Part 2.76

ACCESSORY DWELLING UNIT CONDOMINIUM

Sections:

This Part implements Government Code Section 66342, herein referred to as Assembly Bill 1033 (AB 1033). The purpose of this Part is to apply objective local development standards for subdivisions covered by AB 1033. This Part is applicable only so long as AB 1033 is operative.

Where this Part or AB 1033 conflict with any other provisions of this Code, this Part and AB 1033 shall control. Any development standard or requirement not specifically addressed by this Part or AB 1033 must conform to all other provisions of this Code and all other objective policies and requirements governing subdivisions. (Ord. 31095.)

Pursuant to Government Code Section 66342, this Section provides for the streamlined approval for conversion of existing or new Accessory Dwelling Units (ADU) into condominiums. These condominiums shall be sold or otherwise conveyed separate from the primary residence only under the conditions outlined in this Part or pursuant to Government Code Section 66341. No condominium conversion to a project shall be permitted in any district unless permitted in such district and without obtaining approval of a Parcel Map pursuant to the provisions of this Title and Title 19 of the San José Municipal Code. (Ord. 31095.)

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Subject to the provisions of Section 20.80.180, to achieve the purposes of this Chapter, all projects shall conform to the following requirements:

• A. A maximum of two ADU condominium units shall be allowed on lots that presently allow ADUs, and could include an attached Accessory Dwelling Unit and/or a detached Accessory Dwelling Unit built in accordance with Part 2.75, (Accessory Dwelling Units), Chapter 20.80. In conjunction with the ADU condominium, the parcel map approved pursuant with this section may also include the subdivision of up to two primary dwelling units, in conformance with Part 8, Senate Bill 9 implementation, into condominiums. This allowance shall not exceed a total of four condominium units on each single-family, two-family or multi-family lot under any circumstances.

• B. All structures and buildings included as part of a condominium project shall conform to the building and zoning requirements applicable to the zoning district in which the project is proposed to be located. Designation of individual condominium units shall not be deemed to reduce or eliminate any of the building and zoning requirements applicable to any such buildings or structures.

• C. The condominium shall be created pursuant to the Davis-Stirling Common Interest Development Act (Part 5 (commencing with Section 4000) of Division 4 of the Civil Code).

• D. The condominium shall be created in conformance with all applicable objective requirements of the Subdivision Map Act (Division 2 (commencing with Section 66410)) and all other objective requirements of this Part.

  1. Neither a subdivision map nor a condominium plan shall be recorded with the county recorder without

each lienholder's consent. The following shall apply to the consent of a lienholder:

  - a. A lienholder may refuse to give consent. 

  - b. A lienholder may consent provided that any terms and conditions required by the lienholder are satisfied. 

2. Prior to recordation of the initial or any subsequent modifications to the condominium plan, written evidence of the lienholder's consent shall be provided to the county recorder along with a signed statement from each lienholder that states as follows:

   • "(Name of lienholder) hereby consents to the recording of this condominium plan in their sole and absolute discretion and the borrower has or will satisfy any additional terms and conditions the lienholder may have."

3. The lienholder's consent shall be included on the condominium plan, or attached to the condominium plan that includes the following information:

   • a. The lienholder's signature.

   • b. The name of the record owner or ground lessee.

   • c. The legal description of the real property.

   • d. The identities of all parties with an interest in the real property as reflected in the real property records.

   • e. The lienholder's consent shall be recorded in the office of the county recorder of the county in which the real property is located.

• E. An Accessory Dwelling unit shall be sold or otherwise conveyed separate from the

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primary residence only under the conditions outlined in this Part and of Title 19 of the San José Municipal Code. Prior to approval of a parcel map, a home or property owners' association or similar entity shall be formed for any condominium project. The association shall, at a minimum, provide for the administration, management and maintenance of all common areas including landscaping, drive aisles and parking areas, maintenance of the exterior of all buildings, pool or common roof, the collection of dues, payment of public utilities not billed separately to each unit, and enforcement of standards within the project.

