Public Comment - Public CorrespondenceFrom:Richard Schulman
To:City Clerk
Subject:Council meeting of 12/5/23
Date:Tuesday, December 5, 2023 12:54:55 PM
Attachments:Fenstermacher 231121 complete.pdf
2023-12-05 Response to R. Schulman re SB 9 RR Zones.pdf
You don't often get email from richard@schulmanatlaw.com. Learn why this is important
EXTERNAL EMAIL
Please circulate this e-mail and the attachments to the members of the City Council. I
will be addressing the attached correspondence during the Public Comment segment of
tonight's meeting.
If you have any questions, I can be reached at 858-221-3976. Thank you.
RICHARD A. SCHULMAN, A PROFESSIONAL CORPORATION 9834 Apple Tree Drive, Unit C San Diego, California 92124 858-221-3976 Richard@SchulmanAtLaw.com
November 21, 2023 By e-mail: afenstermacher@poway.org
Alan Fenstermacher City Attorney 13325 Civic Center Drive Poway, California 92064
Re: Application of Senate Bill 9 to RR-Zoned Properties I represent Jennifer and Phil Plantier, owners of the property at 16001 Martincoit Road in the City, APN 275-271-29-00. The Plantiers’ property is zoned RR-B, “Rural Residential B.” The
Plantiers would like to use SB 9 (Chapter 162, Stats. 2021) to subdivide their parcel so a family member will be able to build another house on the new, adjacent parcel. The Plantiers’ property satisfies all the prerequisites of SB 9. However, City staff has told them that SB 9 does not apply to RR-zoned property and that therefore they may not use the new law. Staff has indicated that their position is based on an instruction from you. I am therefore writing you to ask that this policy
be corrected. The problem appears to be an interpretation of the new law. However, both new code sections expressly apply to all “residential” zones, GOVERNMENT CODE §65852.21 and §66411.7, and the City’s own Municipal Code not only includes the RR zones among “residential” zones,
MUNICIPAL CODE Ch. 17.08, but even defines and describes them as “residential,” MUNICIPAL
CODE §17.08.020. That the City intends that properties bearing the RR zone be “rural” is irrelevant; they are “residential,” the key term in the new statutes. The available legislative intent materials confirm that the Legislature meant to apply the new law to anything “residential,” regardless of whether the property in question is densely urban residential, single-family residential, or rural
residential. However, staff will not even accept an application for RR-zoned property.
The ban on RR-zoned properties using SB 9 appears to have taken effect without formal City Council action. I have searched City Council records since SB 9 became effective (January 1, 2022) and found neither an ordinance nor a resolution creating this policy, and it does not appear
in the Municipal Code. Consequently, correction of this administrative interpretation should be
feasible informally.
Alan Fenstermacher, City Attorney November 21, 2023
Page 2
The next regular City Council hearing is scheduled for December 5, 2023. I hope to hear
from you soon that the Plantiers may submit, and that staff will process ministerially, an
application to use SB 9. If I have not heard from you by close of business on December 4, I will appear before the City Council during the public comment portion of their meeting to raise these points.
Very truly yours,
Richard A. Schulman
RICHARD A. SCHULMAN, A PROFESSIONAL CORPORATION
RAS:cas Encls: (1) City flier titled “SB 9 Developments & Urban Lot Splits: General Information,” taken 11/19/23 from https://poway.org/DocumentCenter/View/8713/SB-9-
Developments--Urban-Lot-Splits-General-Information-PDF
(2) City of Poway GIS, “Community Information” for 16001 Martincoit Road (3) City of Poway Municipal Code §17.08.020 (4) Final Senate Floor Analysis of SB 9 (2021)
cc (w/encls.): Clients (by e-mail)
EXHIBIT 1
CITY OF POWAY
DEVELOPMENT SERVICES DEPARTMENT
SB 9 Developments & Urban Lot Splits: General Information
What does Senate Bill 9 (SB9) do?
The Bill mandates jurisdictions, like the City of Poway, to ministerially approve a housing development containing no more
than two (2) residential units on a single lot within a single-family residential zone, excluding certain areas (“units” is inclusive
of Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs)).1 ADUs may be permissible after two
(2) main single-family residences on a single lot are established.2 Additionally, the City must ministerially process an Urban
Lot Split in accordance with SB9 and eligible development standards.
How do I apply and obtain permits for a SB9 development and Urban Lot Split?
Hire a designer or architect to prepare building plans, provide four (4) sets of plans in compliance with the application
requirements and guidelines and in compliance with the restrictions specified herein, then apply and pay applicable plan
check fees. Corrections on plan check reviews must be addressed before the application is approved and ready to issue.
