Santa Ana Municipal Code § 41-2114 Approval

The purpose of this division is to allow and appropriately regulate two-unit projects in accordance with Government Code section 65852.21 and to meet the intent and objective of the State Legislature to ensure access to affordable housing opportunities as declared by the State Legislature under SB9 Law.

(Ord. No. NS-3013, § 5, 12-21-21)

(a) "Individual property owner(s)" 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. & Tax Code § 402.1(a)(11)(C)(ii)) or a qualified nonprofit corporation (as defined by Rev. & Tax Code § 214.15).

(b) A "two-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 division.

(Ord. No. NS-3013, § 5, 12-21-21)

(a) Owners. Only individual property owners may apply for a two-unit project.

(b) An application for a two-unit project must be submitted on the city's approved form.

(c) The applicant must obtain a certificate of compliance with the Subdivision Map Act and the implementing regulations in this Code for the lot and provide the certificate with the application.

(d) Only a complete application will be considered. The city will inform the applicant in writing of any incompleteness within thirty (30) days after the application is submitted.

(e) The city may establish a fee to recover its costs for adopting, implementing, and enforcing this division 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. NS-3013, § 5, 12-21-21)

(a) An application for a two-unit project is approved or denied ministerially, by the Executive Director of Planning and Building or their designee, without discretionary review.

(b) The ministerial approval of a two-unit project does not take effect until the city has confirmed 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 city 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 city for all costs of enforcement, including attorneys' fees and costs associated with enforcing the requirements of this Code.

(Ord. No. NS-3013, § 5, 12-21-21)

A two-unit project must satisfy each of the following requirements:

(a) Map Act Compliance. The lot must have been legally subdivided.

(b) Zone. The lot is in a single-family residential zone.

(c) Lot location.

(1) The lot 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 100-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 applicant must provide evidence that the requirements of Government Code section 65913.4(a)(6)(B)—(K) are satisfied.

(d) Not historic. The lot 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 or resolution as a city or county landmark or as a historic property or district, or a structure of merit. A structure of merit is defined as meeting one (1) or more of the following:

(1) It is associated with events that have made a significant contribution in our past.

(2) It is associated with the lives of persons significant in our past.

(3) It embodies the distinctive characteristics of a type, period, architectural style or method of construction, or represents the work of a master, or possesses high artistic or historic value, or represents a significant and distinguishable collection whose individual components may lack distinction.

(4) It yields, or may be likely to yield, information important in prehistory or history.

(5) Its unique location or singular physical characteristic represents an established and familiar visual feature of a neighborhood.

(e) No impact on protected housing.

(1) The two-unit project 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 policy 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 sections 7060-7060.7) at any time in the fifteen (15) years prior to submission of the urban lot split application.

(D) Housing that has been occupied by a tenant in the last three (3) years.

(2) As part of the two-unit project application, the applicant and the owner of a property must provide a sworn statement by affidavit representing and warranting that subsection (e)(1) above is satisfied.

(A) The sworn statement must state the following:

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

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

(iii) No housing that has been withdrawn from rental or lease under the Ellis Act at any time in the last fifteen (15) years will be demolished or altered.

(iv) No housing that has been occupied by a tenant in the last three (3) years will be demolished or altered.

(B) The city 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 city may require additional evidence of the applicant and owner as necessary to determine compliance with this requirement.

(f) Unit standards.

(1) Quantity.

(A) No more than two (2) 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 this article, an ADU, or a JADU.

(B) A lot that is not created by an urban lot split may have a two-unit project under this section, plus any ADU or JADU that must be allowed under state law and the city's ADU ordinance.

(2) Unit size.

(A) The total floor area of each primary dwelling built that is developed under this section must be:

(i) Less than or equal to eight hundred (800); and

(ii) More than five hundred (500) square feet.

(B) A primary dwelling that was legally established on the lot prior to the two-unit project and that is larger than eight hundred (800) square feet is limited to the lawful floor area at the time of the two-unit project. The unit may not be expanded.

(C) A primary dwelling that was legally established prior to the two-unit project and that is smaller than eight hundred (800) square feet may be expanded to eight hundred (800) square feet after or as part of the two-unit project.

(3) Height restrictions.

(A) On a lot that is smaller than two thousand (2,000) square feet, no new primary dwelling unit may exceed two (2) stories or twenty-two (22) feet in height, measured from grade to peak of the structure. Any portion of a new primary dwelling that exceeds one (1) story must be stepped back by an additional five (5) feet from the ground floor; no balcony deck or other portion of the second story may project into the stepback.

