A. Purpose. The purpose of this section is to allow and appropriately regulate two-unit projects in accordance with Government Code section 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 Rev. & Tax Code § 402.1 (a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by Rev. & Tax Code § 214.15).
2. An application for a two-unit project must be submitted on the city's approved form.
3. The following supplemental reports, drawings, and data shall accompany the application:
a. A set of architectural plans including a site plan, floor plan, elevations, colors and materials sheet, and a preliminary landscape plan illustrating the existing and proposed development.
b. A Phase I Environmental Site Assessment (ESA) and, if required by the Phase I ESA, a Phase II ESA.
c. A Human Health Risk Assessment, if required.
e. A site methane assessment report signed and stamped by a State of California registered geologist. The assessment shall be conducted within 30 days prior to the issuance of a building permit and in accordance with the city's "methane assessment minimum requirements standard" on file in the Community Development Department.
f. A mitigation plan in accordance with the city's "methane mitigation minimum requirements standard" on file in the Community Development Department shall be submitted if the methane site assessment required mitigation, or if the well access exhibit is labeled "no access & methane mitigate required".
4. The applicant must obtain a certificate of compliance with the Subdivision Map Act for the lot and provide the certificate with the application.
5. Only a complete application will be considered. The city will inform the applicant in writing of any incompleteness within 30 days after the application is submitted.
6. The city may establish a fee to recover its costs for adopting, implementing, and enforcing this section of the code, in accordance with applicable law. The city council may establish and change the fee by resolution. The fee must be paid with the application.
D. Approval.
1. An application for a two-unit project is approved or denied ministerially, by the Director of Community Development, without discretionary review.
2. The ministerial approval of a two-unit project does not take effect until the city has confirmed that the required documents have been recorded, such as the deed restriction and easements.
3. The approval must require the owner and applicant to hold the city harmless from all claims and damages related to the approval and its subject matter.
4. The approval must require the owner and applicant to reimburse the city for all costs of enforcement, including attorneys' fees and costs associated with enforcing the requirements of this code.
E. Requirements. A two-unit project must satisfy each of the following requirements:
1. Map Act compliance. The lot must have been legally subdivided.
2. 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. This section applies to any lot in a specific plan where the specific plan limits the primary use of the lot to one primary dwelling.
3. Lot location.
a. The lot is not located on a site that is any of the following:
i. Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters.
ii. A wetland.
iii. Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards.
iv. A hazardous waste site that has not been cleared for residential use.
v. Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards.
vi. Within a 100-year flood hazard area, unless the site has either:
(I) Been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction, or
(II) Meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program.
vii. Within a regulatory floodway, unless all development on the site has received a no-rise certification.
viii. Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan.
ix. Habitat for protected species.
x. Land under conservation easement.
b. The purpose of subparagraph E.3. above is merely to summarize the requirements of Government Code § 65913.4(a)(6)(B)- (K). (See Gov. Code § 66411.7(a)(3)(C), eff. Jan. 1, 2022.)
c. The applicant must provide evidence that the requirements of Government Code § 65913.4(a)(6)(B)-(K) are satisfied.
4. Not historic. The lot must 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 city or county landmark or as a historic property or district, including without limitation property designated SP-11, Crescent Heights Historic District Specific Plan.
5. No impact on protected housing. The two-unit project must not require or include the demolition or alteration of any of the following types of housing:
a. Housing that is income-restricted for households 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 policy power.
c. Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Gov. Code §§ 7060-7060.7) at any time in the 15 years prior to submission of the urban lot split application.
d. Housing that has been occupied by a tenant in the last three years.
6. As part of the two-unit project application, the applicant and the owner of a property must provide a sworn statement by affidavit representing and warranting that Paragraph 6 above is satisfied.
a. The sworn statement must state that:
i. No housing that is income-restricted for households of moderate, low, or very low income will be demolished or altered.
ii. No housing that is subject to any form of rent or price control will be demolished or altered.
iii. No housing that has been withdrawn from rental or lease under the Ellis Act at any time in the last 15 years will be demolished or altered.
iv. No housing that has been occupied by a tenant in the last three years will be demolished or altered.
b. The city may conduct its own inquiries and investigation to ascertain the veracity of the sworn statement, including but not limited to, surveying owners of nearby properties; and the city may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement.
