October 20, 2005


S.J. City Council approves secondary-unit pilot program

Councilwoman Nancy Pyle supports project’s tight restrictions

By Sheila Sanchez
Staff Writer

By an 8-2 vote, the San Jose City Council approved on Tuesday a pilot program that will allow the construction of 100 secondary units throughout the city for one year.

With Councilmembers Cindy Chavez and Ken Yeager voting against, the council gave the green light for the controversial units to be built beginning January of 2006 as long as they’re 600 square feet, have a bedroom, a kitchen and one on-site parking space.

They must also be built with the same materials used by the primary dwelling unit and match its roofing, siding, windows and doors.

According to the program’s parameters, the minimum lot sizes for attached and detached secondary units are 6,000 and 8,000 square feet, respectively. Those applying for the permits must reside in the primary dwelling unit.

The units will also be subject to setback requirements of primary dwelling units. Detached secondary units will have to be located behind the primary unit and must be, at least, six feet away from the main residence. They will also be one story and be no more than 16 feet high. Their front doors can’t be visible from the street.

The council’s vote came after several affordable housing and senior advocates spoke about the merits of the program, saying the units would help seniors, caregivers and low-income residents.

“We recognize that this is not a perfect plan, but we view it as a good start for affordable housing for seniors and other members of the community,” said Connie Langford, a member of the city’s Senior Commission, which unanimously voted last Thursday to support the program.

Phyllis Ward, president of the Affordable Housing Network of Santa Clara County, said the program is desperately needed as the city has a tremendous need for affordable housing. “This won’t solve our problem but it certainly will help,” Ward said.

Ben Cardosa, with the Community Homeless Alliance Ministry, deplored how one of the richest counties in the state can’t afford to provide adequate housing for seniors who were taxpayers. “Out of human dignity … we need to provide these people with some kind of housing,” he said.

The City Council’s Building Strong Neighborhoods Committee and Driving a Strong Economy Committee recommended approval of the program last month. The San Jose Planning Commission also approved the program last week.

Low-income housing advocates have been working hard for more than a decade to get city officials to lift a 1984 ban on secondary units. State law requires cities to either have a ministerial process to approve the controversial units, also called granny units or mother-in-law quarters or to make findings of adverse impact precluding them. Several municipalities in the county have already approved secondary units to alleviate the area’s affordable housing shortage.

Stephen Haase, director of San Jose’s Department of Planning, Building and Code Enforcement, said the program would be evaluated after six months and at the end of 2007.

Haase said 100,000 of the 200,000 single-family parcels in the city are eligible for a secondary unit based on the 6,000-square-footage requirement and that there are 30,000 single-family 8,000-square-feet parcels in the city eligible for detached secondary units.

Haase said, however, the most restrictive criteria for the units will be the demand for one on-site parking space.

“Many, many lots simply cannot provide that parking space so they’ll never be able to comply with that provision of the secondary-unit program… In many cases one or the other constraints would eliminate a parcel from consideration.”

Councilwoman Nancy Pyle, who voted against researching parameters for the program last May, voted in favor of the program this week even though she worried the project could turn out to not be a pilot. “I’m concerned about the idea of the nose of the camel under the tent,” Pyle said.

Before casting her vote against the program, Chavez expressed concern that its requirement that the primary dwelling be owner-occupied would not survive a legal challenge.

Haase said the rationale behind the strict requirement was that it would make the owner applying for the permit take greater ownership over the leasing or renting of the secondary unit. Some cities have proposed this requirement as part of the development regulations.

San Jose City Attorney Rick Doyle said even though state law permits the owner-occupancy requirement, case law on other type of owner-occupancy restrictions raises the risk that the requirement could be struck down.

Chavez also wondered how the city could begin a pilot program allowing the units and then reinstate the ban on the dwellings. “I’m assuming that there will be legal challenges to that,” she said. “We could be legally challenged if someone says we’ve let the genie out of the bottle. Potentially we’re not voting on a pilot project, we’re voting to make a long-term change.”

Chavez was also curious as to how the program would function as single-family properties have rights for so-called “reasonable accommodation.”

Haase explained if a secondary unit were added to such properties the city’s zoning ordinance would clearly state that the primary residence is the only one where the “reasonable accommodation” clause could apply.

“This is pushing the envelope a little bit,” Chavez said. “I’m nervous that we already have so many people packed onto potentially large parcels in terms of density that this doesn’t feel very safe to me. I’m not suggesting that citywide it doesn’t make sense, it just may not make sense in areas that are already so crowded.”

Councilman Forrest Williams said it’s taken four years to get the program drafted. “A lot of questions will be answered as we get into this pilot program. We’ll be able to see what comes out and then we can make a decision as to what we want to do. We should proceed on with the guidelines that we’ve got and the specifications that were delineated regarding the size of the unit,” he said. “It’s something the community wants us to take a look at… and there’s a need there because of the high cost of supporting one’s parents in a care facility are so overwhelming. There’s an opportunity for us to look at our constituency and provide some options for them.

“I think it’s human that we proceed and we can get the results and come back and see exactly a lot of the things we were wondering about. If we can proceed then we can determine,” Williams added. “We have no assurance that if we don’t do anything it could still be challenged. We have to show cause if we did allow.”

Yeager, who also voted against the program, had questions as to whether the parking requirement could be satisfied with long driveways that accommodate a third car. He doubted the requirement could be enforced, as he didn’t think it was realistic to think that the driver of the third vehicle would always park in the driveway instead of on the street. Haase said “tandem parking spaces” would meet the on-site parking space requirement. He added that there are thousands of illegal secondary units in the city.

Yeager was also worried that illegal units that could conform with the new program would get approved outside the 100 units allowed under the program as well as units that are already illegally constructed whose owners could fraudulently try to take advantage of the program.

“Nothing that’s illegal today is being grandfathered in,” Haase assured. “It has to comply with all of our regulations to be made legal.”