Once the building permit is approved, pay applicable issuance and impact fees,3 obtain your permit and begin building. For
an Urban Lot Split, civil drawings prepared by an engineer are also required for the submittal and a ministerial Tentative
Parcel Map (TPM) then a Final Map with appropriate fees are required.
1 Reference City of Poway’s “Accessory Dwelling Units and Junior Accessory Dwelling Units: General Information” handout.
2 Lots with existing multi-family dwellings can permit ADUs per Govt. Code Section 65852.2(C) or Govt. Code Section 65852.2(D). Existing ADUs
may be able to be converted to a “primary residence” through the Administrative Remedy Letter process. All conversions are subject to
application and impact fees.
3 A credit will be applied for previous impact fees paid on an ADU converted to a main single-family residence as applicable.
4 Reference Govt. Code Section 65852.21(b)(1).
5 Reference PMC Section 17.08.230(D). 6 An affidavit specifying rental status in compliance with SB9 shall be required. If the unit was occupied by a tenant within the last three years,
then no more than 25 percent of demolition is permitted for the exterior walls.
7 Reference Govt. Code Section 65852.21(c)(1).
For SB 9 Developments and Urban Lot Splits
Qualifying Properties Limitations
Only properties that are zoned primarily for single-family residences
qualify (e.g., RS-1 thru RS-7). The following areas are also excluded
from SB9 developments (including properties with portions in the
following areas):
A. Rural Residential (RR) RR-A, RR-B, and RR-C and open
space zones;
B. Wetlands (ref. U.S. Fish and Wildlife Service Manual);
C. A hazardous waste site;
D. A historic district or a historically designated site;
E. A Very High Fire Hazard Severity Zone (common);
F. A special flood hazard area or regulatory floodway, unless
certain requirements are met; and/or
G. Lands identified for conservation in the Habitat Conservation
Plan (HCP) Mitigation Areas, sensitive habitat areas, and/or
an open space easement or open space zoning designation.
Approval of a SB9 development cannot involve the
demolition or alteration of structures if the property contains:
A. Affordable or rent controlled housing; or
B. Housing occupied by a tenant within the last three
years.6
Note: Rental terms must exceed thirty days. Separate sewer
and water connections are required for all SB9 units.
Parking Requirement
A minimum of one off-street parking space per unit is
required per lot.7
Setback Requirements
1. A minimum of four-foot interior side and rear yard
setbacks. Front yard and street-side yard setbacks
must comply with designated zoning standards.
2. If a unit does not meet PMC required setbacks for a
main single-family residence, then height is limited
to one story and the SB9 unit can’t exceed 16 feet
above the average finished grade.
3. A minimum 10 ft. distance between all structures is
required.
4. No setback shall be required for a legally permitted
structure that is replaced or converted to a SB9 unit.
Objective Design/Development Standards
The project must comply with the objective community design
themes and development standards found in the City’s General Plan
and the Poway Municipal Code (PMC),4 including landscape5 and
slope area requirements. The project’s design and development
must comply with the City of Poway’s Best Management Practices
Manual and the Poway Municipal Code. Existing properties already
subject to Priority Development Project standards shall obtain prior
approval from the City Engineering staff for additional impervious
area since it may require the addition of or alteration of storm water
facilities and strategies.
1 Off-site dedications or improvements cannot be required.
Urban Lot Split Requirements
In addition to the previously stated SB9 development requirements, SB9 allows the subdivision of a single-family lot into two lots
(Urban Lot Split) which shall meet the following criteria:
A. In conjunction with an Urban Lot Split, no more than two units may be permitted per lot;
B. Proposed lots shall be a minimum of 1,200 square feet;
C. Lots must be no smaller than 40 percent of the original lot area;
D. Areas utilized for public or private roads, vehicular access easements, and/or 45 percent or greater natural sloped areas
are excluded from lot area calculations;
E. The ratio of lot depth to lot width shall not exceed 3:1;
F. Each lot shall have a minimum 20-foot vehicular street access;
G. Existing or proposed access from a driveway curb cut is required;
H. Easements may be required to convey public utilities, access, and other services;1
I. The property owner must sign an affidavit stating they acknowledge that the property’s Covenants, Conditions, and
Restrictions (CC&Rs) or Homeowner’s Association (HOA) restrictions are not violated because of the Urban Lot Split; and
J. The property owner must sign a covenant stating the property’s owner(s): 1) intends to occupy one of the units as their
primary residence for a minimum of three years; 2) acknowledges that the property is no longer eligible for a future Urban
Lot Split; 3) shall not subdivide any adjacent parcel using an urban lot split; 4) A minimum of one off-street parking space
per unit is required per lot; and 4) must develop each lot per SB9 requirements and restrictions.