7. Unit standards.
a. Quantity.
i. No more than two dwelling units of any kind may be built on a lot that results from an urban lot split, as defined in Section 18.48.020. For purposes of this paragraph, "unit" means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under this section of this code, an accessory dwelling unit (ADU), or a junior accessory dwelling unit (JADU).
ii. A lot that is not created by an urban lot split may have a two-unit project under this section, plus any ADU or JADU that must be allowed under state law.
b. Unit size.
i. The total floor area of each primary dwelling built that is developed under this section must be:
(I) Less than or equal to 800 square feet and
(II) More than 500 square feet.
ii. 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.
iii. 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.
i. A new primary dwelling unit may not exceed 18 feet in height, measured from grade to peak of the structure, and is limited to one story. This height restriction is only enforced to the extent that it does not prevent two primary dwelling units on the lot at 800 square feet each.
(I) If the development of two primary dwelling units on the lot at 800 square feet each requires a building height in excess of 18 feet, measured from grade to peak of the structure, then any portion of any new primary dwelling that exceeds one story must be stepped back by an additional five feet from the ground floor and shall not exceed 25 feet in height; no balcony deck or other portion of the second story may project into the setback.
ii. 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. Maximum lot coverage is 50% of the lot. For purposes of this paragraph, "lot coverage" means the percentage of the total lot area covered by enclosed structures but excludes uncovered steps, driveways, walkways, covered patios, terraces, fire pits and swimming pools. 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. The minimum open space is 15% of the lot.
i. The following shall not be considered open space for purposes of satisfying minimum requirements:
(I) Required setback areas:
(II) Driveways;
(III) Areas without buildings or structures thereon unless used exclusively for recreational purposes. For any area with buildings or structure used exclusively for recreational purposes, any portion of the area improved with landscaping, walls, fences, patios, and swimming pools shall be considered open space.
ii. This 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.
i. Generally. All setbacks must conform to those objective setbacks that are imposed through the underlying zone.
ii. Exceptions. Notwithstanding subpart 8.g.i. above:
(I) 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.
(II) 800 square feet; four-foot side and rear. The setbacks imposed by the underlying zone must 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.
iii. Side and rear setbacks. Side and rear setback areas shall be landscaped with drought-tolerant plants or a combination of plant and permeable softscape material.
iv. Front setback area. Notwithstanding any other part of this code, dwellings that are constructed under this section must be at least 20 feet from the front property lines. The front setback area must:
(I) Be kept free from all structures greater than four feet high;
(II) Be at least 50 percent landscaped with drought-tolerant plants, with vegetation and irrigation plans approved by a licensed landscape architect;
(III) Allow for vehicular and fire-safety access to the front structure.
h. Parking. Each new primary dwelling unit must have at least one off-street parking space per unit unless one of the following applies:
i. The lot is located within one-half mile walking distance of either:
(I) A corridor with fixed route bus service with service intervals no longer than 15 minutes during peak commute hours or
(II) A site that contains:
(ia) An existing rail or bus rapid transit station,
(ib) A ferry terminal served by either a bus or rail transit service, or
(ic) 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.
ii. The site is located within one block of a car-share vehicle location. For purposes of this section, a car-share vehicle location shall mean a permanent, marked location for car-sharing pick-up or drop-off.
i. Architecture.
i. If there is a legal primary dwelling on the lot that was established before the two-unit project, any new primary dwelling unit must match the existing primary dwelling unit in exterior building materials, articulation, window size, proportion of window units to wall size, direction of opening, muntin pattern, dominant roof pitch, and garage door design. The dominant roof slope is the slope shared by the largest portion of the roof.
ii. 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 must match each other in exterior building materials, articulation, window size, proportion of window units to wall size, direction of opening, muntin pattern, dominant roof pitch, and garage door design. The dominant roof slope is the slope shared by the largest portion of the roof.
iii. All exterior lighting must be limited to down-lights.
iv. 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.
