Hillsborough Municipal Code Ch. 16.44 Urban Lot Splits

The purpose of this chapter is to allow and appropriately regulate urban lot splits in accordance with Government Code section 66411.7.

(Ord. No. 779, § 3(Exh. A), 12-13-2021; Ord. No. 781, § 3(Exh. A), 1-10-2022)

An "urban lot split" means the subdivision of an existing, legally subdivided lot into two lots in accordance with the requirements of this chapter.

(Ord. No. 779, § 3(Exh. A), 12-13-2021; Ord. No. 781, § 3(Exh. A), 1-10-2022)

A. Owners.

1. Only individual property owners may apply for an urban lot split.

"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 Rev. and Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by § 214.15).

2. Any person with a mortgage interest in the lot to be split under this section must sign the application and the parcel map indicating the person's consent to the project.

B. An application for an urban lot split must be submitted on the town's approved form. Only a complete application will be considered. The town will inform the applicant in writing of any incompleteness within thirty days after the application is submitted.

C. The town may establish a fee to recover its costs for adopting, implementing, and enforcing this chapter of the code, in accordance with applicable law. The city council may establish and change the fee by resolution. The fee must be paid with the application.

(Ord. No. 779, § 3(Exh. A), 12-13-2021; Ord. No. 781, § 3(Exh. A), 1-10-2022)

A. An application for a parcel map for an urban lot split is approved or denied ministerially, by the director of building and planning, without discretionary review.

B. A tentative parcel map for an urban lot split is approved ministerially if it complies with all the requirements of this chapter. The tentative parcel map may not be recorded. A final parcel map is approved ministerially as well, but not until the owner demonstrates that the required documents have been recorded, such as the deed restriction and easements.

C. The approval must require the owner and applicant to hold the town harmless from all claims and damages related to the approval and its subject matter.

D. The approval must require the owner and applicant to reimburse the town for all costs of enforcement, including attorneys' fees and costs associated with enforcing the requirements of this code.

(Ord. No. 779, § 3(Exh. A), 12-13-2021; Ord. No. 781, § 3(Exh. A), 1-10-2022)

An urban lot split must satisfy each of the following requirements:

A. Map Act Compliance.

1. The urban lot split must conform to all applicable objective requirements of the Subdivision Map Act (Gov. Code § 66410 et. seq., "SMA"), including implementing requirements in this code, except as otherwise expressly provided in this chapter.

2. If an urban lot split violates any part of the SMA, the town's subdivision regulations, including this chapter, or any other legal requirement:

a. The buyer or grantee of a lot that is created by the urban lot split has all the remedies available under the SMA, including but not limited to an action for damages or to void the deed, sale, or contract.

b. The town has all the remedies available to it under the SMA, including but not limited to the following:

i. An action to enjoin any attempt to sell, lease, or finance the property.

ii. An action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief.

iii. Criminal prosecution, punishable by imprisonment in county jail or state prison for up to one year, by a fine of up to ten thousand dollars, or both; or a misdemeanor.

iv. Record a notice of violation.

v. Withhold any or all future permits and approvals.

c. Notwithstanding Section 66411.1 of the SMA, no dedication of rights-of-way or construction of offsite improvements is required for an urban lot split.

B. Zone. The lot to be split is in a single-family residential zone.

C. Lot Location.

1. The lot to be split is not located on a site that is any of the following:

a. Prime farmland, farmland of statewide importance, or land that is zoned or designated for agricultural protection or preservation by the voters.

b. A wetland.

c. Within a very high fire hazard severity zone, unless the site complies with all fire-hazard mitigation measures required by existing building standards.

d. A hazardous waste site that has not been cleared for residential use.

e. Within a delineated earthquake fault zone, unless all development on the site complies with applicable seismic protection building code standards.

f. Within a one-hundred-year flood hazard area, unless the site has either:

i. Been subject to a letter of map revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction; or

ii. Meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program.

g. Within a regulatory floodway unless all development on the site has received a no-rise certification.

h. Land identified for conservation in an adopted natural community conservation plan, habitat conservation plan, or other adopted natural resource protection plan.

i. Habitat for protected species.

j. Land under conservation easement.

2. The purpose of subsection C1 above is merely to summarize the requirements of Government Code section 65913.4(a)(6)(B)-(K). (See Gov. Code § 66411.7(a)(3)(C)).

