Just days after San Carlos officials extended an urgency ordinance limiting development on state-approved lot splits, a pro-housing nonprofit has penned a letter to the city alleging parts of the ordinance are illegal.

“The reasoning behind this level of state intervention in local development policy is clear. To address our state’s massive housing shortage, we must find every way we can to create new homes. SB 9 is intended to support the increased supply of homes by encouraging the building of smaller houses on existing or subdivided lots, thereby contributing to the creation of more equitable and inclusive neighborhoods. San Carlos’ proposed ordinance is in violation of SB 9,” read a letter from California Renters Legal Advocacy and Education Fund, or CaRLA, a pro-housing advocacy group.

Effective Jan. 1, Senate Bill 9 requires jurisdictions to permit up to four units, including two primary units, an accessory dwelling unit and a junior accessory dwelling unit, to be built on an unsubdivided lot. Additionally, the law permits a single split of lots zoned single-family residential without ministerial review and for at least two units to be built per split lot.

In response to the legislation, the City Council passed an urgency ordinance on Jan. 10 and extended for 10 months and 15 days on Feb. 14, which sought to slow down SB 9 projects until objective design standards could be developed. A key provision in the city’s urgency ordinance in the ordinance is the prohibition of ADUs and JADUs on SB 9 lot splits.

At the time of the meetings, staff argued the law gave jurisdictions permission to prohibit ADUs and JADUs on SB 9 split lots and Mayor Sara McDowell doubled down on that argument Thursday in an email, citing section 66411.7(j)(1), a section of the legislation outlining the dos and don’ts for lot splits which says “a local agency shall not be required to permit more than two units on a parcel created through the exercise of the authority contained within this section.”

McDowell noted the law also describes a unit as any dwelling including a primary unit, an ADU or JADU or an SB 9 duplex, though the term duplex is not directly referenced in the legislation, she said.

“Our ordinance does in fact comply with this provision,” McDowell said. This is exactly what the urgency ordinance does. It allows two units on each SB-9 lot created. … This means that we do not have to allow an ADU or JADU on an SB-9 created parcel where the city allows at least two units.”

But CaRLA argues otherwise, claiming the accessory units are only prohibited under law if an SB 9 permitted lot split is completed and an SB 9 dwelling, described by the organization as a duplex, is built on that lot split, the key word being “and.”

The law does allow cities to limit two units per SB 9 lot split, the organization acknowledged in its letter, but it asserts that any combination of units is permitted, meaning the city cannot outright ban ADUs or JADUs from being developed on an SB 9 lot.

The letter goes on to note “California remains in the throes of a statewide crisis-level housing shortage, and new housing is a public benefit” and that “prohibiting ADU and JADU units on subdivided lots will inhibit San Carlos’ opportunity to construct badly needed housing.”

Greg Magofña, CaRLA’s director of development and outreach, said in an email that the organization has been closely monitoring the implementation of SB 9 across the state to ensure that it’s properly applied “to provide opportunities for safe affordable new homes in single-family neighborhoods.”

CaRLA has taken on other housing issues in the Peninsula, having recently challenged a decision by the city of San Mateo to deny a request to build a four-story, 10-unit condominium building because of a height difference between the proposed building and a next-door single-story home.

Having been successful in its lawsuit against the city, the courts ordered the city to reconsider the project which was recently approved and to pay CaRLA $450,000. It’s estimated that a similar amount was paid out in legal fees.

Ultimately, the organization is looking to see San Carlos amend its urgency ordinance to align with their interpretation of the law while recognizing how new and complex the legislation is, according to the letter and Magofña.

“Since SB 9 is a new and somewhat confusing law, we just want to send friendly reminders to cities on what the law does and does not include and preclude,” Magofña said. “Since it’s so new, some cities may just not get it right the first time.”

(650) 344-5200 ext. 106

(650) 344-5200 ext. 106

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