HomeMy WebLinkAbout08. Conduct appeal hearing re Capacity Fee and Sewer Service Charge for ADU at 115 Poshard Street, Pleasant Hill Page 1 of 7
Item 8.
CENTRAL SAN BOARD OF DIRECTORS
POSITION PAPER
MEETINGDATE: JULY1, 2021
SUBJECT: CONDUCTA HEARING TO CONSIDER APPEAL OFASTAFF DECISION
THAT CAPACITY FEES AND AN ANNUAL SEWER SERVICE CHARGE ARE
OWED FORA PROPOSED PROJECTAT 115 POSHARD STREET IN
PLEASANT HILL
SUBMITTED BY: INITIATING DEPARTMENT:
BRYAN MCGLOIN, MANAGEMENT ANALYST ENGINEERING AND TECHNICAL SERVICES-
THOMAS BRIGHTBILL, SENIOR ENGINEER PDS-RATES AND FEES
REVIEWED BY: DANEA GEMMELL, PLANNING AND DEVELOPMENT SERVICES DIVISION
MANAGER
JEAN-MARC PETIT, DIRECTOR OF ENGINEERING AND TECHNICAL
SERVICES
Roger S. Bailey Kenton L. Alm
General Manager District Counsel
ISSUE
Staff has determined that the proposed project meets the criteria for an Accessory Dwelling Unit (AD U)
and that the corresponding fees are owed. The applicant property owner has appealed staff's decision to
the Board of Directors as provided for in District Code chapter 1.16.
BACKGROUND
Project Overview
On March 18, 2021, Central San received an application for construction of a detached structure at 115
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Poshard Street in Pleasant Hill. The proposed structure is identified on the plans as a "Proposed
Cabana" with an area of 343 square feet. The structure includes a full bathroom and the proposed
structure's main room contains a 11-foot long counter with a sink.
District Code Applicable to ADUs and Accessory Structures Connected to Sewer
Central San District Code section 6.12.040 C addresses ADUs. It references California State
Government Code section 65852.2 for the definitions of an ADU and was added to District Code in
November 2017 in response to recently-enacted changes in state law.
Section 65852.20)(1) states:
`Accessory dwelling unit"means an attached or a detached residential dwelling unit that
provides complete independent living facilities for one or more persons and is located on a lot
with a proposed or existing primary residence. It shall include permanent provisions for living,
sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily
dwelling is or will be situated.An accessory dwelling unit also includes the following:
(A)An efficiency unit.
Subsection 0)further states that an efficiency unit:
has the same meaning as defined in Section 17958.1 of the Health and Safety Code,
which states that an efficiency unit:
have a minimum floor area of 150 square feet and which may also have partial kitchen or
bathroom facilities.
Central San's District Code also addresses "Additional Residential Units" in section 6.12.040 (D). The
Additional Residential Unit classification has been in District Code since at least 2005. Following the
enactment of the ADU legislation, the Additional Residential Unit classification has been used for
accessory structures and attached additions connected to the sewer, which does not meet the criteria for
an ADU.
The Additional Residential Unit language was revised in March 2021 to bring District Code into alignment
with current practices and the Capacity Fee schedule. Specific revisions included updating the definition
from:
an area designed for the purpose of separate habitation that(1) will be, or can be, physically
separated by a wall or door from other residential units on the parcel, and(2) contains both a
bathroom and kitchen, as well as a multipurpose or bedroom area, and an exterior entrance.
to
an area designed for the purpose of separate habitation that(1) will be, or can be, physically
separated by a wall or door from other residential units on the parcel, and(2) contains a full
bathroom consisting of a sink, a toilet, and a shower or a tub; an additional sink located outside
the bathroom area;a multipurpose or bedroom area; and an exterior entrance.
These changes to the Additional Residential Unit language were effective April 1, 2021.
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Staffs Determination that the Project Meets the Criteria for an ADU
When reviewing ADU projects, staff typically reviews a number of items including including specific
requirements in state law and District Code. Staff also looks at the general intent of state law and District
Code. As part of the evaluation process, staff looks at whether a future property owner could use the
proposed project in a different manner than that which is specified on the plans or application. Since
Central San typically only has the opportunity to review plans and collect fees when a building permit is
issued, staff attempts to evaluate potential changes in light of whether or not a building permit would be
required to accomplish the change in use.
The determination of a "kitchen" can be problematic. I n recent years, combination microwave and
convection ovens have evolved and increased in popularity. These appliances can be connected to a
standard 110 volt electric outlet. Prefabricated cabinets and countertops can be purchased and installed
by a homeowner with minimal skills. Therefore, staff typically relies on the "partial kitchen" language in
state law when evaluating ADU projects.
