HomeMy WebLinkAboutPlanning Comm Rpts. /2005/10/19
AGENDA
PLANNING COMMISSION MEETING
Chula Vista, California
6:00 p.m.
VVednesday, October 19, 2005
Public Services Building
Council Chambers
276 Fourth Avenue
Chula Vista, CA
CALL TO ORDER: Madrid_ Felber_ Nordstrom_ Cortes_ Hom_ Bensoussan_
Tripp_
ROLL CALUMOTIONS TO EXCUSE
PLEDGE OF ALLEGIANCE and MOMENT OF SILENCE
APPROVAL OF MINUTES:
September 28, 2005.
INTRODUCTORY REMARKS
ORAL COMMUNICATIONS
Opportunity for members of the public to speak to the Planning Commission on any
subject matter within the Commission's jurisdiction but not an item on today's
agenda. Each speaker's presentation may not exceed three minutes.
1. ACTION ITEM:
Direction on Policy Framework for Possible Amendment to
Section 19.58.022, Accessory Second Dwelling Units. - City
Initiated. (Legislative)
Project Manager: Luis Hernandez, Development Planning
Manager
DIRECTOR'S REPORT:
COMMISSION COMMENTS:
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT
The City of Chula Vista, in complying with the American with Disabilities Act (ADA), requests individuals who
require special accommodations to access, attend, and/or participate in a City meeting, activity, or service,
request such accommodations at least forty-eight hours in advance for meetings, and five days for scheduled
services and activities. Please contact Diana Vargas for specific information at (619) 691-5101 or
Telecommunications Devices for the Deaf (TDD) at 585-5647. California Relay Service is also available for
the hearing impaired.
MINUTES OF THE
PLANNING COMMISSION
Of the City of Chula Vista, California
6:00 p.m.
Wednesday, September 28 ,2005
Public Services Building
Council Chambers
276 Fourth Avenue
Chula Vista, CA
CALL TO ORDER:
Members present:
Members absent:
Madrid, Felber, Bensoussan, Horn, Nordstrom, Tripp
Cortes
Staff present:
Nancy Lytle, Assistant Planning Director
John Schmitz, Principal Planner
John Mullen, Assistant City Attorney III
ROLL CALL/MOTIONS TO EXCUSE
MSC (Madrid/Felber) (6-0-1-0) to excuse Commissioner Cortes. Motion carried.
PLEDGE OF ALLEGIANCE and MOMENT OF SILENCE
APPROVAL OF MINUTES
September 14,2005
6:07:08 PM MSC (Madrid/Nordstrom) (6-0-1-0) to approve minutes with noted amendment offered by
Cmr. Tripp to reflect staff confirming that traffic improvements will be implemented concurrent with
project implementation, and Cmr. Felber's comment regarding the need to be mindful not to create an
imbalance between multi-family vs. single family neighborhoods. Motion carried.
INTRODUCTORY REMARKS
Read into the record by Chair Madrid
ORAL COMMUNICATDNS
No public input.
1. Public hearing:
PCC 05-24; Consideration of a modification to an existing CUP for a
trucking operation at 120 Press Lane to removethe restriction on the
south facing doors being open between the hours of 6:00 am to 6:00
pm.
Staff recommends that public hearing be opened and continued to a date uncertain.
MSC (Nordstrom/Felber) (6-0-1-0) to continue public hearing to a date uncertain. Motion carried.
2. Public hearing:
PCC 05-53; Consideration of CUP for an outdoor seating area at a
proposed taco shop at 1052 Broadway.
Staff recommends that public hearing be opened and continued to October 12, 2005.
MSC (Madrid/Felber) (6-0-1-0) to continue public hearing to October 12, 2005. Motioned carried.
Planning Commission
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September 28, 2005
3. Public hearing:
PCS 05-10; Consideration for the proposed conversion of the existing
15-unit apartment complex at 916 Fourth Avenue to 15 condominium
units for individual ownership. Oak Fourth Development, LCC.
Background: Danielle Putnam reported that the proposal consists of an application for a Tentative
Subdivision Map to convert a 15-unit apartment complex constructed in 1987, into 15 condominium
units for individual ownership.
Exterior upgrades include new stucco color coat and paint, replacing of roof and mail boxes, installing
tot lot and play structures, repair of driveways and walkways. The interior upgrades include new
flooring, replacement of kitchen and bathroom cabinets, tub, showers, and toilets, new interior paint,
new doors and new appliances.
The applicant will assist tenants who prefer not to purchase their units by providing relocation
information through a meeting with the City's Housing Office and providing monetary compensation
equivalent to two months rent and their full security deposit refundm.
For tenants who wish to purchase their unit, a $7,5000 discount off the price of a comparable unit,
whether upstairs or downstairs. The tenant has the option to accepting the price reduction in the form
of a buyer's credit or as a discount on the firel sale price.
Staff Recommendation: That the Planning Commission adopt Resolution PCS 05-10 recommending
that the City Council approve the proposed Tentative Map in accordance with the findings and subject
to the conditions contained in the Draft Coundl Resolution.
Commission Discussion/Questions:
6:22: 17 PM Cmr. Bensoussan asked if there is a cap to condo conversions.
John Schmitz responded that currently there is no such policy, however, staff made a recommendation
to Council that before any changes are made to the existing regulations that the City should first update
its Housing Element. If there should be any policy directive in the new Element related to a condo
conversion cap, then those could be implemented through subsequent policies and ordinances.
6:24:35 PM Cmr. Madrid stated she is concerned with condo conversions impacting the available rental
market and recommended that there should be a mechanism or trigger by which to gauge when we are
reaching an imbalance and depleting the rental market.
Nancy Lytle responded that the background information should be coming to the Commission by way of
the Housing Element.
6:26: 15 PM Cmr. Nordstrom inquired what provisions are made to encourage and enable condo-
conversion projects and condominium projects being constructed to comply with a recycling program.
John Schmitz referred to Conditional of Approval #8 in the staff report, which requires the applicant to
prepare a waste and recycling plan to tt-e satisfaction of the City's Conservation Coordinator.
Cmr. Tripp commented that the condo-conversion process does not necessarily deplete rental units
because nothing precludes the owner from renting out their unit.
Planning Commission
- 3 -
September 28, 2005
6:30:43 PM Public Hearing Opened.
Wess Alan, 1619 Emerald Ct. Pt., EI Cajon, CA, applicant, stated this is a high-quality project that
brings homeownership to individuals and small families who otherwise cannot afford to buy a single-
family residence. He thanked the Commission and stated he was available to answer any questions.
6:32:00 PM With respect to the site improvements, Cmr. Bensoussan encouraged the applicant to look
into uses that are more environmentally sensitive such as solar heating and tankless water heaters.
Mr. Alan responded that they haven't settled on anything yet and are considering various methods.
They are committed to maintaining the affordability of the units, and environmentally sustainable
methods may be cost prohibitive, which will be the determining factor in what they decide to use.
6:40:05 PM Cmr. Felber asked what determines the top dollar price of a comparable unit.
Mr. Alan responded that itwas whether it was a top or bottom unit and the size of the yard for bottom
units.
6:43:46 PM Public Hearing Closed.
6:45:12 PM MSC (Tripp/Nordstrom) (6-0-1-0) that the Planning Commission adopt Resolution
PCS 05-10 recommending that the City Council approve the proposed Tentative Map in
accordance with the findings and subject to the conditions contained in the Draft Council
Resolution. Motion carried.
DIRECTOR'S REPORT:
Nancy Lytle, Assistant Direcbr reported on the following:
.
The Beautification Awards Banquet will be held on October 26 at the Olympic Training Center. To
accommodate this event, the Regular Planning Commission meeting of October 26 is being moved
to October 19th and asked that the commissioners email the department secretary with their
availability on October 1 flh.
The Commission will be reviewing and makin~ recommendations on policy changes and revisions
to the Second Unit Ordinance on October 1 9 .
.
COMMISSION COMMENTS:
6:48:27 PM Cmr. Tripp requested that a copy of the Santa Monica case regarding granny flats be
included in the packet when the Second Unit Ordinance comes back to the Commission.
6:49: 13 PM With respect to granny-flats, Cmr. Bensoussan stated that it was her understanding that
some jurisdictions are requiring that at least part of the parcel be owner-occupied and this decision was
being challenged in court. She requested that the Commission be briefed on this when this item comes
before them.
Cmr. Bensoussan inquired on the completion of the Housing Element.
Nancy Lytle responded that the Housing Element is in the work program of the Community
Planning Commission
-4-
September 28, 2005
Development Department, however, it is her understanding that it will follow in the quarter after the
General Plan is adopted by Council in December.
. Discussion of legislative vs. quasi-judicial decisions and rules of ex parte contact.
Nancy Lytle gave a Power Point presentation describing the two categories of the types of decisions
the Commission makes in reviewing items, as well as rules governing, site visits, outside contacts and
discussions on matters that the Commission may be considering.
7:13:53 PM Adjourned to the Regular Planning Commission meeting of October12, 2005.
