Chapter 7.22 SB 9 Two (2) Unit Projects
7.22.010 Purpose
The purpose of this Chapter is to allow and appropriately regulate two (2) unit projects in accordance with Government Code Section 65852.21. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.020 Applicability
This Chapter shall only apply to the extent that the City is required to ministerially approve a proposed housing development containing no more than two (2) residential units under Government Code Section 65852.21. If Government Code Section 65852.21 is repealed, determined to be unlawful or otherwise unenforceable, then this Section shall only govern then existing two (2) unit projects and no applicant for a two (2) unit project may claim any rights hereunder. The intent of this Section is to only implement the requirements of Government Code Section 65852.21 and this Section shall not be construed to allow any greater rights to a two (2) unit project than the City is required to grant under State law. For purposes of this Chapter, a housing development contains two (2) residential units if the development proposes no more than two (2) new units or if it proposes to add one (1) new unit to one (1) existing unit. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.030 Definitions
A. "Accessory dwelling unit" or "ADU" has the same meaning as in Section 7.28.030, as it may be amended from time to time.
B. "City" means the City of La Habra Heights, California.
C. "Director" means the Community Development Director for the City.
D. "Floor area" has the same meaning as in Government Code Section 65852.21, which for purposes of this Chapter shall be the total square footage of a structure measured from the exterior perimeter walls and inclusive of all floors. The foregoing shall be superseded by any future amendments to or interpretations of the meaning of "floor area" under Government Code Section 65852.21.
E. "Fire apparatus access road" has the same meaning as defined in Section 202 of the 2019 California Fire Code, which is a road that provides fire apparatus access from a fire station to a facility, building or portion thereof. This is a general term inclusive of all other terms such as fire lane, public street, private street, parking lot lane and access roadway. A fire apparatus access road shall have an unobstructed paved width of not less than twenty (20) feet (six thousand ninety-six (6,096) mm) and an unobstructed vertical clearance of not less than thirteen (13) feet six (6) inches (four thousand one hundred fifteen (4,115) mm) or any greater unobstructed width or vertical clearance that the Fire Code requires. A fire apparatus access road shall be paved and shall connect to other fire apparatus access roads that lead to roads enabling evacuation from the City.
F. "Individual property owner" means a natural person holding fee title individually or jointly in the person’s own name or a beneficiary of a trust that holds fee title. "Individual property owner" does not include any corporation or corporate person of any kind (partnership, LP, LLC, C corp, S corp, etc.) except for a community land trust (as defined by Revenue and Taxation Code Section 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by Revenue and Taxation Code Section 214.15).
G. "Junior accessory dwelling unit" or "JADU" has the same meaning as in Section 7.28.030, as it may be amended from time to time.
H. "Specific adverse impact" has the same meaning as in Government Code Section 65589.5(d)(2), which is "a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete" and does not include (1) inconsistency with the Zoning Ordinance or General Plan land use designation or (2) the eligibility to claim a welfare exemption under Revenue and Taxation Code Section 214(g).
I. A "two (2) unit project" means the development of two (2) primary dwelling units or, if there is already a primary dwelling unit on the lot, the development of a second primary dwelling unit on a legally subdivided lot in accordance with the requirements of this Section. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.040 Applicants; Approving Authority
A. Owners/Lienholders. Only individual property owners may apply for a two (2) unit project. Any person with a security interest in, or other senior lien against, the lot to be developed with a two (2) unit project must consent and subordinate to recordation of the restrictions resulting from the two (2) unit project against the title of the property.
B. Approval Authority. The Director shall ministerially approve all applications for two (2) unit projects that are subject to approval. Such applications shall be approved and denied in accordance with Section 7.22.060 (Grounds for Denial). The Director’s decisions on applications shall be final.
1. Appeal. A decision of the Director shall become final at five p.m. on the eleventh business day next succeeding the date of the decision unless, prior to that hour, the applicant files an appeal to the City Manager. Decisions that are timely appealed shall not become effective until the appeal is resolved. A notice of appeal shall be in writing and shall be filed in duplicate in the office of the City Clerk upon forms provided by the City. An appeal must set forth specifically where there was an error or abuse of discretion or where an application did meet those qualifications or standards set forth in this Code as prerequisite to the granting of the application. If the applicant contends that one (1) or more specific adverse impacts can be satisfactorily mitigated or avoided, then the appeal must set forth in detail how such specific adverse impacts can be mitigated or avoided. The applicant shall have the burden of showing in all respects that the City must ministerially approve the application. The City Manager shall issue a written determination of an appeal within thirty (30) days of submittal of the appeal. The City Manager’s determination shall be final, and judicial review of the decision must be sought within the time prescribed by the California Code of Civil Procedure Section 1094.6.
