DIVISION 17.38 ACCESSORY DWELLING UNITS
Purpose and intent Definitions
Legal accessory dwelling units; Non-confonning accessory dwelling units; Requirements for rented accessory dwelling units; Units that are not legal accessory dwelling units.
Permit application and review procedures Zoning regulations; Development standards Variance or exception
17.38.010 Purpose and intent.
The State Legislature has declared that accessory dwelling units are a valuable form of housing in California. Accessory dwelling units provide housing for family members, students, the elderly, in-home health care providers, the disabled, and others, at below market prices, and within existing neighborhoods. Homeowners who create accessory dwelling units benefit from added income, and an increased sense of security. (Gov’t. Code § 65852.150.)
The city has a long histmy of various types of accessory dwelling units. By enacting this division 17.38, the City Council intends to:
A. Establish the requirements for accessory dwelling units in the city, consistent with California Government Code section 65852.2;
B. Encourage the use of existing accessory dwelling units and the construction of new accessory dwelling units, consistent with this Division;
- Help achieve the goals and policies of the General Plan Housing Element by encouraging a mix of housing types affordable to all economic segments of the community; and
- clmify the requirements for the various kinds of accessory dwelling units in the city.
Inthis division 17.38, the following definitions apply, in addition to the definitions set forth in division 17.90:
Accesso1y dwelling unit means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons. It includes pe1manent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as a primary unit. It may include (I) an efficiency unit, as defined in Health and Safety Code section 17958.l and (2) a manufactured home as defined in
Health and Safety Code section 18007. (Fmmerly called second dwelling unit. See section 17.38.030 for types of accessory dwelling units and permits.)
Affordable housing definitions:
Affordable Rent Level means that the accessory dwelling unit household’s monthly cost of rent, plus the cost of electricity, gas, water and sewer service, and garbage collection (“utilities”) is 30% or less than the upper limit of the annual gross household income, divided by 12, for a specified income category and household size as last published by the California Department of Housing and Community Development (HCD). The City shall dete1mine maximum affordable rent levels for rent-restricted accessory dwelling units following the annual publication of the State Income Limits by HCD. In determining rent levels, the household size for rent-resl!icted accessory dwelling units shall be: studio, I person; one-bedroom, 2 persons; two-bedroom, 3 persons; and, three bedroom, 4 persons. The cost of utilities for the accessory dwelling unit shall be included in the affordable rent level. For rent-restricted accessory dwelling units where utilities are separately metered and billed, and where the accessory dwelling unit household is responsible for the costs of that household’s use of utilities, the maximum rent shall be set at 90% of the affordable rent level. (California Health and Safety Code section 50053.)
Affordable unit means a dwelling unit for sale or rent that meets the California State Department of Housing and Community Development standards of income eligibility and affordable rent levels for Alameda County. (Health and Safety Code sections 50052.5(h) and 50053.)
Gross Household Income means the total monies earned or received by all occupants of an accessory dwelling unit age 18 and over, including: wages and all types of compensation, before any payroll deductions; spousal and child suppo1t; social secmity, retirement, disability, insurance, and other types of periodic payments; unemployment compensation and other payments in-lieu of earnings; welfare and other public assistance; interest, dividends and other payments generated from any real or personal property; net business income; and, any other type of payment determined to qualify as income by the U.S. Department of Housing and Urban Development (HUD) and as published in HUD’s Housing Choice Voucher Program Guidebook. The annual gross household income is calculated by multiplying the monthly amounts earned or received at the time of certification by 12 and adjusting for anticipated payments and changes in amounts over the next 12 months.
Household means those persons who collectively occupy a housing unit. A household shall include any child or dependent, as defined Internal Revenue Code section 152, who is under the age of 18 or who is under the age of 24 and is a full-time student.
Household Size means the number of persons in a household.
Household, Extremely Low Income means a household with an annual gross household income of 30% or less than the Alameda County median annual gross household income for that household size as last published by HCD. (Health and Safety Code section 50079.5.)
Household, Low Income means a household with an annual gross household income between 50% and 80% of the Alameda County median annual gross household income for that household size as last published by HCD. (Health and Safety Code section 50079.5.)
