROSS FLOOR AREA” AS THE TOTAL SQUARE FOOTAGE, INCLUDING ADUs AND JADUs, AND CAN ONLY BE EXCEEDED FOR THE SOLE PURPOSE OF BUILDING AN ADU
We recommend that you clarify the Gross Floor Area calculations and interpretations related to projects that include Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs) as Novato, San Anselmo, and Corte Madera have done.
Several local jurisdictions (such as Novato, San Anselmo and Corte Madera) interpret "Gross Floor Area" as the total square footage, including a J/ADU, and can only be exceeded for the sole purposes of building an ADU. Therefore, if a homeowner builds an ADU first, before maximizing the Floor Area, the ADU square footage (up to 800 sq. ft.) would be subtracted from the total Gross Floor Area to achieve a lower Adjusted Floor Area for the lot. The homeowner would no longer be able to build out the primary home to the same extent.
Example: 8000 Square Foot (SF) lot with 2000 SF Single Family home
- Maximum SF for home is 35% of 8000 or 2800 SF (800 SF remaining);
- Homeowner builds detached 800 SF ADU;
- Result: Homeowner can no longer renovate and add square footage to the primary home.
V. RESTRICT THE SIZE OF 1-BEDROOM ADUs TO 800 OR 850 SQ. FT. AND RESTRICT 2-BEDROOM ADUs TO 1000 SQ. FT.
A. Proposed Marin County Development Code Amendment For Category 4 ADUs:
Page III-106: D. Category 4:
“Accessory Dwelling Units in this category are those units that do not fall within categories 1-3 above and shall comply with the criteria below and shall be subject to Accessory Dwelling Unit Permit approval.
- An attached Accessory Dwelling Unit contained entirely within an addition to an existing single-family residence shall not exceed 50 percent of the floor area of the existing residence.
- A detached Accessory Dwelling Unit shall not exceed a floor area of 1200 sq. ft.”…
B. Requirements of AB-68 And Government Code § 65852.2 Regarding The Size Of ADUs:
For areas where Marin County allows ADUs, AB-68 & Gov. Code § 65852.2 only require a one-bedroom ADU to be at least 800 sq. ft. or 850 sq. ft. and no larger. In addition, AB-68 requires a 2-bedroom ADU to be at least 1000 sq. ft. and no larger.
Applicable Excerpt from the Text of AB-68:
“(c) (1) Subject to paragraph (2), a local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units.
(2) Notwithstanding paragraph (1), a local agency shall not establish by ordinance any of the following:
(A) A minimum square footage requirement for either an attached or detached accessory dwelling unit that prohibits an efficiency unit.
(B) A maximum square footage requirement for either an attached or detached accessory dwelling unit that is less than either of the following:
(i) 850 square feet.
(ii) 1,000 square feet for an accessory dwelling unit that provides more than one bedroom.
(C) Any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.”
Due to the public health and safety problems caused by the new ADU legislation and the fact that smaller ADUs tend to be less expensive, instead of the above quoted Development Code amendment for Category 4 ADUs, we recommend that you disallow 1-bedroom ADUs that exceed 800 sq. ft. or 850 sq. ft feet; also disallow 2-bedroom ADUs that exceed 1000 sq. ft.; and change the above wording to the following:
“The maximum floor area of a one-bedroom Accessory Dwelling Unit shall be 800 sq. ft. for Category 1 & Category 2 ADUs and 850 sq. ft. for Category 3 ADUs. The maximum floor area of a two-bedroom Accessory Dwelling Unit shall be 1000 sq. ft.”
IV. DO NOT REQUIRE ADUs EXCEEDING 1000 SQ. FT. TO BE TWO-BEDROOM
The previously proposed Marin County Development Code Amendments stated the following:
Page III-105: 3. “An Accessory Dwelling Unit exceeding 1000 sq. ft shall contain at least two bedrooms.”
The more residents that live in an ADU, the more parking spaces they will need. Yet, the new ADU legislation greatly diminishes off-street parking requirements, leading to unsafe road conditions and evacuation routes. Therefore, a one-bedroom ADU is preferable to a two-bedroom ADU because this would limit the number of people who live in the ADU. We recommend deleting provision #3 above.
IV. CONCLUSION:
We are still very concerned about the proposed Marin County Development Code amendments pertaining to Accessory Dwelling Units (ADUs) because they will endanger Unincorporated communities (particularly hazardous neighborhoods in the Wildlands Urban Interface (WUI), High Fire Zones, and Sensitive Areas with unsafe evacuation routes) in the event of a fire or other emergency.
We urge you to follow our above recommendations regarding ADU regulations in order to ensure public health and safety. As already discussed, our recommendations have been instituted by other municipalities.
Thank you in advance for your conscientious consideration.
Very truly yours,
/s/
Sharon Rushton, Chair
Sustainable TamAlmonte