(B) No rooftop deck is permitted on any new or remodeled dwelling or structure on a lot with a two-unit project.

(4) Demo cap. The two-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.

(5) Lot coverage. The maximum building coverage of net lot area shall be thirty-five (35) percent. If new structures are proposed to be one-story and be deed restricted to be maintained as one-story structures in perpetuity, a fifty (50) percent lot coverage is allowed. This lot coverage standard is only enforced to the extent that it does not prevent two (2) primary dwelling units on the lot at eight hundred (800) square feet each.

(6) Open space. Private open space shall be provided for each unit at a minimum of one hundred (100) square feet in the form of a private covered patio or deck. The minimum dimensions of such space shall be eight (8) feet in each direction. This open space standard is only enforced to the extent that it does not prevent two (2) primary dwelling units on the lot at eight hundred (800) square feet each.

(7) Setbacks.

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

(B) Exceptions. Notwithstanding subsection (f)(7)(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 (800) sf; 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 (2) units on the lot or either of the two (2) units from being at least eight hundred (800) square feet in floor area; but in no event may any structure be less than four (4) feet from a side or rear property line.

(C) Front setback area. Notwithstanding any other part of this Code, dwellings that are constructed under this section must be at least twenty (20) feet from the front property lines. The front setback area must:

(i) Be kept free from all structures greater than three (3) feet high;

(ii) Be at least fifty (50) percent landscaped with drought-tolerant plants, with vegetation and irrigation plans approved by a licensed landscape architect; and

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

(D) Interior side yard and rear yard setbacks. Dwelling units must provide a minimum of four-foot interior side yard and rear yard setbacks for the property line.

(E) Corner lot setbacks for side yards abutting a street. Dwellings that are constructed pursuant to Divisions 2 and 3 of this article must provide setbacks at least ten (10) feet from the side yard abutting the street.

(F) 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.

(8) Parking. Each new primary dwelling unit must have at least one (1) off-street parking space per unit unless one (1) of the following applies:

(A) The lot is located within one-half (½) mile walking distance of either:

(i) A corridor with fixed route bus service with service intervals no longer than fifteen (15) minutes during peak commute hours; or

(ii) A site that contains:

(ia) An existing rail or bus rapid transit station; or

(ib) The intersection of two (2) or more major bus routes with a frequency of service interval of fifteen (15) minutes or less during the morning and afternoon peak commute periods.

(B) The site is located within one (1) block of a car-share vehicle location. A car-share vehicle shall mean a motor vehicle that is operated as part of a regional fleet by a public or private car sharing company or organization and provides hourly or daily service.

(9) Architecture.

(A) If there is a legal primary dwelling on the lot that was established before the two-unit project, 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 two-unit project, and if two (2) 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) New roofing and siding materials that are shiny, mirror-like, or of a glossy metallic finish are prohibited.

(D) All exterior lighting must be limited to down-lights.

(E) No window or door of a dwelling that is constructed on the lot 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.

(F) If any portion of a dwelling is less than thirty (30) 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 (6) feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.

(G) New skylights shall have flat glass panes. "Bubble" or dome type skylights are prohibited.

(H) The roof pitch/slope and roof style (e.g. hip, gable, mansard) of the proposed unit addition shall be the same as the primary dwelling.

(I) If a garage is converted to new unit, the garage door opening shall be replaced with exterior wall coverings, or residential window and doors, to match the existing exterior garage wall covering and detailing.

(J) Additions or new construction shall comply with the following:

(i) On a site already developed with an existing residential unit, the new unit shall be designed and constructed to match the existing paint color and exterior building materials, including but the limited to siding, windows, doors, roofing, light fixtures, hardware, and railings.

(ii) If residential development is propped on a lot where not residential units currently exist, the units shall be constructed using the same architectural style, exterior building materials, colors and finishes.

(iii) The size of the common indoor living areas of a dwelling unit, such as the living room, dining room, kitchen, family room, etc. must be equal to, or greater than, the square footage of bedrooms provided.

(iv) Direct exterior access from a first-floor bedroom to the exterior of the dwelling unit shall be through a sliding door or double French door.

(v) Upper story unenclosed landings, decks, and balconies greater than twenty (20) square feet that face or overlook an adjoining property, shall be located a minimum of fifteen (15) feet from the interior lot lines.