Household, Moderate Income means a household with an annual gross household income between 80% and 120% of the Alameda County median annual gross household income for that household size as last published by HCD. (Health and Safety Code section 50093)
Household, Very Low Income means a household with an annual gross household income between 30% and 50% of the Alameda County median annual gross household income for that household size as last published by HCD. (Health and Safety Code section 50079.5.)
Primaiy unit means a principal, permitted single-family dwelling.
17.38.030 Legal accessory dwelling units; Non-conforming accessory dwelling units; Requirements for rented accessory dwelling units; Units that are not legal accessory dwelling units.
- Legal access01y dwelling units.
The following are kinds of legal accessory dwelling units and pe1mits. Each may be used and rented (subject to the business tax for rental property):
- Access01y dwelling unit permit. An accessory dwelling unit permitted under an accessory dwelling unit pe1mit is a legal accessory dwelling unit. (This includes an accessory dwelling unit approved subject to a variance and an accessory dwelling unit approved subject to exceptions and rent-restrictions, both under section 17.38.070.) Ifthe unit is rent-restricted, then a tenant must be qualified by income level under the permit conditions of approval and the terms of the recorded declaration.
- Second unit permit. A second unit pe1mit issued before December 31, 2016 is a legal accessory dwelling unit.
- Conditional use pennit second unit. Between January 19, 1994 and July 1, 2003, second units were approved by conditional use permit. A second unit permitted
under a conditional use permit during that period of time is a legal accessory dwelling unit.
- Exempt second unit. Ifsecond unit was established before 1930, and the City has confirmed the exempt status in w1iting, the unit is a legal accesso1y dwelling unit.
- Temporary use permit second unit. A temporary use pe1mit second unit approved by the City between May 6, 1987 and July 1, 2003, under former Chapter l 7D, is a legal accessory dwelling unit (and the temporary nature now recognized as pe1manent).
- Non-confo1ming accessory dwelling units. A legal, non-confo 1ming unit may not be modified or expanded except in compliance with division 17.50, Nonconfo 1ming buildings and uses.
- Requirements for accessory dwelling units that are rented. Ifan accessory dwelling unit is rented to a tenant, these additional requirements apply:
- Business tax. An accessory dwelling unit that is rented is subject to an annual business tax for rental property, under City Code chapter 10.
- Rent restrictions. An accessory dwelling unit that has rent restrictions under the conditions of approval and recorded declaration(s) must be rented in accordance with those liniitations. (See section 17.38.070C.)
- Units which are not legal accessory dwelling units. The following types of units are not legal accessory dwelling units. They may not be used for independent living as an independent dwelling unit or rented apait from the primary unit. The owner of one of these units, may apply to the city for an accessory dwelling unit permit under section 17.38.040.
- An unintended accessory dwelling unit. An unintended access01y dwelling unit means a living space which meets the definition of an access01y dwelling unit, but which is not approved for habitation as an independent dwelling. An unintended access01y dwelling unit may include a guest cottage, pool house, or rent-free unit for an au pair, domestic employee or fainily member.
Unapproved exempt accessory dwelling unit. A living unit which might qualify as an exempt accessory dwelling unit under section 17.38.030.A.4 above, for which the owner has not obtained City approval.
- Rented room. A rented room(s), pe1mitted under division 17.40, is not a legal access01y dwelling unit.
- Other. Any other living unit that is not a primmy unit and not an accessory dwelling unit under subsection 17.38.030A, above.
17.38.040 Permit requirement.
A. Access01y dwelling unit permit. An accessory dwelling unit permit is required for a new accessory dwelling unit approved after January 1, 2017.
B. Building pe1mit. A building pe1mit (or other ve1ification of compliance by building official) is required for a new accessory dwelling unit.
17.38.050 Permit application and review procedures.
- Application. An owner may apply for an accessory dwelling unit permit (or other city approval) by submitting a complete application to the Director on a f01m provided by the city. Ifthe accessory dwelling unit requires new exterior construction, the applicant must also submit a separate application for a design review pe1mit (under division 17.66) and, if necessary, a variance.