--
SFR
SFR
Gov. Cod• Section 65852 21
SB 9 Development
Figuret
SFR
ADU
SFR
Gov Code Section 65852.2 C
SFR
SFR
Gov. Code s.cuon 65852.2(D)
Note: All figures are not to scale and do not include SB9 development standards. These images are for illustration purposes only.
SFR
SB 9 Development with Urban Lot Split
Figure2
SFR SFR
SFR
SFR
SFR
Note: All figures are not to scale and do not include SB9 development standards. These images are for illustration purposes only.
EXHIBIT 2
Community Information
Parcel Information
APN
Planning Information
Zoning Code
Flood Plain Information
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TMPM Plan Number
Street Sweeping
Route (133.6 ft)
EXHIBIT 3
1 17.08.020 RR-A through RR-C residential rural zone.
The RR-A through RR-C residential rural zone is intended as an area for very low density
residential uses with minimum lot sizes of one acre and maximum densities of one unit per
acre. Additional uses are permitted that are complimentary to, and can exist in harmony
with, a rural residential neighborhood. Specific slope criteria shall be applied in the
determination of the maximum allowable densities to achieve compatibility with the
topography and public service constraints.
In order to preserve the very low density residential character of such property, no property
zoned RR-A, RR-B or RR-C shall be rezoned to a zone, nor shall any amendment to this title be
adopted, which would increase the residential density on property so zoned or change the
uses permitted thereon to allow commercial or manufacturing uses until and unless such
rezoning or amendment is approved by ordinance adopted by the voters of the City at a
special or general election, or first approved by the Poway City Council and then adopted by
the voters of the City at a special or general election.* (Ord. 283 § 2(8), 1988; Ord. 113 § 1
(Exh. A 2.0), 1983)
* Editor's Note: The second paragraph of PMC 17.08.020 was added by Ord. 283 and was approved by the
voters at a general municipal election November 8, 1988. The language added shall not be modified or
rescinded without the approval of a simple majority of the City voting at a special or general election.
EXHIBIT 4
SENATE RULES COMMITTEE
Office of Senate Floor Analyses
(916) 651-1520 Fax: (916) 327-4478
SB 9
UNFINISHED BUSINESS
Bill No: SB 9
Author: Atkins (D), Caballero (D), Rubio (D) and Wiener (D), et al.
Amended: 8/16/21
Vote: 21
SENATE HOUSING COMMITTEE: 7-2, 4/15/21
AYES: Wiener, Caballero, Cortese, McGuire, Skinner, Umberg, Wieckowski
NOES: Bates, Ochoa Bogh
SENATE GOVERNANCE & FIN. COMMITTEE: 5-0, 4/22/21
AYES: McGuire, Nielsen, Durazo, Hertzberg, Wiener
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/20/21
AYES: Portantino, Bradford, Kamlager, Laird, Wieckowski
NOES: Bates, Jones
SENATE FLOOR: 28-6, 5/26/21
AYES: Archuleta, Atkins, Becker, Bradford, Caballero, Cortese, Dahle, Dodd,
Durazo, Eggman, Gonzalez, Grove, Hertzberg, Hueso, Hurtado, Laird, Leyva,
McGuire, Min, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Umberg,
Wieckowski, Wiener
NOES: Bates, Borgeas, Jones, Melendez, Ochoa Bogh, Wilk
NO VOTE RECORDED: Allen, Glazer, Kamlager, Limón, Newman, Stern
ASSEMBLY FLOOR: 45-19, 8/26/21 - See last page for vote
SUBJECT: Housing development: approvals
SOURCE: Author
DIGEST: This bill requires ministerial approval of a housing development of no
more than two units in a single-family zone (duplex), the subdivision of a parcel
zoned for residential use into two parcels (lot split), or both.
SB 9
Page 2
Assembly Amendments provide that a local agency may deny a housing project
otherwise authorized by this bill if the building official makes a written finding
based upon the preponderance of the evidence that the housing development
project would have a specific, adverse impact upon health and safety or the
physical environment and there is no feasible method to satisfactorily mitigate or
avoid the specific adverse impact; provides that a local agency shall require an
applicant for an urban lot split to sign an affidavit stating that they intent to occupy
one of the housing units as their principle residence for a minimum of three years,
unless the applicant is a community land trust or a qualified nonprofit corporation;
and removes the sunset.
ANALYSIS:
Existing law:
1) Governs, pursuant to the Subdivision Map Act, how local officials regulate the
division of real property into smaller parcels for sale, lease, or financing.
2) Authorizes local governments to impose a wide variety of conditions on
subdivision maps.
3) Requires a local jurisdiction to give public notice of a hearing whenever a
person applies for a zoning variance, special use permit, conditional use
permit, zoning ordinance amendment, or general or specific plan amendment.
