June 10, 2004

City’s Rules Committee opposes latest
secondary unit assembly bill
Vice Mayor Pat Dando calls for city meetings
before ordinance is drafted

By Sheila Sanchez
Staff Writer

San Jose’s Rules Committee has unanimously opposed another proposal to tighten provisions of the controversial and hotly debated state’s secondary unit’s law.

During a May 28 meeting at City Hall, the committee rejected Assembly Bill 2702, sponsored by Assemblyman Darrell Steinberg, D-Sacramento, which seeks to limit local governments’ ability to set certain standards for secondary units.

The bill passed the Assembly May 27 and now goes to the senate for consideration.

Vice Mayor Pat Dando explained the committee, which decides what items are heard by the San Jose City Council, opposed the legislation because the city is still trying to understand the 2002 secondary units law, signed into law when Assembly Bill 1866, sponsored by Assemblyman Roderick Wright, was signed by then Gov. Gray Davis.

“We’re still trying to understand how cities and towns will implement this bill, so we don’t feel that any other bill should be passed until we figure out what AB 1866 means,” Dando said.

The League of California Cities (LCC) has also opposed AB 2702, she said.

“They’ve already passed one bill that really limits local control,” Dando said. “With cities and towns the most important aspect of our jurisdiction is local control. We don’t think it’s appropriate for the state or federal government to come in and tell local officials how to do the business of their city and land use, transportation and public safety are probably the areas of greatest concern when it comes to local control.

Dando blasted AB 1866 for limiting local ability to control land use decisions. She said the LCC would have a board meeting at the end of June to discuss both bills, AB 1866 and the proposed AB 2702.

“The mantra for cities and towns across this nation is local control and any state or federal legislation that threatens local control is not a friend to communities,” Dando emphasized.

AB 2702 would allow jurisdictions to designate areas where secondary units may be permitted based on criteria regarding adequacy of water and sewer services and the impact of secondary units on traffic flow and to impose “reasonable” (not defined in the current legislation) standards regarding parking, height, setbacks, lot coverage, architectural review, maximum size of a unit and restrictions regarding historic places.

It also would authorize local governments to charge a fee to reimburse the jurisdiction for the costs of adopting or amending any ordinance that provides for the creation of secondary units and prohibits a local agency from establishing minimum lot sizes above twice the square footage of the primary unit, unless requested by the owner.

The measure would also allow the total floor space of a secondary unit to be at least 550 square feet unless requested by the owner and allows a local agency to require an applicant to be an owner occupant of either the primary or secondary unit, however, a local government may not impose a deed restriction or other limitation that requires that a property with a secondary 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.

The bill further prohibits a local agency from adopting an ordinance that restricts the occupancy of a secondary unit based on familial status, age, or other specified criteria; and stipulates that parking shall not exceed one space per unit or per bedroom and covered parking may not be required.

Additionally, the measure stipulates that local agencies may impose reasonable standards to limit on-street parking and off-street parking shall be permitted in setback areas in locates determined by the local agency or through tandem parking, unless specified findings are made that this is not feasible.

The council, at the request of Dando, temporarily tabled a proposal to adopt an ordinance allowing secondary units during its April 6 council meeting. City attorneys had originally planned to draft an ordinance on secondary units and present it to the community and get input, but Dando said she wanted to hear from her constituents first, before studying any formal ordinance. Therefore, Dando explained, no ordinance will be drafted until community meetings on the issue are held across the city’s 10 council districts.

Dando’s office will sponsor a meeting on secondary units at 6:30 p.m. Aug. 11 at Castillero Middle School, 6384 Leyland Park Dr., San Jose, Calif., 95120. Another meeting on the issue will be on Aug. 25. No meeting place has been announced yet but it will likely be held in a facility next to the VEP Community Association area in the east part of the district, Dando said.

“My thought was that this is such an emotional issue for people to talk about that it’s important for the city staff to get the sense of the community before they start drafting any ordinance,” Dando said.

A memo written by the Rules Committee, says the passage of AB 1866 has prompted the reevaluation of the city’s 1984 ordinance, which banned the development of secondary units due to findings that it resulted in adverse impacts on the public health, safety and welfare of residents.

“While this measure (AB 2702) would still allow jurisdictions to preclude development of secondary units, it may significantly restrict the city’s ability to craft an ordinance that allows secondary units and is appropriate to San Jose,” the memo said. “… Staff is still concerned about the provisions related to minimum lot size and owner-occupancy requirements.

As written, the memo indicates, it’s unclear whether the measure’s provision related to minimum lot size is tied to twice the size of the primary dwelling or restricts local governments from requiring lots with secondary units to be twice the size of what the jurisdiction allows for one unit developments. “As the city reads the current language, it would not be feasible to tie the minimum lot size to the size of the primary unit. We would, therefore, recommend clarification and amendment regarding this provision,” the memo added.

“While the bill was amended to allow local governments to require owner-occupancy standards it does not allow the local government to require a deed restriction. This will tie the hands of local government to enforce any owner occupancy provision. Neighborhood residents have indicated that they feel the property will be kept up and problematic tenants will be dealt with in a quicker manner with an owner occupancy requirement,” the memo continued. “Unfortunately, if there is no mechanism to enforce this provision, the cities would have little ability to address these public concerns if they proved true. Therefore, we recommend striking language from the bill that restricts the local governments’ ability to impose a deed restriction.”

As the city seeks to reassure its neighborhoods that allowing construction of secondary units is a good, safe and effective way of maximizing the housing opportunities, AB 2702 has the potential to make it more difficult to implement any new ordinance, the memo said. “It’s imperative that jurisdictions retain some flexibility to address their communities’ needs and we encourage the author to amend his bill to allow greater community control in the process instead of applying a one-size-fits-all approach,” it said.

The California Association of Realtors, the California Rural Legal Assistance Foundation, and the Western Center on law and Poverty are the sponsors of the measure. The California League of Cities, the California State Association of Counties, and various other cities are still strong opponents of the bill.