(A) Purpose. The purpose of this section is to allow and appropriately regulate two-unit projects in accordance with Cal. Gov’t Code § 65852.21.
(B) Definition. A "two-unit project" means the development of two primary dwelling units or, if there is already a primary dwelling unit on the lot, the development of a second primary dwelling unit on a legally subdivided lot in accordance with the requirements of this section.
(C) Application.
(1) Only individual property owners may apply for a two-unit project. "Individual property owner" means a natural person holding fee title individually or jointly in the person's own name or a beneficiary of a trust that holds fee title. "Individual property owner" does not include any corporation or corporate person of any kind (partnership, LP, LLC, C corp, S corp, etc.) except for a community land trust (as defined by Cal. Rev. & Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by Cal. Rev. & Tax Code § 214.15).
(2) An application for a two-unit project shall be submitted on the town's approved form.
(3) The applicant shall obtain a certificate of compliance with the Subdivision Map Act for the lot and provide the certificate with the application.
(4) Only a complete application will be considered. The town will inform the applicant in writing of any incompleteness within 30 days after the application is submitted.
(5) The town may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the code, in accordance with applicable law. The Town Council may establish and change the fee by resolution. The fee shall be paid with the application.
(D) Approval.
(1) An application for a two-unit project is approved or denied ministerially, by the Director of Planning and Building Services, without discretionary review.
(2) The ministerial approval of a two-unit project does not take effect until the town has confirmed that the required documents have been recorded, such as the deed restriction and easements.
(3) The approval shall require the owner and applicant to hold the town harmless from all claims and damages related to the approval and its subject matter.
(4) The approval shall require the owner and applicant to reimburse the town for all costs of enforcement, including attorneys' fees and costs associated with enforcing the requirements of this code.
(E) Requirements. A two-unit project shall satisfy each of the following requirements:
(1) Map Act compliance. The lot shall have been legally subdivided.
(2) Zone. The lot is in a single-family residential zone. For purposes of this section, a single-family residential zone is a zone where the only residential use that is allowed as a primary use is a single residential dwelling on a lot.
(3) Lot location.
(a) The lot is not located on a site that is any of the following:
1. Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters.
2. A wetland.
3. Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards.
4. A hazardous waste site that has not been cleared for residential use.
5. Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards.
6. Within a 100-year flood hazard area, unless the site has either:
a. been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction, or
b. meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program.
7. Within a regulatory floodway, unless all development on the site has received a no-rise certification.
8. Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan.
9. Habitat for protected species.
10. Land under conservation easement.
(b) The purpose of division (E)(3)(a) above is merely to summarize the requirements of Cal. Gov’t Code § 65913.4(a)(6)(B)-(K). (See Cal. Gov’t Code § 66411.7(a)(3)(C).)
(4) Not historic. The lot shall not be a historic property or within a historic district that is included on the State Historic Resources Inventory. Nor may the lot be or be within a site that is designated by ordinance as a town or county landmark or as a historic property or district.
(5) No impact on protected housing.
(a) The two-unit project shall not require or include the demolition or alteration of any of the following types of housing ("protected housing"):
1. Housing that is income-restricted for households 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 policy power.
3. Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Cal. Gov. Code §§ 7060-7060.7) at any time in the 15 years prior to submission of the urban lot split application.
4. Housing that has been occupied by a tenant in the last three years.
(b) The application for the two-unit project shall include a sworn affidavit from the applicant and the owner of the property that the two-unit project will not demolish or alter protected housing as set forth in division (E)(5)(a)1. - 4. above. The town may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement.
(6) Unit standards.
(a) Quantity.
1. No more than two dwelling units of any kind may be built on a lot that results from an urban lot split. For purposes of this paragraph, "unit" means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under this chapter (Chapter 17.049), an accessory dwelling unit, or a junior accessory dwelling unit (Chapter 17.048).
2. A lot that is not created by an urban lot split may have a two-unit project under this section, plus any accessory dwelling unit or junior accessory dwelling unit that shall be allowed under state law and the town's accessory dwelling unit ordinance.
(b) Unit size.
1. The total floor area of each primary dwelling built that is developed under this section shall be
a. less than or equal to 800 and
b. more than 500 square feet.
2. A primary dwelling that was legally established on the lot prior to the two-unit project and that is larger than 800 square feet is limited to the lawful floor area at the time of the two-unit project. The unit may not be expanded.
3. A primary dwelling that was legally established prior to the two-unit project and that is smaller than 800 square feet may be expanded to 800 square feet after or as part of the two-unit project.
