BILL ANALYSIS
AB 2702
Page 1
Date of Hearing: April 14, 2004
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Simon Salinas, Chair
AB 2702 (Steinberg) - As Amended: March 26, 2004
SUBJECT : Housing: second units.
SUMMARY : Creates an alternative production-based certification
process for the housing elements of cities and counties.
Specifically, this bill :
1)Changes the definition of "by right" in the context of
provision of sufficient sites for owner-occupied and rental
residential use and farmworker housing to state that such use
does not require a planned unit development or other
discretionary permit.
2)Authorizes a local government to provide for the creation of
second units in single-family and multifamily residential
zones by an ordinance that may do any of the following:
a) Designate areas within the jurisdiction of the local
agency where second units may be permitted that 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.
b) Impose reasonable 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.
3)Prohibits a second-unit ordinance from being considered in the
application of any local ordinance, policy, or program to
limit residential growth.
AB 2702
Page 2
4)Requires a local government, when it receives its first
application for a permit pursuant to this bill's provisions on
or after July 1, 2003, to approve or disapprove the
application ministerially without discretionary review or a
hearing.
5)Specifies that no provision of this bill may be construed to
require a local government to adopt or amend an ordinance for
the creation of second units, and authorizes a local
government to charge a fee to reimburse it for the costs of
adopting or amending any ordinance that provides for the
creation of second units.
6)Requires a local government that has not adopted an ordinance
governing second units in accordance with this bill, when it
receives its first application for a permit for a second unit,
to accept the application and approve or disapprove the
application ministerially without discretionary review, unless
it adopts an ordinance within 120 days after receiving the
application.
7)Prohibits a local government from requiring a variance or
discretionary permit for the creation of a second unit and
requires it to approve an application for a second unit that
complies with all of the following:
a) The unit is not intended for sale and may be rented;
b) 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 or detached from the existing dwelling and located
on the same lot as the existing dwelling;
e) Requirements relating to height, setback, lot coverage,
architectural review, site plan review, fees, charges, and
other zoning requirements generally applicable to the
primary dwelling in which the property is located;
f) Local building code requirements which apply to detached
dwellings, as appropriate;
g) Approval by the local health officer where a private
AB 2702
Page 3
sewage disposal system is being used, if required.
8)Prohibits any other local ordinance, policy, or regulation
from being the basis for the denial of a building permit or a
use permit for a second unit.
9)Specifies that this bill establishes the maximum standards
that local agencies may use to evaluate proposed second units
on lots zoned for residential use that contain an existing
single-family dwelling, and prohibits any additional
standards, with specified exceptions, from being utilized or
imposed.
10)States that no changes in zoning ordinances or other
ordinances or any changes in the general plan shall be
required to implement this bill, but authorizes a local
government to 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 bill.
11)Prohibits a second unit that conforms to the requirements of
this bill from being considered to exceed the allowable
density for the lot upon which it is located, and requires
that such a second unit shall be deemed to be a residential
use that is consistent with the existing general plan and
zoning designations for the lot.
12)Prohibits the second units from being considered in the
application of any local ordinance, policy, or program to
limit residential growth.
13)Requires local governments to allow second units in all
residential zones but permits them to impose greater
restrictions in one zone than in another.
14)Prohibits local governments from enacting any ordinance
precluding or effectively precluding second units in any
residential zone unless it finds, based on substantial
evidence that the ordinance may limit housing opportunities in
the region and that a specific adverse impact on public health
and safety, as defined, would result from allowing second
units in residential zones.
15)Requires local governments to apply appropriate standards,
AB 2702
Page 4
defined as "densities and requirements with respect to minimum
floor areas, building setbacks, rear and side yards, parking,
the percentage of a lot that may be occupied by a structure,
amenities, and other requirements imposed on residential lots
pursuant to the zoning authority which contribute
significantly to the economic feasibility of producing housing
at the lowest possible cost given economic and environmental
factors, the public health and safety and the need to develop
affordable housing," in making determinations pertaining to
the location and restrictions for second units, and requires
those standards to be objective, in writing, and formally
adopted by the local governing body.
16)Prohibits requirements relating to height, setback, lot
coverage, architectural review, site plan review, fees,
charges, and other zoning requirements generally applicable to
the primary dwelling in which the property is located from
unreasonably restricting an owner's right to construct and
maintain a second unit on his or her property.
17)Prohibits a local government from requiring an owner's
dependent or caregiver to be the occupant of a second unit.
18)Authorizes a local government to require that an applicant
for a permit to create a second unit be an owner-occupant of
either the primary or the second unit.
19)Prohibits a local government from imposing a deed restriction
or other limitation that requires that a property with a
second unit be sold to an owner-occupant or restricts
occupancy of either the primary or secondary unit if the
applicant determines that he or she will not occupy either
unit.
20)Authorizes a local government to require its zoning director
to report annually on the number and distribution of second
units established during the year, and, if 20% of the
single-family dwellings within any block or census tract have
second units, restrict the number, percentage, or spacing of
second units in those blocks or tracts.