- Application fee. The owner shall pay an application fee in the amount established by City Council resolution.
- Reviewing bodv: Public hearing. The Director will review each application ministerially to dete1mine if the development standards in section 17.38.060 are met, and will within 120 days of a completed application approve, deny, or refer the application to the Planning Commission.
- Director. The Director will approve the application without notice or public hearing if:
- the application does not require an exception;
- any separate related application for a design review permit (with or without a variance) is approved; and
- the proposed accessory dwelling unit meets all of the development standards in section 17.38.060.
- Director. The Director will approve the application without notice or public hearing if:
- Planning Commission. The following require a noticed public hearing before the Planning Commission, consistent with divisions 17.62 and 17.64:
- Ifthe application requires an exception, the Planning Commission may only approve the application if it meets the requirements of section 17.38.070. If approved, the accessory dwelling unit will be rent-restiicted for 10 years. (See section 17.38.070C.)
Ifthe proposed accessory dwelling unit was established before 1930 it may be an exempt accessory dwelling unit. The prope1ty owner may apply for approval of the accessory dwelling unit based on sufficient evidence (such as
inspection by City staff to verify pre-1930 improvements, rental records, City or County records, written or verbal testimony). An exempt accessory dwelling unit is not subject to the development standards in section 17.38.060. (See section 17.38.030A.4.)
- Decision and conditions. The reviewing body (either the Director or the Planning Commission) shall render its decision in writing and shall state the reasons for approval or denial. The Planning Commission may impose reasonable conditions of approval.
- Appeal. A decision of the Director or the Planning Commission may be appealed within ten days, in accordance with division 17.78. However, for an accessory dwelling unit permit without an exception, the notice of the appeal shall only be given to the owner and appellant, and the grounds for appeal are limited to whether or not the application meets the development standards in section 17.38.060, or a condition of approval.
17.38.060 Zoning regulations; Development standards.
- Zoning regulations; Design Guidelines. Ifa proposed accessory dwelling unit requires new exte1ior conshuction, the applicant must submit a separate application for a design review pe1mit and must comply with the zoning regulations for the district in which is it located. (See divisions 17.20 through 17.28.) The applicant may apply for a variance to these zoning regulations.
The design of the strncture(s) housing the proposed accessory dwelling unit must meet the design criteria in the Piedmont Design Guidelines. As provided in section
l 7.66.030B, an accessory dwelling unit application that proposes only interior remodeling of an existing building and does not propose to change the exterior fo1m of the building is exempt from the design review pe1mit requirement.
Development standards. An accessory dwelling unit shall comply with all of the following development standards, unless the City grants an exception (to unit size or floor area ratio) under section 17.38.070.
- Size. An attached accessory dwelling unit may not exceed 50% of the existing living area up to a maximum of 800 square feet, subject to the zoning regulations (including floor area ratio). A detached accessory dwelling unit may not exceed 800 square feet, subject to the zoning regulations (including floor area ratio). The applicant may seek an exception under section 17.38.070 C.l.
- Access. The accessory dwelling unit must have independent, exte1ior access.
- Owner occupancy. Except for an exempt accessory dwelling unit, the owner of an accessory dwelling unit must occupy either the primary unit or the access01y dwelling unit, if both units are used for habitation. The owner must record with the County Recorder a declaration ofresh·ictions, in a f01m provided by the city.
- Limit of one accessory dwelling unit. There may be no more than one accessory dwelling unit on a parcel. No subdivision of land is authorized that would result in an accessory dwelling unit being located on a separate parcel, unless each parcel meets all of the zoning requirements for the zoning district in which it is located.
- Limitations on city’s approval. Under Government Code section 65852.2, the following limitations apply to any city approval:
- Parking. When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit, any required replacement parking spaces may be located in any configuration on the lot except that the spaces may not be located within the 20-foot street setback. (Gov’t. Code §65852.2 (a)(l )(D)(xi).)
- Setbacks. No setback is required for an existing garage that is conve1ted to an accessory dwelling unit. Ifan accessory dwelling unit is constructed above an existing garage, the minimum setback is five feet from the side and rear lot line. (Gov’!. Code §65852.2 (a)(l)(D)(7).)
