CC 12-07-2021 Item No. 31 SB9 Interim Ordinance - Supplemental Staff Report to Council Inquiries_Desk Item
CITY COUNCIL STAFF REPORT
December 7, 2021
Subject
Agenda Item #31 – SB 9 Interim Ordinance
RESPONSE TO COUNCIL INQUIRIES AND ADDITIONAL INFORMATION
(REDLINE ORDINANCE)
Discussion
This is a supplemental report provided in response to Council inquiries. Inquiries have
been consolidated and simplified for clarity.
Council Inquiries and Responses
1. Department of Community Development has two divisions with the Building
Official being responsible for activities within the Building Division. Who is
responsible for activities within the Planning Division?
Response: The Community Development Department has four divisions: Building,
Planning, Housing, and Code Enforcement. The Building Official/Assistant Director
oversees the Building and Code Enforcement Divisions, the Planning Manager
oversees the Planning Division, and the Housing Manager oversees the Housing
Division with direction from the Director of Community Development.
2. Notice shall be provided to adjacent property owners (including those across any
public or private street) – How many property owners are to be noticed?
Response: Adjacent property is defined in the Municipal Code as property that
abuts the subject property, including property whose only contiguity to the subject
site is a single point and property directly opposite the subject property and located
across a street.
3. Is ADU allowed when building a duplex on an existing lot with no lot split? Can
the duplex be allowed an ADU (attached or detached) and a Junior ADU?
Response: Yes – an ADU would be allowed when a duplex is proposed/built using
SB 9 provisions. A Junior ADU is not allowed in a multi‐family development (which
a duplex would be considered). A multi‐family development can have either one
attached (conversion of existing non‐habitable spaces) ADU or two detached
ADUs..
4. What about the sites zoned R2, R3 etc.? Would SB 9 not apply to them?
Response: SB 9 applies only to single‐family residential zones.
5. RE: ʺThe parcel was not created through prior exercise of an urban lot split under
SB 9; and bullet #8: Neither the owner of the parcel being subdivided nor any person
acting in concert with the owner has previously subdivided an adjacent parcel using
an urban lot split as provided for in this section.ʺ
Q: How do we ensure the above two conditions are met? Through deed restrictions?
Response: Yes – covenants as deed restrictions will be recorded on the property to
ensure that these conditions are met.
6. RE: ʺThe intent of the proposed Ordinance is to allow the City to accommodate
additional units that must be approved under SB 9 within development footprint
allowed by existing zoning, except in cases where SB 9 requires a moderately larger
development footprint.ʺ
Q: What does this ʺexcept in cases where SB 9 requires a moderately larger
development footprintʺ mean?
Response: SB 9 requires the City to approve two units that are at least 800 square
feet in size. If, for example, a property owner seeks to split a 5,000‐square‐foot lot
into two 2,500‐square‐foot lots, the City would be required to allow two units for a
total floor area of 1,600 square feet (800 square feet * 2). This would exceed the 45%
floor area ratio allowed under the Zoning Ordinance.
7. Q [transparency]: Since there will be no appeal once approved, the city should
provide max transparency and access to the neighbors to express their concerns
during the review period. Perhaps, the timely posting of all SB 9 application
materials within X day of the submission of the application. And an easy way to sign
up for notification of the status of a project.
Response: All planning applications and building permit information are available
on the City’s Civic Central website at cupertino.civiccentral.com. Civic Central
allows persons to sign up for notifications on all applications made within the City
or allows persons to customize notifications. Plans would be made available for
review to interested persons, upon request.
8. Q [accountability]: The city should adopt a process to ensure each staff member
signing off on each portion of the project on its compliance follow the same
interpretation of the standard, since different people might interpret the standards
differently, one might be looser, and one might be stricter. How do we ensure
equitable treatment of all applicants, whether they are represented by professional
consultants or a do‐it‐yourself resident?
Response: The authority delegated to the City by state law and the intent of the
proposed ordinance is to develop objective standards that limit the judgment calls
individual staff members must make. In addition, all planner decisions involving
judgement are reviewed by Community Development Department management.
However, there is some degree of professional judgment involved, even in applying
ministerial, non‐discretionary standards. Staff’s goal is always to treat all applicants
equally and fairly and to apply the standards consistently.
9. Q: [accountability] Would only one person ʺThe City Engineerʺ review a project?
How to ensure there is no undue influence on any individual? Conflict of interest?
Could the city form a SB 9 review committee consisting of the City Engineer and
other city staff so that such irreversible ministerial decisions are not made by one
person alone. This is because in case anything is overlooked (mindless human error)
the project approval cannot be overturned later, as we have learned from the Vallco
SB 35 project.
Response: While the City Engineer is responsible for approving subdivisions under
the Subdivision Map Act, he/she will do so in consultation with other staff from the
Public Works Department, Planning Division staff, the City Attorney’s Office, and
other City staff such as the City Manager as necessary.
10. In case the City Engineer made any mistake (which happens since we are human)
or someone else challenge the City Engineerʹs interpretation of the standards, what
happens?
Response: A final decision on a lot split application or ministerial permit approval
may be reviewed by the Superior Court through a writ of mandate.
11. Q: [Fire] How about fire truck access in case of house fire or ambulance access in
case of emergence? Do we need any objective standard to ensure their access?
Response: SB 9 projects are subject to all applicable building standards, including
Fire Code requirements for emergency ingress and egress. These are already
adopted and implemented by the Building Division and the Santa Clara County Fire
Department.
12. Q: [Tree Projection] Can we require the number of trees and/or bushes to remain
the same or comparable so that we do not lose the urban forest canopy with each
project?
Response: SB 9 projects are subject to objective requirements of Chapter 14.18,
including replacement tree requirements.
13. Could they add ADUs later? Or would there be deed restrictions so that they cannot
add ADUs?
Response: The proposed Ordinance would prohibit ADUs on lots that have been
subject to a ministerial lot split and the ministerial approval of one or more units.
ADUs could be constructed on other lots consistent with the requirements of the
Municipal Code and state law. This requirement can be added as a condition of
approval. Whether an ADU can be added or not, would be evaluated upon a review
of the permit history of the property (including origin of the lot and units on the lot
approval letters and associated conditions of approval).
14. RE: ʺG. [OPTION A]: Any dwelling unit approved pursuant to this Section shall be
ineligible for conversion to a condominium, community apartment, or stock
cooperative project. Any application for a tentative subdivision map or tentative
parcel map for a residential condominiumʺ
Q: How to find out whether the units were ʺapproved pursuant to this Sectionʺ (SB
9) pr not? If so, the condominium conversion is not allowed?
Response: Condominium conversions would undergo Planning review prior to
approval. The City also tracks and maps all approved projects via the City’s
Geographic Information Systems (GIS). Should the Council select this option
outlined in the draft ordinance, staff will be able to verify using the GIS as to whether
the unit was approved through a Miscellaneous Ministerial Permit, and therefore,
that a condominium conversion would not be approved.
UPDATED REDLINE ORDINANCE
Attached please find an updated redline ordinance (See Attachment A.) The language
in the ordinance has been clarified and corrected in some places (these are indicated in
red text). Additionally, certain objective design and zoning standards that were
intended to be applicable in the RHS zones as well but were left out in the draft
published with the agenda, have been duplicated from the newly proposed Section
19.28.150 in the newly proposed Section 19.40.090.
_____________________________________
Prepared by: Benjamin Fu, Director of Community Development
Reviewed and Approved by: Greg Larson, Interim City Manager
Attachments
A – Updated redlined Ordinance No. 21‐2235