Diana Vargas, Secretary to the Planning Commission
J:\planning\diaNA\09-28-05 Minutes.doc
PLANNING COMMISSION AGENDA STATEMENT
Item: 1
Meeting Date: 10/19/05
ITEM TITLE:
ACTION ITEM: Direction on Policy Framework for Possible
Amendment to Section 19.58.022, Accessory Second Dwelling
Units - City Initiated
On July 12, 2005, the City Council requested a report on the status of the City's
regulations for second dwelling units, prompted by complaints received by the City from
seyeral neighbors where second units are under construction. Based on staff s
inyestigation of the various concerns reported to the city, staff found that the properties in
question are in compliance with the recently adopted Second Unit Ordinance.
Concerns associated with the second units on single-family lots include, but are not
limited to, privacy, parking, size of unit and placement on the lot. Based on the
community feedback, the Planning Commission may determine that the current
regulations (see Exhibit A) are inadequate to address the above-mentioned issues. The
Commission could also determine that the current regulations are adequate to promote the
construction of affordable housing, despite the area residents' concerns. Staff is
providing you the current and alternative property development standards in order to
assist you in providing staff with your input and direction.
RECOMMENDATION:
Consider the alternatives presented in this report and proyide policy direction to staff at
the October 19,2005 Planning Commission meeting.
DISCUSSION:
Background
The State of California finds and declares that Second Units are a valuable form of
housing in California. Government Code 65852 outlines the framework that local
agencies may use to create an ordinance to provide for the creation of second units in
single-family and multifamily residential zones. (see Exhibit B). The legislation was
adopted to prevent excessive regulations at the local level that would reasonably prevent
homeowners from building these type of units. Government Code 65583 provides the
guidelines that would allow local agencies to include second units as a source of
affordable housing to be included in the General Plan. Most recently, the state preempted
the local government right to require a Conditional Use Permit for these units. Now, the
units may only be controlled through zoning as ministerial approyals. Discretionary
processes are no longer allowed.
In January,2003 the City Council adopted the Second Dwelling Unit Ordinance, Section
19.58.022, and subsequently amended it to increase the unit size from 650 to 850 sq. ft.
Page 2, Item No.
Meeting Date: 10/19/05
In the past three years, there have been a total of 34 building permits issued for second
dwelling units; 24 have been completed.
Staff Analysis
The position the City may take is to continue issuing building permits using the current
Ordinance, despite the community feedback. The other option is to amend the current
Ordinance and continue encouraging the construction of these affordable housing units,
but include provisions to preserve the single-family residential character and neighbor's
priyacy. The types of additional property development standards that can be added to the
regulations are outlined in the attached Exhibit C. One of the major suggested changes is
the allowable size of a Second Dwelling Unit on different lot sizes. For example, lots
with a lot area of 5,000 to 6,999 sq ft. would be allowed a Second Dwelling Unit no
larger than 450 sq. ft. However, on a 20,000-sq. ft. lot or larger, could accommodate a
850 sq. ft. unit (see Exhibit C).
The other suggested change is the location of the units. Staff is of the opinion that a large
detached structure on a standard lot could be perceived as a duplex, changing the
character of the neighborhood. But if the Second Dwelling Unit is attached or above the
main structure (house), aesthetically, the structure will most likely be perceiyed as an
addition to the existing house. For this reason, staff is suggesting that on smaller lots the
Second dwelling units be attached or above the existing structure. Howeyer, lots haying
more than 20,000 sq. ft. in lot area could easily accommodate a detached structure
without affecting the residential character.
With regard to building setbacks; second dwelling units, in staff s opinion, are added
liying space on the lot and, therefore, they should be subject to the same building
setbacks as the main structure. The suggested development regulations remove the ability
to locate these units within the required setbacks. This provision added to the more
appropriate size of the unit and the required location within the lot should be beneficial to
improye the privacy issue raised by area residents.
Staff is also suggesting a greater leyel of design scrutiny at the building permit level by
incorporating design guidelines and using the Site Plan and Architectural Reyiew
provision in the Chula Vista Municipal Code. This process and more specific design
parameters would encourage better adaptation of these structures to the existing house
and surrounding neighborhood.
At the Planning Commission meeting, staff will go over these and other property
development standards to seek your input and direction. With your input, staff will be
able prepare and bring back an Ordinance amendment reflecting your direction and
recommendation to the City Council.
Attachments
I. Exhibit A
2. Exhibit B
3. Exhibit C
4. Exhibit D
Current Second Dwelling Unit Ordinance
Government Code Sections 65852 and 65853
Alternative Property Development Standards.
Santa Monica Case
EXHIBIT A
Chula Vista Municipal Code
19.58.022
19.58.270 Retail sales for guests only.
19.58.280 Service stations.
19.58.290 Shooting clubs.
19.58.310 Stables and corrals.
19.58.320 Tract office, temporary.
19.58.330 Trailers.
19.58.340 Recycling and solid waste storage.
19.58.345 Recycling collection centers.
19.58.350 Commercially zoned double frontage
lots.
19.58.360 Zoning wall or fence.
19.58.370 Outside sales and display - Permanent
and temporary.
19.58.380 Special events.
19.58.390 Senior housing development.
19.58.400 Recreational vehicle storage yards.
19.58.410 Prohibition of flashing lights.
19.5 8.420 Water distribution facilities.
19.58.010 Purpose of provisions,
The purpose of these special provisions is to
establish clear and definite terms and conditions
governing the development of certain uses, pos-
sessing unique characteristics or problems, which
will enable diverse uses to be accommodated har-
moniously within the city, and to provide uniform
standards and guidelines for such development.
(Ord. 1356 ~ 1, 1971; Ord. 1212 ~ 1, 1969; prior
code ~ 33.901(A)).
19.58.020 Accessory buildings.
A. An accessory building may be erected
detached from the principal building or, except
when a stable, may be erected as an integral part of
the principal building or it may be attached thereto
by a breezeway or similar structure.
B. Any accessory building attached to the main
building shall be made structurally a part of the
main building and shall comply in all respects with
the requirements of this title applicable to the main
building. Unless attached, an accessory building in
an R zone shall be at least six feet from any dwell-
ing existing or under construction on the same lot
or any adjacent lot. Except in the R-3- T zone, the
following shall apply:
1. No building may occupy any portion of a
required yard; except, that a detached garage or
carport, covered patio enclosed on not more than
two sides, or other accessory one-story building
may disregard any rear or side yard requirements if
located in the rear 30 percent of the lot, or back of
the front 70 feet of the lot;
2. An accessory building or covered patio
located 70 feet or less from the front property line
shall have the same side yard as that required for
the main building, regardless of whether said
accessory building is detached from the main
building;
3. A covered patio, detached garage or car-
port, or other accessory one-story building, may
cover an area not to exceed 30 percent, except as
allowed for parking structures In multiple-family
zones (see CVMC 19.28.100), of the area of any
required rear yard; except, that no accessory build-
ing in a rear yard shall be required to have less than
400 square feet;
4. A covered patio or detached accessory
building located in the rear 30 percent of the lot, or
back of the front 70 feet of the lot, shall be located
either on a property line or not less than three feet
from such line.
e. All accessory buildings shall be considered
in the calculation of lot coverage; garden shelters,
greenhouses, storage shelters and covered patios
shall be permitted as accessory buildings; pro-
vided, that these uses are not equipped for use as
living quarters.
D. Guest house accessory buildings shall not be
closer than 10 feet to the nearest point of the main
building. (Ord. 2145 ~ 2, 1986; Ord. 2124 ~ 7,
1985; Ord. 1356 ~ 1, 1971; Ord. 1212 ~ 1, 1969;
prior code ~ 33.901(B)(l)).
19.58.022 Accessory second dwelling units.
Accessory second dwelling units are allowed in
certain areas as a potential source of affordable
housing and shall not be considered in any calcula-
tion of allowable density for the lot upon which
they are located, and shall also be deemed consis-
tent with the general plan and zoning designation
of the lot as provided. Except as provided in sub-
section (C)(6) of this section, accessory second
dwelling units, whether attached or detached, shall
be considered additions to the existing house for
the purposes of evaluating existing nonconforming
structures or uses for compliance with Chapter
19.64 CVMe. Required corrections of any non-
conforming situations shall occur concurrently
with the addition of the new unit. Accessory sec-
ond dwelling units shall be subject to the following
development standards:
A. Accessory second dwelling units shall be
limited to a maximum gross floor area of up to 850
square feet, or shall have a gross floor area less
than the primary single-family dwelling, which-
ever is less, and may be attached or detached above
or behind a main or primary single-family dwelling
or accessory structure on the same lot.
19-141
(Revised 3/05)
EXHIBIT A
19.58.024
B. The accessory second dwelling unit must
accompany a main or primary dwelling unit on an
A, R-E, R-l or P-C zoned single-family lot. Acces-
sory second dwelling units are precluded from R-2
and R-3 zoned lots.
C. The accessory second dwelling unit shall
conform to the underlying zoning and land use
development standards of the A, R-E, R-l or P-C
zoned lot, such as height, bulk, and area regula-
tions, with the following modifications or excep-
tions:
1. A detached accessory second dwelling
unit shall be located a minimum of six feet from a
main or primary single-family dwelling unit.
2. An accessory second dwelling unit is sub-
ject to the same height limitation as the main or pri-
mary dwelling unit.