Applicants often raise the "permanent provisions ... for cooking" language in state IawforADUs. This
language does appear to conflict with the "partial kitchen" language. In addition, the same sentence
describes "permanent provisions ... for sleeping." It would seem incompatible that the "cooking" portion of
the sentence should be strictly interpreted while the "sleeping" portion of the sentence should be more
liberally interpreted.
The proposed project clearly meets the requirements for a bathroom.
Staff believes that the "partial kitchen" criteria is valid and the project meets that criteria as well. If a future
property owner interested in converting the cabana into a studio ADU, that conversion could be easily
accomplished by a homeowner without the need for a building permit.
Deed Restriction
The applicant has informed Central San that the City of Pleasant Hill has required a deed restriction be
recorded for the project. A copy of the proposed deed restriction was provided by the applicant. It states
that the proposed structure may not be "used or converted into a dwelling unit or accessory dwelling unit
without the permission of the City of Pleasant Hill."
The Appeal
Staff had several conversations with the applicant regarding the project and the criteria being used to
evaluate it. On May 20, 2021, staff provided the applicant with a Notice of Staff decision that the project
would be classified by Central San as an ADU and that Capacity Fees and annual Sewer Service Charges
were owed. On May 26, 2021, the applicant submitted a written appeal. The appeal raises the following
points:
1. Staff is relying on revised language from District Code section 6.12.040 D which was not effective
until April 1, 2021, well after the applicant submitted his application.
2. The project does not meet the "kitchen" criteria, nor the requirements under Government Code
section 65852.20) (6)(A) [sic].
3. The City of Pleasant Hill is not classifying the project as an ADU and is requiring the filing of a dead
restriction confirming that classification.
Staff's response to each item is as follows:
1. The proposed project was evaluated and classified as an ADU under District Code 6.12.040 C, not
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as an Additional Residential Unit under 6.12.040 D. This is confirmed by the "proportional" (per
square foot)ADU Capacity Fee of $986.44 in the fee quote rather than the Additional Residential
Unit rate of $5,762.14. Staff relied on the "partial kitchen" language of state law in making this
determination. This language has been referenced in District Code since November 2017. The
"sink outside the bathroom" was included in discussions but it was not the basis for the determination
that the project would be classified as an ADU.
2. The distinctions between "kitchen" and "partial kitchen" are discussed in the Staff Determination
section above. The appeal references "Government Code section 65852.20)(6)(A)". Based on the
quote attributed to that subsection, the reference appears to be to Government Code section
65852.220)(6)(A). Section 65852.22 addresses Junior ADUs. This project was never evaluated as
a Junior ADU and, in fact, could not be considered as a Junior ADU since 65852.22(x)(4) requires
that Junior AD Us be constructed "within the walls" of the residence (i.e. Junior AD Us cannot be
detached structures).
3. While the deed restriction does state that the project cannot be used as an ADU or dwelling unit,
there appear to be several issues. First, there does not appear to be mechanisms for the City of
Pleasant Hill to inspect or confirm compliance with the restrictions. Second, the language in the
deed restriction includes the clauses, "without the permission of the City of Pleasant Hill" which
would seem to indicate that the City of Pleasant Hill could be open to removing the restrictions at
some point in the future and that Central San could potentially not be informed about future changes
to the space. Staff is approaching the appellant about recording a separate deed restriction on behalf
of Central San to address the concerns. This could then be determined as an accessory structure
and not an ADU.
ALTERNATIVES/CONSIDERATIONS
The Board of Directors could:
• Grant the appeal and determine that the proposed structure does not meet the criteria for an
additional dwelling unit subject to recording a deed restriction, thereby exempting it from Capacity
Fees and annual sewer service charges; or
• Deny the appeal and require payment of capacity fees and other fees due prior to approving the
plans for the project; or
• Provide other direction to staff.
FINANCIAL IMPACTS
A finding that the proposed structure conforms to Central San's definition of an ADU would require the
applicant to pay$986.44 in capacity fees, a pro-rated amount of sewer service fees for the current year,
and an additional amount of sewer service fees in future years based on the published Schedule of Sewer
Service Charge Rates.
A finding that the proposed structure does not meet these definitions or that it is otherwise exempt from
payment of these fees would reduce revenues by the amounts indicated above.
COMMITTEE RECOMMENDATION
District Code Section 1.16.030 states that appeals of staff decisions are to be heard "at a regular meeting
of the Board of Directors." Therefore, this matter was not reviewed by a Board Committee.
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RECOMMENDED BOARD ACTION
Hear the appeal and provide direction to staff by selecting one of the alternatives summarized above.
