2nd illegal kitchen

[CANative]

I'm still curious as to how San Diego Planning gets around the CA second unit law. They have to have some reason for not granting a variance.

 

[nstanbru]

I'm still curious as to how San Diego Planning gets around the CA second unit law. They have to have some reason for not granting a variance.

Greg, I read your post #32 and as I see it, there are several valid reasons on the list that they could apply. We would have to know all the particulars regarding this property to get a definitive answer.

 

[CANative]

It seems like the Planning Department counter guy is stating that the reason it's an illegal use is because it is in a SF zoning district. But that would not fly under CA's second unit law. And if they say it's because the lot is not equal to, or greater than, the minimum lot size then that doesn't comply with the "spirit" of the law because that would exclude virtually all properties in developed neighborhoods unless they happened to have a double lot.

I'm not disputing the OP or the fine counter staff at San Diego's Planning and Building Department. I'm just trying to understand how different jurisdictions deal with the second unit law.

 

[Couch Potato]

Stick to your job.

Greg, I read your post #32 and as I see it, there are several valid reasons on the list that they could apply. We would have to know all the particulars regarding this property to get a definitive answer.

That is the main problem for an appraiser trying to deal with the issue directly rather than using an extraordinary assumption, and allowing the client to deal with it as they see fit. Although reading of the applicable law, reading the regulation, or getting information from a government official may yield one conclusion; a complete evaluation of the specific property through all the legal channels may yield the opposite conclusion. It is important to avoid calling for specific actions such as getting a permit or removing something like a kitchen. Requiring a specific action can get you in trouble if your requirement later is proven unnecessary and costs the homeowner money. You don't ignore or coverup the apparent problem, but neither do you want to place yourself in the position of being a judge; leave that to the courts.

 

[Lloyd Bonafide]

the fine counter staff at San Diego's Planning and Building Department.

I don't know if you were being sarcastic or not, but ...

 

[CANative]

It is important to avoid calling for specific actions such as getting a permit or removing something like a kitchen. Requiring a specific action can get you in trouble if your requirement later is proven unnecessary and costs the homeowner money.

This is why I'm always such a trouble-maker in these types of threads and get yelled at by Mike & Mike & Barry.

 

[CANative]

I don't know if you were being sarcastic or not, but ...

Far be it from me to insult someone else's counter staff. I can only speak from experience.

 

[Mike Kennedy]

Page 3.

[FONT=TimesNewRoman,Italic]"It is the intent of the Legislature that any second-unit ordinances adopted by local[/FONT]
[FONT=TimesNewRoman,Italic]agencies have the effect of providing for the creation of second units and that[/FONT]
[FONT=TimesNewRoman,Italic]provisions in these ordinances relating to matters including unit size, parking, fees[/FONT]
[FONT=TimesNewRoman,Italic]and other requirements, are not so arbitrary, excessive, or burdensome so as to[/FONT]
[FONT=TimesNewRoman,Italic]unreasonably restrict the ability of homeowners to create second units in zones in[/FONT]
[FONT=TimesNewRoman,Italic]which they are authorized by local ordinance."[/FONT]​

[FONT=TimesNewRoman,Bold]When Does a Local Second-Unit Ordinance Apply versus State Standards?[/FONT]
Second-unit law contains provisions to guide the adoption of a local ordinance (subsections (a) and (c-g)) and describes State standards that apply in the absence of a local ordinance (subsection (b)).

When a local second-unit ordinance is enacted in accordance with subsections (a) or (c), the local ordinance provides the criteria for approving and denying second-unit applications. ​

In the absence of a local second-unit ordinance in accordance with subsection (a) or (c), the State standards
contained in subsection (b) of Government Code Section 65852.2 establish the criteria for approving and denying second-unit applications. ​

While the State standards, under subsection (b), do not necessarily apply to the preparation or update of a local ordinance, they are appropriate to use as a guideline.​

[FONT=TimesNewRoman,Bold]Does a Locality Have Flexibility in Adopting a Local Second-Unit Ordinance?[/FONT]​

Second-unit law was created and amended within the context of providing “…a minimum of limitation…”, so localities “…may exercise the maximum degree of control over local zoning matters…” (Government Code 65800). ​

Chapter 1062 requires localities to consider applications for the development of second-units ministerially with the intent to create second-units and not constrain their development.​

Second-unit law provides local flexibility to manage the opportunity for creating second-units. ​