(c) Height restrictions.
1. On a lot that is larger than 2,000 square feet, no new primary dwelling unit may exceed a single story or 16 feet in height, measured from grade to peak of the structure.
2. On a lot that is smaller than 2,000 square feet, no new primary dwelling unit may exceed two stories or 22 feet in height, measured from grade to peak of the structure. Any portion of a new primary dwelling that exceeds one story shall be stepped back by an additional five feet from the ground floor; no balcony deck or other portion of the second story may project into the stepback.
3. No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot with a two-unit project.
(d) Demo cap. The two-unit project may not involve the demolition of more than 25 percent of the existing exterior walls of an existing dwelling unless the site has not been occupied by a tenant in the last three years.
(e) Lot coverage. The total lot coverage shall not exceed 35 percent of the lot. This lot coverage standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each.
(f) Open space. No dwelling unit on a resulting lot subject to division (E)(6)(d) may cause the open space area to fall below 300 square feet per unit. "Open space area" shall not include any required yard or setback, required building separation, access area, or area with dimensions of less than ten feet or slope of greater than ten percent, subject to division (E)(6)(d) above open space standard is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each.
(g) Setbacks.
1. Generally. All setbacks shall conform to those objective setbacks that are imposed through the underlying zone.
2. Exceptions. Notwithstanding division (E)(6)(g) above:
a. Existing structures. No setback is required for an existing legally established structure or for a new structure that is constructed in the same location and to the same dimensions as an existing legally established structure.
b. The setbacks imposed by the underlying zone shall yield to the degree necessary to avoid physically precluding the construction of up to two units on the lot or either of the two units from being at least 800 square feet in floor area; but in no event may any structure be less than four feet from a side or rear property line.
3. Front setback area. Notwithstanding any other part of this code, dwellings that are constructed under this section shall be at least ten feet from the front property lines. The front setback area shall:
a. be kept free from all structures greater than three feet high;
b. be at least 50 percent landscaped with landscaping on the FireSafe Marin Fire-Smart Plant list, drought-tolerant landscaping is encouraged, with vegetation and irrigation plans approved by a licensed landscape architect;
c. allow for vehicular and fire-safety access to the front structure.
(h) Parking. Each new primary dwelling unit shall have at least one off-street parking space per unit unless one of the following applies:
1. The lot is located within one-half mile walking distance of either
a. a corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours or
b. a site that contains the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.
2. The site is located within one block of a permanently designated car-share vehicle location.
(i) Architecture.
1. If there is a legal primary dwelling on the lot that was established before the two-unit project, any new primary dwelling unit shall match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.
2. If there is no legal primary dwelling on the lot before the two-unit project, and if two primary dwellings are developed on the lot, the dwellings shall match each other in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.
3. All exterior lighting shall be downward directed, shielded to prevent direct offsite illumination, the minimum number of fixtures necessary to provide pathway, stair/step, and entry illumination, and a maximum of two foot candles lighting intensity. No landscape lighting is allowed.
4. No window or door of a dwelling that is constructed on the lot may have a direct line of sight to an adjoining residential property. Fencing, landscaping, or privacy glass may be used to provide screening and prevent a direct line of sight.
5. If any portion of a dwelling is less than 30 feet from a property line that is not a public right-of-way line, then all windows and doors in that portion shall either be (for windows) with the bottom of the glass at least six feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.
(j) Landscaping.
1. Evergreen landscape screening shall be planted and maintained between each dwelling and adjacent lots (but not rights of way) as follows:
a. At least one 15-gallon size plant shall be provided for every five linear feet of exterior wall.
b. Plant specimens must be at least six feet tall when installed. As an alternative, a solid fence of at least six feet in height may be installed.
c. All landscaping shall on the FireSafe Marin Fire-Smart Plant list and is encouraged to be drought-tolerant.
d. No undesirable tree species as defined by § 8.36.020 shall be planted.
e. Any heritage tree, as defined by § 8.36.020, removed shall require two 36" box trees FireSafe Marin Fire-Smart Plant list to be planted prior to final approval.
(k) Nonconforming conditions. An existing legal nonconformity shall not require any correction prior to approval of a two-unit project.
(l) Utilities.
1. Each primary dwelling unit on the lot shall have its own direct utility connection to the utility service provider.
2. Notwithstanding division (E)(10)(l)1. above, a primary dwelling unit may have a direct utility connection to an onsite wastewater treatment system in accordance with this paragraph and the town's code. Each primary dwelling unit on the resulting lots that is or that is proposed to be connected to an onsite wastewater treatment system shall comply with current county wastewater treatment system requirements for new parcels.