3. A single-story accessory second dwelling
unit may be located within a required rear or inte-
rior side yard area, but not closer than five feet to
any property line. In addition, the unit and all other
accessory structures shall not occupy more than 30
percent of the required rear yard. Second-story
accessory second dwelling units shall observe the
setbacks of the primary structure unless the zoning
administrator approves a reduction to not less than
five feet through the approval of a conditional use
permit as authorized by CYMC 19.14.030.
4. A lot shall be a minimum 5,000 square
feet in size to add an accessory second dwelling
unit. Existing lots less than 5,000 square feet may
develop an accessory second dwelling unit only if
it can be incorporated within the existing permitted
building envelope.
5. The lot coverage including an accessory
second dwelling unit shall not exceed 50 percent.
Lots in planned communities that are already per-
mitted to exceed 50 percent in lot coverage by their
sectional planning area general development plan
may include an accessory second unit if the acces-
sory second unit can be incorporated within the
existing permitted lot coverage.
6. Accessory second dwelling units shall be
provided with one standard sized parking space for
studio, one-bedroom, or two-bedroom units; or two
standard sized parking spaces for units with three
or more bedrooms. Said parking is in addition to
the parking requirements for the main dwelling as
specified in CYMC 19.62.170. The director of
planning and building may waive the requirement
to comply with CYMC 19.62.170 if doing so
would be physically infeasible, or materially
impair the neighborhood character or public inter-
est. The off-street parking space(s) shall be on the
same lot as the second dwelling unit, shall be
screened from view from public streets, and shall
not be located within a required front or exterior
side yard setback. Tandem parking is not allowed
to satisfy required parking for an accessory second
dwelling unit. Lots having accessory second dwell-
ing units must take access from a public street,
alley' or a recorded access easement.
7. The accessory second dwelling unit shall
be served by the same water and sewer service lat-
eral connections that serve the main or primary
dwelling unit. A separate electric meter and
address may be provided for the accessory second
dwelling unit.
8. Accessory second dwellings shall be
designed to be consistent in architectural style with
the main house and compatible with surrounding
residential properties. The design review commit-
tee shall review disputes about design and/or com-
patibility issues.
9. Any accessory second dwelling unit that is
attached to an existing residential structure shall
meet the standards of this section, and all applica-
ble development standards of the existing zone.
(Ord. 2957 ~ 1,2004; Ord. 2951 ~ 1, 2004; Ord.
2897 ~ 6, 2003).
19.58.024 Adult-oriented recreation
businesses.
A. The following described businesses are
deemed to be adult-oriented recreation businesses,
and shall only be permitted in the C- T zone:
1. Adult bookstores;
2. Adult motion picture theaters;
3. Adult mini-motion picture theaters;
4. Cabarets;
5. Coin-operated adult entertainment facili-
ties;
6. Massage parlors;
7. Body painting studios;
8. Dancehalls;
9. Model studios;
10. Sexual encounter studios and rap parlors;
11. Narcotic or drug paraphernalia shops.
B. Location Requirements. An adult-oriented
recreation business shall only be located in the C- T
zone, and no such business shall be located within
500 feet of residentially zoned territory, which is
located upon the same street or streets, or is within
500 feet of residentially zoned or residentially used
properties as measured along street rights-of-way
from the proposed location to the boundary line of
said residentially zoned or used properties, or is
located within 500 feet measured radially of any
(Revised 3/05)
19-142
EXHIBIT B
California Government Code 65852.2
65852.2. (a) Any local agency may, by ordinance, provide for the creation of
second units in single-family and multifamily residential zones. The
ordinance: (1) May designate areas within the jurisdiction of the local agency
where second units may be permitted. The designation of areas may be
based on criteria, which may include, but are not limited to, the adequacy of
water and sewer services and the impact of second units on traffic flow.
(2) May impose standards on second units which include, but are not limited
to, parking, height, setback, lot coverage, architectural review, and maximum
size of a unit.
(3) May provide that second units do not exceed the allowable density for the
lot upon which the second unit is located, and that second units are a
residential use that is consistent with the existing general plan and zoning
designation for the lot.
(4) May establish a process for the issuance of a conditional use permit for
second units.
(5) Shall not be considered in the application of any local ordinance, policy, or
program to limit residential growth.
(b) (1) When a local agency which has not adopted an ordinance governing
second units in accordance with subdivision (a) or (c) receives its first
application on or after July 1, 1983, for a conditional use permit pursuant to
this subdivision, the local agency shall accept the application and approve or
disapprove the application pursuant to this subdivision unless it adopts an
ordinance in accordance with subdivision (a) or (c) within 120 days after
receiving the application. Notwithstanding Section 65901, every local agency
shall grant a special use or a conditional use permit for the creation of a
second unit if the second unit complies with all of the following:
(A) The unit is not intended for sale and may be rented.
(8) The lot is zoned for single-family or multifamily use.
(C) The lot contains an existing single-family dwelling.
(0) The second unit is either attached to the existing dwelling and located
within the living area of the existing dwelling or detached from the existing
dwelling and located on the same lot as the existing dwelling.
(E) The increased floor area of an attached second unit shall not exceed 30
percent of the existing living area.
(F) The total area of floor space for a detached second unit shall not exceed
1,200 square feet.
(G) Requirements relating to height, setback, lot coverage, architectural
EXHIBIT B
review, site plan review, fees, charges, and other zoning requirements
generally applicable to residential construction in the zone in which the
property is located.
(H) Local building code requirements which apply to detached dwellings, as
appropriate.
(I) Approval by the local health officer where a private sewage disposal
system is being used, if required.
(2) No other local ordinance, policy, or regulation shall be the basis for the
denial of a building permit or a use permit under this subdivision.
(3) This subdivision establishes the maximum standards that local agencies
shall use to evaluate proposed second units on lots zoned for residential use
which contain an existing single-family dwelling.
No additional standards, other than those provided in this subdivision or
subdivision (a), shall be utilized or imposed, except that a local agency may
require an applicant for a permit issued pursuant to this subdivision to be an
owner-occupant.
(4) No changes in zoning ordinances or other ordinances or any changes in
the general plan shall be required to implement this subdivision. Any local
agency may amend its zoning ordinance or general plan to incorporate the
policies, procedures, or other provisions applicable to the creation of second
units if these provisions are consistent with the limitations of this subdivision.
(5) A second unit which conforms to the requirements of this subdivision shall
not be considered to exceed the allowable density for the lot upon which it is
located, and shall be deemed to be a residential use which is consistent with
the existing general plan and zoning designations for the lot. The second
units shall not be considered in the application of any local ordinance,
policy, or program to limit residential growth.
(c) No local agency shall adopt an ordinance which totally precludes second
units within single-family or multifamily zoned areas unless the ordinance
contains findings acknowledging that the ordinance may limit housing
opportunities of the region and further contains findings that specific adverse
impacts on the public health, safety, and welfare that would result from
allowing second units within single-family and multifamily zoned areas justify
adopting the ordinance.
(d) A local agency may establish minimum and maximum unit size
requirements for both attached and detached second units. No minimum or
maximum size for a second unit, or size based upon a percentage of the
existing dwelling, shall be established by ordinance for either attached or
detached dwellings which does not permit at least an efficiency unit to be
constructed in compliance with local development standards.
EXHIBIT B
(e) Parking requirements for second units shall not exceed one parking space
per unit or per bedroom. Additional parking may be required provided that a
finding is made that the additional parking requirements are directly related to
the use of the second unit and are consistent with existing neighborhood
standards applicable to existing dwellings. Off-street parking shall be
permitted in setback areas in locations determined by the local agency or
through tandem parking, unless specific findings are made that parking in
setback areas or tandem parking is not feasible based upon specific site or
regional topographical or fire and life safety conditions, or that it is not
permitted anywhere else in the jurisdiction.
(f) Fees charged for the construction of second units shall be determined in
accordance with Chapter 5 (commencing with Section 66000).
(g) This section does not limit the authority of local agencies to adopt less
restrictive requirements for the creation of second units.
(h) Local agencies shall submit a copy of the ordinances adopted pursuant to
subdivision (a) or (c) to the Department of Housing and Community
Development within 60 days after adoption.
(i) As used in this section, the following terms mean: (1) "Living area," means
the interior habitable area of a dwelling unit including basements and attics
but does not include a garage or any accessory structure.
(2) "Local agency" means a city, county, or city and county, whether general
law or chartered.
(3) For purposes of this section, "neighborhood" has the same meaning as set
forth in Section 65589.5.
(4) "Second unit" means an attached or a detached residential dwelling unit
which provides complete independent living facilities for one or more persons.
It shall include permanent provisions for living, sleeping, eating, cooking, and
sanitation on the same parcel as the single-family dwelling is situated. A
second unit also includes the following: (A) An efficiency unit, as defined in
Section 17958.1 of Health and Safety Code.
(8) A manufactured home, as defined in Section 18007 of the Health and
Safety Code.
E )(h;b;i C-
DRAFT
Accessory Second Dwelling Unit Development Regulations:
Lot Size:
Lot Size:
Less than 5,000 sq. ft.:
Not allowed.
5,000 - 6,999 sq. ft.
