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Recent ADU legislation threatens public safety in high risk fire zones in Marin

The California State Assembly Rules Committee is currently reviewing SB773, a law passed by the State Senate to correct inconsistencies in the package of recent laws passed that granted "by right" ministerial approvals of accessory dwelling units (ADUs). The following letter has been sent to the Rules Committee, urging them to amend the new legislation to address the severe public safety risks that can result from uncontrolled development and removal of local zoning regulations in areas designated by CAL FIRE as high risk fire zones.

Dear Chairman Cooley and Assembly Rules Committee Members,

The California State Assembly is currently considering SB-773 (Skinner, January 27, 2020), which we understand is intended to clarify conflicts and discrepancies arising from recently enacted legislation, regarding ADUs and JADUs (AB68, AB881, SB13, et al).

We are writing to request that legislators take this opportunity to address a serious flaw in the new ADU laws that directly threatens the health, safety, and general welfare of California residents living in areas designated to be in or adjacent to “Very High Fire Hazard Severity Zones” (VHFHSZ), as prescribed on maps by The California Department of Forestry and Fire Protection (CAL FIRE).

Dramatic increases in the threat of catastrophic wildfires throughout the State, due to drought and climate change, demand your attention to this matter. Recently passed legislation, regarding ADUs and JADUs, principally AB68, AB881, and SB13, eliminate local government’s ability to fulfill their public safety obligations in areas prescribed to be VHFHSZ in the Local Responsibility Areas (LRA), and also in and contiguous to the State Responsibility Areas (SRA), and as prescribed by CAL FIRE.

As such, our position is that all VHFHSZ designated areas in the State of California must be categorically exempt from the requirements of the new ADU legislation, and in particular to its “by right” and ministerial review provisions, and matters dealing with local zoning regulations related to setbacks, lot coverage, required buildable lot size, allowable floor area ratios, heights, and massing.

With regard to this, we ask that you please consider the following:

Removal of local police powers in VHFHSZ impacted communities threatens public safety

The protection of the health, safety, and general welfare of the public, and the police power to enforce such protections, is the first and foremost obligation of our elected state, and local government, and is well enshrined in our federal and state Constitutions and local municipal codes.

In VHFHSV communities, in particular, public safety protections are enshrined in local zoning and building codes, with regard to setbacks, lot coverage, required buildable lot size, allowable floor area ratios, heights, etc., as they relate to fire safety concerns: lot clearing, tree trimming, ground vegetation and proximity to fire hazards on public lands.

The new ADU laws remove life-saving regulations and restrictions on structures in VHFHSZ areas, which have been carefully crafted and put in place, over time to disallow and/or restrict the type of development and development density allowed.

The failure of recent ADU legislation to exempt areas in the state that are VHFHSZ designated, is irresponsible and significantly endangers every resident in those cities and counties. It is essential that local government retain the ability to appropriately restrict development in VHFHSZ areas to protect the public safety of their residents.

Development in the WUI is a public safety concern

The majority of the areas in California, designated as VHFHSZ, are located in the Wildlands Urban Interface (the “WUI”). It is critical to consider that a significant amount of those areas abut or are contiguous to public lands and open space, county, state, and federal parks and protected lands.

In these instances, the setbacks, lot coverage, required buildable lot size, allowable floor area ratios, heights, and massing allowed “by right,” under the new ADU laws, violate the local agency’s ability to adequately protect the residents in the WUI. The adjacent public lands cannot be clear cut to reduce fire danger to structures. This, in turn, dictates how close a structure can be allowed to be in proximity to those public lands.

For example, a 4’ setback is grossly inadequate to protect life and property, and prevent wildfire embers from engulfing structures. The findings of numerous recent studies overwhelmingly support this contention.

Local government has developed appropriate regulations to ensure proper setbacks, lot coverages, structure clearances, etc., in response to these dangers. It is essential that local government retain the ability to restrict development in the WUI in VHFHSZ areas, or else they will be in violation of their fundamental obligation to protect the public safety.

Vegetation clearance standards to prevent wildfires must be considered

In response to climate change and the enormous losses of life and property due to wildfires in California, in the past few years, there has been ongoing debate about crafting legislation to ensure that structures are adequately protected by sufficient “non-vegetated” buffer zones, in which vegetation, trees, and foliage are trimmed and/or cleared to ensure that homes are “fire safe.”

The recently enacted ADU legislation removes all of those protections in the WUI and VHFHSZ areas, and threaten the public safety of residents in the WUI, and their communities.

Exemption will have negligible impact on ADU development statewide

The vast majority of cities and counties in VHFHSZ impacted areas in California, are in rural areas, where there are few jobs centers and little public transportation to speak of.In addition, local governments already have adequate and accommodative ADU regulations in place. Therefore, exempting these areas categorically will have negligible impact on the overall production of ADUs and JADUs in the state.

Exemption does not mean exclusion

The vast majority of VHFHSZ impacted communities already have adequate ADU and JADU regulations in place that have been adapted to consider local fire safety and emergency preparedness conditions. Under these regulations, ADUs are not prohibited, but they are restricted by location, size, and other fire safety zoning considerations appropriate to address the VHFHSZ conditions. Therefore, exempting these areas from the recent ADU legislation does not preclude the development of ADUs in those areas.

Recent ADU laws negatively impact emergency responders and firefighting

Residential areas in VHFHSZ areas tend to include terrain that is more difficult to traverse and develop, with steep hillsides, ravines, and box canyons served by narrow, winding roads (often one lane) that already present significant ingress and egress challenges for first responders, firefighters, ambulances, paramedics, and other life safety services.

In many cases, these areas already have roadway access challenges due to landslides, flooding, and other conditions that make roadways impassible, such as stalled vehicles, illegal street parking, fallen trees, etc.In the event of a catastrophic wildfire, the result of these existing conditions is often tragic.

The recently enacted ADU laws will directly cause an increase in the severity of these public threats, by allowing uncontrolled growth and development in areas that are already in danger from over-development.

Thank you in advance for your time and consideration to this important matter.


Bob Silvestri - President, Community Venture Partners, Inc.

Bob Silvestri is a Mill Valley resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area. Please consider DONATING TO CVP to enable us to continue to work on behalf of Marin residents.