(vi) Water heaters (excluding tank less water heaters) and laundry facilities (washer and dryer) may not be located on the exterior of a dwelling unit.

(vii) Upper story unenclosed landings, decks, and balconies, that do not face or overlook an adjoining property due to orientation or topography, may be located at the located at the minimum as allowed by the underlying zone interior setback line if an architectural screening element such as enclosing walls, trellises, awning, or perimeter planters with a five-foot minimum height is incorporated into the unenclosed landing, deck, or balcony.

(viii) Upper story windows located within fifteen (15) feet of an interior lot line and face or overlook an adjoining property shall be installed a minimum of forty-two (42) inches above finish floor.

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

(A) At least one (1) 15-gallon size plant shall be provided for every five (5) linear feet of exterior wall. Alternatively, at least one (1) 24-inch box size plant shall be provided for every ten (10) linear feet of exterior wall.

(B) Plant specimens must be at least six (6) feet tall when installed. As an alternative, a solid fence of at least six (6) feet in height may be installed.

(C) All landscaping must be drought-tolerant.

(D) All landscaping must be from the city's approved plant list.

(11) Nonconforming conditions. A two-unit project may only be approved if all nonconforming zoning conditions are corrected.

(12) Utilities.

(A) Each primary dwelling unit on the lot must have its own direct utility connection to the utility service provider.

(B) Notwithstanding paragraph subsection (f)(12)(A) above, a primary dwelling unit may have a direct utility connection to an onsite wastewater treatment system in accordance with this paragraph and the city's code. Each primary dwelling unit on the lot 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 (5) years or, if the percolation test has been recertified, within the last ten (10) years.

(C) All utilities must be underground.

(13) Building and safety. All structures built on the lot must comply with all current local building standards. A project under this section is a change of use and subjects the whole of the lot, and all structures, to the city's current code.

(g) Separate conveyance.

(1) Primary dwelling units on the lot may not be owned or conveyed separately from each other.

(2) Condominium airspace divisions and common interest developments are not permitted within the lot.

(3) All fee interest in the lot and all the dwellings must be held equally and undivided by all individual property owners.

(A) 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.

(h) Regulation of uses.

(1) Residential-only. No non-residential use is permitted on the lot.

(2) No short term rentals (STRs). No dwelling unit on the lot may be rented for a period of less than thirty (30) days.

(3) Owner occupancy. Unless the lot was formed by an urban lot split, the individual property owners of a lot with a two-unit project must occupy one (1) of the dwellings on the lot as the owners' principal residence and legal domicile.

(i) Notice of construction.

(1) At least thirty (30) business days before starting any construction of a two-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:

(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).

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

(j) Deed restriction. The owner must record a deed restriction, on a form approved by the city, that does each of the following:

(1) Expressly prohibits any rental of any dwelling on the property for a period of less than thirty (30) days.

(2) Expressly prohibits any non-residential use of the lot.

(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) If the lot does not undergo an urban lot split: 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.

(5) Expressly requires that any net new unit created be deed restricted for affordable housing at the following levels:

(A) Rental products shall be made affordable to very low or low income households.

(B) For-sale products shall be made affordable to moderate income households.

(6) Limits development of the lot to residential units that comply with the requirements of this section, except as required by state law.

(Ord. No. NS-3013, § 43, 12-21-21; Ord. No. NS-3038, § 43, 2-7-23)

(a) Notwithstanding anything else in this section, the city may deny an application for a two-unit project 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.

(b) "Specific adverse impact" has the same meaning as in Gov. Code section 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 (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).

(c) 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. NS-3013, § 5, 12-21-21)

If a two-unit project violates any part of this Code or any other legal requirement:

(a) The buyer, grantee, or lessee of any part of the property has an action for damages or to void the deed, sale, or contract.

(b) The city may:

(1) Bring an action to enjoin any attempt to sell, lease, or finance the property.

(2) Bring an action for other legal, equitable, or summary remedy, such as declaratory and injunctive relief.

(3) Pursue criminal prosecution, punishable by imprisonment in county jail or state prison for up to one (1) year, by a fine of up to ten thousand dollars ($10,000.00), or both; or a misdemeanor.

(4) Record a notice of violation.

(5) Withhold any or all future permits and approvals.

(6) Pursue all other administrative, legal, or equitable remedies that are allowed by law or the city's code.

(Ord. No. NS-3013, § 5, 12-21-21)