3. The applicant must provide evidence that the requirements of Government Code section 65913.4(a)(6)(B)—(K) are satisfied.

D. Not Historic. The lot to be split must not be a historic property or within a historic district that is included on the State Historic Resources Inventory. Nor may the lot be or be within a site that is designated by ordinance as a town or county landmark or as a historic property or district.

E. No Prior Urban Lot Split.

1. The lot to be split was not established through a prior urban lot split.

2. The lot to be split is not adjacent to any lot that was established through a prior urban lot split by the owner of the lot to be split or by any person acting in concert with the owner.

F. No Impact on Protected Housing.

1. The urban lot split must not require or include the demolition or alteration of any of the following types of housing:

a. Housing that is income-restricted for households of moderate, low, or very low income.

b. Housing that is subject to any form of rent or price control through a public entity's valid exercise of its police power.

c. Housing, or a lot that used to have housing, that has been withdrawn from rental or lease under the Ellis Act (Gov. Code §§ 7060-7060.7) at any time in the fifteen years prior to submission of the urban lot split application.

d. Housing that has been occupied by a tenant in the last three years. The applicant and the owner of a property for which an urban lot split is sought must provide a sworn statement as to this fact with the application for the parcel map. The town may conduct its own inquiries and investigation to ascertain the veracity of the sworn statement, including but not limited to, surveying owners of nearby properties; and the town may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement.

2. As part of the urban lot split application, the applicant and the owner of a property must provide a sworn statement by affidavit representing and warranting that subsection F1 above is satisfied.

a. The sworn statement must state that:

b. No housing that is income-restricted for households of moderate, low, or very low income will be demolished or altered.

c. No housing that is subject to any form of rent or price control will be demolished or altered.

d. No housing that has been withdrawn from rental or lease under the Ellis Act at any time in the last fifteen years will be demolished or altered.

e. No housing that has been occupied by a tenant in the last three years will be demolished or altered.

3. The town may conduct its own inquiries and investigation to ascertain the veracity of the sworn statement, including but not limited to, surveying owners of nearby properties; and the town may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement.

G. Lot Size.

1. The lot to be split must be at least two thousand four hundred square feet.

2. The resulting lots must each be at least one thousand two hundred square feet.

3. Each of the resulting lots must be between sixty percent and forty percent of the original lot area.

H. Easements.

1. The owner must enter into an easement agreement with each public-service provider to establish easements that are sufficient for the provision of public services and facilities to each of the resulting lots.

2. Each easement must be shown on the tentative parcel map.

3. Copies of the unrecorded easement agreements must be submitted with the application. The easement agreements must be recorded against the property before the final map may be approved, in accordance with subsection A above.

I. Lot Access.

1. Each resulting lot must adjoin the public right of way.

2. Each resulting lot must have frontage on the public right of way of at least fifty feet.

J. Unit Standards.

1. Quantity. No more than two dwelling units of any kind may be built on a lot that results from an urban lot split. For purposes of this paragraph, "unit" means any dwelling unit, including, but not limited to, a primary dwelling unit, a unit created under Chapter 17.54 of this code, an ADU, or a JADU.

2. Unit Size.

a. The total floor area of each primary dwelling that is developed on a resulting lot must be:

i. Less than or equal to eight hundred square feet; and

ii. More than five hundred square feet.

b. A primary dwelling that was legally established prior to the urban lot split and that is larger than eight hundred square feet is limited to the lawful floor area at the time of the urban lot split. It may not be expanded.

c. A primary dwelling that was legally established prior to the urban lot split and that is smaller than eight hundred square feet may be expanded to eight hundred square feet after the urban lot split.

3. Height Restrictions.

a. On a resulting lot that is larger than two thousand square feet, no new primary dwelling unit may exceed a single story or sixteen feet in height, measured from grade to peak of the structure.

b. On a resulting lot that is smaller than two thousand square feet, no new primary dwelling unit may exceed two stories or twenty-two feet in height, measured from grade to peak of the structure. Any portion of a new primary dwelling that exceeds one story must be stepped back by an additional five feet from the ground floor; no balcony deck or other portion of the second story may project into the stepback.

c. No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot resulting from an urban lot split.

4. Lot Coverage. The lots that result from an urban lot split under this chapter must comply with the lot-coverage regulations imposed through the underlying zone, except that the lot-coverage standards are only enforced to the that they do not prevent two primary dwelling units on the lot at eight hundred square feet each.