- Fire sprinklers. Fire sprinklers shall only be required in accessory dwelling units if fire sprinklers are also required for the primary residence. (Gov’!. Code §65852.2 (e).)
- Passageway. No passageway will be required. (Gov’!. Code §65852.2 (a)(l )(D)(6).)
17.38.070 Variance or exception.
The city may approve a variance, exception, or both, to the development standards.
- Variance. The Planning Commission may approve a variance to a zoning regulation based on the required variance procedures and findings in division 17.70, under a separate application.
- Exception to floor area ratio for new primary residence and accessory dwelling unit. Ifa prope1ty owner proposes a new p1imaiy residence and an accessory dwelling unit, the Planning Commission may approve a floor area ratio exemption without rent restriction
as follows: the square footage of the access01y dwelling unit will not count toward the total floor area ratio for the property up to 800 square feet or 10% of the lot size, which ever is less.
- Exception: unit size. The Planning Commission may approve an exception to the unit size requirement for the accessory dwelling unit. The decision will be based on the requirements and findings of this section. Ifan exception is granted, the accessory dwelling unit will be subject to all the tenns of section 17.38.070C.2 below, including
- Exception to unit size. The Planning Commission may approve an accessory dwelling unit permit with an exception to the maximum unit size of 800 square feet (under section 17.38.060 B.l) up to a maximum unit size of 1,200 square feet, as follows:
IF THE LOT SIZE: THE ACCESSORY DWELLING UNIT MAY BE: UNIT UP TO 1000 SQ. FT. UNIT UP TO 1,200 SQ. FT. is less than the
minimum for the zoning district:
only located within an
existing building, without expansion of the existing building envelope.
for low income housing applies
rent restriction for very low income housing annlies equals or exceeds the 1nini1nu1n for the zoning district: within existing building,
an expansion, or a
rent restriction for low income housing applies rent restriction for very low inco1ne housing applies
The Planning Commission may approve an accessory dwelling unit pennit with an exception to the unit size only if it makes the following findings:
- The proposed accessory dwelling unit will not create a significant adverse impact on any adjacent property and the surrounding neighborhood.
- The lot and the arrangement of existing and proposed physical improvements on the lot can accommodate the proposed accessory dwelling unit size without adversely affecting the views, privacy, or access to light and air of neighboring prope1iies.
- Accessmy dwelling unit pennit with a unit size exception: Additional requirements. Ifan accessory dwelling unit permit with an exception is approved, it is subject to the following additional requirements.
- Rent restriction.
- Declaration ofrent restrictions. The accessory dwelling unit permit with an exception shall have a condition describing the type of rent restriction applicable to the prope1iy. The rent-restJiction shall be recorded in the county recorder’s office, as a declaration of rent restJ·ictions (in a form provided by the city), and will remain in effect for ten years. The ten-year period of rent restriction begins either: (a) on the date ofrecordation or date
of final building inspection, whichever is later; or (b) according to the tenns of the conditions of approval or a recorded declaration.
If,after ten years, the termination of the recorded declaration is not automatic (by its te1ms), the city will record a document terminating the
declaration of rent restrictions, upon the w1itten request of the prope1ty owner.
11. Affordable rent certification. An owner who has executed a declaration must submit to the city an accessory dwelling unit affordable
rent certification: (i) on an annual basis, by each December 31 and as pa1t of the annual city business license application and renewal; and (ii) upon any change in occupancy of the accessory dwelling unit. The accessory dwelling unit affordable rent certification must be on a form provided by the city and must specify whether or not the accessory dwelling unit is being occupied; the rent charged; the utilities that are included in the cost of rent; the household size of the accessory dwelling unit; the names and ages of the accessory dwelling unit occupants; the gross household income of the accessory dwelling unit household; and other inf01mation as determined appropriate by the city.
- Single household. An accessory dwelling unit pennit with an exception is designed for an accessory dwelling unit that is in a dwelling or p01tion of a dwelling designed for, or occupied exclusively by, persons living as one household.