Coastal
Post Online
June, 2003
New Second Unit Law Eliminates Community Input, Local Discretion
by Louis Nuyens
The latest in a succession of state legislation to create greater
opportunities and incentives for infill housing is about to take effect in
Marin County.
AB 1866 (2002, Wright), sponsored by
the California Association of Realtors (CAR), primarily amends rules related to
second units and density bonuses for affordable housing, accomplishing its aims
by rigidly limiting local government discretion and public input.
Unfortunately, AB 1866 2nd unit
provisions do not create a formal structure to guarantee that the units created
are affordable, and its density bonus provisions are more of a gift to
developers than to those needing affordable housing.
The County of Marin says it will hold
a hearing regarding its possible responses to this legislation at some point in
June (date and time to be announced).
The most sweeping provisions of AB 1866:
After 1 July 2003 any second unit
application is to be considered through a ministerial process that also
preempts local ordinance clauses for public review and hearing. Coastal Zone
development applications are exempted, except that local governments are no
longer required to hold public hearings on the application (but may do so if
they so choose).
Density bonus law is amended so that
a local jurisdiction may only deny a request for a density bonus or other
incentive/concession if it finds that the grant is not necessary to provide for
affordable housing costs, or that it would have a specific adverse impact.
Specific density bonus rules are set up for condominium projects.
According to one court, "the
[original] statute is a careful balancing of two competing interests,"
increased housing (and, perhaps, the rights of an individual homeowner) versus
the desires and quality of life of a given community. AB 1866 tips the scales
towards increased densities. In short, AB 1866 has removed options for a local
government and residents to judiciously guide the course of that community's
character over time.
Imagine a neighbor wants to put a
two-story 2nd unit in the middle of his backyard. This may affect your privacy,
increase traffic in your neighborhood, change a sense of openness around your
home, etc. However, if local zoning does not specifically preclude the
addition, it will be approved - without question.
Prior to enactment of AB 1866, you
and others in your community would have an opportunity to comment on your
neighbor's plan, and to ask local government to use its discretion in weighing
the benefits to your neighbor to the interests of the community at large. Under
new law, there is no place for community comment in the decision as to whether
a particular project should be allowed; and local government has no ability to
weigh competing concerns: it has no authority for case-by-case judgment
whatsoever.
Options Exist, But Vigorous County Action is Needed
In the presence of AB 1866, the only
way a local government can prevent potentially undesirable placement of second
units is to draft zoning ordinances that take into account nearly every
possible eventuality.
A cautious approach would be to adopt
an ordinance that is fairly restrictive, and then to relax selected limitations
as deemed appropriate. According to a Marin Community Development Agency
representative, Marin's approach, thus far, seems to simply remove provisions
for hearing and discretion from existing language. Marin does not seem to be
proactively anticipating outcomes by designing ordinances to safeguard against
them. And, where other counties have been fully prepared for AB 1866 for
months, Marin is only just beginning to rework its ordinance(s).
Under AB 1866, a city or county may
have ordinance language to specify areas in which 2nd units are or are not
allowed, but the law specifies that these ordinances may not be part of
policies to limit growth. This may be construed to imply that local government
must be prepared to demonstrate specific findings to justify the policy stated
by the ordinance, possibly creating an avenue for legal action by applicants.
Marin County has recently stated that
it cannot scientifically justify certain zoning and use limitations currently
in effect. Yet other counties-such as Sonoma, Napa and many others-routinely
justify ordinances with well-documented research and decision-making.
Marin currently lacks the preparation
it should have in order to answer challenges to many of its policies, including
any policies that would help minimize potential negative impacts from AB 1866,
and should remedy this situation expeditiously. Without these preparations, the
opportunities for litigation created by AB 1866 may intimidate many local
governments into allowing undesired developments.
Effects On West Marin
Will there be a mad rush to build or
legalize 2nd units in west Marin? Possibly not immediately.
For a second unit to be legally
constructed, or legalized after the fact, it would still have to meet standards
for parcel zoning, setbacks, septic system capacity, Streamside Conservation
Area protection, floor-to-area ratios, and other criteria. Each of these, if
left in place or strengthened, will limit 2nd unit opportunities.
For example, the unincorporated areas
of west Marin are on septic systems, most of which were not installed with
capacity for much beyond the original structures. Any legal additional unit(s)
would require analysis of septic system capacity and would probably require a
system upgrade; in addition to this extra cost, the space required for
increased system capacity might compete for space with the new unit, and
potentially invoke new setback requirements applicable to a replaced or new
system..
Also, the prevalence of unpermitted
work in west Marin may also decrease the number of 2nd units that will be built
or legalized in the wake of AB 1866, as legal construction, or a legalization
request, might trigger review of other work done on the same property.
Unfortunately, years of lax oversight
leave Marin County with little information on which to anticipate potential
effects. However, anecdotally, the spread of 2nd units might be roughly gauged
by the noticeable vanishing of on-street parking in many parts of west Marin.
Housing vs. Affordable Housing
CAR advertised and promoted AB 1866
as much needed to provide "Housing Opportunities for California's Seniors,
Disabled and Families." This insinuation that the legislation would result
in affordable housing won the support of many advocacy organizations, in
addition to construction interests and Realtor groups.
But AB 1866 is not about affordable
housing.
AB 1866 does not require that 2nd
units used as rentals be governed by any formal guidelines (e.g. deed
restrictions) that would require them to be affordable.
With regard to affordable ownership,
it can be argued that a second unit would not generally make a property more
affordable to buyers. Whether legal or illegal, once a second unit is
installed, it increases the sale cost of the property in a way that
approximates the rental income that the second unit might bring, in spite of
the fact that the property has been 'degraded' by higher density. Therefore, in
general, addition of a second unit would most likely help only the owner who
builds it, and not subsequent owners.
Rising costs of properties with 2nd
units may indirectly inflate properties without, because besides having to
spend more, buyers of properties with second units are forced to be landlords
and accept the potentially undesirable aspect of sharing the property with a
tenant.
Finally, because it offers generous
bonuses for relatively minimal contributions to affordable housing, AB 1866 may
do as much to limit affordable housing as to promote it.
In summary, AB 1866 does little, if
anything, to create housing that is required to be affordable, while it
inflates property prices, rewards development interests, and limits the control
communities have over the qualities of their neighborhoods.
Big Picture-Populace, Population, Quality of Life
AB 1866 was partly justified by CAR
estimates that there is demand for 250,000 new housing units each year in
California, but that only half that number are being approved.
To what extent should housing demand
be met? Nowhere in the central bay area is it possible to create affordable
rental or ownership possibilities for everyone who would eventually like to
live there. Marin could be paved from the bay to the ocean, utterly destroying
the character enjoyed by most existing residents, and still more people would
want to come. Is that really our goal? What about quality of life? When, if
ever, can existing residents say, "Enough!"?
More on the Horizon
In the current legislative session,
AB 1160 (Steinberg, with CAR again a sponsor.) would further erode local
control and the intent of original 2nd unit law. If passed, AB 1160 would lift
the ceiling on the size of second units allowable, require the housing element
of the general plan of a city or county to include a program with a 5-year
schedule of actions to implement the goals and objectives of the housing
element, allow more on-street parking for 2nd units, and further restrict local
government discretionary options, among other things.