5. Setbacks.

a. Generally. All setbacks must conform to those objective setbacks that are imposed through the underlying zone.

b. Exceptions. Notwithstanding subsection J.5.a. above:

i. Existing Structures. 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.

ii. Eight hundred square feet; four-foot side and rear. The setbacks imposed by the underlying zone must yield to the degree necessary to avoid physically precluding the construction of up to two units on the lot or either of the two units from being at least eight hundred square feet in floor area; but in no event may any structure be less than four feet from a side or rear property line.

c. Front Setback Area. Notwithstanding any other part of this code, dwellings that are constructed after an urban lot split must be at least thirty feet from the front property lines. Front setback areas must:

i. Be kept free from all structures greater than three feet high;

ii. Be at least fifty percent landscaped with drought-tolerant plants, with vegetation and irrigation plans approved by a licensed landscape architect;

iii. Allow for vehicular and fire-safety access to the front structure.

6. Parking. Each new primary dwelling unit that is built on a lot after an urban lot split must have at least one off-street parking space per unit unless one of the following applies:

a. The lot is located within one-half mile walking distance of either:

i. A corridor with fixed route bus service with service intervals no longer than fifteen minutes during peak commute hours; or

ii. A site that contains:

(1) An existing rail or bus rapid transit station,

(2) A ferry terminal served by either a bus or rail transit service; or

(3) The intersection of two or more major bus routes with a frequency of service interval of fifteen minutes or less during the morning and afternoon peak commute periods.

(4) The site is located within one block of a car-share vehicle location.

7. Architecture.

a. If there is a legal primary dwelling on the lot that was established before the urban lot split, any new primary dwelling unit must match the existing primary dwelling unit in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

b. If there is no legal primary dwelling on the lot before the urban lot split, and if two primary dwellings are developed on the lot, the dwellings must match each other in exterior materials, color, and dominant roof pitch. The dominant roof slope is the slope shared by the largest portion of the roof.

c. All exterior lighting must be limited to down-lights.

d. No window or door of a dwelling that is constructed on the lot after the urban lot split may have a direct line of sight to an adjoining residential property. Fencing, landscaping, or privacy glass may be used to provide screening and prevent a direct line of sight.

e. If a dwelling is constructed on a lot after an urban lot split and any portion of the dwelling is less than thirty feet from a property line that is not a public right-of-way line, then all windows and doors in that portion must either be (for windows) clerestory with the bottom of the glass at least six feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.

8. Landscaping.

a. Protected Tree Removal.

i. No protected tree may be removed on a lot with any development under this chapter unless removal is necessary to construct a dwelling unit that must be allowed under state law. All protected tree removal will be completed in accordance with Chapter 14.04.

ii. "Protected tree" means:

a. Any tree species, which measures eighteen inches or more in cumulative diameter, measured at four feet six inches above natural grade.

b. Any tree planted as a requirement tree for site development, tree permit condition, landscape plan removal replacement, or other designated condition by the city.

c. "Protected tree" does not include any tree grown or held for sale by a licensed nursery.

iii. A protected tree may only be removed under subsection J.8.a. above if it is completed in accordance with Chapter 14.04 and any associated tree replacement requirements.

b. Evergreen landscape screening must be planted and maintained between each dwelling and adjacent lots (but not rights-of-way) as follows:

i. At least one fifteen-gallon size plant shall be provided for every five linear feet of exterior wall. Alternatively, at least one twenty-four-inch box size plant shall be provided for every ten linear feet of exterior wall. In town-designated wildland- urban interface areas, trees used for screening must comply with Chapter 15.21.

ii. Plant specimens must be at least six feet tall when installed. As an alternative, a solid fence of at least six feet in height may be installed. In town-designated wildland-urban interface areas, trees used for screening must comply with Chapter 15.21.

iii. All landscaping must be drought-tolerant.

9. Nonconforming Conditions. An urban lot split is approved without requiring a legal nonconforming zoning condition to be corrected.

10. Utilities.

a. Each primary dwelling unit on the resulting lots must have its own direct utility connection to the utility service provider.

b. Each primary dwelling unit on the resulting lots that is or that is proposed to be connected to an onsite wastewater treatment system must first have a percolation test completed within the last five years or, if the percolation test has been recertified, within the last ten years.

11. Building and Safety. All structures built on the lot must comply with all current local building standards. An urban lot split is a change of use.