4) Requires the board of zoning adjustment or zoning administrator to hear and
decide applications for conditional uses or other permits when the zoning
ordinance provides therefor and establishes criteria for determining those
matters, and applications for variances from the terms of the zoning ordinance.
5) Establishes the California Environmental Quality Act (CEQA), which
generally requires state and local government agencies to inform decision
makers and the public about the potential environmental impacts of proposed
projects, and to reduce those impacts to the extent feasible. CEQA applies
when a development project requires discretionary approval from a local
government. (See “Comments” below for more information.)
6) Requires ministerial approval by a local agency for a building permit to create
an accessory dwelling unit (ADU) provided the ADU was contained within an
existing single-family home and met other specified requirements. Requires a
local agency to ministerially approve an ADU or junior accessory dwelling
unit (JADU), or both, as specified, within a proposed or existing structure or
SB 9
Page 3
within the same footprint of the existing structure, provided certain
requirements are met.
7) Requires each city and county to submit an annual progress report (APR) to the
Department of Housing and Community Development (HCD) and the Office
of Planning and Research that provides specified data related to housing
development.
This bill:
1) Requires a city or county to ministerially approve either or both of the
following, as specified:
a) A housing development of no more than two units (duplex) in a single-
family zone.
b) The subdivision of a parcel zoned for residential use, into two
approximately equal parcels (lot split), as specified.
2) Requires that a development or parcel to be subdivided must be located within
an urbanized area or urban cluster and prohibits it from being located on any of
the following:
a) Prime farmland or farmland of statewide importance;
b) Wetlands;
c) Land within the very high fire hazard severity zone, unless the development
complies with state mitigation requirements;
d) A hazardous waste site;
e) An earthquake fault zone;
f) Land within the 100-year floodplain or a floodway;
g) Land identified for conservation under a natural community conservation
plan, or lands under conservation easement;
h) Habitat for protected species; or
i) A site located within a historic or landmark district, or a site that has a
historic property or landmark under state or local law, as specified.
3) Prohibits demolition or alteration of an existing unit of rent-restricted housing,
housing that has been the subject of an Ellis Act eviction within the past 15
years, or that has been occupied by a tenant in the last three years.
4) Prohibits demolition of more than 25% of the exterior walls of an existing
structure unless the local ordinance allows greater demolition or if the site has
not been occupied by a tenant in the last three years.
SB 9
Page 4
5) Authorizes a city or county to impose objective zoning, subdivision, and
design review standards that do not conflict with this bill, except:
a) A city or county shall not impose objective standards that would physically
preclude the construction of up to two units or that would physically
preclude either of the two units from being at least 800 square feet in floor
area. A city or county may, however, require a setback of up to four feet
from the side and rear lot lines.
b) A city or county shall not require a setback for an existing structure or a
structure constructed in the same location and to the same dimensions as the
existing structure.
6) Prohibits a city or county from requiring more than one parking space per unit
for either a proposed duplex or a proposed lot split. Prohibits a city or county
from imposing any parking requirements if the parcel is located within one-
half mile walking distance of either a high-quality transit corridor or a major
transit stop, or if there is a car share vehicle located within one block of the
parcel.
7) Authorizes a city or county to require a percolation test completed within the
last five years or, if the test has been recertified, within the last 10 years, as
part of the application for a permit to create a duplex connected to an onsite
wastewater treatment system.
8) Authorizes a local agency to deny a housing project otherwise authorized by
this bill if the building official makes a written finding based upon the
preponderance of the evidence that the housing development project would
have a specific, adverse impact upon health and safety or the physical
environment and there is no feasible method to satisfactorily mitigate or avoid
the specific adverse impact
9) Requires a city or county to prohibit rentals of less than 30 days.
10) Prohibits a city or county from rejecting an application solely because it
proposes adjacent or connected structures, provided the structures meet
building code safety standards and are sufficient to allow separate conveyance.
11) Provides that a city or county shall not be required to permit an ADU or JADU
in addition to units approved under this bill.
12) Requires a city or county to include the number of units constructed and the
number of applications for lot splits under this bill, in its APR.
SB 9
Page 5
13) Requires a city or county to ministerially approve a parcel map for a lot split
only if the local agency determines that the parcel map for the urban lot split
meets the following requirements, in addition to the requirements for eligible
parcels that apply to both duplexes and lot splits:
a) The parcel map subdivides an existing parcel to create no more than two
new parcels of approximately equal size, provided that one parcel shall not
be smaller than 40% of the lot area of the original parcel.
b) Both newly created parcels are at least 1,200 square feet, unless the city or
county adopts a small minimum lot size by ordinance.
c) The parcel does not contain rent-restricted housing, housing where an
owner has exercised their rights under the Ellis Act within the past 15 years,
or has been occupied by tenants in the past three years.
d) The parcel has not been established through prior exercise of an urban lot
split.
e) Neither the owner of the parcel, or any person acting in concert with the
owner, has previously subdivided an adjacent parcel using an urban lot
split.
