County approves rules for housing

Ordinances would help execute new state laws

Marin County supervisors have approved interim ordinances for implementing new state laws that severely limit local control over new residential development.

For the most part, the supervisors followed the recommendations of the county's Planning Commission in designing the ordinances approved on Tuesday — with one exception. Supervisors decided to set the maximum house size allowable under Senate Bill 9 at 1,200 square feet, instead of 1,000 square feet as recommended by the commission.

SB 9, which took effect at the beginning of the year, gives the owners of lots in areas zoned for single-family residences the ministerial right to build two primary residences, an accessory dwelling unit (ADU) and a junior accessory dwelling unit (JADU) on a single lot. The law also permits lot splits, in which case a maximum of four residences are allowed. Accessory dwelling units and junior units count.

Ministerial projects are statutorily exempt

from having to comply with the California Environmental Quality Act.

Setting a maximum limit on the size of residences created under SB 9 is important because, under the law, homeowners could tear down their home and build a bigger one without adding any new residences.

“We want to make sure that this ministerial process isn't used by developers and property owners to build mega-homes in singlefamily residential districts,” said Tom Lai, director of the county's Community Development Agency.

Prior to the board's vote, Supervisor Damon Connolly said he favored accepting the commission's recommendations in their entirety.

“I really see it as an incremental approach as we figure this law out and what the impacts are going to be on communities,” Connolly said.

“SB 9 is a flawed law in the sense that things like highfire-risk zones and other hazards are not adequately accounted

for,” he said.

The Planning Commission took a conservative approach with its recommendations, noting that a slew of new state laws has stripped local jurisdictions of most control over new residential development. Also, the county and its municipalities are under a state mandate to allow 14,405 more residences over the next eight years.

Supervisors Katie Rice and Dennis Rodoni said a 1,000-square-foot limit would be too restrictive.

“It just seems it's against the intent of SB 9 by restricting the size to 1,000 square feet,” Rodoni said.

Rodoni suggested adopting a maximum of 1,200 square feet. Supervisor Stephanie Moulton-Peters said she would support that.

Rice, however, said, “I think we should consider a higher square footage than 1,200 to start off with, given that we have the ability to modify it. I would have been fine with 1,800 square feet.”

Rodoni then said he would be willing to increase the maximum to 1,500 square feet.

Connolly stood firm. “I made the motion to accept the Planning Commission

recommendations,” he said. “So if there is consensus around 1,200, I would be willing to bump it to that.”

Among the commission's suggestions that the supervisors adopted was a recommendation to prohibit the creation of ADUs after lot splits under SB 9, which reduced the maximum number of new residences that could be built from six to four.

Rice said she might want to reconsider that decision in the future. The interim ordinances will be supplanted by more long-term regulations that will be embedded in the housing element of the county's general plan. An update of the plan is in the works and must be completed by January.

The ordinances adopted Tuesday also involve Senate Bill 35, which mandates a ministerial approval process for projects proposed in jurisdictions that have failed to create their state-mandated housing quota.

For the most part, the only say local jurisdictions still have in regulating projects under SB 35 and SB 9 is to enforce “objective design standards” — defined

in SB 35 as “standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark.”

Examples of objective standards include height, setbacks, lot coverage, percentage of open space, density and parking requirements.

The supervisors adopted the floor area ratios, maximum heights and minimum setbacks recommended for SB 9 and SB 35 projects by the Planning Commission. These included 30% floor area ratios and 30-foot height limits for all main buildings.

Rice said she believes the 30% floor area ratio will be effective in limiting the size of homes created under SB 9.

Supervisors also adopted the commission's recommendation to prohibit SB 35 projects from being built in stream conservation areas and wetland conservation areas, or removing protected and heritage trees.

State law provides some exceptions to all of these limitations.

For example, under state

density bonus law, these standards would not apply to SB 35 developers building more than four residences, if the developers demonstrate the standards would make their projects infeasible.

And if the floor area of the new homes proposed under SB 9 is 800 feet or less, state law prohibits any limitation on floor area ratio or building in stream conservation or wetland conservation areas.

SB 9 does allow jurisdictions to require that lots created by an urban lot split have direct access to a public right of way, and the supervisors included that requirement in one of the ordinances they approved. They did so over the objections of Eric McCloskey, one of only two people to file an SB 9 application with the county so far. McCloskey's

application was denied over its lack of access to a public right of way.

During the public comment portion of the meeting, Chris Skelton, McCloskey's attorney, objected to the public-right-of-way requirement, saying the law allows access to be provided by private easements.

Moulton-Peters said, “I strongly insist on direct access to a public road. Many of the homes in my district are on narrow roads as it is.”

The supervisors also stuck with two other recommendations by the commission. They mandated owner occupancy for three years following a lot split under SB 9, and authorized the Planning Commission to review decisions on SB 35 applications without an ability to appeal to the Board of Supervisors.