1. The owner of a property or a separate interest within an existing planned development that has an existing association, as defined in Section 4080 of the Civil Code, shall not record a condominium plan to create a common interest development under Section 4100 of the Civil Code without the express written authorization by the existing association.

2. For purposes of this subparagraph, written authorization by the existing association means approval by the board at a duly noticed board meeting, as defined in Section 4090 of the Civil Code, and if needed pursuant to the existing association's governing documents, membership approval of the existing association.

• F. The applicant shall prepare a declaration of covenants, conditions and restrictions (CC&Rs) which shall be recorded and apply to each owner of a condominium unit within the project. The CC&Rs shall be recorded at, or prior to, the time of parcel map approval, and shall include

all applicable conditions of approval and requirements of the City. The CC&Rs shall, at a minimum, provide:

1. That any amendment to the CC&Rs related to the conditions of approval or other requirements of this Chapter may not be approved without prior consent of the City.

2. That there shall be an entity created (e.g., a property or homeowners' association) which shall be financially responsible for and shall provide for the effective establishment, operation, management, use, repair and maintenance of all common areas and facilities.

3. A provision containing information regarding the conveyance of units and any assignment of parking, an estimate of any initial assessment fees anticipated for maintenance of common areas and facilities, and an indication of appropriate responsibilities for maintenance of all utility lines and services for each unit.

4. A provision addressing the payment of utilities including water, sewer, gas and electricity by the homeowner or through the association.

5. A provision requiring that any owner who rents his/her condominium unit shall conform to the homeowners' association which is responsible for management of the common areas and enforcement of the CC&Rs.

• G. In addition to such covenants, conditions, and restrictions that may be required by the Department of Real Estate of the State of California pursuant to Title 6 (Condominiums) of the Civil Code or other State laws or policies, the organization documents shall provide for the following:

  1. Conveyance of units.

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2. Management of common areas within the project where common areas exist.

3. A proposed annual operating budget containing a reserve fund to pay major anticipated maintenance, repair, or replacement expenses where shared common area infrastructure exists; and indicating the association fees needed for the operating budget and reserve fund.

4. FHA regulatory agreement, if any.

• H. If an accessory dwelling unit is established as a condominium, the homeowner shall notify providers of utilities, including water, sewer, gas, and electricity, of the condominium creation and separate conveyance.

• I. The ADU shall comply with all applicable technical codes including the California Building and Fire Codes. Prior to approval of the parcel map, a safety inspection of the ADU shall be conducted as evidenced through issuance of a final Building Permit or a housing quality standards report from a building inspector certified by the United States Department of Housing and Urban Development.

• J. In addition to other application submittal requirements, the following information shall be provided:

  1. Statement regarding current ownership of all improvements and underlying land.

  2. A site plan and boundary map showing the location of all existing easements, structures, mature and/or scenic trees, and other improvements upon the property.

  3. Dimensions and location of each building or unit and the location of all fences and walls.

  4. The location, size, and design for all common areas, including all facili-

ties and amenities provided within the common areas for use by unit owners.

5. Location and condition for all paved areas, including pedestrian walkways.

6. Maintenance plan of all buildings and common areas and facilities.

• (Ord. 31095.)

Part 3

BUILDINGS UNDER FIVE HUNDRED SQUARE FEET

Sections:

• A. No use shall be conducted in any building containing five hundred square feet or less of floor area in the CO office commercial and less restrictive districts, as such order of restrictiveness is set forth in Section 20.10.060, except upon issuance of and in compliance with a special use permit as provided in this title.

• B. This section shall not apply to off-street parking lot attendant booths, temporary trailers which have been permitted pursuant to this title, or to any residential accessory building.

• C. Notwithstanding subsections A. and B., temporary structures and buildings not exceeding one hundred twenty square feet in floor area may be permitted in conjunction with the seasonal outdoor sale of Halloween pumpkins and Christmas trees, as permitted by Part 14 of Chapter 20.80 without a special use permit.

• (Ord. 26248.)

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