April 16, 2021
Deeply respected California legislative expert Dan Carrigg of Renne Public Policy Group announces that SB 9 by Toni Atkins, amended by the author on April 5 after intense and broad criticism, still lets developers pave over single-family communities to erect 6-unit projects, and possibly 8 units, where 1 home stands today.
Carrigg’s analysis is published with his permission here.
Senate Bill (SB) 9 (Atkins) As Amended 04/05 Supplemental Analysis
(Prepared by RPPG Senior Policy Advisor, Dan Carrigg) This is a truncated document that provides new analysis and comments specifically to the amendments made to SB 9 (Atkins) based on the April 5, 2021 amended version of the bill.
General Comments on SB 9 (Atkins) Statewide Rezoning of Single-Family Neighborhoods & Urban Parcel Splits, As Amended (04/05)
1) The amendments make minor changes to the introduced bill. The bill continues to be much more than a “duplex bill,” because it operates both in conjunction with ADU law, allowing at least two more units, and a parcel split permitting two units.
2) Up to six units can clearly be built; further clarification is needed regarding the application of “separate conveyance” to the duplex and ADU law, and Junior ADU law to avoid concerns of potentially eight units.
3) The 800 sq.ft. limitations on unit size in the bill can cut both ways, depending on circumstances.
4) The reduction from 50% to 40% for a parcel split, may lead to more parcels being split. The ownership provision is of little value given the five-year sunset.
5) There are continued concerns that language in this bill can be interpreted to conclude that Junior ADU law could apply separately.
All other concerns raised with the original measure, as outlined in the RPPG analysis regarding the impacts on existing neighborhoods, lack of public transparency and due process for those affected, reduction of parking criteria, easements, applicability of other local ordinances, etc. continue to apply. The original analysis based on the introduced version of Senate Bill 9 may be found HERE.
Specific Analysis on SB 9 (04/05) Amendment Language
Section 1. Government Code Section 65852.21 (a): A proposed housing development containing no more than two residential units within a single-family residential zone shall be considered ministerially, without discretionary review…
Carrigg Comments: This clarification does not add much, in terms of limiting the number of units, because of the other provisions that remain in the bill. While this initial language appears to be limited to a duplex, the bill continues to allow (space permitting) additional on a former single-family parcel because: (1) The bill still allows accessory dwelling units to be also constructed on the parcel. (See Sub (e) of this section), and (2) a developer can then later split the parcel and add two more under Section 66411.7.
Section 1. Government Code Section 65852.21 (2) (A): The city or county shall not impose 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.
Carrigg Comments: This 800 ft limitation may be viewed as an improvement from a local government perspective, for those concerned about developers seeking to build large homes under this provision. The smaller footprint could allow locals to protect views, preserve heritage trees, etc. This limitation, however, may also inspire developers to squeeze more small rental units onto a property using a combination of the duplex, ADU and lot splitting provisions.
Section 2 Government Code Section 66411.7 (1): The parcel map or tentative and final map subdivides an existing parcel to create two new parcels of approximately equal lot area provided that one parcel shall not be smaller than 40 percent of the lot area of the original parcel proposed for subdivision.
Carrigg Comments: This change from 50% to 40% may make it more likely that parcels could be split. If one envisions a typical single-family home, after accounting for a front setback from the street, and the home itself, an existing home plus the front setback could occupy over 50 percent of the lot area. Reducing the size of the split parcel to 40 percent, may allow more former backyards to be developed as a separate parcel with two units that can be separately conveyed.
Section 2 Government Code Section 66411.7 (c) (2): A local agency shall not impose objective zoning standards, objective subdivision standards, and objective design review standards that would have the effect of physically precluding the construction of two units on either of the resulting parcels or that would result in a unit size of less than 800 square feet.
Carrigg Comments: In this reference, the 800ft minimum could create major spacing issues when one contemplates:
1) A lot split of 40 percent of the original parcel, which shrinks the size of the secondary parcel.
2) Setbacks to allow for fire access and alongside and rear property lines.
3) Establishing an 800ft minimum in this section may, absent clarification, be interpreted to increase the permitted size of a junior ADU (500 sq. ft. in Sec 65852.22)
Section 2 Government Code Section 66411.7 (f) (1) (A) (B) (2) (3)
(f) (1) A local agency may impose an owner occupancy requirement on an applicant for an urban lot split that meets one of the following conditions:
(A) The applicant intends to occupy one of the housing units as their principal residence for a minimum of one year from the date of the approval of the urban lot split.