14) Requires a city or county to approve a lot split if it conforms to all applicable
objective requirements of the Subdivision Map Act not except as otherwise
expressly provided in this bill. Prohibits a city or county from imposing
regulations that require dedicated rights-of-way or the construction of offsite
improvements for the parcels being created, as a condition of approval.
15) Authorizes a city or county to impose objective zoning standards, objective
subdivision standards, and objective design review standards that do not
conflict with this bill. A city or county may, however, require easements or
that the parcel have access to, provide access to, or adjoin the public right-of-
way.
16) Provides that a local government shall not be required to permit more than two
units on a parcel.
17) Prohibits a city or county from requiring, as a condition for ministerial
approval of a lot split, the correction of nonconforming zoning conditions.
18) Requires a local government to require an applicant for an urban lot split to
sign an affidavit stating that the applicant intends to occupy one of the housing
units as their principle residence for a minimum of three years from the date of
the approval of lot split, unless the applicant is a community land trust, as
defined, or a qualified nonprofit corporation, as defined.
SB 9
Page 6
19) Provides that no additional owner occupancy standards may be imposed other
than those contained within 18) above, and that requirement expires after five
years.
20) Allows a city or county to adopt an ordinance to implement the urban lot split
requirements and duplex provisions, and provides that those ordinances are not
a project under CEQA.
21) Allows a city or county to extend the life of subdivision maps by one year, up
to a total of four years.
22) Provides that nothing in this bill shall be construed to supersede the California
Coastal Act of 1976, except that a local government shall not be required to
hold public hearings for a coastal development permit applications under this
bill.
Background
Cities and counties enact zoning ordinances to implement their general plans.
Zoning determines the type of housing that can be built. In addition, before
building new housing, housing developers must obtain one or more permits from
local planning departments and must also obtain approval from local planning
commissions, city councils, or county board of supervisors. Some housing projects
can be permitted by city or county planning staff ministerially, or without further
approval from elected officials. Projects reviewed ministerially require only an
administrative review designed to ensure they are consistent with existing general
plan and zoning rules, as well as meeting standards for building quality, health, and
safety. Most large housing projects are not allowed ministerial review; instead,
these projects are vetted through both public hearings and administrative review.
Most housing projects that require discretionary review and approval are subject to
review under CEQA, while projects permitted ministerially generally are not.
Comments
1) Modest density can result in large-scale housing production. This bill could
lead to up to four homes on lots where currently only one exists. It would do so
by allowing existing single-family homes to be converted into duplexes; it
would also allow single-family parcels to be subdivided into two lots, while
allowing for a new two-unit building to be constructed on the newly formed lot.
According to the University of California, Berkeley Terner Center for Housing
Innovation, this bill has the potential to allow for the development of nearly 6
million new housing units. Assuming only five percent of the parcels impacted
SB 9
Page 7
by this bill created new two-unit structures, this bill would result in nearly
600,000 new homes.
2) Historic preservation versus housing production. As part of their general
police powers, local governments have the authority to designate historic
districts, which set specific regulations and conditions to protect property and
areas of historical and aesthetic significance. While well-intentioned,
academics and others have pointed out that there are negative impacts of
historic districts on housing supply and racial equity. For example, in 2017, the
Sightline Institute noted that, in relation to Seattle’s historic preservation
efforts, “rules for historic preservation can sabotage housing affordability just
like any other cost, red tape, permitting delay, or capacity limits imposed on
homebuilding.” It made recommendations such as educating historic
preservation board members on how the historic review process and resulting
preservation mandates can impede homebuilding and harm affordability; raising
the bar for justifying landmark designations in order to counteract local anti-
development sentiment; and even prohibiting historic preservation restrictions
from limiting new construction to less than the height or capacity that zoning
allows.
Sites within a historic district are categorically exempt from the provisions of
this bill. While the committee understands the desire to protect the integrity of
historic districts from an aesthetic perspective, it is unclear that allowing small
multi-unit construction in historic districts — which would be subject to
objective historic design standards — would undermine the integrity of the
historic districts. In addition, exempting historic districts from bills designed to
increase multi-unit housing supply could lead to fair housing challenges. This
committee is aware of several California cities — including neighborhoods in
Eastern San Francisco, Los Angeles, and San Jose — that have not excluded
historic districts when performing rezonings.
This bill also contains a very broad definition of what kinds of historic districts
are automatically exempt from this bill. The historic district exemption, similar
to exemptions included in other pending bills in the Senate, does not require a
historic district to be on a federal or state historic registry. Instead, a city can
designate a zone as historic without the typical rigorous historic designation
process required for a historic district to be placed on a federal or state registry.