C. Application. An application for a two (2) unit project must be submitted on the City’s approved form. Only a complete application will be considered. The City’s application form shall, at a minimum, require the applicant to submit the following:
1. Evidence that the applicant is an individual property owner.
2. If applicable, compliance with the consent and subordination requirements provided in subsection A of this Section.
3. Proof that none of the circumstances set forth in Sections 7.22.060(F) (Historic Properties and Districts) and (G) (Impact on Protected Housing) are present.
4. A signed affidavit indicating that the applicant acknowledges and agrees that the lot will be used for residential purposes only.
5. Proof of any inspections required under Section 7.22.060(E).
6. Proof that the requirements of Section 7.22.070(E) (Demolition Cap) are satisfied.
7. If the lot would result in the demolition or alteration of existing housing, proof that no housing on the lot has been occupied by a tenant within the last three (3) years.
8. In accordance with Section 7.22.070(I), a signed acknowledgment stating the applicant understands that the City will not approve the application if all nonconforming zoning conditions are not corrected.
9. A title report, litigation guarantee or other documentation showing evidence of any senior security interests or liens against the property.
D. Application Fee. The City may establish a fee to recover its costs for adopting, implementing, and enforcing this Chapter, in accordance with applicable law. The City Council may establish and change the fee by resolution. The fee must be paid with the application. In the absence of a fee specific to two (2) unit projects, the applicant shall pay the fee related to site plan review. The fee may be in the form of a deposit for the City’s actual costs incurred. Nothing in this Section shall limit the requirements to pay any other City fees, including building permit processing fees. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.050 Objective Development Standards
A two (2) unit project shall comply with all requirements of this Chapter, all objective development standards set forth in this Code or otherwise established by the City, and all other requirements that are not in conflict with Government Code Section 65852.21. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.060 Grounds for Denial
The Director shall deny an application for a two (2) unit project if any of the following are true:
A. Development Standards. The two (2) unit project does not satisfy the requirements of Section 7.22.050 (Objective Development Standards) or 7.22.070 (Standards Specific to Two (2) Unit Projects).
B. Lawful Subdivision. The lot was not legally subdivided.
C. Zone. The lot is not zoned for single-family residential uses.
D. Lot Location. The lot does not satisfy the requirements of Government Code Sections 65913.4(a)(6)(B) through (K). (See Government Code Section 66411.7(a)(3)(C).)
E. Inspection.
1. Very High Fire Hazard Severity Zone. For lots within a high fire hazard severity zone, the application does not include proof of an inspection by the City’s Building Official or other City designee confirming full compliance with Section 7.22.090 (Fire Hazard Mitigation) and all existing fire and building code standards.
2. Earthquake Fault Zone. For lots within a delineated earthquake fault zone, the application does not include proof of an inspection by the City’s Building Official or other City designee confirming full compliance with applicable seismic protection building code standards.
3. Habitat for Protected Species. For lots that are undeveloped, or that contain undeveloped portions, and that are within two hundred (200) feet of any property zoned as Open Space – Conservation, if the application does not include a survey performed by a qualified biologist or similar professional showing that the lot does not contain habitat for protected species identified as candidate, sensitive, or species of special status by State or Federal agencies, fully protected species, or species protected by the Federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).
F. Historic Properties and Districts. The lot is a historic property or within a historic district that is included on the State Historic Resources Inventory or is within a site that is designated by ordinance as a City landmark or as a historic property or within a historic district.
G. Impact on Protected Housing. The two (2) unit project requires or includes the demolition or alteration of any of the following types of housing:
1. Housing that is income-restricted for households of moderate, low, or very low income.
2. Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its policy power.
3. Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Government Code Sections 7060 through 7060.7) at any time in the fifteen (15) years prior to submission of the urban lot split application.
4. Housing that has been occupied by a tenant in the last three (3) years.
H. Unit Count. The applicant proposes to construct more than two (2) units, to add a unit to a lot that already contains two (2) or more units, to add two (2) or more units to a lot with at least one (1) existing unit, or the lot violates Section 7.22.070(A).
I. Specific Adverse Impacts. If the Director makes a written finding, based on a preponderance of the evidence, that the project would have a "specific, adverse impact" on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.