21)Prohibits a local agency from adopting an ordinance that
restricts the occupancy of a second unit based on familial
status, age, or other specified criteria.
AB 2702
Page 5
22)Requires the total floor space of a second unit to be at
least 600 square feet unless requested by the owner.
23)Prohibits a local government from requiring more than one
parking space per unit or bedroom, or from requiring covered
parking.
24)States that 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 except that a local
government shall not be required to hold public hearings for
coastal development permit applications for second units.
25)Mandates that, when a school district agrees to allow
multifamily or a single-family residential use on the school
district's property, the residential density permitted on the
parcel is the highest multifamily residential density
permitted on any parcel within 300 feet plus any density bonus
mandated by statute, or, if there is no multifamily
residential use permitted within 300 feet, the highest
multifamily residential density allowable in the community
plan area.
EXISTING LAW :
1)Requires cities and counties to allow the development of
second housing units in single-family and multifamily
residential zones.
2)Authorizes local governments to adopt a second-unit ordinance
that designates allowable areas and imposes development
standards related to things such as parking, height, setback,
lot coverage, architectural review, and maximum size of a
unit.
3)Requires a local government that has not adopted a local
ordinance to approve requests for second units that meet the
following criteria:
a) The unit is not intended for sale and may be rented;
b) The lot is zoned for single-family or multifamily use;
c) The lot contains an existing single-family dwelling;
AB 2702
Page 6
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% 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 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.
4)Requires the approval of the local health officer where a
private sewage disposal system is being used, if required.
5)Requires local second unit ordinances, after July 1, 2003, to
include ministerial approval without discretionary review of
applications for second units that meet the requirements
of the ordinance.
6)Requires local governments without second unit ordinances to
ministerially approve second units that meet all of the
requirements of the current statute.
FISCAL EFFECT : Unknown
COMMENTS :
1)California continues to find itself facing a severe shortage
of affordable housing. Among the causes for this crisis, some
interest groups and legislators have identified the
difficulties that can be encountered when a property owner
attempts to build a second housing unit on his or her
property. According to the author of AB 2702, "Second units
can be a valuable addition to a locality's housing stock and
assist older homeowners in maintaining independence. They are
also a 'smart growth' way to add to the housing stock without
AB 2702
Page 7
using additional land or infrastructure. Second unit law was
enacted two decades ago but has not lived up to its potential
due, in part, to unreasonable obstacles imposed by local
governments."
2)AB 1866 (Wright), Chapter 1062, Statutes of 2002, attempted to
stimulate the creation of second unit housing by making the
second unit approval process ministerial. AB 1866 did not
address the development standards (parking, etc.) that local
governments may apply to second units. Under existing law,
development standards for second units are set by state law if
localities do not adopt a second unit ordinance, but
localities have considerable leeway to set their own standards
governing second units if they adopt a second unit ordinance.
3)According to the sponsors of AB 2702 (the California
Association of Realtors, the California Rural Legal Assistance
Foundation, and the Western Center on Law and Poverty), while
many local governments have adopted ordinances that are
clearly good-faith efforts to implement the provisions of AB
1866, others have found "creative" ways to narrowly conform to
the letter of the law while effectively precluding second
units, in direct opposition to the Legislature's intent in
enacting AB 1866. According to information supplied by the
co-sponsors of AB 2702, some cities permit second units only
on lots of at least one acre, and one city requires the lot
size to be at least five acres for a detached second unit.
Many cities restrict the size of second units, and several
restrict second units to no more than 10% of the square
footage of the principal residence. Other cities restrict who
can rent a second unit or prohibit rentals altogether, limit
the number of permits that can be issued annually, or impose
other conditions that the co-sponsors maintain effectively
preclude the construction of second units. According to the
author and co-sponsors, AB 2702 limits and clarifies the
development standards that local governments may apply to
second units in order to fulfill the intention of the
Legislature when it enacted AB 1866.
4)The opponents of AB 2702 object to the fact that AB 2702 comes
so closely on the heels of AB 1866. Many cities have only
recently completed the changes to their ordinances mandated by
AB 1866, and are now faced with the prospect of having to go
back and expend the time and money to do them yet again. That
aside, they point out some serious questions about the bill's
AB 2702
Page 8
provisions. They maintain that the requirement that second
units be allowed in all residential zones completely
circumvents the existing process which authorizes local
governments to decide which zones to allow them in, and very
likely pre-empts local CC&Rs. AB 2702 significantly limits
the findings about public health and safety a local
government may use to justify a denial of a permit for a second
unit by omitting reference to the "public welfare." This
phrase, which is commonly included with public health and
safety, is the source within the local police power of most
environmental, inclusionary housing, and other policies. The
League of California Cities points out that the entire basis
for local open space elements rests in the concept of
protecting the public welfare.
