The Marin County Planning Commission has reversed course and recommended that county supervisors bow to state edicts on accessory dwelling units.
The commission voted this month to recommend that the supervisors comply with the Department of Housing and Community Development’s order that the county allow two ADUs on lots restricted to single-family residential development — twice the number currently permitted by the county.
In May, the commission voted 5-0 to recommend that county supervisors challenge the directive.
State law now allows owners of single-family properties to split their lots and build one residential unit, two ADUs and one junior accessory dwelling unit on each half for a total of eight residences. If an ADU is 800 square feet or smaller, it must be approved ministerially; no local subjective criteria may be used to deny their approval.
There was no discussion of the commission’s May vote during its Oct. 12 meeting, but planning staff made it clear that the state was not open to negotiation.
Michael McLaughlin, an accessory dwelling policy specialist in the state Department of Housing and Community Development’s enforcement unit, sent an email to Marin’s Community Development Agency in February notifying it that the county was misrepresenting the minimum accessory dwelling units allowed in the state.
Marin County Planning Manager Jeremy Tejirian told commissioners that the email was “really at a different level than all the other emails that we may have received from HCD staff.”
“My understanding,” Tejirian said, “Is HCD is doing a statewide audit of all of the regulations regarding ADUs.”
In July, the county’s Community Development Agency received a follow-up letter from Shannan West, a state housing accountability unit chief, detailing other ways in which Marin’s regulations governing ADUs are failing to comply with current state law.
These included the state’s objection to a county requirement that some types of ADUs have direct vehicle access to a paved street, if located on a property in a very high fire hazard severity zone, and a requirement that ADUs not be located in any sensitive habitat area.
West said if the county failed to bring its ordinances into compliance the state housing agency might notify the California Office of the Attorney General that the county is in violation of state law.
The commission incorporated these and other more minor changes ordered by the state into its recommendation to county supervisors.
The commission has come a long way from its earlier more defiant posture. It initially recommended that supervisors prohibit all ADUs in wildland urban interface zones and very high fire hazard severity zones unless the property had direct vehicle access to paved roads.
County supervisors decided that language was too restrictive. They eliminated the requirement entirely for ADUs that are 800 square feet or smaller and limited it to properties in high fire hazard severity zones for all other ADUs. Nevertheless, as West indicated in his letter, that has not satisfied the state.
At the time the supervisors eased the restriction, Sharon Rushton, who leads Sustainable TamAlmonte, wrote in an email, “Dire consequences could result during an emergency when residents are unable to evacuate and fire crews or paramedics are unable to reach their destinations. All there needs to be is one blockage, and an entire section of a community could perish.”
State law, however, does restrict the use of ADUs that are 800 square feet or less as short-term rentals, and it allows local jurisdictions to enact their own tighter short-term rental restrictions on all types of ADUs and JADUs.
The Planning Commission is recommending that the supervisors do just that.
“My approach through all of this has been to be as restrictive as you can to begin with,” said Commissioner Don Dickenson. “You can always back down later if it doesn’t turn out to be a problem.”
Commission Chairwoman Margot Biehle asked Tejirian, “What if any impact do you think any of this is going to have on housing in the county?”
Tejirian said, “I’ve become more skeptical as the years have gone by. Most of the people who are building ADUs are building them because they want some extra space. It became much more popular during COVID to have a home office. It’s pretty unusual that they’re actually being used for rental housing.”