Certain NIMBY groups are already discussing use of this broad exemption as a
tool to exempt communities from state housing laws. If a historic district
exemption is needed, a more focused and rigorous exemption — for example,
SB 9
Page 8
similar to what the Governance and Finance Committee placed in SB 50
(Wiener, 2019) — should be considered.
3) Senate’s 2021 Housing Production Package. This bill has been included in the
Senate’s 2021 Housing Production Package and is virtually identical to
SB 1120 (Atkins, 2020). For key differences, see the Senate Housing
Committee analysis.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Assembly Appropriations Committee:
1) HCD estimates costs of $89,000 (General Fund) annually for 0.5 Personnel
Years of staff time to provide technical assistance and outreach education to
local agencies and affordable housing developers.
2) Unknown state-mandated local costs to establish streamlined project review
processes for proposed duplex housing developments and tentative maps for
urban lot splits, and to conduct expedited design reviews of these proposals.
These costs are not state-reimbursable because local agencies have general
authority to charge and adjust planning and permitting fees to cover their
administrative expenses associated with new planning mandates.
SUPPORT: (Verified 8/27/21)
AARP
Abundant Housing LA
ADU Task Force East Bay
All Home
American Planning Association, California Chapter
Bay Area Council
Bridge Housing Corporation
Cal Asian Chamber of Commerce
California Apartment Association
California Asian Pacific Chamber of Commerce
California Association of Realtors
California Building Industry Association
California Chamber of Commerce
California Hispanic Chamber of Commerce
California YIMBY
Casita Coalition
Central Valley Urban Institute
SB 9
Page 9
Chan Zuckerberg Initiative
Circulate San Diego
Cities of Alameda, Oakland, San Diego
Council Member Jon Wizard, City of Seaside
Council Member Zach Hilton, City of Gilroy
Council of Infill Builders
County of Monterey
East Bay for Everyone
Eden Housing
Facebook, INC.
Fathers and Families of San Joaquin
Fieldstead and Company, INC.
Generation Housing
Greenbelt Alliance
Habitat for Humanity California
Hello Housing
Hollywood Chamber of Commerce
Housing Action Coalition
Inland Empire Regional Chamber of Commerce
Innercity Struggle
League of Women Voters of California
LISC San Diego
Livable Sunnyvale
Local Government Commission
Long Beach YIMBY
Los Angeles Business Council
Los Feliz Neighborhood Council
Mayor Darrell Steinberg, City of Sacramento
Midpen Housing
Midpen Housing Corporation
Modular Building Institute
Mountain View YIMBY
National Association of Hispanic Real Estate Professionals
Natural Resources Defense Council
Non-profit Housing Association of Northern California
North Bay Leadership Council
Northern Neighbors
Orange County Business Council
Palo Alto Forward
Peninsula for Everyone
SB 9
Page 10
People for Housing - Orange County
Pierre Charles General Construction
Plus Home Housing Solutions
San Diego Housing Commission
San Diego Regional Chamber of Commerce
San Fernando Valley YIMBY
San Francisco Bay Area Planning and Research Association
San Francisco YIMBY
Sand Hill Property Company
Santa Barbara Women’s Political Committee
Santa Cruz YIMBY
Schneider Electric
Share Sonoma County
Silicon Valley @ Home
Silicon Valley Leadership Group
South Bay YIMBY
South Pasadena Residents for Responsible Growth
Streets for People Bay Area
TechEquity Collaborative
Tent Makers
Terner Center for Housing Innovation at the University of California, Berkeley
The Greater Oxnard Organization of Democrats
The Two Hundred
TMG Partners
United Way of Greater Los Angeles
Urban Environmentalists
YIMBY Action
YIMBY Democrats of San Diego County
Zillow Group
94 Individuals
OPPOSITION: (Verified 8/27/21)
Adams Hill Neighborhood Association
Aids Healthcare Foundation
Alameda Citizens Task Force
Albany Neighbors United
Berkeley Associated Neighbors Against Non-affordable Housing
Brentwood Homeowners Association
Burton Valley Neighborhoods Group
California Alliance of Local Electeds
SB 9
Page 11
California Cities for Local Control
California Contract Cities Association
Catalysts
Cities Association of Santa Clara County
Citizens Preserving Venice
Cities of Arcata, Azusa, Bellflower, Belmont, Beverly Hills, Brea, Brentwood,
Burbank, Calabasas, Camarillo, Carpinteria, Carson, Cerritos, Chino, Chino
Hills, Clayton, Clearlake, Clovis, Colton, Corona, Costa Mesa, Cupertino,
Cypress, Del Mar, Diamond Bar, Dorris, Downey, Dublin, Eastvale, El
Segundo, Escalon, Fillmore, Fortuna, Foster City, Fountain Valley, Garden
Grove, Glendora, Grand Terrace, Half Moon Bay, Hesperia, Hidden Hills,