Development Ree:ulations:
Max Floor Area:
450 sq. ft
Unit Location:
Attached, above or a combination of both
Parking Requirement
None
PAR:
As prescribed in the underlying zone.
Lot Coverage:
As prescribed in the underlying zone.
Building Setbacks:
Pront: same as main structure
Side: same as main structure or 5 ft, whichever is greater.
Rear: same as main structure
Ext Side: same as main structure
Building Height:
As prescribed in the underlying zone for the main structure
Building Separation:
Adj. structures
Main structure
10ft. min.
N/A
Open Space:
6 x 10 area for ground units
Not required for second story units
Planning Process:
Site Plan and Architectural Review Pursuant to
(Section19.14.4200fthe CYMe)
Desie:n Guidelines:
Building color, texture and materials should match the existing structure.
Roofpitch style (hip, gable, etc.) shall match existing structure.
Window type, color, frame and materials shall match existing structure.
Entrance to second unit should be located away from public view to preserve the single-family
character.
Windows and balconies should be strategically placed on the building to preserve adjacent the
privacy of adjacent properties.
(Additional building design and site planning criteria would be incorporated before formal
consideration of these development regulations)
Exceptions:
Attached, single-story second dwelling unit may encroach within 10ft of the rear property line,
provided the encroachment does not constitute more than 30% of the required rear setback area
1
DRAFT
}.....eeessory Second Dwelling Unit Development Regulations:
Lot Size:
7,000 -19, 9999sq. ft.
Development Re2ulations:
Max Floor Area: 650 sq. ft
Unit Location: Attached, above or a combination of both
Parking Requirement:
Alternative J
Alternative 2
one-car garage
one open parking stall behind building
setbacks
one on-street space
Alternative 3
FAR:
As prescribed in the underlying zone
Lot Coverage:
As prescribed in the underlying zone
Building Setbacks:
Front: same as main structure
Side: same as main structure or 5 ft, whichever is greater.
Rear: same as main structure
Ext Side: same as main structure
Building Height:
As prescribed in the underlying zone for the main structure
Building Separation:
Adj. structures
Main structure
10ft. min.
N/A
Open Space:
6 x 10 area
Not required for second story units
Planning Process:
Site Plan and Architectural Review Pursuant to
(SectionI9.14.4200fthe CYMe)
Desi2n Guidelines:
Building color, texture and materials should match the existing structure.
Roofpitch and style (hip, gable, etc.) shall match existing structure
Window type, color, frame and materials shall match existing structure.
Entrance to second unit should be located away from public view to preserve the single-family
character.
Windows and balconies should be strategically placed on the building to preserve adjacent
property privacy.
(Additional building design and site planning criteria would be incorporated before formal
consideration of these development regulations)
Exceptions:
Attached, single-story second dwelling unit may encroach within 10 ft of the rear property line,
provided the encroachment does not constitute more than 30% of the required rear setback area
2
DRAFT
LA,.eeessory Second Dwelling Unit Development Regulations:
Lot Size:
20,0000 sq. ft. +
Development Re2ulations:
Max Floor Area:
850 sq. ft
Unit location:
Attached, detached above or a combination thereof
Parking Requirement:
One-car garage.
FAR:
As prescribed in the underlying zone
Lot Coverage:
As prescribed in the underlying zone
Building Setbacks
Front: same as main structure
Side: same as main structure or 10 ft, whichever is greater.
Rear: same as main structure
Ext Side: same as main structure
Building height:
As prescribed in the underlying zone
Building Separation:
Adj. structures
Main structure
10ft. min.
N/A
Open Space:
6 x 10 area
Not required for second story units
Planning Process:
Site Plan and Architectural Review Pursuant to
(SectionI9.14.4200fthe CYMe)
Desi2n Guidelines:
Building color, texture and materials should match the existing structure.
Roofpitch, style (hip, gable, etc.) shall match existing structure.
Window type, color, frame color and materials shall match existing structure.
Entrance to second unit should be located away from public view to preserve the single-family
character.
Windows and balconies should be strategically placed on the building to preserve adjacent
property privacy.
(Additional building design and site planning criteria would be incorporated before formal
consideration of these development regulations)
Exceptions:
Attached, single-story second dwelling unit may encroach within 20 ft of the rear property line,
provided the encroachment does not constitute more than 30% of the required rear setback area
3
E)(~ I 6- I ( -2J
Source: Legal> States Legal - U.S > California> Cases> CA Published Cases, Combined
Terms: santa monica second accessory dwelling unit granny flat (Edit Search I Suggest Terms for My Search)
.Select for FOCUSTM or Delivery
88 Cal. App. 4th 451, *; 105 Cal. Rptr. 2d 802, **;
2001 Cal. App. LEXIS 275, ***; 2001 Daily Journal OAR 3589
COALITION ADVOCATING LEGAL HOUSING OPTIONS et aI., Plaintiffs and Appellants, v. CITY
OF SANTA MONICA, Defendant and Respondent.
No. B135879.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
88 Cal. App. 4th 451; 105 Cal. Rptr. 2d 802; 2001 Cal. App. LEXIS 275; 2001 Daily Journal
DAR 3589
March 13, 2001, Decided
SUBSEQUENT HISTORY: [***1] As Modified on Denial of Rehearing April 11, 2001,
Reported at: 2001 Cal. App. LEXIS 277. The Publication Status of this Document has been
changed from Unpublished to Published April 11, 2001.
Review Denied July 11, 2001, Reported at: 2001 Cal. LEXIS 4656.
PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County.
Super. Ct. No. BS053199. Robert H. O'Brien, Judge.
DISPOSITION: Reversed and remanded with directions.
CASE SUMMARY
PROCEDURAL POSTURE: Appellants filed a petition for writ of mandate, challenging the
constitutionality of a zoning ordinance, Santa Monica, Cal., Ordinance No. 1942 (codified
as Santa Monica, Cal., Mun. Code 9 9.04.13.040(a)). Appellants amended the petition to
add a claim for declaratory and injunctive relief. The Superior Court of Los Angeles County
denied the petition, and appellants sought review.
OVERVIEW: Appellants, a coalition promoting housing options, challenged the
constitutionality of a zoning ordinance issued by respondent city. The ordinance allowed
Li1e creation of "second units" in single-family residential zones, but only if the person
occupying the second unit was the property owner or his/her dependent, or a caregiver for
the property owner or dependent. The trial court denied appellants' petition without
comment. The court of appeals reversed, holding first that although respondent was a
charter city, the municipal affairs doctrine did not apply; respondent was required to
comply with Cal. Gov't Code 9 65852.2, as it recognized in the introductory words to its
own ordinance. The court then held that by limiting residents of second units based on
familial relationships, the ordinance violated the right of privacy under the California
Constitution. Further, the classifications determining permissible occupants bore no
rational relationship to respondent's stated goals and violated the constitution's equal
protection clause. Therefore the court ordered that the offending provisions be severed
from the rest of the ordinance.
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Page 2 of 13
OUTCOME: The court reversed the trial court judgment and remanded for an order
severing the unconstitutional provision from the rest of the ordinance.
CORE TERMS: ordinance, neighborhood, privacy, single-family, staff, occupancy, caregiver,
traffic, zone, residential, parking, privacy interest, intrusion, ban, residents, zoning
ordinance, property owner, zoning, concentration, preservation, unrelated, housing,
detached, equal protection, planning commission, housing element, city council,
classification, municipal, occupying
LexisNexis(R) Headnotes . Hide Headnotes
Real & Personal Property Law> Zoning & Land Use> Zoning Generally
~""
Governments> Local Governments> Ordinances & Regulations 'o~LI
HN1,!,Cal. Govt. Code ~ 65852.2 authorizes local ordinances permitting the creation of
second units in single- and multiple-family zones, and indeed requires local agencies
to permit second units meeting state-set standards unless the locality either (1)
passes its own ordinance providing for such units which may have requirements
stricter than the state standards, or (2) totally precludes them in single-family or
multiple-family zoned areas. But a locality cannot totally preclude second units
unless its ordinance contains findings that the ban is justified by specific adverse
impacts on the public health, safety and welfare that would result from allowing
second units. Cal. Govt. Code S 65852.2(c). More Like This Headnote
Governments> Local Governments> Ordinances & Regulations
HN2,!,Under the "municipal affairs" doctrine, a charter city's ordinances relating to purely
municipal affairs prevail over state laws on the same subject. More Like Tllis Headnote I
Shepardize: Restrict By Headnote
Governments> Local Govemments > Duties & Powers
Real & Personal Property Law> Zonirlg & Land Use> Zoning Generally
HN3,!,If a matter is of statewide concern, charter cities must yield to applicable general
state laws. The legislature has expressly declared housing to be a matter of
statewide concern, as have the courts. More Like This Headnote I
Shepan1ize: Restrict By Headnote
t'''
Governrnents > Local Govel-nments > Duties & Powers '0"]
Real & Personal Pr'operty Law> Zoning & Land Use> Zoning Generally t::~
HN4,!,The city of Santa Monica, California is required to comply with Cal. Govt. Code ~
65852.2. ~Jjore Like This Hearjnote
Constitutional Law> Substantive Due Process> Privacy
HN5,!,The California constitutional right to privacy requires that any incursion into
individual privacy be justified by a compelling public interest. More Like This Headnote I
Sheparcfize: Restrict By Headnote
Constitutional Law> Substantive Due Process> PrivaCY'::';;
HN6,!,Zoning ordinances are much less suspect when they focus on the use of a household
than when they command inquiry into who are the users. More Like This Headnote I
Sl1epardize: Restrict By Headnote
Real & Personal Property Law> Zoning & Land Use> Zoning Generally ~L':j
-"~
Constitutional Law> Substantive Due Process> Privacy ~"i
HN7,!,The right to privacy includes the right to be left alone in one's home. If there is a
privacy right to choose with whom to live in the main residence, that same principle
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Page 3 of 13
must apply to the right to decide who may live in the second unit, because the
second unit, while allowing independent living, is still a part of the
home. More Like This Headnote I Shepardize: Restrict By Headnote
t:"J
Real & Personal Property Law> ZOlling & Land Use> Zoning Generally'..'.!