(B) The applicant is a “qualified nonprofit corporation.” A “qualified nonprofit corporation” means a nonprofit corporation organized pursuant to Section 501(c)(3) of the Internal Revenue Code that has received a welfare exemption under either of the following:
(i) Section 214.15 of the Revenue and Taxation Code for properties intended to be sold to low-income families who participate in a special no-interest loan program. (ii) Section 214.18 of the Revenue and Taxation Code for properties owned by a community land trust.
(2) A local agency shall not impose additional owner occupancy standards, other than provided for in this subdivision, on an urban lot split pursuant to this section.
(3) This subdivision shall become inoperative on January 1, 2027.
Carrigg Comments: Requiring a one-year owner occupancy standard for a split parcel is a major protection against rampant abuse of this law by speculators, but note it only applies for five years [until Jan. 1, 2027], and there is no similar sunset date on the overall law. A savvy developer could focus first on splitting the main house into a duplex, then adding ADUs, while simply waiting-out this limitation, then applying for a parcel split.
Uncertainty Remains Under the Total Number of Units That Can Be Constructed When Factoring in Current ADU Law
Section 2 Government Code Section 66411.7 (i) (1) (2
(i) (1) Notwithstanding any provision of Section 65852.2, Section 65852.21, Section 65852.22, Section 65915, or this section, a local agency shall not be required to permit more than two units on a parcel created through the exercise of the authority contained within this section.
2) For the purposes of this section, “unit” means any dwelling unit, including, but not limited to, a unit or units created pursuant to Section 65852.21, a primary dwelling, an accessory dwelling unit as defined in Section 65852.2, or a junior accessory dwelling unit as defined in Section 65852.22.
Carrigg Comments: This amendment helps address the concern that ADUs could be also built (in addition to the two units) on the separate parcel created by the split. This addresses one of the vague areas in the introduced version of the bill that led to potential interpretations of allowing up to 10 units on a former single-family parcel. However, there is an interesting cross reference to Junior ADU law, in that it implies that it has separate authority. A recent amendment to SB 10 (Wiener), struck a provision that implied that two ADU’s could be built per parcel under both Section 65852.21, and Section 65852.22.
The reference in paragraph (2) to “units created pursuant to” also is a concern in that it implies that Junior ADU law has separate authority. The limitation on ADUs in subdivision (e) of Section 65852.21 only references Section 65852.2 (general ADU law) but not also (65852.22) Junior ADU law. This omission leaves an open question as to whether Junior ADU law could be interpreted to continue to apply to a duplex built under Section 65852.21. If this is not the author’s intent, then it should be further clarified.
Carrigg Comments: While the amendments attempt to clarify the total number of units that can be constructed under SB 9 and current ADU law, with the continuing vagueness in the language, it can be argued that there is still a potential for up to 8 units to be constructed, if a junior ADU can be attached to each separately conveyed duplex unit. It is important to note that this could be remedied with a simple amendment that specifically clarifies how many total ADU units can be built (combined between both the main parcel and the split parcel) under this bill.
Conclusion by Dan Carrigg: How Many Units Does SB 9 Allow?
How to get to 4 Units:
Under ADU law, both a larger ADU and a junior ADU can be built on each lot. There is no doubt that a developer can get to four units on a parcel, by building a duplex (per 65852.21) then using (65852.2 ADU Law) to add two more units. This can also be done, by building the ADU’s first, then splitting the main home into a duplex.
How to get to 6 Units (two pathways):
1) Duplex + two ADU’s + then build two more units under parcel split under 66411.7. A developer can get to six units by simply developing the duplex and ADU’s first, then later applying for a parcel split. This is due to the fact that there is no provision in the parcel split section that considers what level of development is on the existing parcel prior to the split.
2) Duplex + 2 ADU’s +2 ADUs: The amendments to the bill fail to clarify whether or not the
“separate conveyance” language in sub. (f), will be interpreted to allows two ADUs to be built based on each one of the created duplex units that can be separately conveyed (sold). If this is not the author’s intent, it should be clarified.
How to (in theory) get to 8 units:
If separately conveyed duplex unit under Gov Code Section 65852.21(f) is interpreted to allow 2 ADUs for each separately conveyed unit, then a developer could split the main home into a duplex with each unit able to be separately conveyed (2 units), then build two ADUs for each separately conveyed duplex unit (4 more units), then build two more units with a parcel split. (2) + (4) + (2) = 8. The author could remove all confusion in this area with amendments. If the author’s intent is an absolute maximum of 2, 4, or 6 units under any combination of application of both Sections of SB 9, and ADU laws, then that should be clearly stated.