Huntington Beach, Indian Wells, Inglewood, Irvine, Irwindale, Kerman, King,
La Canada Flintridge, La Habra, La Habra Heights, La Mirada, La Palma, La
Quinta, La Verne, Lafayette, Laguna Beach, Laguna Niguel, Lakeport,
Lakewood, Lancaster, Lawndale, Lomita, Los Alamitos, Los Altos, Malibu,
Martinez, Maywood, Menifee, Merced, Mission Viejo, Montclair, Monterey,
Moorpark, Murrieta, Newman, Newport Beach, Norwalk, Novato, Oakdale,
Ontario, Orinda, Pacifica, Palm Desert, Palo Alto, Palos Verdes Estates,
Paramount, Pasadena, Pinole, Pismo Beach, Placentia, Pleasanton, Poway,
Rancho Cucamonga, Rancho Palos Verdes, Rancho Santa Margarita, Redding,
Redondo Beach, Ripon, Rocklin, Rohnert Park, Rolling Hills, Rolling Hills
Estates, Rosemead, San Buenaventura, San Carlos, San Clemente, San Dimas,
San Fernando, San Gabriel, San Jacinto, San Marcos, San Marino, Santa Clara,
Santa Clarita, Santa Monica, Santa Paula, Saratoga, Signal Hill, Simi Valley,
South Gate, South Pasadena, Stanton, Sunnyvale, Temecula, Thousand Oaks,
Torrance, Tracy, Upland, Vacaville, Ventura, Visalia, Vista, West Covina,
Westlake Village, Whittier, Yorba Linda, Yuba City
Coalition for San Francisco Neighborhoods
Coalition to Save Ocean Beach
College Street Neighborhood Group
College Terrace Residents Association
Committee to Save the Hollywoodland Specific Plan
Community Associations Institute - California Legislative Action Committee
Comstock Hills Homeowners Association
Culver City Neighbors United
D4ward
Durand Ridge United
Encinitas Neighbors Coalition
Friends of Sutro Park
Grayburn Avenue Block Club
SB 9
Page 12
Hidden Hill Community Association
Hills 2000 Friends of The Hills
Hollywood Knolls Community Club
Hollywoodland Homeowners Association
Howard Jarvis Taxpayers Association
Kensington Property Owners Association
LA Brea Hancock Homeowners Association
Lafayette Homeowners Council
Lakewood Village Neighborhood Association
Las Virgenes-Malibu Council of Governments
Latino Alliance for Community Engagement
League of California Cities
League of California Cities Central Valley Division
Linda Vista-Annandale Association
Livable California
Livable Pasadena
Los Altos Residents
Los Angeles County Division, League of California Cities
Los Feliz Improvement Association
Marin County Council of Mayors and Councilmembers
Menlo Park United Neighbors
Miracle Mile Residential Association
Miraloma Park Improvement Club
Mission Street Neighbors
Montecito Association
Mountain View United Neighbors
Neighborhood Council Sustainability Alliance Trees Committee
North of Montana Association
Northeast Neighbors of Santa Monica
Pacific Palisades Community Council
Planning Association for The Richmond
Riviera Homeowners Association
San Gabriel Valley Council of Governments
Save Lafayette
Seaside Neighborhood Association
Shadow Hills Property Owners Association
Sherman Oaks Homeowners Association
South Bay Cities Council of Governments
South Bay Residents for Responsible Development
South Shores Community Association
SB 9
Page 13
Southwood Homeowners Association
Sunnyvale United Neighbors
Sunset-Parkside Education and Action Committee
Sustainable Tamalmonte
Tahoe Donner Association
Temecula Valley Neighborhood Coalition
Towns of Apple Valley, Colma, Fairfax, Los Altos Hills, Mammoth Lakes, Ross,
Truckee, Woodside
Tri-Valley Cities of Dublin, Livermore, Pleasanton, San Ramon, and Town of
Danville
United Neighbors of Assembly District 24
United Neighbors of Senate District 13
Ventura Council of Governments
Verdugo Woodlands West Homeowners Association
West Pasadena Residents' Association
West Torrance Homeowners Association
West Wood Highlands Neighborhood Association
Westside Regional Alliance of Councils
Westwood Hills Property Owners Association
Westwood Homeowners Association
Wilshire Montana Neighborhood Coalition
Windsor Square Association
290 Individuals
ARGUMENTS IN SUPPORT: According to the author, “Senate Bill 9 promotes
small-scale neighborhood residential development by streamlining the process for
a homeowner to create a duplex or subdivide an existing lot. SB 9 strikes an
appropriate balance between respecting local control and creating an environment
and opportunity for neighborhood scale development that benefits the broader
community. To that end, the bill includes numerous safeguards to ensure that it
responsibly creates duplexes and strategically increases housing opportunities for
homeowners, renters, and families alike. At a time when many Californians are
experiencing economic insecurity caused by the pandemic, this bill will provide
more options for families to maintain and build intergenerational wealth – a
currency we know is crucial to combatting inequity and creating social mobility.