K. Fire-Hazard Mitigation Measures.

1. A lot in a very high fire hazard severity zone must comply with each of the following fire-hazard mitigation measures:

a. It must have direct access to a public right of way with a paved street with a width of at least forty feet. The public right of way must have at least two independent points of access for fire and life safety to access and for residents to evacuate.

b. All dwellings on the site must comply with current fire code requirements for dwellings in a very high fire hazard severity zone.

c. All enclosed structures on the site must have fire sprinklers.

d. All sides of all dwellings on the site must be within a one-hundred-fifty-foot hose-pull distance from either the public right of way or of an onsite fire hydrant or standpipe.

e. If the lot does not have a swimming pool, the lot must have a water reservoir of at least five thousand gallons per dwelling, with fire-authority approved hookups compatible with fire-authority standard pump and hose equipment.

2. Prior to submitting an application for an urban lot split, the applicant must obtain a certificate of compliance with all applicable fire-hazard mitigation measures in accordance with this subsection K. The town or its authorized agent must inspect the site, including all structures on the site, and certify as to its compliance. The certificate must be included with the application. The applicant must pay the town's costs for inspection. Failure to pay is grounds for denying the application.

L. Separate Conveyance.

1. Within a resulting lot.

a. Primary dwelling units on a lot that is created by an urban lot split may not be owned or conveyed separately from each other.

b. Condominium airspace divisions and common interest developments are not permitted on a lot that is created by an urban lot split.

c. All fee interest in a lot and all dwellings on the lot must be held equally and undivided by all individual property owners.

d. No timeshare, as defined by state law or this code, is permitted. This includes any co-ownership arrangement that gives an owner the right to exclusive use of the property for a defined period or periods of time.

2. Between resulting lots. Separate conveyance of the resulting lots is permitted. If dwellings or other structures (such as garages) on different lots are adjacent or attached to each other, the urban lot split boundary may separate them for conveyance purposes if the structures meet building code safety standards and are sufficient to allow separate conveyance. If any attached structures span or will span the new lot line, the owner must record appropriate CC&Rs, easements, or other documentation that is necessary to allocate rights and responsibility between the owners of the two lots.

M. Regulation of Uses.

1. Residential-only. No non-residential use is permitted on any lot created by urban lot split.

2. No STRs. No dwelling unit on a lot that is created by an urban lot split may be rented for a period of less than thirty days.

3. Owner Occupancy. The applicant for an urban lot split must sign an affidavit stating that the applicant intends to occupy one of the dwelling units on one of the resulting lots as the applicant's principal residence for a minimum of three years after the urban lot split is approved.

N. Notice of Construction.

1. At least thirty business days before starting any construction of a structure on a lot created by an urban lot split, 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:

a. Notice that construction has been authorized;

b. The anticipated start and end dates for construction;

c. The hours of construction;

d. Contact information for the project manager (for construction-related complaints); and

e. Contact information for the building and safety department.

2. 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 town has no discretion in approving or denying a particular project under this chapter. This notice requirement is purely to promote neighborhood awareness and expectation.

O. Deed Restriction. The owner must record a deed restriction on each lot that results from an urban lot split, on a form approved by the town, that does each of the following:

1. Expressly prohibits any rental of any dwelling on the property for a period of less than thirty days.

2. Expressly prohibits any non-residential use of the lots created by the urban lot split.

3. Expressly prohibits any separate conveyance of a primary dwelling on the property, any separate fee interest, and any common interest development within the lot.

4. States that the property is formed by an urban lot split and is therefore subject to the town's urban lot split regulations, including all applicable limits on dwelling size and development.

5. States that development on the lot is limited to development of residential units under Chapter 17.54 of this code, except as required by state law.

P. Specific Adverse Impacts.

1. Notwithstanding anything else in this chapter, the town may deny an application for an urban lot split if the building official 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.

2. "Specific adverse impact" has the same meaning as in Gov. Code § 65589.5(d)(2): "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:

a. Inconsistency with the zoning ordinance or general plan land use designation; or

b. The eligibility to claim a welfare exemption under Revenue and Taxation Code Section 214(g).

3. The building official may consult with and be assisted by planning staff and others as necessary in making a finding of specific, adverse impact.

(Ord. No. 779, § 3(Exh. A), 12-13-2021; Ord. No. 781, § 3(Exh. A), 1-10-2022; Ord. No. 789, § 1(Exh. A), 3-13-2023)