A. Purpose and Findings.
1. The purpose of this section is to provide regulations for the establishment of two-unit residential developments in the R-1 zone and to define an approval process for such two-unit residential developments consistent with Government Code Sections 65852.21, or any successor statute. The intent of this section is to provide opportunities for more affordable housing in existing single-family residential zones as mandated by state law. It is also the goal to provide development standards to ensure the orderly development of these units in appropriate areas of the City.
2. Two-unit residential developments are residential uses consistent with the uses permitted in the R-1 zone.
3. Government Code Section 65852.21 preempts the density limitations established by the General Plan and the underlying zones in which two-unit residential developments created pursuant to the requirements of this subsection are permitted. Incompatibility with the City’s density limitations shall not provide a basis to deny a two-unit residential development that otherwise conforms to the requirements of this section.
4. The City will protect residents and properties in the special districts, including areas where a high fire hazard or seismic risk exists, or where a Historic Resources Survey has identified historic areas, districts or properties, by denying requests for two-unit residential developments in these special districts where a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5 of the Government Code exists, based upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.
B. A two-unit residential development containing two residential units within the R-1 zone shall be considered ministerially, without discretionary review or a hearing, if the proposed housing meets all of the standards set forth below. For purposes of this section, a two-unit residential development contains two residential units if the development proposes two new units or if it proposes to add one new unit to one existing unit.
1. If a parcel includes an existing single family residence, one additional unit of not more than 800 square feet may be developed pursuant to this section. If the existing single family residence has been occupied by a tenant in the last three years, no more than 25% of the existing exterior structural walls may be demolished to create the two-unit residential development.
2. If a parcel does not include an existing single family residence, or if an existing single family residence is proposed to be demolished in connection with the creation of a two-unit residential development, two units of not more than 800 square feet may be developed pursuant to this section.
3. Each unit in a two-unit residential development shall be separated by a distance of at least ten (10) feet from any other structure on the parcel; however, units may be adjacent or connected if the structures meet building code safety standards and are sufficient to allow separate conveyance. A solid (no openings) one-hour rated fire wall is required between any attached units.
4. Unit Count. No more than two units are allowed on a lot with a two unit residential development. If a parcel was created subject to the urban lot split subdivision provisions of Chapter 22, Article 06, no more than two units -- including primary dwelling units, accessory dwelling units, and/or junior accessory dwelling units in any combination -- shall be permitted on either parcel.
5. Prior to occupancy, the City Manager, or designee, shall approve an Affordable Housing Regulatory Agreement governing and encumbering one of the units on the two-unit residential development and ensuring long-term affordability of the income-restricted unit. The Affordable Housing Regulatory Agreement shall be for a term of 99 years. The Affordable Housing Regulatory Agreement shall be executed by the City Manager, or designee, and the applicant prior to occupancy. The affordable unit must be occupied by an extremely low, very low or low income household, subject to the income limits established by HCD for the Los Angeles/Long Beach metropolitan area. If the unit is leased, the property owner must submit a copy of the lease and any sublease to the City. Any lease or sublease must comply with the Affordable Housing Regulatory Agreement. The property owner must agree to a yearly inspection to verify compliance with the Affordable Housing Regulatory Agreement. The property owner must pay the annual inspection fee as set forth in the City’s fee and fine resolution.
C. A two-unit residential development shall be prohibited in each of the following circumstances:
1. The two-unit residential development would require demolition or alteration of any of the following types of housing:
a. 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.
b. Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power.
c. Housing that has been occupied by a tenant in the last three years.
2. The parcel subject to the proposed housing development is a parcel on which an owner of residential real property has exercised the owner’s rights under Government Code Section 7060 et seq. to withdraw accommodations from rent or lease within 15 years before the date that the development proponent submits an application.
3. The parcel subject to the proposed housing development is located within a historic district or property included on the State Historic Resources Inventory, as defined in Public Resources Code Section 5020.1, or within a site that is designated or listed as a City or county landmark or historic property or district pursuant to a City or county ordinance.