Constitutional Law> Substantive Due Process> Privacy ~~
HN8z.A zoning ordinance requiring inquiry into the identity of the user of a residence is
suspect. Government may legitimately decide whether second units may be
constructed in particular zones, but may not determine who may live in
them. [Vlore Like This Headnote
Constitutional Law> Substantive Due Process> Privacy t,:1
HN9z. Not every assertion of a privacy interest must be overcome by a compelling interest;
where the privacy interest is less central or in bona fide dispute, general balancing
tests may be employed. More Like This Headnote
t:'l
Constitutional Law> Substantive Due Process> Privacy."
HN10z. There are three identified threshold elements for establishing a violation of the right
to privacy under the California Constitution n a legally protected privacy interest, a
reasonable expectation of privacy, and a serious invasion of privacy n and said that
a privacy invasion must be evaluated by the extent to which it furthers legitimate
and competing interests. fvlore Like This Headnote I Shepardize: Restrict By Headnote
Constitutional Law> Substantive Due Process> Privacy tJ
HN11z.If legitimate objectives can be readily accomplished by alternative means with little
or no privacy impact, the prospect of actionable invasion of privacy is
enhanced. More Like This Headnote
t:'
Constitutional Law> Substantive Due Process> PI-ivacy."j
HN12z. The right to choose with whom to live is fundamental -- not so insignificant or de
minimis an intrusion as to require no justification. More Like This Headnote I
Shepardize: Restrict By Headnote
+'''!
Constitutional Law> Substantive Due Process> Privacy'.,','!
HN13z.The freedom to pursue consensual familial relationships is one of those vital privacy
interests that are fundamental to personal autonomy and require the presence of a
compelling interest to overcome the privacy interest. More Like This Headnote
Constitutional Law> Substantive Due Pmcess > Privacy t;d
HN14z.If legitimate objectives can be readily accomplished by alternative means with little
or no privacy impact, the likelihood of an actionable invasion of privacy is
increased. More Like This Headnote
Governments> Legislation> Interpretation t"::i
HN15z.Courts must give legislative findings great weight and uphold them unless they are
arbitrary and unreasonable. fvlore Like Tills Headnote
+""
Constitutional Law> Equal Protection> Level of Review ,...i
HN16z.Even if a classification of permissible occupiers of a resident does not infringe on a
fundamental right, it must bear a rational relationship to a legitimate state
purpose. More Like This Headnote I Sheparc1ize: Restrict By Headnote
Constitutional Law> Equal Protection
Civil Pmcedure > Remedies
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HN17.t,Section 13 of Santa Monica, Cal., Ordinance No. 1942 (Santa Monica, Cal., Mun.
Code 9 9.04.13.040(a)) specifies that if any section, subsection, sentence, clause,
or phrase is held unconstitutional, that decision shall not affect the validity of the
remaining portions of the ordinance. fvlol-e Like This Headnote
Constitutional Law> Equal Protection
C,vil Procedure> Remedies
HN18.t,It is proper for a reviewing court to correct a discriminatory classification by
invalidating only the invidious exception. rVlore Like This Headnote
. Show Headnotes / Syllabus
COUNSEL:
Isaacs, Clouse & Crose, James B. Isaacs, Jr., and John A. Crose, Jr., for Plaintiffs and
Appellants.
Marsha Jones Moutrie, City Attorney, Barry A. Rosenbaum and Cara E. Silver, Deputy City
Attorneys, for Defendant and Respondent.
JUDGES: Opinion by Boland, J., * with Lillie, P. J., and Woods, J., concurring.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
CPINIONBY: BOLAND
OPINION: [*454] [**803]
BOLAND, J. * --INTRODUCTION
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***2]
This lawsuit, brought by the Coalition Advocating Legal Housing Options (Coalition) and Lou
Moench, challenges the constitutionality of a Santa Monica zoning ordinance. The ordinance
allows the creation of "second units" in single-family residential zones, but only if the person
occupying the second unit is the property owner or his/her dependent, or a caregiver for the
property owner or dependent. Since the ordinance's distinction among permissible users of
second units violates both privacy and equal protection rights under established
constitutional principles, the judgment upholding the ordinance must be reversed.
BACKGROUND AND PROCEDURAL HISTORY
A second unit is an attached or detached unit that provides complete independent living
facilities for one or more persons. The zoning ordinance under review was passed because of
a state law encouraging local agencies to permit the creation of second units in single- and
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multiple-family zones. HN1'i'The statute authorizes such local ordinances, and indeed requires
local agencies to permit second units meeting state-set standards unless the locality [***3]
either (1) passes its own ordinance providing for such units which may have requirements
stricter than the state standards, or (2) totally precludes them in single-family or multiple-
family zoned areas. (Gov. Code, 9 65852.2.) But a locality cannot totally preclude second
units unless its ordinance contains findings that the ban is justified by specific adverse
impacts on the public health, safety and welfare that would result from allowing second units.
(Id. at subd. (c).)
The state's statute on second units was originally enacted in 1982, with legislative findings
that, inter alia, there was a tremendous unmet need for new housing and many benefits
associated with creation of second-family residential units on existing single-family lots.
These included providing a cost-effective means of serving development of housing through
use of existing infrastructures, providing relatively affordable housing without public subsidy,
providing a means for purchasers to meet payments on high interest loans, and providing
security for homeowners. (Stats. 1982, ch. 1440, 9 1, p. 5500.) [*455]
[**804] The statute was amended in 1994. The amendment's [***4] legislative history
indicates that local governments had responded to the existing law either by embracing
second units as a source of affordable housing, or by discouraging their creation through
complicated and expensive application procedures or other means. (Assem. Com. on Housing
& Community Development, Analysis of Assem. Bill No. 3198 (1993-1994 Sess.) as amended
May 4, 1994, p. 4.) The amendment imposed new requirements on local jurisdictions,
including limits on the size and parking requirements that could be imposed for second units.
(Gov. Code, 9 65852.2, subds. (d) & (e).) It also specifically declared the Legislature's intent
that "any second-unit ordinances adopted by local agencies have the effect of providing for
the creation of second units," and that provisions of such ordinances "are not so arbitrary,
excessive, or burdensome so as to unreasonably restrict the ability of homeowners to create
second units in zones in which they are authorized by local ordinance." (Gov. Code, 9
65852.150.)
The City of Santa Monica (the City) received its first application for a second unit in June
1996, 13 years after the initial [***5] state law went into effect. Under state law, the City
then had 120 days to pass its own ordinance, either providing for creation of second units or
totally precluding them. Alternatively, the City would be required to grant a permit for the
second unit if the application complied with state statutory requirements. (Gov. Code, S
65852.2, subd. (b)(l).)
The staff of the city council recommended that the council direct the staff to prepare an
ordinance creating local standards regulating second units. The staff's report advised that the
City's then current prohibition on second units in R-1 single-family districts "does not meet
the requirements of State law." n1 The report said that the staff did not believe that specific
findings justifying a prohibition could be made. n2 The staff's report also included a copy of a
1990 publication from the State Department of Housing and Community Development,
indicating that a local ordinance limiting occupancy to persons related to the owner would be
susceptible to legal challenge.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 In 1988, the Santa Monica City Attorney had given the city council similar advice,
opining that the City's zoning ordinance prohibiting second units in R-1 districts was based on
findings that were "legally indefensible," and that the prohibition was therefore
unlawful. [***6]
n2 The staff's report pointed out that Santa Monica's infrastructure was adequate to
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support development of additional units, particularly in single-family areas; that single-family
areas generally had the lowest traffic volumes of any area in the City; and that additional
impacts from a modest rate of second-unit development could be absorbed without
significant effects.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The council held a public hearing on August 13, 1996, and accepted the staff's
recommendation, and directed staff to prepare an ordinance regulating [*456] second
units. The staff did so, and presented it to the council at its meeting on September 24, 1996,
again stating its view that there was not sufficient evidence to adopt the findings necessary
for a ban of second units. The planning commission had also voted unanimously to
recommend an ordinance legalizing second-unit creation in R-l zones.