v. 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 must either be (for windows) clerestory 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. 75 percent of the open space must be landscaped with plant material. Evergreen landscape screening must be planted and maintained between each dwelling and adjacent lots (but not rights of way) as follows:
i. Any new or rehabilitated landscaping shall be in accordance to the California Model Water Efficiency Landscape Ordinance.
ii. Artificial turf is prohibited.
iii. At least one 15-gallon size plant shall be provided for every five linear feet of exterior wall. Alternatively, at least one 24" box size plant shall be provided for every 10 linear feet of exterior wall.
iv. 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.
v. All landscaping must be drought-tolerant.
vi. After a two-unit project is approved, any later modification to the landscape, hardscape, or softscape of the lot shall conform to these landscaping requirements and be submitted for review and approval by the Community Development Department.
k. Nonconforming conditions. A two-unit project may only be approved if all nonconforming zoning conditions are corrected.
l. Utilities.
i. Each primary dwelling unit on the lot must have its own direct utility connection to the utility service provider.
ii. Each primary dwelling unit on the lot that is or that is proposed to be connected to an onsite wastewater treatment system must first have a percolation test completed within the last five years or. if the percolation test has been recertified, within the last 10 years.
iii. All utilities must be underground.
m. Laundry facilities. Each primary dwelling unit on the resulting lots must have laundry facilities within the unit that are only accessible from the interior of the primary dwelling unit.
n. Building & safety. All structures built on the lot must 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 city's current code.
8. Fire-hazard mitigation measures. A lot in a very high fire hazard severity zone must comply with each of the following fire-hazard mitigation measures:
a. It must have direct access to a public right of way with a paved street with a width of at least 40 feet. The public right of way must have at least two independent points of access for fire and life safety to access and for residents to evacuate.
b. All dwellings on the site must comply with current fire code requirements for dwellings in a very high fire hazard severity zone.
c. All enclosed structures on the site must have fire sprinklers.
d. All sides of all dwellings on the site must be within a 150-foot hose-pull distance from either the public right of way or of an onsite fire hydrant or standpipe.
e. If the lot does not have a swimming pool, the lot must have a water reservoir of at least 5,000 gallons per dwelling, with fire-authority approved hookups compatible with fire-authority standard pump and hose equipment.
9. Separate conveyance.
a. Primary dwelling units on the lot may not be owned or conveyed separately from each other.
b. Condominium airspace divisions and common interest developments are not permitted within the lot.
c. All fee interest in the lot and all the dwellings must be held equally and undivided by all individual property owners.
d. No time-share, as defined by state law or this code, is permitted. This includes, but is not limited to, any co-ownership arrangement that gives an owner the right to exclusive use of the property for a defined period or periods of time.
10. 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 must occupy one of the dwellings on the lot as the owners' principal residence and legal domicile.
11. Notice of construction.
a. At least 30 business days before starting any construction of a two-unit project, the property owner must give written notice to all the owners of record of each of the adjacent residential parcels, which notice must include the following information:
i. Notice that construction has been authorized,
ii. The anticipated start and end dates for construction,
iii. The hours of construction,
iv. Contact information for the project manager (for construction-related complaints), and
v. Contact information for the Building & Safety Department.
vi. The following statement in bold font: "This notice does not confer a right on noticed persons or any other member of the public to submit formal comments in support of or in opposition to the project. Under state law, the City has no discretion in approving or denying the project. This notice is solely for informational purposes and to promote neighborhood awareness."
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 city has no discretion in approving or denying a particular project under this section. This notice requirement is purely to promote neighborhood awareness and expectation.
12. Deed restriction. The owner must record a deed restriction, in a form approved by the city, that does each of the following:
a. Expressly prohibits any rental of any dwelling on the lot 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 lot, any separate fee interest, and any common interest development within the lot.
d. 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.
e. Limits development of the lot to residential units that comply with the requirements of this section, except as required by state law.
F. Specific adverse impacts.
1. Notwithstanding anything else in this section, the city 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 Gov. 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 Revenue and Taxation Code section 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. Coastal regulations apply in full. Nothing in this section alters or lessens the effect or application of the California Coastal Act.
H. 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 city 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 city's code.
(Ord. 2021-12-1530-U)