SB 9 provides flexibility for multigenerational housing by allowing homeowners to
build a modest unit on their property so that their aging parent or adult child can
have an affordable place to live. Building off the successes of ADU law, SB 9
offers solutions that work in partnership with a number bills included in the
Senate’s Housing Package, ‘Building Opportunities For All’ aimed at combating
the State’s housing crisis.”
SB 9
Page 14
ARGUMENTS IN OPPOSITION: According to the League of California
Cities, “SB 9 as currently drafted will not spur much needed housing construction
in a manner that supports local flexibility, decision making, and community input.
State-driven ministerial or by-right housing approval processes fail to recognize
the extensive public engagement associated with developing and adopting zoning
ordinances and housing elements that are certified by [HCD].”
ASSEMBLY FLOOR: 45-19, 8/26/21
AYES: Aguiar-Curry, Arambula, Berman, Calderon, Carrillo, Cervantes, Chiu,
Cooley, Cooper, Megan Dahle, Flora, Fong, Gallagher, Cristina Garcia, Eduardo
Garcia, Gipson, Lorena Gonzalez, Gray, Grayson, Holden, Jones-Sawyer, Kalra,
Lackey, Lee, Low, Mathis, Mayes, Medina, Mullin, Quirk, Quirk-Silva, Ramos,
Reyes, Robert Rivas, Rodriguez, Salas, Stone, Ting, Valladares, Villapudua,
Ward, Akilah Weber, Wicks, Wood, Rendon
NOES: Bauer-Kahan, Bigelow, Bloom, Boerner Horvath, Daly, Davies, Frazier,
Friedman, Gabriel, Irwin, Levine, Muratsuchi, Nazarian, O'Donnell, Petrie-
Norris, Seyarto, Smith, Voepel, Waldron
NO VOTE RECORDED: Bennett, Bryan, Burke, Chau, Chen, Choi, Cunningham,
Kiley, Maienschein, McCarty, Nguyen, Patterson, Luz Rivas, Blanca Rubio,
Santiago
Prepared by: Alison Hughes / HOUSING / (916) 651-4124
8/28/21 11:32:51
**** END ****
Alan B. Fenstermacher
Direct Dial: (714) 641-3452
E-mail: afenstermacher@rutan.com
December 5, 2023
Rutan & Tucker, LLP | 18575 Jamboree Road, 9th Floor
Irvine , CA 92612 | 714-641-5100 | Fax 714 -546-9035
Orange County | Palo Alto | San Francisco | Scottsdale | www.rutan.com 2523/012782-0011
19987504.1 a12/05/23
VIA ELECTRONIC MAIL
Richard A. Schulman
9834 Apple Tree Drive, Unit C
San Diego, California 92124
Richard@SchulmanAtLaw.com
Re: SB 9 Application to RR-Zoned Properties in City of Poway
Dear Mr. Schulman:
I am in receipt of your November 21, 2023 letter regarding your clients’ request to
subdivide their parcel pursuant to Senate Bill (“SB”) 9. Your letter argues that the City of Poway’s
(“City”) interpretation that SB 9 does not apply to properties within the City’s Rural Residential
(RR-A through RR-C) zone is incorrect. While understanding your position, the City’s position
is correct for two independent reasons, both unique to the City:
1. As set forth in the Poway Subarea Habitat Conservation Plan (“HCP”), the City’s
RR zones serve as a buffer between higher density/intensity land uses and the City’s protected
biological habitat areas and open space preserves. (See, e.g., HCP, pp. 3-8 to 3-10, 4-1, 6-48.)
Thus, RR zones are exempt from SB 9 pursuant to Government Code sections 65913.4(a)(6)(B)
& (I). Staff from the California Department of Housing Development’s (“HCD”) compliance team
has verbally endorsed this interpretation.
2. The City’s voter approved Proposition FF prohibits increases in residential density
in the City’s RR zones without a vote of the people. The right of the people to pass and adopt
initiatives that regulate municipal affairs, such as Proposition FF here, controls over SB 9, pursuant
to the California constitution. (Cal. Const. art. II, §§ 1, 11.)
Please feel free to contact me if you would like to discuss further.
Sincerely,
Alan B. Fenstermacher
City Attorney, City of Poway