4. If the two-unit residential development is on a parcel that is any of the following:
a. Either prime farmland or farmland of statewide importance, as defined pursuant to United States Department of Agriculture land inventory and monitoring criteria, as modified for California, and designated on the maps prepared by the Farmland Mapping and Monitoring Program of the Department of Conservation, or land zoned or designated for agricultural protection or preservation by a local ballot measure that was approved by the voters of that jurisdiction.
b. Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).
c. Within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Government Code Section 51178, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code. This subparagraph does not apply to sites excluded from the specified hazard zones by a local agency, pursuant to subdivision (b) of Section 51179 of the Government Code, or sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development.
d. A hazardous waste site that is listed pursuant to Government Code Section 65962.5 or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code, unless the State Department of Public Health, State Water Resources Control Board, or Department of Toxic Substances Control has cleared the site for residential use or residential mixed uses.
e. Within a delineated earthquake fault zone as determined by the State Geologist in any official maps published by the State Geologist, unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by any local building department under Chapter 12.2 (commencing with Section 8875) of Division 1 of Title 2.
f. Within a special flood hazard area subject to inundation by the 1 percent annual chance flood (100-year flood) as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency. If a development proponent is able to satisfy all applicable federal qualifying criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site. A development may be located on a site described in this subparagraph if either of the following are met: (i) The site has been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction; or (ii) The site meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program pursuant to Part 59 (commencing with Section 59.1) and Part 60 (commencing with Section 60.1) of Subchapter B of Chapter I of Title 44 of the Code of Federal Regulations.
g. Within a regulatory floodway as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency, unless the development has received a no-rise certification in accordance with Section 60.3(d)(3) of Title 44 of the Code of Federal Regulations. If a development proponent is able to satisfy all applicable federal qualifying criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site.
h. Lands identified for conservation in an adopted natural community conservation plan pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code), habitat conservation plan pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural resource protection plan.
i. Habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).
j. Lands under conservation easement.
k. All high fire and high wind areas with substandard streets in Special Districts to be identified.
l. All hillside areas with established geotechnical and hydrology challenges in Special Districts to be identified.
m. Any parcel located within a hazard zone as designated on a Geotechnical and Seismic Hazard Map unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by the City’s Community Development Department pursuant to Government Code section 8875 et seq.
D. Any construction of a two-unit residential development shall conform to all property development regulations of the underlying district in the R-1 zone in which the property is located as well as all fire, health, safety and building provisions of this code, subject to the following exceptions:
1. No change in setback shall be required for an existing structure or a structure constructed in the same location and to the same dimensions as an existing structure. Verification of size and location of the existing and proposed structure by City staff requires pre- and post-construction surveys by a California licensed land surveyor. Any addition to an existing structure shall comply with the setback requirements for new construction.
2. For all other dwelling units proposed in connection with a two-unit residential development, a minimum setback of four feet, or the applicable setback for the zone district, whichever is less, is required from the rear and side property lines.
3. Limits on lot coverage, floor area ratio, open space, and size must permit at least two units of at least 800 square feet in connection with a two-unit residential development.
4. New dwelling units proposed in connection with a two-unit residential development shall not exceed 16 feet in height as measured from the datum point, and in no event shall they exceed one story. Plate height shall be limited to 8 feet, six inches.
5. All dwelling units created in connection with a two-unit residential development shall have independent exterior access.
6. For applications that do not involve an urban lot split subdivision pursuant to Chapter 22, Article 06, one of the dwellings on the lot shall be the bona fide principal residence of at least one legal owner of the lot containing the dwelling for three years from the time of approval of the two-unit residential development or, if no unit then exists, for three years from the City’s issuance of the unit’s Certificate of Occupancy, as evidenced by appropriate documents of title and residency. In the event the owner of a lot is a legal entity, at least one owner of the entity shall reside on the lot. Prior to the issuance of a building permit, the applicant shall provide evidence that a covenant has been recorded stating that one of the dwelling units on the lot shall remain owner occupied. The property owner must provide for an inspection every six months for the first three years to ensure the property owner is living onsite. The property owner must pay the special inspection fee as set forth in the City’s fee and fine resolution. This subsection shall not apply to an applicant that is a “community land trust,” as defined in clause (ii) of subparagraph (C) of paragraph (11) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code, or is a “qualified nonprofit corporation” as described in Section 214.15 of the Revenue and Taxation Code.
7. If rented, two-unit residential developments shall only be used for rentals of terms of longer than thirty days.
8. Parking. A one-car garage is required for each unit, with minimum interior dimensions of ten (10) feet wide by twenty (20) feet deep, except that parking is not required if the parcel is located within one-half mile walking distance of either a high-quality transit corridor, as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop, as defined in Section 21064.3 of the Public Resources Code, or if there is a car share vehicle located within one block of the parcel. Two-unit residential developments are subject to 15.07.23. Each garage will be accessible by a 9-foot wide driveway and shall comply with access standards established in the Two-Unit Residential Development Design Standards and the Two-Unit Residential Development and Urban Lot Split Configuration Standards.