For example, Government Code Section 65852.2(a)(1) provides that:​

[FONT=TimesNewRoman,Italic]65852.2.(a)(1) Any local agency may, by ordinance, provide for the creation of [/FONT][FONT=TimesNewRoman,Italic]second units [/FONT][FONT=TimesNewRoman,Italic]in single-family and multifamily residential zones. [/FONT]​

[FONT=TimesNewRoman,Italic]The ordinance may [/FONT][FONT=TimesNewRoman,Italic]do any of the following:[/FONT]​

[FONT=TimesNewRoman,Italic](A) Designate areas within the jurisdiction of the local agency where second units [/FONT][FONT=TimesNewRoman,Italic]may be permitted. The designation of areas may be based on criteria that may [/FONT][FONT=TimesNewRoman,Italic]include, but are not limited to, the adequacy of water and sewer services and [/FONT][FONT=TimesNewRoman,Italic]the impact of second units on traffic flow.[/FONT]​

[FONT=TimesNewRoman,Italic](B) Impose standards on second units that include, but are not limited to, parking, [/FONT][FONT=TimesNewRoman,Italic]height, setback, lot coverage, architectural review, maximum size of a unit, and [/FONT][FONT=TimesNewRoman,Italic]standards that prevent adverse impacts on any real property that is listed in the [/FONT][FONT=TimesNewRoman,Italic]California Register of Historic Places.[/FONT]​

[FONT=TimesNewRoman,Italic](C) Provide that second units do not exceed the allowable density for the lot upon [/FONT][FONT=TimesNewRoman,Italic]which the second unit is located, and that second units are a residential use that [/FONT][FONT=TimesNewRoman,Italic]is consistent with the existing general plan and zoning designation for the lot.[/FONT]​

PAGE 4​

A local government may apply quantifiable, fixed and objective standards, such as height, setback, and lot coverage requirements so the second-unit will be compatible with other structures in the neighborhood. ​

A local government may designate areas appropriate for second-units based on criteria such as the adequacy of water and sewer services and the impact of second-units on traffic flow. ​

At the same time, a locality must adopt an ordinance with the intent of facilitating the development of second-units in appropriate residential zones without arbitrary, excessive, or burdensome provisions and requirements.​

Under limited circumstances, a locality may prohibit the development of second-units in single family or multifamily zones (Government Code Section 65852.2(c)). This prohibition may only be enacted if a locality adopts formal written findings based on substantial evidence identifying the adverse impact of second-units on the public health, safety, and welfare and acknowledging such action may limit housing opportunities in the region (Section 65852.2(c)). ​

Prior to making findings of specific adverse impact, the agency should explore feasible alternatives to mitigate and
avoid the impact. Written findings should also acknowledge efforts to adopt an ordinance consistent with the intent of second-unit law. ​

A local government may also establish reasonable minimum and maximum unit size requirements for both attached and detached second-units according to Government Code Section 65852.2(d). Minimum and maximum unit sizes should be reasonable and should not arbitrarily and excessively restrict the development of second-units. For example, a maximum unit size of 400 square feet might be unduly restrictive on minimum lot sizes of 7,000 square feet, barring unusual circumstances, and would restrict the development of second-units. Minimum unit sizes should
also uphold health and safety standards.​

Also, localities should ensure parking requirements are consistent with standards set forth in subsection (e). This subsection limits parking requirements to one parking space per unit or bedroom, unless a locality makes specific findings.​

http://www.hcd.ca.gov/hpd/hpd_memo_ab1866.pdf

 

[Couch Potato]

Knowing the local law is important.

And that is just a memo on the law. Now try reading and applying all the laws it has spawned. :Eyecrazy: As an appraiser there is no way to get all the way through everything down to exactly how it affects the specific subject of the appraisal. We can point the lender in the right direction, but practicing law or acting as a judge is just not wise. All too often courts rule a law says something that a casual observer would ever see in it. It is fine (required) to describe the situation and to describe the laws of which you are aware, but expressing a judgement on what the law requires is using bad judgement. :new_all_coholic:

 

[Mike Kennedy]

Knowing the local law is important.


Correct. As is ascertaining what a local governing municipality's law permits, requires, and prohibits, citing the Municipal Source, and recommending client-direct contact to further confirm info provided by the Municipality if the client has concern in that regard. H&BU "as-improved" must be a legal use, as of the EDA, which must be - in the context of the OP - ascertained, considered, and reported as either "Legal, LNC, or Illegal" as of the Effective Date of Appraisal.