Strategic Plan re-In
GOAL ONE: Customer and Community
Strategy 1—Deliver high-quality customer service
GOAL THREE: Fiscal Responsibility
Strategy 1—Maintain financial stability and sustainability
ATTACHMENTS:
1. Applicant's appeal
2. Deed Restriction (City of Pleasant Hill)
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ATTACHMENT 1
.ANhICENTRAL SAN Appeal of Staff Decision
5019 IMHOFF PLACE,MARTINEZ,CA 94553-4392
If you have additional information and want your appeal to receive further consideration by Central San
Management, provide a detailed written statement of the disputed issues, along with supporting
documentation to dgemmell(akentralsan.orcl or mailed to Danea Gemmell, PDS Division Manager, at
5019 Imhoff PI, Martinez, CA 94553, within 60 days from the Notice of Staff Decision. It should include
the information below; a statement that you want to appeal the decision; a statement of facts supporting
your position on the issues you are appealing; if possible, a statement outlining the Code, Ordinance,
Standard Specification, law or other authority on which you rely; a copy of your original request, if
available; and a copy of the Notice of Staffs Decision.
Property Information
Property Address 1115 Poshard Street APN 149-072-011
City I Pleasant Hill State I CA I Zip 194523
Requestor Information
V] Property Owned❑ contractorl❑ Engineer/Architect ❑ Other:
Name Sean Mullen I Email I seanthemullen@gmail.com
Company I Phone 925-285-7208
Address(if different) 115 Poshard Street
City Pleasant Hill I State ICA I Zip 194523
Statement of Facts
I, the undersigned, state:
Members of the Board of Directors:
I respectfully disagree with the Staffs recent Decision regarding my project at 115 Poshard Street in Pleasant
Hill and appeal the Staff's Decision.
My project includes a new 343 square-foot structure which is detached from the existing single-family residence
on the parcel. The structure is a pool cabana which contains a full bathroom and a second room with a sink. The
Staff determined that my structure meets the definitions in Central San's District Code of both an Accessory
Dwelling Unit (ADU)and an Additional Residential Unit, and thus subject to a Capacity Fee and a Sewer
Service Charge.
The Staffs Decision is not in compliance with District Code for the following reasons:
1. My application was submitted in mid-March of 2021. The Staff is applying the revised District Code section
6.12.040 D which was not effective until 4/1/2021. By District Code section 1.04.030, any action or proceeding
started before the code takes effect is not impacted by the revised code.
2. District Code section 6.12.040 D effective at the time of my application addresses "separate additional
residential unit"which are defined as being "designed for the purpose of separate habitation"that"contains both
a bathroom and kitchen." District Code section 6.12.040 D also references the Section 65852.20)of California
State Government Code for the definition of an ADU. Section 65852.20)(6)(A)requires the ADU to"include an
efficiency kitchen"which includes"a cooking facility with appliances." Since the pool cabana structure we
intend to build does not have ANY cooking appliances included, the structure is not a kitchen by the 65852.20)
definition, nor by any laypersons definition of a kitchen. Furthermore, in order to obtain a Building Permit, the
Under penalties of perjury, I declare that the facts presented in my written appeal, which are set out in the
foregoing, including any accompanying statements or attachments, are, to the best of my knowledge and
belief, true, correct, and complete. Digitally signed by Sean Mullen
Sean Mull e n Date:2021.05.26 21:16:26
Sean Mullen -07'00' 5/26/21
Name Signature Date
N:\EnvrSRV\Permits\Permits\Forms\Applications\Appeal of Staff Decision.docx effective 2020-09-25
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ATTACHMENT 2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Zoning Administrator
City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523 SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED RESTRICTION
Property Address: 115 POSHARD ST., PLEASANT HILL, CA 94523
Assessor's Parcel Number: 149-072-011-5
Property Owner: SEAN & ANDREA MULLEN
We, SEAN AND ANDREA MULLEN, as legal property owners of the above-described
property, do hereby agree to and covenant to record the following Deed Restriction:
A 342 square foot accessory structure has been constructed on this property as
part of PLN 21-0138. This accessory structure shall be maintained as proposed
with the following provisions:
• This structure shall not be used or converted into a dwelling unit or
accessory dwelling unit without permission of the City of Pleasant Hill.
• Cooking facilities shall not be a part of this structure at any time without
permission of the City of Pleasant Hill.
This Deed Restriction must be recorded prior to the issuance of a Building Permit
and may not be removed without permission of the City of Pleasant Hill.
This deed restriction is required to ensure that the accessory structure is not used as an
accessory dwelling unit without meeting specific development requirements (Section
18.20.095) that do not apply to accessory structures. The requirements include,but are
not limited to,parking, access and residency requirements. This deed restriction is also
required to provide notification to all future property owners that the identified
improvement cannot be used as an accessory dwelling unit.
Dated: PROPERTY OWNER*
SEAN MULLEN
ANDREA MULLEN
*Attach notary acknowledgement
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