9. Two-unit residential developments shall provide a new or separate utility connection directly between each dwelling unit and the utility. The connection may be subject to a connection fee or capacity charge.
10. Two-unit residential developments shall be required to provide fire sprinklers.
11. When a two-unit residential development dwelling unit is proposed on a parcel with an existing single family dwelling unit, the new unit shall utilize the same exterior materials and colors as the existing dwelling unit.
12. Two-unit residential developments shall be required to provide 200 square feet of private open space per unit. The open space will be contiguous to the unit. The minimum dimensions shall be ten (10) feet by twenty (20) feet.
13. All new construction allowed for under this ordinance will have to comply with all applicable sections of the City-adopted 2019 California Fire Code including local amendments, and any future amendments adopted by the City of San Marino. Said requirements shall include but not be limited to: fire apparatus access roads and any additional access roads as may be required by the fire code official, fire sprinklers, fire alarms, including fire alarm monitoring, premises identification, and Fire Protection Water supplies including but not limited to Fire Hydrant Systems.
14. There shall be no phasing of projects. If two new units are proposed, applicant must construct both units at the same time and obtain certificates of occupancy simultaneously.
15. A reciprocal easement agreement that is recorded on title is required for common driveways.
16. LEED Platinum Certification: Concurrent with the submission of any plans for units created under this code for planning, building, or fire plan check, the applicant shall file on forms approved by the Community Development Department, certification of LEED Platinum standard for the design of the said unit(s). This requirement does not apply to conversions of and additions to existing buildings.
17. Units shall include residential grey water systems, all-electric “Energy Star” appliances, and cool-roof technology. These must be identified on documents included with the application. This requirement does not apply to conversions of and additions to existing buildings.
18. A unit may not include a basement. This requirement does not apply to conversions of and additions to existing buildings.
E. Objective Design Standards.
1. Application. Any construction of a two-unit residential development shall comply with this Section, the Two-Unit Residential Development Design Standards and the Two-Unit Residential Development and Urban Lot Split Configuration Standards, as adopted by City Council resolution and as same may be amended from time to time by further City Council resolution.
2. Exceptions to Objective Standards: Any objective zoning standards, objective subdivision standards, and objective design standards that would have the effect of physically precluding the construction of up to two units or that would physically preclude either of the two units from being at least 800 square feet in floor area must be set aside. Objective zoning standards will be set aside in the following order until the site can contain two, 800 square foot units.
a. Front of the lot floor area ratio.
b. Floor area ratio.
c. Lot coverage.
d. Articulation.
e. Open Space.
f. Front yard setback.
g. Height.
h. Tree Preservation.
F. Tree Preservation. In cases where an addition or new construction is being proposed, the property owner shall submit a site plan showing all established trees, heritage trees, and oak trees as defined in Section 23.19.02. The applicant shall submit a tree protection plan as defined in Section 23.19.02. The applicant shall not remove an identified tree unless the addition or new construction cannot otherwise be accommodated elsewhere on the property without removal of an identified tree. If a two unit residential development cannot be constructed without removing an identified tree, the tree must be replaced per the Tree Replacement Matrix in Section 23.19.05.
G. Development impact fees. Applicant shall pay development impact fees in an amount established by City Council resolution.
H. Application Requirements.
1. Applicant must submit a title report and affidavit demonstrating compliance with this section.
2. Applicant must provide notice as required by Section 23.09.04.
I. Review of Application.
1. Applications for two-unit residential developments conforming to the requirements of this section shall be considered ministerially without discretionary review or a hearing by the director of community development. Incomplete applications will be returned with an explanation of what additional information is required.
2. A proposed two-unit residential development shall be denied if the director of community development makes a written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5 of the Government Code, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.
3. A proposed two-unit residential development shall be denied if the application fails to comply with this Section.
4. The Director’s determination on the application is final.
J. Prior to the issuance of a building permit for a two-unit residential development dwelling unit, the property owner shall record a covenant with the County Recorder’s Office, the form and content of which is satisfactory to the City Attorney. The covenant shall notify future owners of the owner occupancy requirements, the approved size and attributes of the units, the affordability requirement, and minimum rental period restrictions. This covenant shall remain in effect so long as a two-unit residential development exists on the parcel.
K. In cases of conflict between this section and any other provision of this title, the provisions of this section shall prevail. To the extent that any provision of this section is in conflict with State law, the applicable provision of State law shall control, but all other provisions of this section shall remain in full force and effect. (Ord. O-21-1385, 12-15-2021; amd. Ord. O-21-1386, 1-12-2022)