1. A specific adverse impact includes, but is not limited to, the following:
a. The lot is located in a very high fire hazard severity zone and each dwelling unit thereon does not have at least two (2) separate evacuation routes that enable evacuation from the City during a fire or other mass evacuation event.
b. The lot is not served by a fire apparatus access road that connects to other fire apparatus access roads that enable evacuation from the City.
c. In accordance with Section 7.10.30(G) and Section 22.70.050(A)(2) of the Los Angeles County Code, any existing or proposed residential dwelling will be located within thirty-five (35) feet of any stable or corral.
2. The City Council may adopt, by resolution or ordinance, guidelines that set forth additional circumstances that create a rebuttable presumption that a project will have a specific adverse impact on either the public health and safety or on the physical environment. Nothing herein shall hinder or constrain the Director’s discretion to make written findings, based on a preponderance of the evidence, that a project would have a specific adverse impact on either public health and safety or on the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact.
J. No Legal Requirement. If for any reason, including but not limited to repeal of Government Code Section 65852.21, initiative or referendum, court decision or any circumstance in which Section 65852.21 does not obligate the ministerial approval of a two (2) unit project, or if for any reason the Director is not required to ministerially approve a two (2) unit project. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.070 Standards Specific to Two (2) Unit Projects
The following development standards shall apply to two (2) unit projects approved under this Chapter. This Section shall govern in the event of a conflict between this Section and any other development standard contained outside of this Chapter.
A. No Multifamily Dwellings. A two (2) unit project shall not result in the creation of a multifamily dwelling. "Multifamily dwelling" or "multifamily lot" means a property that has two (2) or more permitted attached dwellings on a single lot. Two (2) unit projects shall only consist of two (2) detached dwellings on a single lot.
B. Unit Quantity. Notwithstanding Chapter 7.28, no more than two (2) units of any kind may be built on a lot that results from an urban lot split. For purposes of this subsection, "unit" means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under this Section, an ADU, or a JADU.
C. Unit Size. Notwithstanding Section 7.18.040(A):
1. The total floor area of each unit that is developed under this Section must be: (a) less than or equal to eight hundred (800) square feet and (b) more than five hundred (500) square feet.
2. A unit that was legally established on the lot prior to the two (2) unit project and that is larger than eight hundred (800) square feet in floor area is limited to the lawful floor area and structural footprint at the time of the two (2) unit project. The unit may not be expanded.
3. A unit that was legally established prior to the two (2) unit project and that is smaller than eight hundred (800) square feet in floor area may be expanded to eight hundred (800) square feet in floor area after or as part of the two (2) unit project.
D. Additional Accessory Structures. With the exception of garages, the floor area of any accessory structure erected on a lot with a two (2) unit project may not exceed one hundred twenty (120) square feet.
E. Demolition Cap. The two (2) unit project may not involve the demolition of more than twenty-five (25) percent of the existing exterior walls of an existing dwelling unless the site has not been occupied by a tenant in the last three (3) years.
F. Setbacks.
1. Subject to subsections (F)(2) and (3) of this Section, all setbacks must comply with the standards set forth in Chapter 7.11.
2. Only to the extent necessary to comply with Government Code Section 65852.21, no setback is required for an existing legally established structure or for a new structure that is constructed in the same location and to the same dimensions as an existing legally established structure.
3. A unit may encroach into the side or rear setback only if strict application of the setback standard would have the effect of physically precluding the construction of up to two (2) units on the lot or that would result in a unit size of less than eight hundred (800) square feet in floor area, in which case the encroachment into the setback shall be only as necessary to enable construction of the unit or units at a maximum size of eight hundred (800) square feet in floor area. However, in no event may any unit be constructed without at least providing a four (4) foot setback from the side and rear lot lines.
G. Space for Animal Keeping.
1. Subject to subsection (G)(2) of this Section, the two (2) unit project application must include an area dedicated for the future keeping of horses and other large animals. The area so dedicated must be large enough to accommodate a twenty (20) foot by twenty-four (24) foot corral with an adjacent space not smaller than twelve (12) feet by eight (8) feet for the storage of animal feed and other animal keeping supplies.
2. The area dedicated under subsection (G)(1) of this Section may be reduced to the extent necessary to accommodate the construction of two (2) units on a lot or that would result in a unit size of less than eight hundred (800) square feet in floor area, in which case the reduction shall be only as necessary to enable construction of the unit or units at a maximum size of eight hundred (800) square feet in floor area.
H. Parking. Subject to Government Code Section 65852.21(c)(1)(A) and (B), each new primary dwelling unit must provide at least one (1) off-street parking space per unit. This Section does not preclude an applicant from complying with the standard parking requirements of the Municipal Code.