Some 24 members of the public spoke at the September hearing, the majority opposing the
proposal and supporting a ban on second units. The speakers opined that second units would
mean more congestion, air pollution, noise, [***7] traffic, and on-street parking; would
add to the burden on the water supply, trash disposal, and schools; and would divert police
resources from other areas to handle the increased crime in R-l neighborhoods.
After discussion, the council rejected the staff's recommendation and instructed the staff to
prepare new recommendations for adoption of an ordinance that would [**805] prohibit
I ental units in the R-l area, with the appropriate findings. The staff was also asked to
evaluate whether any limited hardship exceptions should be included in such an ordinance.
The council held a hearing on October 8, 1996, on a revised ordinance. The proposed
ordinance prohibited second units in R-l districts, with a limited exception for second units
used for the owner's child or parent in cases of substantial hardship. There were 20 speakers,
and again most opposed second units. Two speakers asked for a modification to expand the
exception to include relatives and household help.
After discussion, the council voted four to three to adopt Interim Ordinance No. 1866,
allowing second units only for use by dependents/caregivers rather than only parent/child,
with a requirement for a demonstration [***8] of substantial hardship and a specific
prohibition against renting the unit. The following month the ordinance was extended for 18
months.
A similar interim ordinance (Ordinance No. 1916) was introduced and passed four to three on
June 9, 1998. It eliminated the hardship requirement, permitting second units intended and
used solely for occupancy by dependents or caregivers. The ordinance also contained
regulations governing lot size, density, maximum and minimum unit size, parcel coverage,
parking requirements, design standards and other requirements for second units.
Before the scheduled expiration in June 1999 of Ordinance No. 1916, the planning
c8mmission recommended that the council take a different approach to second units by
controlling them through either density or concentration regulations. At the council's meeting
on April 27, 1999, the staff [*457] presented alternative ordinances for the council's
consideration, one to extend the interim ordinance temporarily, and the other to enact the
same standards permanently. The staff recommended that the council extend the interim
ordinance to allow the opportunity to explore the alternatives proposed by the planning
commission. [***9]
Again, most of the speakers at the council's meeting opposed second units, and the council
adopted the permanent ordinance (Ordinance No. 1942) on May 11,1999, by a five-to-two
vote. n3
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- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 The word "solely" was eliminated from the permanent ordinance, to make clear that, for
example, a caregiver's spouse or children could live with him/her in a second unit.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Meanwhile, in September 1998, shortly after the adoption of Ordinance No. 1916, the
Coalition and Moench, a member of the Coalition and former member of the planning
commission, filed a petition for writ of mandate. The petition sought a writ requiring the city
council to cease enforcement of the dependent/caregiver provision of Ordinance No. 1916 or
to adopt an ordinance eliminating it, and to process otherwise eligible permit applications
without regard to intent or use of the second unit. After the trial court indicated that
alternative forms of relief might be more appropriate, the petition was amended to add a
claim for declaratory and injunctive [***10] relief. The petition was later deemed amended
so as to challenge the permanent ordinance (Ord. No. 1942) upon its enactment.
The matter was heard on July 9, 1999, after filing of supplemental papers, including lengthy
transcripts of the public hearings. After brief oral argument, the court took the matter under
submission, and a few days later issued a minute order denying the petition, without
analysis.
This appeal followed.
DISCUSSION
A. The municipal affairs doctrine does not apply.
CA(l)'+(l) The City argues as a preliminary matter that, as a charter city, it is not required to
comply with the state statute on second units, HN2'+under the "municipal affairs" [**806]
doctrine. That doctrine says that a charter city's ordinances relating to purely municipal
affairs prevail over state laws on the same subject.
The City is incorrect. In the first place, while the City's response to the petition asserted the
municipal affairs doctrine as a defense, the City did not [*458] raise the issue in its briefs
to the trial court, and it is not appropriate to raise it for the first time on appeal. [***11]
In the second place, HN3'+if a matter is of statewide concern, charter cities must yield to
applicable general state laws. (Baggett v. Gates (1982) 32 Cal. 3d 128, 136 [185 Cal. Rptr.
232,649 P.2d 874].) The Legislature has expressly declared housing to be a matter of
statewide concern (e.g., Gov. Code, 9 65580, subd. (a) ["availability of housing is of vital
statewide importance"]; see Gov. Code, 9 65852.150 ["second units are a valuable form of
housing in California"]), as have the courts. (Buena Vista Gardens Apartments Assn. v. City
of San Diego Planning Dept. (1985) 175 Cal. App. 3d 289, 306-307 [220 Cal. Rptr. 732]
[citing cases].) HN4'+Santa Monica is required to comply with section 65852.2, as it
recognizes in the introductory words to its own ordinance.
B. The occupancy limitation in the ordinance violates the right to privacy guaranteed by the
California Constitution.
CA(2a)+(2a) The Coalition's first argument [*** 12] is that, by limiting residents of second
units based on familial relationships, the user provisions of the City's ordinance violate the
right of privacy under the California Constitution, as described in City of Santa Barbara v.
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Adamson (1980) 27 Cal. 3d 123 [164 CaL Rptr. 539,610 P.2d 436,12 A.L.RAth 219]. We
agree, as it is difficult to see any principled distinction between that case and this.
In Adamson, the Supreme Court invalidated an ordinance which prevented unrelated groups
of more than five persons from occupying a home in a single-family zone. This prevented a
9rouP of 12 adults from living in a 24-room, 10-bedroom house owned by one of them. The
question posed by the court was whether a law to promote and protect family values "may
deny to individuals who are not family members certain benefits that family members
enjoy." (City of Santa Barbara v. Adamson, supra, 27 Cal. 3d at p. 128.) The court said that
HN5'i'the California constitutional right to privacy required that any incursion into individual
privacy, such as Santa Barbara's restriction [***13] on communal living, be justified by a
compelling public interest. (Id. at p. 131.) The ordinance's goal of "preservation of a
residential environment" was not advanced by the "rule-of-five." The court was "not
persuaded" that a residential environment was in fact dependent on a blood, marriage or
adoption relationship among the residents of a house. (Id. at p. 132.) The rule-of-five was
"not pertinent to noise, traffic or parking congestion, kinds of activity, or other conditions
that conceivably might alter the land-use-related 'characteristics' or 'environment' of the
districts." (Id. at pp. 132-133.)
The court concluded that the city's stated goals could be enhanced by means less restrictive
of freedom than the rule-of-five, such as reference to [*459] floor space and facilities and
limitations on the number of cars applied evenly to all households, and that "[i]n general,
HN6;;zoning ordinances are much less suspect when they focus on the use than when they
command inquiry into who are the users." (City of Santa Barbara v. Adamson, supra, 27 CaL
3d at p. 133, [***14] italics in original; see also Park Redlands Covenant Control
Committee v. Simon (1986) 181 Cal. App. 3d 87, 96-97 [226 Cal. Rptr. 199] [invalidating
covenant limiting number of occupants of house to three on privacy grounds].)
This case is only a step removed from Adamson: Santa Monica's ordinance does not control
who may live in the main residence on a single-family lot, but does control [**807] who
may live in an independent part of the main residence (if attached) or in close proximity to it
(if detached). Unless we are to say that a second unit is not a part of one's home, personal
decisions about who may live in the second unit are no less entitled to privacy protection
than decisions about who may live together in the main residence.
In short, HN7'i'the right to privacy includes the right to be left alone in our homes. (City of
Santa Barbara v. Adamson, supra, 27 CaL 3d at p. 130.) If there is a privacy right to choose
with whom to live in the main residence, that same principle must apply to the right to
decide who may live in the second unit, [***15] because the second unit, while allowing
independent living, is still a part of the home. As Adamson warned, HNS;;a zoning ordinance
requiring inquiry into the identity of the user is suspect. (Id. at p. 133.) Government may
legitimately decide whether second units may be constructed in particular zones, but may not
determine who may live in them.
The City argues that Adamson is no longer good law, because more recent decisions have
modified the privacy standard, particularly the requirement for a "compelling interest"
justifying an intrusion into privacy. The City cites Hill v. National Collegiate Athletic Assn.
(1994) 7 Cal. 4th 1 [26 Cal. Rptr. 2d 834, 865 P.2d 633] (state constitutional right of privacy
applies to private, as well as to state, action; National Collegiate Athletic Association drug
testing program does not violate that right). But the Hill standards offer the City no solace
either, as decisions following Hill make it clear that the result in Adamson remains
unchanged.
It is true that Hill concluded that [***16] HN9;; not every assertion of a privacy interest
must be overcome by a compelling interest; where the privacy interest is less central or in
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bona fide dispute, general balancing tests may be employed. (Hill v. National Collegiate
Athletic, supra, 7 Cal. 4th at p. 34.) CA(3)'i'(3) HN10'i'Hill identified three threshold elements
for establishing a violation of the right to [*460] privacy under the California Constitutionn
a legally protected privacy interest, a reasonable expectation of privacy, and a serious
invasion of privacynand said that a privacy invasion must be evaluated by the extent to
which it furthers legitimate and competing interests. (Id. at pp. 35-38.) And, HNll'i'if
legitimate objectives can be readily accomplished by alternative means with little or no
privacy impact, "the prospect of actionable invasion of privacy is enhanced." (Id. at p. 38.)