5)A provision of the bill of particular concern is found on page
11, lines 4 through 9 of the March 26, 2004 version. In their
fact sheet, the co-sponsors state that, under AB 2702, "locals
will continue to set zoning requirements e.g. set back
standards and height requirements, architectural standards,
building code mandates?They will not be able to set any
standard that has the practical effect of discouraging
property owners from ever building and owning a second unit
however." The cited provision of the bill states that "local
agency requirements relating to height, setback, lot coverage,
architectural review, site plan review, lot size, fees,
charges, and other requirements generally applicable to
single-family construction in the zone in which the property
is located may not unreasonably restrict an owner's right to
construct and maintain a second unit on his or her property"
(emphases added). "Unreasonably" restricting an owner's
"right" to build and maintain a second unit is considerably
broader (and also less defined) than discouraging him or her
from ever building or owning such a unit. When taken
together, these two statements seem to say that, while local
governments may set zoning requirements for second units, they
are meaningless if a potential second unit owner-applicant can
ignore them when they "unreasonably restrict" the proposal.
The use of the word "right" is also troubling. A property
owner does not currently have a "right" to build additional
structures on his or her property. What is the nature of this
new property "right"?
AB 2702
Page 9
6)A larger question is raised by the opponents of AB 2702.
Should housing policy in the state be made through a seemingly
endless series of bills that replace local sovereignty in the
area of land use with one-size-fits-all mandates from
Sacramento? These bills all seem to be based on an assumption
that local government obstructionism is the primary cause for
California's housing shortage, an assumption that ignores the
complexity of the issue. California's housing shortage is the
result of a distorted fiscal relationship between the state
and local governments that militates against residential
development, restrictions on potentially developable land by
environmental and other statutorily-mandated requirements, a
serious disconnection between where the jobs are and where the
housing is, and many other factors. While there is no doubt
that some local governments have indeed acted in an
obstructionist and NIMBYish manner to block second units and
other forms of housing, it is also true that many times what
is perceived by the proponents of AB 2702 as obstructionism or
caving in to NIMBYs is simply the elected officials of a city
or county responding to the wishes of their constituents,
which they are obliged to do in a representative democracy.
7)This bill has been double-referred to the Committees on Local
Government and Housing and Community Development.
REGISTERED SUPPORT / OPPOSITION :
Support
CA Association of Realtors [CO-SPONSOR]
CA Rural Legal Assistance Foundation [CO-SPONSOR]
Western Center on Law and Poverty [CO-SPONSOR]
The Agora Group
Barbara Sanders and Associates
Cabrillo Economic Development Corp.
CA Affordable Housing Law Project
CA Labor Federation, AFL-CIO
CA Legislative Council of Older Americans
CA Partnership
AB 2702
Page 10
CA Reinvestment Coalition
Center for Community Advocacy
Central City SRO Collaborative
Chapter 24, GSMOL
Chicano Consortium
Civic Center Barrio Housing Corp.
Coalition for Economic Survival
Community Housing Improvement
Congregations Building Community
Council of Churches of Santa Clara County
East Palo Alto Council of Tenants
Emergency Housing Consortium
Enterprise Foundation
Esperanza Community Housing Inc.
Fair Housing Council of Riverside County
Father Joe's Villages
First Community Housing Inc.
Fisher Sehgal Yanez Architects Inc.
Fresno Interdenominational Refugee Ministries
Gray Panthers California
Greenlining Institute
Hillview Mental Health Center Inc.
Housing Leadership Council of San Mateo County
Housing Rights Committee of San Francisco
Human Rights/Fair Housing Committee
Inclusive Homes
Inquilinos Unidos
Jericho
La Raza Centro Legal Inc.
Loaves and Fishes.
Los Angeles Housing Law Project
Los Angeles Housing Partnership Inc.
Mental Health Advocacy Services.
Mid-Peninsula Housing Coalition
Support (continued)
Neighborhood Housing Services of Orange County
New Directions Inc.
O.N.E. Company
Orange Co Community Housing Corp.
Partners in Housing Inc.
People of Progress
Planning for Elders
Protection and Advocacy
AB 2702
Page 11
Public Advocates
Public Law Center
Rubicon Programs, Inc.
Rural Communities Housing Development Corp.
Renee Franken and Associates
Sacramento Neighborhood Housing Services
San Francisco Homeless Senior Task Force
Santa Cruz Affordable Housing Advocates
Senior Action Network
Shelter Inc. of Contra Costa County
Shelter Partnership Inc.
Southern CA Association of Non-Profit Housing
Southern CA Housing Development Corp.
Strategic Actions for/Just Economy
Tenderloin Housing Clinic
Valley Housing Foundation
Vietnam Veterans of CA - Sacramento Veterans Resource Center
W.O.R.K.S.
West Hollywood Community Housing Corp.
WRJ Group Inc.
Opposition
American Planning Association, CA Chapter
CA State Association of Counties
Cities of Brea, Concord, Coronado, Elk Grove, Fremont, Lakewood,
Roseville, San Luis Obispo, Selma, Signal Hill, and Torrance
County of San Diego
League of California Cities
Sierra Club CA
South Bay Cities Council of Governments
Analysis Prepared by : J. Stacey Sullivan / L. GOV. / (916)
319-3958