(m) Building and safety. All structures built on the lot shall comply with all current local building standards. A project under this section is a change of use and subjects the whole of the lot, and all structures, to the town's current code.
(7) Fire-hazard mitigation measures.
(a) A lot shall comply with each of the following fire-hazard mitigation measures:
1. All enclosed structures on the site shall have fire sprinklers.
2. Windows in any portion of a dwelling with less than a five-foot setback to a property line shall be equipped with heat activated self-closing shutters.
3. All sides of all dwellings on the site shall be within a 150-foot hose-pull distance from either the public right of way or of an onsite fire hydrant or standpipe.
4. A lot shall have direct access to a public right of way with a paved street with a minimum width consisting of a net horizontal unobstructed clearance of not less than 20 feet exclusive of gutters, curbs, and shoulders, that connects to a designated evacuation route.
(b) Prior to submitting an application for an urban lot split, the applicant shall obtain a certificate of compliance with all applicable fire-hazard mitigation measures in accordance with this division (E)(11). The town or its authorized agent shall inspect the site, including all structures on the site, and certify as to its compliance. The certificate shall be included with the application. The applicant shall pay the town's costs for inspection. Failure to pay is grounds for denying the application.
(8) Separate conveyance.
(a) Primary dwelling units on the lot may not be owned or conveyed separately from each other.
(b) Common interest developments, as defined by Cal. Civil Code § 4100, are not permitted within the lot.
(c) All fee interest in the lot and all the dwellings shall be held equally and undivided by all individual property owners.
(9) Regulation of uses.
(a) Residential-only. No non-residential use is permitted on the lot.
(b) No short term rentals. No dwelling unit on the lot may be rented for a period of less than 30 days.
(c) Owner occupancy. Unless the lot was formed by an urban lot split, the individual property owners of a lot with a two-unit project shall occupy one of the dwellings on the lot as the owners' principal residence and legal domicile.
(10) Notice of construction.
(a) At least 30 business days before starting any construction of a two-unit project, the property owner shall give written notice to all the owners of record of each of the adjacent residential parcels, which notice shall include the following information:
1. Notice that construction has been authorized,
2. The anticipated start and end dates for construction,
3. The hours of construction,
4. Contact information for the project manager (for construction-related complaints), and
5. Contact information for the Department of Planning and Building Services.
(b) This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued. Approval is ministerial. Under state law, the town has no discretion in approving or denying a particular project under this section. This notice requirement is purely to promote neighborhood awareness and expectation.
(11) Deed restriction. The owner shall record a deed restriction on each lot that results from the urban lot split, on a form approved by the town, that does each of the following:
(a) Expressly prohibits any rental of any dwelling on the property for a period of less than 30 days.
(b) Expressly prohibits any non-residential use of the lot.
(c) Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.
(d) State that:
1. If the lot is not created by an urban lot split: Expressly requires the individual property owners to live in one of the dwelling units on the lot as the owners' primary residence and legal domicile; or
2. If the property is formed by an urban lot split, it is therefore subject to the town's urban lot split regulations, including all applicable limits on dwelling size and development.
(F) Specific adverse impacts.
(1) Notwithstanding anything else in this section, the town may deny an application for a two-unit project if the Building Official makes a written finding, based on a preponderance of the evidence, that the project would have a "specific, adverse impact" on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.
(2) "Specific adverse impact" has the same meaning as in Cal. Gov’t Code § 65589.5(d)(2): "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" and does not include (1) inconsistency with the zoning ordinance or general plan land use designation or (2) the eligibility to claim a welfare exemption under Cal. Revenue and Taxation Code § 214(g).
(3) The Building Official may consult with and be assisted by planning staff and others as necessary in making a finding of specific, adverse impact.
(G) Remedies. If a two-unit project violates any part of this code or any other legal requirement:
(1) The buyer, grantee, or lessee of any part of the property has an action for damages or to void the deed, sale, or contract.
(2) The town may:
(a) Bring an action to enjoin any attempt to sell, lease, or finance the property.
(b) Bring an action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief.
(c) Pursue criminal prosecution, punishable by imprisonment in county jail or state prison for up to one year, by a fine of up to $10,000, or both; or a misdemeanor.
(d) Record a notice of violation.
(e) Withhold any or all future permits and approvals.
(f) Pursue all other administrative, legal, or equitable remedies that are allowed by law or the town's code.
(Ord. 860, passed 12-1-2021)