Applying those standards does not change the result in [***17] Adamson, or here, and the
City is mistaken when it argues that Adamson is "inapposite." Indeed, in subsequent cases
the Supreme Court emphasized that Hill "should not be interpreted as establishing significant
new requirements or hurdles that a plaintiff must meet" (italics in original), or as a departure
from decisionsuspecifically including Adamsonnthat "uniformly hold that when a challenged
practice or conduct intrudes upon a constitutionally protected privacy interest, the interests
or justifications supporting the challenged practice must be weighed or balanced against the
intrusion on privacy imposed by the practice." (Loder v. City of Glendale (1997) 14 Cal. 4th
846, 891 [59 Cal. Rptr. 2d 696, 927 P.2d 1200].)
In Loder, the court cited Adamson among others, specifically noting its holding that an
intrusion on a resident's privacy interest in living with unrelated persons is not justified by
governmental interests underlying the local zoning ordinance. Loder went on to say that
"nothing in Hill suggests that the court intended to reject the constitutional analysis applied
in all of these cases." (Loder v. City of Glendale, supra, 14 Cal. 4th at p. 892.) [***18] The
court explained that the three threshold elements identified in Hill merely permit courts "to
weed out claims that involve so insignificant or de minimis [**808] an intrusion on a
constitutionally protected privacy interest as not even to require an explanation or
justification by the defendant." (Id. at p. 893.) Loder was clear that Hill did not adopt "a
sweeping new rule" under which a challenge to conduct that significantly affects a privacy
interest may be rejected without considering "the legitimacy or strength" of the justification
for it. (Id. at pp. 893-894.)
CA(2b)'i'(2b) It is clear from Adamson that HN12'i'the right to choose with whom to live is
fundamental--not "so insignificant or de minimis an intrusion" as to require no justificationu
and nothing in any subsequent case suggests otherwise. The suggestion that this right may
be curtailed when the home is [*461] constructed with independent living facilities
included is unpersuasive. n4 The Hill threshold requirements are plainly met.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 The ordinance would prevent a nondependent adult child or relative, as well unrelated
persons, from occupying a second unit, so the ordinance intrudes on familial decisions as
well. We note that Hill cited HN13'i'''the freedom to pursue consensual familial relationships"
as one of those vital privacy interests that are "fundamental to personal autonomy" and
require the presence of a compelling interest to overcome the privacy interest. (Hill v.
National Collegiate Athletic Assn., supraj 7 Cal. 4th at p. 34.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***19]
The City says it has legitimate countervailing interests to justify the occupancy restriction,
such as preservation of the character of single-family neighborhoods, reduction of noise,
traffic and crime, and ensuring adequate parking. But, as in Adamson, it is difficult to see
how excluding unrelated persons and nondependent family members from second units,
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~':hile permitting dependents and caregivers, advances the preservation of the character of
the neighborhood, or is pertinent to noise, traffic, crime or parking congestion. (City of
Santa Barbara v. Adamsonr suprar 27 Cal. 3d at pp. 132-133.) nS
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
nS The City apparently fears an "undue concentration" of second units, which it found would
not occur if occupancy were restricted to dependents and caregivers. But the only evidence in
the record suggested there would not be many second units under any scenario. The City's
own housing element update for 1998-2003 said that, even if the City's second-unit
ordinance were liberalized, "it is unlikely that second units would have a significant impact on
the new housing stock during this planning period." The report explained that the majority of
such requests for second units would likely be to legalize existing "bootleg" units "and not for
the construction of new housing units." The staff said, in response to councilmember
questions, that information from other cities which have allowed second units was that there
were not a significant number of second units established. And, the city council was advised
in 1988 that it could alleviate any concern about proliferation of second units by establishing
a yearly limit on the number of permits which could be issued in the R-1 district. There was
also a reference to American Planning Association statistics suggesting an expected range of
one to three second units per thousand R-1 homes per year.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***20]
Using the Hill analysis, HN14+if legitimate objectives can be readily accomplished by
alternative means with little or no privacy impact, the likelihood of an actionable invasion of
privacy is increased. (Hill v. National Collegiate Athletic Assn'r suprar 7 Cal. 4th at p. 38.)
Here, there are alternative means with no privacy impact, as the city council was repeatedly
advised by its own staff and the planning commission. Those include limitations on numbers
of permits issued as well as size, density, structural, parking and other requirements already
in the City's ordinance. In sum, consideration of either "the legitimacy or strength" of the
City's justification for the restriction on occupancy of second units makes the balance clear:
the privacy intrusion effected by the ordinance violates the California Constitution. [*462]
C. The occupancy limitation in the ordinance violates California equal protection principles.
CA(4a)+(4a) The City's ordinance effectively classifying permissible users of second
[**809] units also violates the equal protection clause of [***21] the California
Constitution.
CA(5)+(S) The City correctly observes that its zoning powers are broad and that courts must
defer to legislative judgments where the validity of a zoning ordinance is fairly debatable. Of
course that is so; HN15+courts must give legislative findings great weight and uphold them
uilless they are arbitrary and unreasonable. But HN16+even if the classification of permissible
occupiers of the second unit did not infringe as it does on a fundamental right, it must bear a
rational relationship to a legitimate state purpose. (Elysium Instituter Inc. v. County of Los
Angeles (1991) 232 Cal. App. 3d 408, 427-428, 432 [283 Cal. Rptr. 688] [distinction
between nudist camps and recreational clubs, restricting former to A-2 zone, bears no
rational relationship to a conceivable legitimate purpose].) The ordinance fails that test as
;,-.ell. n6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
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n6 Because we invalidate the occupancy limitation on constitutional grounds, we need not
consider the Coalition's additional claims that the ordinance violates the state statute on
second units and the state's Fair Employment and Housing Act.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [* * * 22]
CA(4b)+(4b) The City argues that its objective is to preserve the "character and integrity of
single family neighborhoods" and avoid an undue concentration of population and traffic.
These are certainly legitimate legislative goals, but it is difficult to see how the status of the
occupier of a second unit--an unrelated renter versus a dependent or caregiver who is
.::!Iowed to pay rent--bears any relationship to either one.
The City's own housing element shows that neighborhood character has nothing to do with
the identity of the person using the second unit. n7 The housing element specifically
undertakes to clarify the terms "neighborhood character" and "neighborhood quality," so that
there will be a "common understanding" on which to base the City's neighborhood
preservation policy. And it is clear these terms do not refer to the residents of the
neighborhood. The "key component" of neighborhood character is "recurring building
patterns" within given neighborhoods, and these patterns are defined by such key variables
as lot size, lot development patterns and [*463] density, open space and lot coverage,
building setbacks, height and architecture, and the rate of new development in
those [***23] neighborhoods. (City of Santa Monica Housing Element, at 11-67 to 11-68.)
Notably, the second units allowed by the City must meet specific requirements in virtually all
these categories.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 The record contains selected portions of the City's housing element and the City requests
that the court take judicial notice of inadvertently omitted portions of the housing element.
The omitted portion notes that one of the City's primary housing goals seeks to preserve the
quality and character of its existing single- and multiple-family residential neighborhoods,
rind discusses the meaning and importance of the City's neighborhood preservation policy.
The City's request for judicial notice is granted.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Nor does the occupancy restriction bear any rational relationship to the legislative goal of
preventing undue concentration of population and traffic. The circumstances here are
indistinguishable in principle from those in College Area Renters & Landlord Assn. v. City of
San Diego (1996) 43 Cal. App. 4th 677 [50 Cal. Rptr. 2d 515]. [***24] There, the court
invalidated, on equal protection grounds, an ordinance that distinguished between tenant-
occupants and owner-occupants of detached dwellings in single-family residential
neighborhoods. The ordinance was designed to address nuisance problems associated with
non-owner-occupied rentals, including overcrowding, lack of parking, excessive noise, and
inadequate maintenance "which adversely affects the character of one-family residential
zones." (Id. at p. 680.) It regulated the number of persons over age 18 who could live in a
non-owner-occupied residence based on square footage, number of bathrooms and parking
facilities, but no such occupancy restriction applied to owner-residents. (Id. at p. 681, 50 Cal.
[**810] Rptr. 2d 515.) The court could "perceive of no justification for making a distinction
between the two types of detached dwelling residents," and said that if the city wanted to
address problems associated with overcrowded detached homes, it should do so with a law
applying evenly to all households. (Id. at p. 687.)
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Here, as to second units in single-family residential neighborhoods, the ordinance
similarly [***25] distinguishes between tenant-occupants who are not
dependents/caregivers and owner-occupants and/or their dependents/caregivers. It not only
regulates but completely prohibits the former while permitting the latter. As in College Area
Renters, if the city wants to avoid an "undue concentration of population and traffic"
expected to be caused by second units, it should do so with an ordinance applying evenly to
all households.
The City argues that because it could have banned second units entirely, it therefore may
restrict their use. For one thing, it is questionable whether the City's findings, based not on
population or traffic or any other kind of studies, but solely on opinions expressed by
residents of R-1 districts, could constitute the required statutory findings that a total ban is
justified by "specific adverse impacts on the public health, safety, and welfare that would
result from allowing second units within single-family and multifamily [*464] zoned areas.
