Can I downzone in California

by kathy
(santa cruz, ca, usa)

Visitor Question: Can our City Council grant us a downzone in California from multi family residential to single family, in order to become eligible for SB9?

I read in the page on down-zoning on your site that down-zoning from multifamily to single family is restricted in California and Arizona. Could you possibly clarify?

My husband and I bought a vacant lot in 1996 in California.

The lot is about 8600 square feet of NET and about 13,600 square feet of GROSS land.

At that time of purchase, this property was zoned Residential Low Rise -multi family low density. One of the principal permitted uses was a Single Family Dwelling.

In fact, when we bought the lot, unless we wanted to build a duplex, the property was restricted to building a single home (with an Accessory Dwelling Unit attached, if we wanted).

We had never wanted to be landlords, so the option of building rentals wasn't right for us.

In 2009, we were advised by a real estate attorney that we could "condo-map" and build 2 units, selling the other condo outright.

This plan involved the complexity of condominiums and was going to incur an about $60,000-100,000 inclusionary housing tax to be paid into the Affordable Housing Trust Fund.

Also this plan was strongly opposed by our neighbor, one of the developers of our 4-parcel subdivision, who recorded restrictive CC&R's at the city in 1988.

Recently, we hoped to subdivide by using the newly enacted SB9 law in California. This would help us build our final home on one lot, with funds from sale of the other lot. We have been told that SB9 does not apply to our RL zoning. SB9 is only permitted for single family zoning.

We asked the city if we could simply subdivide the lot in half.

We were told that the NET area of our lot is of insufficient area for subdivision in our zoning district. We only have 8600, rather than the necessary 10,000 square feet.

The new general plan 2030 density calculation is based on the GROSS area (which includes the >30% slope area of our lot).

So today the city is telling us that we are required to build 3-6 units.

If we offer these units for sale (rather than rent), this plan going to incur at least a $144,000 inclusionary housing tax to be paid into the Affordable Housing Trust Fund.

The city has rezoned our lot, without any notification. They are budgeting 6 units for the city's housing pool.

Our zoning is now described as Low-Medium-Density Residential (LM), 10.1 to 20 du/ac. This is described as "Provides for moderately higher densities in areas with a mix of single-family and multifamily residential uses. Accommodates a variety of residential building types that can fit within a single-family neighborhood, including low-rise apartments, condominiums, and townhomes. Also includes areas with historic boardinghouses that have been converted to multifamily residential use. Single-family dwellings, subject to the density requirements in the General Plan."

So even if we could scratch enough money together to build a very small home, it will not be permitted!

Editors Reply: Kathy, this is the kind of specific question that we try not to answer, but since measures designed to provide more housing and thereby decrease the cost of housing are likely to keep coming along in California and other places where housing is tight, we will make a few general comments.

As I'm sure you realize, addressing the specifics of your situation will likely require an attorney.

For our readers who are completely lost reading this question, SB9 in California is an attempt to allow more housing units to be built in single-family zoning in the state. (To understand more, see a fact sheet from a state agency.)

The crux of Kathy's dilemma is that this law that went into effect in 2022 requires staff approval of proposals for building additional housing units on a lot, but only in a single-family district, as she says. Her problem is that the city has now rezoned her property as multi-family. Even though single-family homes are permitted in her district, SB9 provisions do not apply.

Thus Kathy would like to go back to single-family zoning. However, as this good simple explanation of SB9 says, a city can't downzone unless it compensates for the loss in potential density somewhere else.

As we planners read it, you do have some potential for downzoning if you can identify somewhere else that can upzoned. However, as a practical matter, this may be well beyond your capabilities unless you are closely linked to developers, planners, or real estate attorneys who might point the city in the right direction to find such a location. In addition to this substantial problem, you probably would not be very popular in the neighborhood that you think could be upzoned.

Planning commissioners and state legislators should really consider the unintended consequences of provisions they are enacting to help ease a housing shortage. It goes without saying, but we will say it anyway, that cities should not be rezoning properties without proper notification to the property owner.

There is has no easy answer to this problem. You might consult an attorney about possible due process violations on the rezoning or other avenues for litigation. Alternatively the attorney could advise you on the likelihood that you would be granted a variance to allow the lot split.

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