I. Nonconforming Conditions. A two (2) unit project may only be approved if all nonconforming zoning conditions are corrected.
J. Utilities.
1. Each dwelling unit on the lot must have its own direct utility connection to the utility service provider.
2. Each dwelling unit on the lot that is or that is proposed to be connected to an on-site wastewater treatment system, the applicant must: (a) demonstrate that each primary dwelling unit will have its own septic tank and leach line; (b) submit a percolation test completed within the last five (5) years or, if the percolation test has been recertified, within the last ten (10) years. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.090 Fire Hazard Mitigation
In addition to complying with all fire and building code standards, all sides of all dwellings on a lot in a very high fire hazard severity zone must be within a three hundred (300) foot hose-pull distance from the closest fire hydrant. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.100 Separate Conveyance.
A. Separate Ownership or Conveyance. Primary dwelling units on the lot may not be owned or conveyed separately from each other.
B. Condominiums. Condominium airspace divisions and common interest developments are not permitted within the lot.
C. Fee Interests. All fee interest in the lot and all the dwellings must be held equally and undivided by all individual property owners. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.110 Further Discretionary Approvals.
Any two (2) unit project approved under this Chapter shall be ineligible for a standards modification under Chapter 7.19. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.120 Restriction of Uses.
A. Residential Only. No nonresidential use is permitted on the lot.
B. No Short-Term Rentals. No dwelling unit on the lot may be rented for a period of less than thirty (30) days.
C. Owner Occupancy. Unless the lot was formed by an urban lot split, the individual property owners of a lot with a two (2) unit project must occupy one (1) of the dwellings on the lot as the owners’ principal residence and legal domicile. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.130 Notice of Construction
A. At least thirty (30) business days before starting any construction of a two (2) unit project, the property owner must give written notice to all the owners of record of each of the adjacent residential parcels, which notice must include the following information:
1. Notice that construction has been authorized;
2. The anticipated start and end dates for construction;
3. The hours of construction;
4. Contact information for the project manager (for construction-related complaints); and
5. Contact information for the Building and Safety Department.
B. This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued. Approval is ministerial. Under State law, the City has no discretion in approving or denying a particular project under this Section. This notice requirement is purely to promote neighborhood awareness and expectation. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.140 Deed Restriction
A. Required Provisions. The owner must record a deed restriction with senior priority for the benefit of the City, in a form acceptable to the Director and the City Attorney, that provides constructive notice of the restrictions resulting from the two (2) unit project and does each of the following:
1. Gives notice that the two (2) unit project was created pursuant to this Chapter.
2. Gives notice of any site limitations resulting from the two (2) unit project, including but not limited to restrictions on off-street parking, the size of units on the parcel and on the ability to obtain a standards modification for the parcel.
3. Expressly prohibits any development or construction on the parcel that would be inconsistent with this Chapter.
4. Expressly prohibits any rental of any dwelling on the property for a period of less than thirty (30) days.
5. Expressly prohibits any nonresidential use of the lot.
6. Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.
7. Expressly requires the individual property owners to live in one (1) of the dwelling units on the lot as the owners’ primary residence and legal domicile.
8. Identifies the City as an intended third-party beneficiary with the right, but not the obligation, to enforce its terms and provisions.
B. Mortgagee Consent and Subordination.
1. The owner shall obtain the consent of any person holding a security interest in the lot, or any other senior lienholder, to subordinate such interest to the deed restriction, and the subordination agreement shall be recorded together with the deed restriction.
2. The Director may require the owner to submit a title report, litigation guarantee or similar document in order to show proof that the deed restriction will be in senior position.
C. Building Permit. The Director shall not issue a building permit for any two (2) unit project unless the applicant provides a recorded copy of a deed restriction and applicable subordination agreement that satisfies the provisions set forth in subsections A and B of this Section. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))
7.22.150 Special Penalties for Violations
A. Fraudulent Development. Any person who develops a two (2) unit project by knowingly providing false information in support of an application, or who works in concert with another person to develop a two (2) unit project by knowingly providing false information in support of an application, shall be guilty of a misdemeanor and shall be subject to an administrative citation or civil penalty up to the assessed value of either (1) the second building, if the project was to add a second unit, or (2) the building with a lower assessed value if the project developed two (2) units at once.
B. Remedies Cumulative. The special penalties provided in this Section are cumulative and in addition to all other remedies the City may have for violations of this Chapter. (Ord. 2022-01 § 5 (Exh. B); Ord. 2021-01U § 5 (Exh. B))