. . ." n8 (Gov. Code, 965852.2, subd. (c), italics added.) Assuming the City made or could
make appropriate findings to ban second units, it cannot ban them selectively [***26] in a
manner violating constitutional rights.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 The city council also found that a substantial number of second units already exist in R-1
neighborhoods, either built as accessory units not permitted for dwelling or built without
permits. None of this substantial number of owners (except the original permit applicant)
spoke at any of the public hearings.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
lJ. The remedy for the constitutional violations is severance of the occupancy limitation.
The City argues that if the Coalition prevails, the appropriate remedy is "severance of the
exemption for dependents and caregivers," which it says "would leave in place a prohibition
against second units in the R-1 zone." However, the Coalition did not seek that remedy, and
it is not appropriate for the court to decide what the Council would have done if it had not
passed the ordinance under review.
The ordinance amends a number of sections of the City's Municipal Code to provide, in
considerable detail, for second units, and in a single sentence (Santa Monica [***27]
Mun. Code, 9 9.04.13.040, subd. (a)) restricts their occupancy. The Coalition challenged only
that restriction, and HNl7+section 13 of the ordinance itself specifies that if any "section,
subsection, sentence, clause, or phrase" is held unconstitutional, that decision "shall not
affect the validity of the remaining portions of this Ordinance." CA(6)'i'(6) HN1B+It is proper
for a reviewing court to correct a discriminatory classification by invalidating only the
invidious exception (In re Kapperman (1974) 11 Cal. 3d 542, 550 [114 Cal. Rptr. 97, 522
P.2d 657]), and that is what we do here.
DISPOSITION
The judgment is reversed and the case remanded to the trial court with directions to enter a
new and different judgment declaring unconstitutional and enjoining enforcement of the
occupancy limitations contained in section 9.04.13.040, subdivision (a), of the Santa Monica
Municipal Code. Appellants shall recover their costs on appeal.
Lillie, P. J., and Woods, J., concurred.
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A petition for a [***28] rehearing was denied April 11, 2001, and the opinion was modified
to read as printed above. Respondent's petition for review by the Supreme Court was denied
July 11, 2001. Brown, J., was of the opinion that the petition should be granted.
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Diane Clancey
From:
Sent:
To:
Subject:
Ann Moore
Friday, October 14, 200512:07 PM
Diane Clancey
Dear Mr
~
Mayor- Jentz
1 Q-13-Q5Jinal
9 65852.2. Second residential units
(a)(l) Any local agency may, by ordinance, provide for the creation of second units
in single-family and multifamily residential zones. The ordinance may do any of the
following:
(A) Designate areas within the jurisdiction of the local agency where second units
may be permitted. The designation of areas may be based on criteria, that may
include, but are not limited to, the adequacy of water and sewer services and the
impact of second units on traffic flow.
(6) Impose standards on second units that include, but are not limited to, parking,
height, setback, lot coverage, architectural review, maximum size of a unit, and
standards that prevent adverse impacts on any real property that is listed in the
California Register of Historic Places.
(C) Provide that second units do not exceed the allowable density for the lot upon
which the second unit is located, and that second units are a residential use that is
consistent with the existing general plan and zoning designation for the lot.
(2) The ordinance shall not be considered in the application of any local ordinance,
policy, or program to limit residential growth.
(3) When a local agency receives its first application on or after July 1, 2003, for a
permit pursuant to this subdivision, the application shall be considered ministerially
without discretionary review or a hearing, notwithstanding Section 65901 or 65906
or any local ordinance regulating the issuance of variances or special use permits.
Nothing in this paragraph may be construed to require a local government to adopt
or amend .an ordinance for the creation of second units. A local agency may charge a
fee to reimburse it for costs that it incurs as a result of amendments to this
paragraph enacted during the 2001-02 Regular Session of the Legislature, including
the costs of adopting or amending any ordinance that provides for the creation of
second units.
(b)(l) When a local agency which has not adopted an ordinance governing second
units in accordance with subdivision (a) or (c) receives its first application on or after
July 1, 1983, for a permit pursuant to this subdivision, the local agency shall accept
the application and approve or disapprove the application ministerially without
discretionary review pursuant to this subdivision unless it adopts an ordinance in
accordance with subdivision (a) or (c) within 120 days after receiving the application.
Notwithstanding Section 65901 or 65906, every local agency shall grant a variance
or special use permit for the creation of a second unit if the second unit complies
with all of the following:
(A) The unit is not intended for sale and may be rented.
(6) The lot is zoned for single-family or multifamily use.
(C) The lot contains an existing single-family dwelling.
(D) The second unit is either attached to the existing dwelling and located within
the living area of the existing dwelling or detached from the existing dwelling and
located on the same lot as the existing dwelling.
(E) The increased floor area of an attached second unit shall not exceed 30 percent
of the existing living area.
(F) The total area of floorspace for a detached second unit shall not exceed 1,200
square feet.
(G) Requirements relating to height, setback, lot coverage, architectural review,
site plan review, fees, charges, and other zoning requirements generally applicable
to residential construction in the zone in which the property is located.
(H) Local building code requirements which apply to detached dwellings, as
appropriate,
(I) Approval by the local health officer where a private sewage disposal system is
being used, if required.
(2) No other local ordinance, policy, or regulation shall be the basis for the denial
of a building permit or a use permit under this subdivision.
(3) This subdivision establishes the maximum standards that local agencies shall
use to evaluate proposed second units on lots zoned for residential use which contain
an existing single-family dwelling. No additional standards, other than those provided
in this subdivision or subdivision (a), shall be utilized or imposed, except that a local
agency may require an applicant for a permit issued pursuant to this subdivision to
be an owner-occupant.
(4) No changes in zoning ordinances or other ordinances or any changes in the
general plan shall be required to implement this subdivision. Any local agency may
amend its zoning ordinance or general plan to incorporate the policies, procedures,
or other provisions applicable to the creation of second units if these provisions are
consistent with the limitations of this subdivision.
(5) A second unit which conforms to the requirements of this subdivision shall not
be considered to exceed the allowable density for the lot upon which it is located,
and shall be deemed to be a residential use which is consistent with the existing
general plan and zoning designations for the lot. The second units shall not be
considered in the application of any local ordinance, policy, or program to limit
residential growth.
(c) No local agency shall adopt an ordinance which totally precludes second units
within single-family or multifamily zoned areas unless the ordinance contains findings
acknowledging that the ordinance may limit housing opportunities of the region and
further contains findings that specific adverse impacts on the public health, safety,
and welfare that would result from allowing second units within single-family and
multifamily zoned areas justify adopting the ordinance.
(d) A local agency may establish minimum and maximum unit size requirements
for both attached and detached second units. No minimum or maximum size for a
second unit, or size based upon a percentage of the existing dwelling, shall be
established by ordinance for either attached or detached dwellings which does not
permit at least an efficiency unit to be constructed in compliance with local
development standards.
(e) Parking requirements for second units shall not exceed one parking space per
unit or per bedroom. Additional parking may be required provided that a finding is
made that the additional parking requirements are directly related to the use of the
second unit and are consistent with existing neighborhood standards applicable to
existing dwellings. Off-street parking shall be permitted in setback areas in locations
determined by the local agency or through tandem parking, unless specific findings
are made that parking in setback areas or tandem parking is not feasible based upon
specific site or regional topographical or fire and life safety conditions, or that it is
not permitted anywhere else in the jurisdiction.
(f) Fees charged for the construction of second units shall be determined in
accordance with Chapter 5 (commencing with Section 66000).
(g) This section does not limit the authority of local agencies to adopt less
restrictive requirements for the creation of second units.
(h) Local agencies shall submit a copy of the ordinances adopted pursuant to
subdivision (a) or (c) to the Department of Housing and Community Development
within 60 days after adoption.
(i) As used in this section, the following terms mean:
(1) "Living area," means the interior habitable area of a dwelling unit including
basements and attics but does not include a garage or any accessory structure.
(2) "Local agency" means a city, county, or city and county, whether general law
or chartered.
(3) For purposes of this section, "neighborhood" has the same meaning as set
forth in Section 65589.5.
(4) "Second unit" means an attached or a detached residential dwelling unit which
provides complete independent living facilities for one or more persons. It shall
include permanent provisions for living, sleeping, eating, cooking, and sanitation on
the same parcel as the single-family dwelling is situated. A second unit also includes
the following:
(A) An efficiency unit, as defined in Section 17958.1 of Health and Safetv Code.
(8) A manufactured home, as defined in Section 18007 of the Health and Safety
Code.
(j) Nothing in this section shall be construed to supersede or in any way alter or
lessen the effect or application of the California Coastal Act (Division 20
(commencing with Section 30000) of the Public Resources Code), except that the
local government shall not be required to hold public hearings for coastal
development permit applications for second units.
+History:
Added Stats 1982 ch 1440 9 2, operative July 1, 1983. Amended Stats 1986 ch
156 9 1, operative April 1, 1987.
Amended + Stats 1990 ch 1150 Ei 2 (AS 3529); + Stats 1994 ch 580 Ei 2 (AS
3198).
Amended + Stats 2002 ch 1062 Ei 2 (AS 1866).